Plaintiff v Defendants & Third Parties

1 The trial in this proceeding is scheduled to commence on 29 May 2017. The estimated duration of the trial is six months. The proceeding was commenced in December 2014 as a group proceeding under pt 4A of the Supreme Court Act 1986 ('the Act'). At no point has any party made application under s 33N of the Act for an order that the proceeding no longer continue as a group proceeding.

2 All interlocutory steps, save for one, have been concluded. The one exception is the second defendant's application by summons dated 29 April 2016 for the Court to determine the List of Issues to be determined at trial.

3 On 2 and 3 May 2017, the Court heard a contested application relating to the List of Issues. The principal matter in dispute is whether only those matters which are directly relevant to the plaintiff's claims in negligence and false imprisonment should be the subject of evidence and findings by the Court. I have determined that the Court will not be limited to receiving evidence and making findings confined to the plaintiff's claims in negligence and false imprisonment.

4 In AS v Minister for Immigration and Border Protection,[1] Kaye J (as his Honour then was) stated:

A group proceeding is intended to be a facilitative process, so as to provide a cost effective method by which a large number of persons, who might otherwise be unable to do so, might have access to justice. It is a convenient procedure which can promote efficiency in the administration of justice, avoid inconsistent judgments, and obviate the re-litigation of common questions of fact in large numbers of separate proceedings.[2]

5 I accept the defendants' submission that in the absence of evidence of injuries allegedly sustained by other group members, the Court can only make a finding of breach of duty in respect of the plaintiff. However, the outlines of evidence filed on behalf of the plaintiff foreshadow a substantial body of evidence which, if accepted, is likely to be relevant to both the plaintiff's personal claims and the claims of individual group members. It is consistent with both the scheme of pt 4A of the Act and the overarching purpose prescribed by the Civil Procedure Act 2010 that the Court not be limited to hearing evidence and making findings in respect of the plaintiff's personal claims in negligence and false imprisonment.

6 Before addressing the competing contentions of the parties, it is necessary to set out in some detail the history relating to the second defendant's summons and the delay in the summons being heard. In the first instance, the parties, with the encouragement of the Court, proposed that they would seek to reach agreement on the form and content of the List of Issues. On 12 May 2016 the Court made orders including the following:

1. Within 7 days of the filing of the defences by the defendants, the plaintiff provide to the defendants and third party a draft amended list of issues to be determined at trial.
2. The parties confer and seek to agree upon the amended list of issues to be determined at trial within 14 days of the service by the plaintiff of his list of issues, failing which the plaintiff forthwith make an application for the matter to be determined by the Court.[3]

7 The finalisation of the List of Issues was delayed by an application by the plaintiff for leave to amend his statement of claim to plead a claim for damages for false imprisonment. On 26 April 2016 in Namah v Pato,[4] the PNG Supreme Court ruled that detention of asylum seekers at the Manus Island Regional Processing Centre ('MIRPC') was a breach of their right to personal liberty under the PNG Constitution. The plaintiff made application to amend his statement of claim to plead a cause of action in false imprisonment. This delayed the finalisation of the List of Issues, not only because of the addition of a new cause of action, but also because of the differing personal circumstances of the plaintiff compared to other group members on whose behalf of the false imprisonment claim was proposed to be made.

8 The plaintiff was detained at the MIRPC between September 2013 and July 2014. The plaintiff brings his claim in negligence on behalf of negligence group members, and his claim for false imprisonment on behalf of false imprisonment group members. The Negligence Group Members are defined in paragraph 5 of the statement of claim as follows:

The Plaintiff brings this proceeding on his own behalf and on behalf of all persons who at any time during the period 21 November 2012 until 19 December 2014 (the Negligence Claim Period):

(a) were detained by or on behalf of the Commonwealth pursuant to the Migration Act; and

(b) as detainees, were taken by officers of, or on behalf of, the Commonwealth from Australia to PNG; and

(c) were detained at the detention facility known to the parties as the "Manus Island Regional Processing Centre" (the Centre) on Los Negros Island in Manus Island Province in PNG; and

(d) suffered personal injury (including but not limited to psychological or psychiatric injury) as a result of the conduct of the Commonwealth, G4S and/or Transfield, described in this Statement of Claim;

(together and severally Negligence Group Members).[5]

The False Imprisonment Group Members are defined in paragraph 5A:

The Plaintiff also brings this proceeding on his own behalf and on behalf of all persons who at any time during the period 21 November 2012 until 12 May 2016 (the False Imprisonment Claim Period) were confined at the Centre by or on behalf of:

(a) the Commonwealth;

(b) Transfield; and/or

(c) G4S

(together and severally False Imprisonment Group Members).[6]

9 The false imprisonment claim period runs from 21 November 2012 until 12 May 2016. This period extends well beyond the negligence claim period. Further, it extends well beyond the ten months between September 2013 and July 2014 that Mr Kamasaee was detained at the MIRPC.

10 In his proposed amended statement of claim, the plaintiff alleged at [185U] that he was falsely imprisoned in poor conditions.[7] He alleged at [185V] that such detention continued in poor conditions throughout the period 24 March 2014 to 12 May 2016.[8]

11 The third defendant opposed the plaintiff's application for leave to amend. It submitted that it should not be subjected to the burden of responding to the poor conditions allegations in [185U] throughout the period 24 March 2014 to May 2016 because:

(i) The plaintiff had left the Centre in July 2014;

(ii) The allegations of poor conditions did not constitute an element of the cause of action in false imprisonment. Rather, the alleged poor conditions were only relevant to the plaintiff's personal claim for damages.[9]

12 Ultimately, the plaintiff did not press the allegations of poor conditions in [185U] other than in respect of his personal claim for damages. On 29 July 2016, the Court made orders including the following:

1. The questions raised by paragraphs 185U and 185V of the third further amended statement of claim will be determined at the trial only in respect of the plaintiff's personal claim.
2. By 4.00 pm on 26 September 2016 the plaintiff serve on each other party to the proceeding any amendments to the draft amended list of issues to be determined at the trial.
3. The parties confer and seek to agree upon the amended list of issues to be determined at trial within 14 days of the service by the plaintiff of his list of issues, failing which the second defendant shall inform the Court that agreement has not been reached and shall request that the second defendant's summons dated 29 April 2016 to have the list of issues to be determined at trial, determined by the Court, be forthwith listed for hearing.[10]

13 One of the principal areas of dispute in the current application is whether only those matters which are directly relevant to the determination of the plaintiff's claim in negligence and false imprisonment should be the subject of evidence and findings by the Court. Prima facie, [6] to [8] of the orders made on 29 July 2016 lend some support to the defendants' contention that evidence and findings in respect of the allegations underpinning the plaintiff's claim for negligence should be confined to the plaintiff's personal claim. It is therefore necessary to consider more closely the circumstances in which the Court made [6] to [8] of the orders set out above on 29 July 2016.

14 The plaintiff's application for leave to amend was heard on 22 July and 29 July 2016. On 22 July 2016, the Court raised with counsel for the third defendant, Ms Nichols, the fact that the third defendant had been able to plead to the plaintiff's negligence claims notwithstanding that those claims were in respect of a period concluding on 19 December 2014, five months after the plaintiff had left the MIRPC.[11] Ms Nichols submitted that the allegations of inadequate systems for the provision of food, water, accommodation and medical services underpinning the plaintiff's negligence claim were made for the purposes of establishing a breach of duty.[12] On the other hand, in respect of the poor conditions allegations pleaded in [185U], Ms Nichols submitted:

For false imprisonment, the presence or absence of conditions, or the state in which a person was imprisoned, is not part of the cause of action. It's simply relevant to the assessment of damages, and damages must be an individual issue. That's inarguable, so conceptually, it's not necessary for the plaintiff to advance this aspect to the false imprisonment claim to make out false imprisonment.[13]

15 As to the existence of common questions between the plaintiff and other false imprisonment group members, the following exchange took place between myself and Ms Nichols:

HIS HONOUR: You seem to be running a more fundamental point here than simply a pleading point. Let's not dance in the shadows.

MS NICHOLS: Yes.

HIS HONOUR: If this is your point can we be very clear about this. Is it your point that there in fact is no common question of fact? There's no relevant common question of law and/or fact between Mr Kamasaee and the other group members on the false imprisonment claim because he left the centre in July 2014. Is that your proposition?

MS NICHOLS: I'm not making that proposition about the false imprisonment claim other than in relation to the conditions. So I am not making the submission that the false imprisonment claim can't be run, I'm only concerned with the conditions and beyond 2014. Number one, there is no common question of law on the issue of poor conditions. Because they only go to damages and damages is an individual issue.[14]

16 The third defendant sought and obtained an order confining the allegations in [185U] and [185V] to the plaintiff's personal claim for damages for false imprisonment on the basis that the allegations were only relevant to the assessment of damages. Ms Nichols highlighted the difference between poor conditions allegations at [185U] and the systemic allegations of negligence set out in [29] below. The fundamental point of distinction is that the systemic allegations are made for the purpose of establishing a breach of duty and are not confined to the plaintiff's personal claim for damages.

17 Having regard to the matters set out above, [6] to [8] of the orders made on 29 July 2016 do not support the defendants' contention that only those matters directly relevant to the determination of the plaintiff's claim in negligence should be the subject of evidence and findings by the Court.

18 On 12 September 2016, the Court made orders, including the following:

1. By 4:00pm on 12 October 2016 the plaintiff serve on each other party to the proceeding any amendments to the draft amended list of the issues to be determined at the trial.[15]

19 Thereafter, the parties continued to have discussions as to the List of Issues but did not reach any resolution. During a hearing on 22 February 2017, I asked counsel whether there were any matters which might be an impediment to the trial proceeding on 1 May 2017. There was reference made to the second defendant's summons in respect to the List of Issues.[16] I stated a preference to finalise the matter on 3 March 2017 absent any agreement being reached between the parties.[17] Counsel for the second defendants and third defendants, Mr Harris QC and Mr Delany QC, resisted that course. They submitted that the resolution of the List of Issues should await the conclusion of the expert conclaves in relation to food and water, and security, which were scheduled to take place later in March. Mr Harris submitted:

So it makes good sense, we would submit, that the issues be agreed and, if not agreed, determined by Your Honour after the conclaves have been completed, so Your Honour has a clear understanding of the issues that are agreed and the issues that are in dispute in relation to each of the disciplines, because they will inform Your Honour as to the scope of evidence which is relevant in the trial.[18]

20 As will become apparent from the reasons which follow, the submissions of the parties on 22 February 2017 gave no inkling of the extent of the dispute between the plaintiff and the defendants regarding the List of Issues.

21 The second defendant's summons was ultimately heard on 2 and 3 May 2017. The submissions of the defendants, particularly the second defendant, would, if accepted, dramatically reduce the issues which would otherwise fall for determination in the trial. This point is clearly illustrated by the following paragraph of the second defendant's written submissions:

Moreover, as is made clear by the reasoning of the High Court in the recent decision of Timbercorp referred to above, any such application would also require that the sample group member be appointed as a sub-group representative under s. 33Q of the Act. While Gillard J in Johnson Tiles accepted that only a person who actually had a claim against a defendant in the Part 4A proceeding could be such a sample group member, insofar as his Honour found that the sample group member did not also need to be appointed as a sub-group representative, his decision was clearly wrong and so too are the cases that have followed his judgment.[19]

22 The second defendant's submission that the decision of Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [No 3][20] was 'clearly wrong and so too are the cases that have followed his judgment' was footnoted as follows:

This would include the authorities referred to by the Court on 29 July 2016 at T.1.1 to T.2.23 - being prior to the High Court's decision in Timbercorp, including the observation of the Court of Appeal in Timbercorp to the extent that it was not obiter dictum and inconsistent with the above quoted passages of the High Court decision.[21]

23 In the footnote to the second defendant's submissions referred to above, reference was made to observations which I made during the course of the proceedings on 29 July 2016 in respect of the plaintiff's application to amend his statement of claim to plead a cause of action in false imprisonment. The observations which I made on that day included the following:

In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2001] VSC 372 Justice Gillard at paragraphs 48-51 said as follows:

In my opinion it follows that it is open to a plaintiff to call a witness who may give evidence of factual matters which do not assist the plaintiff's claim, but do arise for consideration and determination a question of fact or law which is common to some or all members of a group. In my view the court should endeavour to decide as many questions of fact and law in a group proceeding to facilitate the outcome of the litigation.

If some questions are only relevant to some group members and not all, or to one group and not the other, so be it. As long as it may have some substantial practical effect in the determination of the litigation, one of the objects of the group litigation is achieved.

That passage was cited by approval by Her Honour Justice Hollingworth in Hall v Australian Finance Direct [No 3] [2007] VSC 266 at paragraph 20. Both those decisions and that particular passage were recently cited by the Court of Appeal in Timbercorp Finance Pty Ltd (In Liquidation) v Collins [2016] VSCA 128 at [193].

So the legal position is unambiguous. There is no jurisdictional impediment for the court to hear and determine claims on behalf of group members other than Mr Kamasaee including claims for damages of group members other than Mr Kamasaee in respect of the period between July 2014 and May 2016, notwithstanding that that evidence would not be relevant to the assessment of damages for Mr Kamasaee.

So that's the legal position which, as I've indicated, unless someone can mount a very, very persuasive argument appears to be unambiguous.[22]

24 The second defendant's written submissions directly challenge the Court's observations as to the 'unambiguous' legal position. Further, the second defendant's submissions contend that [193] of the Court of Appeal's judgment in Timbercorp Finance Pty Ltd (in liq) v Collins[23] is no longer good law.

25 It is correct that the observations which I made on 29 July 2016 were prior to the High Court delivering judgment on 9 November 2016 in Timbercorp Finance Pty Ltd (in liq) v Collins.[24] It is that judgment that the second defendant relies upon in support of its contention that the judgment in Johnson Tiles, and the Court of Appeal's endorsement thereof, is plainly wrong. However, having regard to the significant ramifications of the second defendant's submissions, it is necessary to record that it was not appropriate for consideration of this argument to have been deferred to a point in time so close to the trial date.

The nature of the proceeding and the structure of the statement of claim

26 I have set out earlier in this judgment the definition of Negligence Group Member and False Imprisonment Group Member, on whose behalf the plaintiff brings the current proceedings. The negligence claim covers the period 21 November 2012 until 19 December 2014. The false imprisonment claim period is from 21 November 2012 until 12 May 2016. The plaintiff claims against the Commonwealth for the totality of the negligence claim period and false imprisonment claim period. The claim against the second defendant, both in negligence and false imprisonment, covers the period 21 November 2012 until 23 March 2014. The claim against the third defendant in negligence is from 24 March 2014 until 19 December 2014, the claim in false imprisonment covers the period 24 March 2014 until 12 May 2016.

27 The plaintiff alleges that each of the defendants was subject to a 'detention duty of care', being a duty to take reasonable care to avoid foreseeable harm to the detainees.[25] The plaintiff alleges, and the Commonwealth denies, that insofar as the detention duty of care was owed by the Commonwealth, it was non-delegable.[26] The plaintiff alleges that the requisite standard of care was that required of the Commonwealth in respect of persons held in detention in Australia: the 'Australian Precautions'.[27]

28 The plaintiff alleges that the defendants knew or ought reasonably to have known of the risk of harm in the nature of physical ill-health and/or mental harm to detainees by reason of:

• Various 'Detainee Characteristics';[28]
• The risks associated with prolonged detention;[29]
• Risks associated with delayed remediation works.[30]

29 The plaintiff alleges that each of the defendants failed to have adequate systems in place to ensure the provision of:

• Food and water;
• Shelter and accommodation;
• Medical treatment and health care;
• Personal supplies, recreational facilities and recreational opportunities;
• Internal and external security ('the systemic allegations').[31]

30 The plaintiff alleges throughout the negligence claim period the defendants breached the duty to take reasonable care to avoid foreseeable harm to the detainees. He claims damages, including exemplary and aggravated damages against the defendants.

31 The plaintiff claims damages for false imprisonment on behalf of False Imprisonment Group Members. He alleges that:

• Detainees' freedom of bodily movement was restrained during the false imprisonment claim period;[32]
• The Commonwealth was or ought to have been aware at the time the Detainees were transferred to the Centre that the Detainees would be subject to confinement;[33]
• From 21 November 2012 to 23 March 2014, the security staff that locked the gates to the perimeter fence and/or internal compound fences and/or manned the gates were employees and/or subcontractors of the second defendant;[34]
• From 24 March 2014 to 12 May 2016, the security staff that locked the gates to the perimeter fence and/or internal compound fences and/or manned the gages were employees and/or subcontractors of the third defendant;[35]
• The false imprisonment was in 'poor conditions', including conditions which were alleged to constitute the systemic allegations.[36] The poor conditions were present throughout the entirety of the false imprisonment claim period.[37]

Part 4A Supreme Court Act 1986

32 The submissions of the parties require consideration of pt 4A of the Act. It is therefore appropriate to set out the relevant provisions of pt 4A:

33C Commencement of proceeding

(1) Subject to this Part, if -

(a) seven or more persons have claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common question of law or fact -

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2) A group proceeding may be commenced -

(a) whether or not the relief sought -

(i) is, or includes, equitable relief; or

(ii) consists of, or includes, damages; or

(iii) includes claims for damages that would require individual assessment; or

(iv) is the same for each person represented; and

(b) whether or not the proceeding -

(i) is concerned with separate contracts or transactions between the defendant and individual group members; or

(ii) involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.

...

33H Originating process

(1) A group proceeding must be commenced by writ.

(2) The indorsement on the writ must, in addition to any other matters required by the Rules to be included -

(a) describe or otherwise identify the group members to whom the proceeding relates; and

(b) specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c) specify the questions of law or fact common to the claims of the group members.

(3) In describing or otherwise identifying group members for the purposes of subsection (2), it is not necessary to name, or specify the number of, the group members.

...

33N Proceeding not to continue under this Part

(1) The Court may, on application by the defendant, order that a proceeding no longer continue under this Part if it is satisfied that it is in the interests of justice to do so because -

(a) the costs that would be incurred if the proceeding were to continue as a group proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b) all the relief sought can be obtained by means of a proceeding other than a group proceeding; or

(c) the group proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d) it is otherwise inappropriate that the claims be pursued by means of a group proceeding.

(2) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the defendant except with the leave of the Court.

(3) Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court thinks fit.

...

33Q Where not all questions common

(1) If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions.

(2) In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person who consents to the appointment to be the sub-group representative party on behalf of the sub-group members.

(3) If the Court appoints a person other than the plaintiff to be a sub-group representative party, that person, and not the plaintiff, is liable for costs associated with the determination of the question or questions common to the sub-group members.

33R Individual questions

(1) In giving directions under section 33Q, the Court may permit an individual group member to take part in the proceeding for the purpose of determining a question that relates only to the claim of that member.

(2) In such a case, the individual group member, and not the plaintiff, is liable for costs associated with the determination of the question.

...

33ZB Effect of judgment

A judgment given in a group proceeding -

(a) must describe or otherwise identify the group members who will be affected by it; and

(b) subject to section 33KA, binds all persons who are such group members at the time the judgment is given.

...

33ZF General power of court to make orders

In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

33 The primary issue in dispute between the parties is whether the trial to commence 29 May 2017 is in respect of the plaintiff's claim only (subject to consideration of what findings may have further application in respect of group members pursuant to s 33ZB), or all group members (save in respect of causation, and if necessary, quantum of damages).

34 As noted above, the second defendant submits that the High Court judgment in Timbercorp Finance Pty Ltd (in liq) v Collins[38] is authority for the proposition that, absent the appointment of a sub-group representative under s 33Q, the Court has no power to hear evidence and make findings other than in respect of the plaintiff's personal claim for damages for negligence and false imprisonment. The first and third defendants do not join in this submission. They accept that in a group proceeding brought under pt 4A of the Act, the Court is not confined to the determination of common questions, including in circumstances where a sub-group member has not been appointed under s 33Q.[39]

35 Further, the first and third defendants accept that successive courts have emphasised that group proceeding litigation should be approached in a practical manner to ensure that as many questions of fact and law that have a degree of commonality are decided.[40] However, both the first and third defendants submit that the circumstances of the present case require issues relating to the existence and breach of any duty of care to be confined to the plaintiff's personal claim against the defendants.

36 In the first instance, I shall address the second defendant's submission that [193] of the Court of Appeal's judgment in Timbercorp Finance Pty Ltd (in liq) v Collins[41] is no longer good law. At [193] the Court of Appeal stated:

The primary judge also held that, in a group proceeding, the jurisdiction of the Court not only depends on the existence of common issues of fact or law but is confined to the determination of them. Accordingly, it was not open to a plaintiff to advance claims available to particular group members but not available to the plaintiff himself. In our opinion, that is also mistaken. It confuses the condition precedent to the exercise of jurisdiction in a group proceeding with the authority to resolve it. There is nothing in pt 4A that so confines the jurisdiction of the Court, and it would unnecessarily restrict the Part to import any such limitation. Further, it is plain that s 33Q and the provisions that follow and supplement it contemplate the possibility of the involvement of group members in the group proceeding.[42]

37 The Court of Appeal cited with approval, in respect of the penultimate sentence in the paragraph set out above, the judgment of Gillard J in Johnson Tiles[43] and the judgment of Hollingworth J in Hall v Australian Finance Direct Ltd [No 3].[44]

38 As a judge of the Trial Division I am bound to follow [193] of the Court of Appeal judgment unless I am of the opinion that it is no longer good law. Neither the first nor third defendants advanced submissions supporting the second defendant's contention that [193] of the Court of Appeal judgment in Timbercorp Finance Pty Ltd (in liq) v Collins is no longer good law. There is no express statement in the judgment of the plurality or the judgment of Gordon J in Timbercorp Finance Pty Ltd (in liq) v Collins[45] to the effect that [193] of the Court of Appeal judgment is wrongly decided. Mr Harris conceded this to be so.[46] However, he submitted that a conclusion that [193] was wrongly decided is a necessary consequence of the High Court's reasoning.[47]

39 The High Court judgment in Timbercorp Finance Pty Ltd (in liq) v Collins[48] addressed the question of whether defendants in proceedings seeking recovery of outstanding principal and interest on monies loaned to them were estopped from relying on certain defences in accordance with the principle in Port of Melbourne Authority v Anshun Pty Ltd.[49] The High Court held that the defendants were not estopped. This was the same conclusion which had been reached by the Court of Appeal.

40 The High Court plurality concluded that the lead plaintiff in the group proceeding was not a privy in interest of the group members with respect to the group members' individual claims.[50] The Court also concluded that the representative capacity of a lead plaintiff in a group proceeding is limited to claims the subject of the proceeding which give rise to common questions. The lead plaintiff does not represent group members with respect to their individual claims.[51] Nothing in the High Court's reasoning, either expressly or by necessary implication, supports the conclusion that, absent an order under s 33Q appointing a group member as a sub-group representative, a plaintiff in a group proceeding cannot call a witness to give evidence of factual matters which do not support the plaintiff's personal claim but which do raise for consideration and determination a question of fact or law which is common to some or all members of a group.

41 In reference to ss 33C(1) and 33H of the Act, the plurality stated:

These provisions identify the subject matter of a group proceeding as a claim which gives rise to common questions of law or fact. The plaintiff represents the group members with respect to their interests in that regard and the group members claim through the plaintiff to the extent of that interest. Their relationship is therefore that of privies in interest with respect to that claim.

However, other provisions of Pt 4A also make plain that group members may have other, individual, claims which do not form part of the subject matter of the group proceeding. Group members' claims were also the subject of discussion by the ALRC in its report. The ALRC, whilst recognising that the grouping of many claims into one proceeding involving at least one common question of law or fact might have benefits, also recognised that there may be issues which must be decided separately in relation to each group member. And in Wong v Silkfield Pty Ltd, this Court held that it was not necessary for a representative proceeding to be likely to resolve wholly, or even to any significant degree, the claims of all group members.[52]

42 In Wong v Silkfield Pty Ltd,[53] the applicants had sought relief, including a declaration that the respondent had engaged in misleading and deceptive conduct in respect of the proposed sale of lots in a residential building known as the 'Phoenician North Tower' situated at Broadbeach in Queensland, and an award of damages pursuant to s 82 of the Trade Practices Act. The applicants brought the proceedings as a 'representative party' and the group members to whom the proceeding related were persons who entered into contracts to purchase lots in the building from Silkfield Pty Ltd. At the time of the proceedings in the High Court there were 26 individuals who had been identified as comprising the group.

43 At first instance, Spender J refused an application for a declaration that it was 'not open' to the appellants 'to commence these proceedings as a representative proceedings under [Pt] IVA'.[54] On appeal, a Full Court of the Federal Court declared that:

The proceedings as presently framed can only be continued as proceedings brought by [the appellants] on their own behalf.[55]

44 The majority of the Full Court of the Federal Court was comprised of O'Loughlin and Drummond JJ. Their Honours stated:

...But the difficulty in achieving any benefit intended by the use of the representative procedure is magnified where the common issue said to justify the use of the procedure is found in such differing representations: the likelihood is that the representative proceeding will, in such a case, in truth involve the detailed investigation of individual circumstances, a wholly unjustified use of the procedure.

In the present case, there is only one question, namely, that concerning the accuracy of the representations made in the common form s 49 statement given to all, that is both a live issue and common to the claims of all group members, identified as well as unidentified. However, there is no reason to think that litigation of this common issue would be likely to resolve wholly or to any significant degree the claims of all group members. So far as the presently identified group members are concerned, it is clear that none intends or is prepared to confine his or her case that the appellant is liable to them in damages to this one representation common to all group members and to the additional three representations that are common to all 18 presently identified group members: all 18 are seeking to prove their respective entitlements to damages on the basis of this and other representations. Whether each has such an entitlement therefore will depend on the examination of their individual circumstances.[56]

In my view, the word 'substantial' indicates no more than that the common issue should not be a merely trivial one but should be of weight and significance. It need not be a 'major' issue. Once its existence is demonstrated then the representative party, having otherwise complied with s 33C, is entitled to commence the representative proceedings. The fact that they may later be terminated by order of the Court is not to the point.[57]

46 The High Court endorsed the reasoning of Foster J:

Clearly, the purpose of the enactment of Pt IVA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in cases such as Carnie. This suggests that, when used to identify the threshold requirements of 33C(1), 'substantial' does not indicate that which is 'large' or 'of special significance' or 'would have a major impact on the ... litigation' but, rather, is directed to issues which are 'real or of substance.'

The circumstance that proceedings which pass the threshold requirement of s 33C may later be terminated as representative proceedings, by order made under s 33N, confirms rather than denies such a construction of s 33C(1). Further, as Foster J pointed out, the broadening provisions in sub-s (2) of 33C emphasise the width of the entitlement conferred by s 33C(1) to commence a representative proceeding.

Foster J noted that the only issue of fact which could be common to all members of the postulated group, identified and unidentified, would be that raised in the statement of claim respecting the representation as to the accuracy of the s 49 statements. His Honour, like Spender J at first instance, regarded the identified common issue as 'substantial' in the necessary sense. This was because the allegations involved were serious and significant and detrimental misrepresentations were claimed. It was not to the point that, in the final resolution of the litigation, this might not prove to be the 'major' or 'core' issue. It was not necessary to show that litigation of this common issue would be likely to resolve wholly, or to any significant degree, the claims of all group members.

The statement of claim alleged various misrepresentations made by Skye for the purposes of promoting sales of lots in the building, and consequent contraventions of s 52 of the Trade Practices Act. The issue respecting the s 49 certificates was but one of these matters. However, on the face of the application and the statement of claim, the issue was one of substance.

Spender J correctly refused the declaration sought on the motion by Silkfield, and the Full Court erred in upholding the appeal and granting relief to Silkfield.[58]

47 Wong v Silkfield Pty Ltd is authority for the proposition that the fact that the entitlement to damages of individual group members depends upon an examination of their individual circumstances is not, of itself, an impediment to a proceeding being commenced as a group proceeding. In the judgment of the plurality in Timbercorp Finance Pty Ltd (in liq) v Collins,[59] immediately following the Court's reference to Wong v Silkfield Pty Ltd as set out above, the Court stated:

Section 33Q provides that where it appears to the Court that the determination of the questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions and for that purpose may establish sub-groups. Section 33R allows the Court to permit an individual group member to take part in the proceeding for the purpose of determining a question that relates only to the claim of that group member. In this circumstance, however, the group member is liable for the costs associated with the determination of that question, a liability which does not generally arise in the group proceeding itself.[60]

48 Nothing in this statement supports, expressly or by necessary implication, a finding that absent an order under s 33Q appointing an individual group member as a sub-group representative, the Court is precluded from hearing evidence from that individual and making findings in respect of claims which differ from the claims of the plaintiff.

49 Further, it does not follow from the High Court's conclusion that a plaintiff in a group proceeding does not represent group members with respect to their individual claims,[61] that the Court is precluded from hearing evidence and making findings in relation to those claims unless an order has been made under s 33Q. The High Court judgment does not address this question. Where the Court hears evidence and makes findings with respect to claims relating to the individual claims of group members, the plaintiff does not represent the individual group members. The absence of a representative capacity as between plaintiff and individual group members does not prevent the Court from hearing evidence and making findings in relation to the claims of individual group members.

50 The first and third defendants accept that it is open to the plaintiff to call a witness to give evidence of factual matters which do not assist the plaintiff's claim but which raise for consideration and determination a question of fact or law which is common to some or all of the members of a group. The first and third defendants accept that the Court may do so absent an order under s 33Q. However, the first and third defendants submit that the capacity for the plaintiff to litigate issues unconnected with his personal claim is not unlimited.[62] The first and third defendants submit that in the circumstances of the present case, in so far as the list of issues addresses the question of whether the defendants owed a duty of care and/or breached any duty of care, it should be confined to 'persons in the position of the plaintiff'.[63] The second defendant advances the same submission in the alternative to its primary submission.

51 During the hearing on 2 May 2017, I asked Ms Nichols, who appeared for the third defendant, what is meant by the phrase 'a person in the same position as the plaintiff'. Ms Nichols responded:

What it is intended to convey is that, if there are group members or subsets of them who Your Honour ultimately finds on the evidence were in the same position as the plaintiff in relation to the injuries suffered - sorry, the classes of injuries suffered - then you will be able to determine that question for those people. It is removing the assumption that all of the group members and the plaintiff are in the same position.[64]

52 I raised with Ms Nichols the evidence foreshadowed by the plaintiff from approximately 45 individuals who will be giving evidence of their experience of detention at the MIRPC. I asked Ms Nichols whether the third defendant accepted that the Court may, depending on what the evidence is, be able to make findings in respect of those 45 individuals both as to the existence of a duty of care and breach. Ms Nichols submitted that the Court could not make any finding as to whether there had been a breach of duty because to do so would involve making findings in respect of particular injuries suffered by particular individuals and there was no evidence before the Court regarding such matters. However, Ms Nichols accepted:

So you can make findings about systems if you want to, if the evidence gets to that because we say we accept it is permissible to call evidence that might be relevant to the plaintiff's claim and the claim of other group members, but these witnesses have not been called in respect of their individual damage, and that has been made abundantly clear in all of the correspondence which I'll go to if need be, but it's annexed to the affidavit filed by G4S, and what's happened in this case is that the G4S and the Commonwealth raised over a series of months with the plaintiff as to whether they would be calling sample group members.[65]

So Your Honour cannot make findings in this trial about damage suffered by those people, and that is the reason why we say you can't determine whether there is a breach of duty in respect of those people, but, and this is important, you can certainly make findings about matters of fact and they'll give evidence about them, and there may be less difference between ourselves and the plaintiff as a matter of practicability than might be thought because we say the evidence, provided it's admissible and that has to be determined, can lead to findings of fact and Mr Kamasaee's own personal case, if he happens to be successful, probably regardless of whether he's successful, Your Honour's determination about questions arising in his claim, will be of utility going forward.[66]

54 The defendants submitted that the Court should confine consideration of the existence of any duty of care to a duty owed by the defendants to persons in the position of the plaintiff. The plaintiff submitted that the Court should determine at trial whether the defendants owed a duty of care to all Negligence Group Members. The definition of Negligence Group Members in [5(d)] of the statement of claim identifies the kind of damage suffered by Group Members as:

personal injury (including but not limited to psychological or psychiatric injury) as a result of the conduct of the Commonwealth, G4S and/or Transfield, described in this Statement of Claim.[67]

In Sutherland Shire Council v Heyman,[68] Brennan J stated that the corollary of the principle that liability in tort is for damage done:

is that a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member.[69]

It is impermissible to postulate a duty of care to avoid one kind of damage - say, personal injury - and, finding the defendant guilty of failing to discharge that duty, to hold him liable for the damage actually suffered that is of another and independent kind - say, economic loss.[70]

55 The statement of claim alleges a duty of care to avoid one kind of damage: personal injury, including but not limited to psychological or psychiatric injury. The duty of care is stated by reference to a class of which the plaintiff is a member.

56 The present proceedings can be contrasted with Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority [No 5],[71] where Beech-Jones J stated:

The FASOC pleads the existence of a number of risks of harm arising from a failure to properly conduct flood operations at the Somerset and Wivenhoe dams, including a risk of harm to real or personal property, a risk of interfering with the use and enjoyment of land and a risk of impeding or disrupting the commercial activities of businesses or enterprises located downstream of Wivenhoe dam (Civil Liability Act 2003 (Qld), s 9(1)). The FASOC pleads that Seqwater, the second defendant, SunWater Limited ('SunWater') and the Flood Engineers who operated the dams owed various duties of care 'to Group Members' to avoid or minimise each of those risks.

One issue raised by all the defendants in relation to the plaintiff's version of the common questions was that insofar as they related to forms of harm other than those in fact suffered or claimed to be suffered by Rodriguez & Sons then the Court will be addressing questions that are purely hypothetical or, at the very least, will be decided in such a factual vacuum that they will lack utility. It was submitted that, as there is at least a reasonable likelihood that there will be a different answer to the questions posed as to the existence of a duty depending on the form of harm suffered (Sutherland Shire Council v Heyman [1985] HCA 41 ; 157 CLR 424 at 486-487 per Brennan J), a common question should not be posed at a level that addresses all the forms of harm.[72]

57 In Rodriguez, the statement of claim alleged that group members had suffered harm which differed from that suffered by the plaintiff. There was therefore utility in the Court directing the plaintiff to identify sample group members who claimed to have suffered different types of harm: those who had suffered personal property damage and those who had suffered economic loss. In the present proceeding there is only one type of harm alleged. The existence of a duty of care owed by the defendants to group members will not be decided in a vacuum.

58 Ultimately there is little practical difference between the competing formulations of the List of Issues in relation to the existence of a duty of care. The defendants pose the question in terms of whether the defendants owed a duty to 'persons in the position of the plaintiff'. Ms Nichols submitted that this formulation directs attention to the 'classes of injuries suffered'. The plaintiff poses the question in terms of whether the defendants owed a duty to the 'plaintiff and Negligence Group Members'. As the statement of claim postulates a duty to avoid one kind of damage - personal injury - there is no practical difference between the competing formulations.

59 I propose to adopt the plaintiff's formulation. Whether or not the Court is able to answer the question in that form will depend on the evidence and submissions of the parties at trial.

60 The defendants contend that, insofar as the List of Issues addresses breach of duty, the Court is limited to determining whether there has been a breach of a duty of care owed to the plaintiff. The defendants contend that the question of whether there has been a breach of duty does not give rise to any common question of law and fact as between the plaintiff and other Negligence Group Members. The defendants rely upon the well-established proposition that:

In an action for personal injuries in tort, the issue of breach of duty, and thus the identification of the precise content of the duty which is alleged to be breached, is ordinarily closely tied to the injury to the particular plaintiff, and to issues which are specific to that plaintiff.[73]

61 The defendants placed particular reliance upon the recent judgment of Forrest J in AS v Minister for Immigration and Border Protection [No 7][74] granting an application under s 33N(1) that the proceeding no longer continue as a group proceeding. The defendants submit that Forrest J's reasoning supports the List of Issues being limited to matters directly relevant to the plaintiff's personal claim that the defendants breached a duty of care owed to him.[75] On the other hand, the plaintiff submits that all of the alleged breaches of duty in respect of Negligence Group Members can be heard and determined in the current proceedings.[76] The plaintiff alleges that allegations as to the scope and standard of care apply to all Negligence Group Members.[77] Further, the plaintiff submits that the allegations of systemic breaches at [80], [84], [89], [93], [97], [162], [166], [171] and [176] of the fourth amended statement of claim are common to all group members.[78] The plaintiff submits that the factual failings pleaded at [81], [85], [94], [98], [163], [172] and [177] are evidence of the systemic failures even if they do not relate to the plaintiff's personal claim.[79]

62 Earlier in this judgment I have set out in some detail the nature of the proceeding and the structure of the statement of claim. Consideration of the way in which the plaintiff has formulated his claim highlights a fundamental difference between the present proceedings and those which were the subject of Forrest J's recent judgment in AS [No 7]. As pleaded, the plaintiff's claim is not confined to alleged breaches of duty owed to him. The plaintiff pleads systemic breaches of duty of care by reference to the failure of the defendants to exercise a standard of care required of the Commonwealth in respect of persons held in immigration detention in Australia.

63 At [31] to [35] in AS [No 7],[80] Forrest J sets out the repeated assurances which he received from counsel for AS that the trial would deal solely with the claims of AS. No such assurances have been given by the plaintiff's legal representatives in the current proceedings. The plaintiff's claim extends well beyond personal claims arising from his detention in Foxtrot Compound at the MIRPC between September 2013 and July 2014. Further, both the lay and expert evidence which has been prepared by the parties is not confined to the plaintiff's personal claim. Shortly stated, both the plaintiff and the defendants have prepared for the trial on the basis that the issues which will fall for determination extend beyond the plaintiff's personal claims.

64 There have been three conclaves of expert witnesses: Law of Papua New Guinea; Food and Water; Security. The questions to be put to the witnesses attending the security expert conclave were agreed in the following terms:

1. In respect of and at the time of both the G4S period and the Transfield period (to be addressed by all experts):

(a) As to the standards appropriate for the MIRPC in respect of security infrastructure, systems and practices (including standards applicable to the training, qualifications and accreditation for security staff), by reference to the matters discussed in your respective reports:

(i) identify any areas of agreement between you, stating shortly the basis for the agreement and referencing the relevant parts of your reports;

(ii) identify the principal areas of disagreement between you, stating shortly the principal reasons for the disagreement and referencing the relevant parts of your reports.

1. In respect of and at the time of the G4S period (to be addressed by Downes and Harrison):

(a) As to the adequacy of the systems in place to alleviate the risks of violent or anti-social behaviour at the MIRPC (including the security infrastructure and training of security staff), by reference to the matters discussed in your respective reports:

(i) identify any areas of agreement between you, stating shortly the basis for the agreement and referencing the relevant parts of your reports;

(ii) identify the principal areas of disagreement between you, stating shortly the principal reasons for the disagreement and referencing the relevant parts of your reports.

1. In respect of and at the time of the Transfield Period (to be addressed by Downes, Ross and Boswell):

(a) As to the adequacy of the systems in place to alleviate the risks of violent or anti-social behaviour at the MIRPC (including the security infrastructure and training of security staff), by reference to the matters discussed in your respective reports:

(i) identify any areas of agreement between you, stating shortly the basis for the agreement and referencing the relevant parts of your reports;

(ii) identify the principal areas of disagreement between you, stating shortly the principal reasons for the disagreement and referencing the relevant parts of your reports.[81]

65 The questions to be put to the witnesses attending the food and water expert conclave were agreed in the following terms:

In respect of the Transfield Period (24 March 2014 - 19 December 2014) only:

1. As to the appropriate standard or standards to be applied to the provision of food and water at the Centre, by reference to the matters discussed in your respective reports:

(a) identify any areas of agreement between you, stating shortly the basis for the agreement, referencing relevant parts of your reports;

(b) identify the principal areas of disagreement between you, stating shortly the reasons for the disagreement, referencing relevant parts of your reports.

1. In respect of the adequacy of the systems in place to manage the provision of food and water (including in relation to the practical outcomes or implementation of those systems at the Centre), by reference to the matters discussed in your respective reports:

(a) identify any areas of agreement between you, stating shortly the basis for the agreement, referencing relevant parts of your reports;

(b) identify the principal areas of disagreement between you, stating shortly the reasons for the disagreement, referencing relevant parts of your reports,

and specifically include consideration of the following areas:

(i) Hygiene;

(ii) Cleanliness;

(iii) Food contamination;

(iv) Presence of rodents;

(v) Provision of fruit and sugar;

(vi) Appropriateness of food provided;

(vii) Conditions of the serving of food;

(viii) Access to potable water.[82]

66 The food and water expert conclave was only in respect of the 'Transfield period' during which the third defendant was contracted by the Commonwealth to provide security services at the MIRPC. This period covers 24 March 2014 to 19 December 2014. In other words, the relevant period extends some five months after the plaintiff left the MIRPC in July 2014.

67 The joint reports produced following the security and food and water expert conclaves provided answers to the questions above. The answers provided in the joint reports are not confined to the plaintiff's personal claim, but rather, address the systems allegations pleaded in the fourth amended statement of claim. In the joint expert report on security, the experts opined as follows:

In relation to Question 1 above, we agreed that there are no definitive standards for the MIRPC in respect of security, infrastructure, systems and practices. There are however, a number of documents/standards/guidelines which can be used to inform decision making around this area. It is important to maintain the distinction between detainees and prisoners when referring to these documents/standards/guidelines.

...

In relation to standards applicable to training, qualifications and accreditations for security staff, there was agreement that there is no specific accredited training programs for security staff working in immigration detention facilities...

...

It was agreed that there are no directly relevant standards in respect to systems and practices appropriate for the MIRPC. The contract established the appropriate standards for the systems and practices for the centre.

Ms Downes is of the opinion that the contract specified the systems and practices required at the MIRPC, although not to what standard (although this was not discussed at the conclave).

Mr Boswell opined that the lack of legislative authority for searching detainees and their property and the use of force was a factor. Ms Downes, Mr Ross and Mr Harrison agreed in so much as the lack of legislative authority for searching detainees and for the use of force was an operational constraint.

...

Adjunct Associate Professor Ross expressed the opinion that the systems and practices, together with the staffing disciplines and numbers during the Transfield period, were adequate to alleviate the risks of violent or anti-social behaviour based on 16.2-16.5 of his report...[83]

In the joint expert report on food and water, the experts opined as follows:

An area of disagreement in relation to defining food safety standards is the definition of a 'vulnerable' person. Professor Capra refers to the definitions provided by the International Standards Organisation Technical Specifications, and the Food Standards Australia and New Zealand (FSANZ), and concluded that Standard 3.3.1 of the latter code did not apply, as none of the specified groups were present. Dr Hannan-Jones, however, used a broader definition, not that provided by FSANZ and notes the health status of transferees was not available in materials provided so that the presence of vulnerable groups could not be excluded.

...

The experts agree that attempts were made in the Transfield period to provide culturally appropriate meals, despite being asked to provide meals consistent with the Australian Dietary Guidelines.

The experts agree that there was adequacy of the food supply in the Transfield period.

...

Professor Capra concluded that there were systems in place that addressed hygiene issues. Dr Hannan-Jones concluded that the systems were not adequate with practical outcomes informed by assumptions.

...

Professor Capra concluded that there were systems in place that addressed cleanliness issues. Dr Hannan-Jones concluded that deficiencies in facilities and processes (such as removal of waste) were such that practical outcomes of cleanliness were not achieved.

...

Professor Capra considered should rodents be present, how systems would be managed to assure food safety. Dr Hannan-Jones reviewed systems and outcomes and overall conclusions differed on this matter.

Professor Capra was asked to review the systems and processes for the serving of the food. Professor Capra focussed on temperature control, length of hot holding, methods of transport and hot holding, rethermalisation methods, and concluded that there were systems and checks in place to manage the food...

In considering conditions for the serving of food Dr Hannan-Jones, in addition to these factors of systems and processes, included the food environment (including conditions in dining areas such adequacy of facilities and equipment to meet food safety standards, presence of insects and pests and waiting times for the service of food).[84]

68 A relevant point of distinction between the current proceeding and AS [No 7] concerns the manner in which AS purported to plead allegations of systemic failings at the Christmas Island Detention Centre. Forrest J noted the 'high level of generality' and 'very broad terms' in which AS had pleaded systems allegations.[85] As to the form in which these allegations had been pleaded, Forrest J concluded:

A search of the pleadings fails to identify any specific system, guideline or protocol which is said to be inadequate. There is no reference with any detail to the type of system, guideline or protocol that should have been in place. Rather, the particulars (appropriately) deal with the treatment of AS individually. Nothing in the affidavits filed on behalf of AS addresses this issue. The short point, emphasised by the defendants and the third parties, is that notwithstanding the assertions made in the submissions, at no time has AS identified what is the system failing that would be investigated at her trial which has implications, in terms of a common finding for other group members - even if only for a limited number.[86]

69 Forrest J's criticism of the manner in which AS pleaded systems allegations has no application to the current proceedings. The systemic allegations provided the foundation upon which the plaintiff and the defendants were able to reach agreement in the current proceedings regarding the questions to be the subject of both the food and water and security expert conclaves. Further, it is noteworthy that the defendants sought and were provided with further and better particulars of loss and damage pleaded at [117], [119], [181] and [183] of the statement of claim. The defendants also sought and were provided with particulars of the plaintiff's allegations of 'practical control' in [48G], [140G] and [170(d)] of the statement of claim. No request for further and better particulars has ever been made in respect of any of the plaintiff's systemic allegations.

70 A striking point of distinction between AS [No 7] and the current proceedings arises from the difference in the personal circumstances between AS and other group members. The claim in AS [No 7] related to the detention of a five year old child at the Christmas Island Detention Centre. Forrest J described the claim in the following terms:

The claim of AS is a traditional, individual personal injuries claim in negligence. It relates solely to her treatment (medically and socially) whilst in detention. In my opinion, the pleaded case does not involve the consideration of a common thread (or any real part of it) which permeates the claims of other group members - rather it focuses on her alleged predicament whilst held in the detention centre, with little or no commonality with the claims of other group members.

...

By contrast to the claim of AS, the position of the group members as a whole needs to be considered. The group may comprise as many as 35,000 persons (broken up into several sub-groups) held at the detention centre in five different camps over a period of four years. Presumably, a number may have claims for personal and physical injury arising out of the circumstances of their confinement. Each group member may have a different complaint. One might relate to medical treatment, another to accommodation, another to provision of services (whether to the group member or his or her family) and, in the case of a child of school age, to educational facilities to his or her particular situation. But the fundamental point is that the circumstances of the detention of each group member is individual - the only common bond between the group members in relation to a personal injuries claim is their confinement at the Detention Centre.[87]

71 Unlike AS [No 7], the plaintiff's pleaded case in the current proceedings does require consideration of a common thread which permeates the claim of other group members. That common thread owes its existence to, inter alia:

(i) The definition of negligence group member in paragraph 5 of the statement of claim;

(ii) The definition of false imprisonment group member in paragraph 5A of the statement of claim;

(iii) The alleged standard of care by reference to the Australian Precautions;

(iv) The alleged inadequate systems for provision of:

(c) basic clothing and personal hygiene products;

72 The judgment of Forrest J in AS [No 7] does not support the defendants' contention that only those matters which are directly relevant to the plaintiff's claim for damages should be the subject of evidence and findings by the Court. I accept the defendants' contention that, absent evidence regarding specific injuries suffered by Negligence Group Members other than the plaintiff, the Court cannot make a finding that any of the defendants breached a duty of care to Negligence Group Members other than the plaintiff.[88] However, the Court will be able to hear evidence and make findings directly relevant to the claims of Negligence Group Members other than the plaintiff. Insofar as the evidence of other Negligence Group Members relates to systemic allegations, such evidence is likely to be relevant to the plaintiff's personal claim. For example, a witness residing in a compound other than Foxtrot Compound during the period from September 2013 until July 2014 will be in a position to lead evidence in respect of the systems allegations which underpin the plaintiff's personal claim for damages. Findings in respect of such evidence may be relevant to that individual's personal claim for damages albeit that such claim will not be the subject of a determination in the current proceedings. Insofar as the evidence of a detainee extends outside of the period of the plaintiff's detention, it would be antithetical to both pt 4A of the Act and the overarching purpose of the Civil Procedure Act 2010 if the Court confined the issues for determination as proposed by the defendants.

73 In Johnson Tiles,[89] Gillard J stated:

In my view, the Court should endeavour to decide as many common questions of fact and law in a group proceeding, to facilitate the outcome of the litigation. If some questions are only relevant to some group members and not all, or to one group and not the other, so be it. As long as it may have some substantial practical effect in the determination of the litigation, one of the objects of group litigation is achieved.

It follows that, in my opinion, the plaintiffs are entitled to call, as witnesses, any member of a group in order to adduce evidence which is relevant to any issue raised, and the plaintiff may represent a group even though he is not a member of that group. Of course, he must have a claim against the defendant.[90]

74 In a subsequent judgment in the Johnson Tiles litigation,[91] Gillard J stated:

In my opinion, it is important that the Court conducts group proceeding litigation in a practical manner and ensures that as many questions of law and fact having a degree of commonality are decided. Once the group proceeding is completed and if an individual claim is to proceed, the individual litigant has the benefit of findings of law or fact to assist him in obtaining relief.[92]

75 This passage was cited with approval by Beech-Jones J in Rodriguez. His Honour stated, in respect of the reasoning of Gillard J in Johnson Tiles:

This approach is apposite to the circumstances of this case. To the court's observation the resources that will be devoted to the resolution of these proceedings are likely to be prodigious. The reassembly of the respective armadas for subsequent hearings will no doubt present logistical difficulties especially if the relevant expert witnesses must return. An approach that involves the determination of as many questions that are of utility to the resolution of the group members' claims is to be preferred. Such an approach is more likely to facilitate an early resolution either by settlement or otherwise. None of the parties suggested to the contrary.[93]

76 The observations of Beech-Jones J apply with equal if not greater force in the current proceedings. The parties have devoted enormous resources to preparing for the trial based upon the issues defined by the pleadings. At no point has there been any complaint of substance from any of the defendants that they are not aware of the claims they are to meet. The issues as defined by the pleadings extend beyond the plaintiff's personal claim for damages. Further, the practical difficulties besetting individual group members' participation in the proceedings weigh heavily in favour of the Court endeavouring to determine as many issues of fact and law as possible which have a degree of commonality. Foremost amongst those practical difficulties is the fact that the overwhelming majority of group members are located either in Papua New Guinea or have returned to their country of origin or a third country.

77 The matters set out above bring ss 7 to 9 of the Civil Procedure Act 2010 sharply into focus. The overarching purpose of the Civil Procedure Act is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[94] In approaching the task of making an order prescribing the issues to be determined at trial, the Court is required to have regard to the objects in ss 9(1)(c) and (d), namely, the efficient conduct of the business of the court and the efficient use of judicial and administrative resources. These objects will be advanced by the Court endeavouring to decide as many questions as possible with a degree of commonality.

78 I do not accept the defendants' contention that, absent evidence of the injuries sustained by group members other than the plaintiff, any consideration of their claims would be 'in the abstract' and involve 'hypothetical determinations'.[95] Findings which the Court makes in relation to the plaintiff's systemic allegations will not be hypothetical. They will be relevant to the determination of claims of individual group members. The outlines of evidence filed on behalf of the plaintiff foreshadow evidence regarding the conditions in compounds other than the Foxtrot Compound (where the plaintiff was accommodated) covering periods within the negligence claim period but outside the ten months that the plaintiff was at the centre. Findings in respect of this evidence may be relevant to the claims of other group members accommodated in the same compounds during the same periods of time. Of course, prior to hearing the evidence it is impossible to express any concluded view as to whether such evidence will in fact be admissible.

79 The defendants submitted, relying upon the observations of the Full Court of the Federal Court in Merck Sharp and Dohme (Australia) Pty Ltd v Peterson,[96] that by determining the list of issues for trial the Court would provide a 'touchstone for rulings in relation to the evidence and perhaps other procedural issues which will arise during the "trial"'.[97] It is unproductive to speculate upon rulings as to the admissibility of evidence prior to such evidence actually being before the Court. The passage in Merck which refers to determination of issues providing a touchstone for rulings in relation to evidence also includes the following:

If the matter simply proceeded on the pleadings, alleging as they do liability in relation to each group member, the pleadings would not provide that touchstone. That is because they raise issues (potentially peculiar to individual group members) which will not fall to be determined during the 'trial'.[98]

80 This passage demonstrates the need to adopt a cautious approach when considering the potential application of a list of issues determined prior to the commencement of a trial as a guide to the admissibility of evidence. The allegations and pleadings the subject of the Full Court's observations in Merck were of an entirely different character to the allegations and pleadings in the current proceedings. Contrary to the pleaded case in Merck, the systemic allegations of negligence in the present proceeding do provide a touchstone for the admissibility of evidence, not only in respect of the plaintiff's claim for damages, but in respect of all Negligence Group Members throughout the entirety of the negligence claim period. Ultimately, the Court will be required by s 33ZB(a) to identify the group members who will be affected by the findings in the judgment. This will include findings in respect of the systemic allegations with respect to compounds other than the Foxtrot Compound and in respect of periods within the negligence claim period outside of the ten months the plaintiff resided at the MIRPC. Such findings will be neither abstract nor hypothetical. They may have a practical effect on the disposition of the personal claims for damages of other Negligence Group Members, albeit that such claims will not be finally determined in the current proceeding.

81 The defendants advanced a discrete objection to the plaintiff's proposal that the Court determine whether matters alleged to constitute a breach of the defendants' duty of care were 'notorious among the negligence group members'.[99] The defendants contend that the issue of notoriety is not raised by the statement of claim.[100] I reject this contention.

82 By reason of [72] of the statement of claim, the plaintiff and some of the Negligence Group Members constitute the 'G4S Subgroup'. At [117(b)], the statement of claim alleges:

By reason of:

...

(b) the G4S Subgroup Claimants' knowledge, or belief based upon information from other Detainees, of all of the matters referred to in the preceding paragraph;

the G4S Subgroup Claimants and each of them have suffered and continue to suffer mental harm; and/or physical injury; and/or distress and inconvenience (G4S Subgroup mental and physical harm).[101]

83 The pleading set out above is an allegation that the plaintiff, as a member of the G4S Sub-group, suffered mental harm and/or physical injury as a result of knowledge or belief based upon information which he received from other detainees.

84 The plaintiff, having resided at the MIRPC post 24 March 2014 is a member of the 'Transfield Subgroup' as defined in [160] of the statement of claim. At [181(b)], the statement of claim alleges:

By reason of:

...

(b) The Transfield Sub-group Claimants' knowledge, or belief based upon information from other Detainees, of all of the matters referred to in the preceding paragraph;

A number of the Claimants have suffered and continue to suffer mental harm; and/or, physical harm, and/or distress and inconvenience (Transfield Subgroup mental and physical harm).

Particulars of loss and damage

The Plaintiff refers to and repeats particulars to paragraph 117 above.[102]

85 On 12 August 2016, the plaintiff filed further and better particulars of his statement of claim, including the particulars of loss and damages at [117].[103] Those particulars include at [4] in relation to the plaintiff the following:

During the time the Plaintiff resided at the Centre in the G4S period, his pain, distress and inconvenience included:

...

(e) Feelings of fear that the local population and/or local staff would attack him and/or others;

...

(g) Fear that he would contract deadly or debilitating infection or illness;

...

(o) Disgust at the food that he had to eat.

86 The same particulars are provided as to the plaintiff during the Transfield period in respect to the particulars of loss and damage at [181].[104]

87 The plaintiff alleges that the Commonwealth is liable for breaches of the detention duty of care of the second and third defendants.[105] I accept the plaintiff's submission that the statement of claim together with the further and better particulars raises an allegation that matters alleged to constitute a breach of the defendants' duty of care were notorious amongst the Negligence Group Members.

88 The statement of claim alleges that the defendants owed a duty of care to take reasonable care to avoid foreseeable harm to Negligence Group Members, namely personal injury (including but not limited to psychological or psychiatric harm). This is pleaded as the detention duty of care.[106] The plaintiff alleges that the detention duty of care required each of the defendants to exercise at the MIRPC the standard of care required of the Commonwealth in respect of persons held in immigration detention in Australia: 'Australian Precautions'.[107] This alleged standard of care is a lynchpin of the plaintiff's personal claim for damages for negligence, as well as the claims of all Negligence Group Members.

89 In relation to the plaintiff's personal claim alleging breach of duty of care, the Court will need to make findings in relation to the alleged breach by reference to the Australian Precautions. As pleaded, any breach of duty by reason of the systemic allegations is to be determined by reference to the standard of care required of the Commonwealth in respect of persons held in immigration detention in Australia, as reasonably adapted to meet the conditions on Manus Island.

90 The plaintiff's proposed List of Issues proposes that the standard of care should be addressed by reference to the question of whether the defendants failed 'to comply with the requisite or applicable standards'.[108] This formulation is not appropriate. As pleaded, the requisite or applicable standard is that which existed in respect of persons held in detention in Australia, as reasonably adapted to meet the conditions on Manus Island.

91 In order for the Court to make a finding in respect of the plaintiff's personal claim for damages it will be necessary to make findings as to what were the applicable standards for persons held in detention in Australia during the negligence claim period in respect of:

• Standard, quantity, and accessibility of food and water;
• Shelter and accommodation;
• Medical care and health services;
• Access to personal supplies, amenities, recreational facilities and opportunities;
• Protection from physical violence or intimidation and anti-social behaviour.

92 The defendants submit that the Court can only make findings as to the applicable standard of care in respect of actual proved damage. In effect, the defendants submit that the same constraints which limit the Court's capacity to hear evidence and make findings in respect of breach of duty, apply to the requisite standard of care. I do not accept this submission. Whilst the Court will only be able to determine whether there has been a breach of duty in respect of the plaintiff, it does not follow that the Court will not be able to hear evidence and make findings relevant to the claims of breach of duty in respect of other Negligence Group Members. Such evidence and findings can also properly include the Australian Precautions at the time which corresponds with the period of detention of those Negligence Group Members.

93 I reject the defendants' submission that absent evidence of injury sustained by Negligence Group Members the question of what is the applicable standard of care and whether there has been a failure to comply with it, will be decided in the abstract. In determining whether there has been a breach of duty owed to the plaintiff, the Court will need to consider the Australian Precautions during the ten month period of the plaintiff's detention at the MIRPC: September 2013 to July 2014. Such findings are likely to be relevant to the claims of other Negligence Group Members who were detained at the MIRPC throughout the same ten month period. Equally, evidence of the Australian Precautions during the balance of the negligence claim period will be relevant to the ultimate determination of the claims of other Negligence Group Members. I accept that whether any findings in respect of such evidence will translate into a finding of breach of duty in respect of other Negligence Group Members will have to await evidence as to the injuries actually sustained by other group members. However, consistent with the reasoning of Gillard J in Johnson Tiles, endorsed earlier in this judgment, it is consistent with the scheme of pt 4A of the Act and ss 7 and 9 of the Civil Procedure Act 2010, that the Court hear and determine evidence relating to the Australian Precautions during periods of time within the negligence claim period outside of September 2013 to July 2014.

94 The plaintiff was detained at the MIRPC between September 2013 and July 2014. His period of detention therefore falls within both the G4S detention period (21 November 2012 to 23 March 2014) and the BRS detention period (24 March 2014 to 19 December 2014). To make good his claim for breach of duty of care, the plaintiff will need to lead evidence regarding the standard of care required of the Commonwealth in respect of persons in detention in Australia throughout that period, as reasonably adapted to meet the conditions on Manus Island. It would be inimical to the overarching purpose of the Civil Procedure Act 2010 if the Court, in advance of the trial, precluded the plaintiff from leading evidence regarding Australian Precautions within the negligence claim period, but outside of the 10 months he was at the MIRPC.

95 The defendants submit that consideration of the claims of false imprisonment group members, save for the plaintiff's personal claim, cannot be determined in the current proceedings.[109] The defendants contend that determination of those claims requires the Court to make findings regarding the individual circumstances of group members.[110] In particular, the defendants contend that the Court will have to make a finding whether each group member had the right to return to his country of origin and/or a third country.[111] The defendants contend that if this inquiry is answered in the affirmative the group member will not be able to establish that he has been falsely imprisoned.[112]

96 The defendants' objection to the formulation of the List of Issues in respect of the claim for false imprisonment can be approached in the same way as their objection to the List of Issues addressing a finding of a breach of duty in respect of Negligence Group Members.

97 I accept that the Court will not be able to make a finding in respect of each individual false imprisonment group member as to whether he had the right to return to his country of origin or a third country. It does not follow, however, that the Court is precluded from hearing evidence from individual group members and making findings based on that evidence in respect of the claims for false imprisonment. For the same reasons that it is appropriate for the Court to endeavour to make as many findings as possible in respect of questions of fact and law in respect of the claims of Negligence Group Members, it is appropriate for the Court to make as many findings as possible in respect of the claims of false imprisonment group members which have a degree of commonality.

98 The Court has determined that the List of Issues will be in accordance with the list annexed to this judgment marked 'A'. The list is a case management tool. It provides a reference point for the parties in the preparation and presentation of their cases. The list is not a pre-emptive ruling as to the admissibility of evidence. Further, it does not constitute a bar to any party seeking to lead evidence which that party considers to be relevant. Any dispute regarding the admissibility of evidence will be determined at trial. Nothing in this judgment forecloses the right of any party to make an application during the trial for the list to be varied. Finally, the inclusion of a question on the List of Issues does not mean that the Court will answer the question. Whether a question on the list is answered will depend on whether there is evidence which permits the question to be answered. Even if there is evidence which allows for a question to be answered, the Court may ultimately conclude that it is not necessary for the question to be answered.

99 The defendants and the plaintiff have each had a degree of success in the resolution of the List of Issues. In these circumstances the appropriate order for costs may be that the costs of the second defendant's summons be costs in the cause. Any party who proposes a different order is to file written submissions, not exceeding seven pages, by 4.00pm on 23 May 2017.

1. Are questions as to the adequacy of the systems put in place at the Centre for the provision of food and water, shelter and accommodation, medical care and security, justiciable, or alternatively should those questions not be determined by this Court as a matter of judicial abstention or restraint or alternatively does the doctrine of Act of State operate as a defence to the claim in negligence?

2. Did the Commonwealth owe a duty to the plaintiff and Negligence Group Members to exercise reasonable care to avoid reasonably foreseeable:

(b) psychiatric injury arising directly from their personal experiences of detention in conditions at the Centre;

(c) mental harm arising directly from their personal experiences of detention in conditions at the Centre;

(d) psychiatric injury arising from their knowledge or beliefs about detention in the conditions of the Centre derived from others;

(e) mental harm arising from their beliefs about detention in the conditions of the Centre derived from others.

4. Did any and if so which of the matters alleged in paragraphs 80, 81, 84, 85, 88, 89, 90, 93, 94, 97, 98, 99, 162, 163, 166, 167, 170, 171, 172, 176, and 177 of the statement of claim (SOC), occur?

5. What was the standard of care required of the Commonwealth in respect of persons held in immigration detention in Australia reasonably adapted to meet the conditions on Manus Island during the period 21 November 2012 to 19 December 2014 in respect of:

(a) standard, quantity and accessibility of food and water;

(d) access to Personal Supplies, amenities, recreational facilities and opportunities;

(i) physical violence or intimidation, discrimination, ostracisation, bullying or other anti-social behaviours from other Detainees or from other persons lawfully attending the Centre; or

(ii) exposure to violent or other behaviours as described in sub-paragraph (i) above between other persons?

6. If any of the matters in paragraph [4] did occur, insofar as the matters involved conduct engaged in by the Commonwealth, was such conduct in accordance with the Australian Precautions?

7. If yes to any part of paragraph [4], did the circumstances as found occur by reason of any breach of duty of care owed to the plaintiff by the Commonwealth?

8. To the extent that any matters in paragraph [4] did occur, were any of those matters notorious amongst the Negligence Group Members?

9. To the extent that any matters in paragraph [4] did occur, were any of those matters likely to cause or materially increase the risk of harm, distress or inconvenience to Negligence Group Members?

10. Was any breach of duty by the Commonwealth a cause and/or exacerbation of any and if so what:

(iii) mental harm, distress or inconvenience to the plaintiff?

11. What are the applicable principles with respect to awarding damages for negligence in relation to the conduct of the Commonwealth?

12. What if any damages are due to the plaintiff because of that injury?

13. Did any and if so which of the matters alleged in paragraphs 102-105 of the SOC occur?

14. Does the conduct of the Commonwealth justify an award of:

15. Did G4S owe a duty to the plaintiff and Negligence Group Members to exercise reasonable care to avoid reasonably foreseeable:

(b) psychiatric injury arising directly from their personal experiences of detention in conditions at the Centre;

(c) mental harm arising directly from their personal experiences of detention in conditions at the Centre;

(d) psychiatric injury arising from their beliefs about detention in the conditions of the Centre derived from others;

(e) mental harm arising from their beliefs about detention in the conditions of the Centre derived from others.

16. Did any and if so which of the matters alleged in paragraphs 80, 81, 84, 85, 88, 88A, 89, 90 93, 94, 97, 98, and 99 of SOC occur?

17. Was G4S required to exercise Australian Precautions at the Centre throughout the period from 21 November 2012 to 23 March 2014?

18. If yes to paragraph [17], if any of the matters in [16] did occur, insofar as the matters involved conduct engaged in by G4S, was such conduct in accordance with the Australian Precautions?

19. If yes to any part of paragraph [16], did the circumstances as found occur by reason of any breach of duty of care owed to the plaintiff by G4S?

20. Did G4S engage in any of the conduct as found, as agent or de facto agent for the Commonwealth?

21. To the extent that any matters in paragraph [16] did occur, were any of those matters notorious amongst the Negligence Group Members?

22. To the extent that any matters in paragraph [16] did occur, were any of those matters likely to cause or materially increase the risk of harm, distress or inconvenience to the Negligence Group Members?

23. Was any breach of duty by G4S a cause and/or exacerbation of any and if so what:

(iii) mental harm, distress or inconvenience to the plaintiff?

24. What are the applicable principles with respect to awarding damages in relation to the conduct of G4S?

25. What if any damages are due to the plaintiff because of that injury?

26. Did any and if so which of the matters alleged in paragraph 108 of the SOC occur?

28. Did BRS owe a duty to the plaintiff and Negligence Group Members to exercise reasonable care to avoid reasonably foreseeable:

(b) psychiatric injury arising directly from their personal experiences of detention in conditions at the Centre;

(c) mental harm arising directly from their personal experiences of detention in conditions at the Centre;

(d) psychiatric injury arising from their beliefs about detention in the conditions of the Centre derived from others;

(e) mental harm arising from their beliefs about detention in the conditions of the Centre derived from others.

29. Did any and if so which of the matters alleged in paragraphs 162, 163, 166, 167, 170, 170A, 171, 172, 176 and 177 of the SOC occur?

30. Was BRS required to exercise Australian Precautions at the Centre throughout the period from 24 March 2014 to 19 December 2014?

31. If yes to paragraph [30], if any of the matters in [29] did occur, insofar as the matters involved conduct engaged in by BRS, was such conduct in accordance with the Australian Precautions?

32. If yes to any part of paragraph [29], did the circumstances as found occur by reason of any breach of duty of care owed to the plaintiff by BRS?

33. Did BRS engage in any of the conduct as found, as agent or de facto agent for the Commonwealth?

34. To the extent that any matters in paragraph [29] did occur, were any of those matters notorious amongst the Negligence Group Members?

35. To the extent that any matters in paragraph [29] did occur, were any of those matters likely to cause or materially increase the risk of harm, distress or inconvenience to the Negligence Group Members?

36. What are the applicable principles with respect to awarding damages in relation to the conduct of BRS?

37. Was any breach of duty by BRS a cause and/or exacerbation of any and if so what:

(iii) mental harm, distress or inconvenience to the plaintiff?

38. What if any damages are due to the plaintiff because of that injury?

39. Is the question whether the false imprisonment group members have claims in respect of the tort of false imprisonment according to the law of PNG justiciable, or alternatively should that question not be determined by this Court as a matter of judicial abstention or restraint, or alternatively does the doctrine of Act of State operate as a defence to the claim in false imprisonment?

40. Leaving aside the questions in paragraphs [41] and [42], during the false imprisonment claim period (or any and if so which part of that period) was the freedom of bodily movement of the Plaintiff and False Imprisonment Group Members restrained to the extent required for the purposes of the tort of false imprisonment?

41. If yes to the previous question, was the confinement unlawful?

42. If a False Imprisonment Group Member was reasonably able to return to their country of origin and or a third country:

(a) could that provide a defence to claim for false imprisonment and/or demonstrate the False Imprisonment Group Member was not sufficiently confined?

(b) if so, in what circumstances and for what period?

43. Are there any categories of False Imprisonment Group Member who were not reasonably able to return to their country of origin or a third country?

44. Was any confinement of the plaintiff and False Imprisonment Group Members caused or directed by:

45. Was the conduct of G4S, as found, engaged in by G4S as agent or de facto agent of the Commonwealth?

46. Was the conduct of BRS, as found, engaged in by BRS as agent or de facto agent of the Commonwealth?

47. If the plaintiff and False Imprisonment Group Members had not been confined at the Centre:

(a) is it inevitable that they would have been detained in any event?

48. What are the applicable principles for the assessment of damages for false imprisonment of the plaintiff and False Imprisonment Group Members?

49. What is the impact of the following on the assessment of damages for the plaintiff:

(a) a finding of imprisonment in any Poor Conditions;

50. Does the conduct of the Commonwealth justify an award of:

51. If the plaintiff was falsely imprisoned, which (if any) of the facts found in paragraphs [4], [16] and [29] occurred such that the plaintiff was falsely imprisoned in Poor Conditions?

52. What damages if any, are due to the plaintiff by reason of his false imprisonment?

53. For the purposes of formulating a judgment conforming to section 33ZB(a) of the Supreme Court Act 1986, which findings or determinations made with respect to each question above affect:

[1] [2014] VSC 593.

[2] Ibid [54]. See also Giles v Commonwealth [2014] NSWSC 83, [81].

[3] Order of the Honourable Justice McDonald dated 12 May 2016, [7]-[8].

[4] [2016] PGSC 13.

[5] Fourth Amended Statement of Claim dated 7 April 2017, [5].

[7] See Proposed Third Amended Statement of Claim annexed to Summons dated 13 July 2016, [185U].

[9] See 'Submissions of the Third Defendant: Plaintiff's Application to File Proposed Third Further Amended Statement of Claim' dated 18 July 2016, [13], [16].

[10] Order of the Honourable Justice McDonald dated 29 July 2016, [6]-[8].

[11] Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 July 2016) T11 LL2-6.

[15] Order of the Honourable Justice McDonald dated 12 September 2016, [6].

[16] Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 February 2017) T81 LL20-24.

[19] 'Second Defendant's Submissions - Questions for Determination' dated 26 April 2017, [6.7] (citations omitted).

[20] [2001] VSC 372 ('Johnson Tiles').

[21] 'Second Defendant's Submissions - Questions for Determination' dated 26 April 2017, [6.7] n 44.

[22] Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 29 July 2016) T1 L22 - T2 L23.

[23] [2016] VSCA 128.

[25] Fourth Amended Statement of Claim dated 7 April 2017, [46]-[49].

[39] 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [17]-[18].

[41] [2016] VSCA 128.

[43] [2001] VSC 372, [45]-[52].

[44] [2007] VSC 366, [18]-[25].

[46] Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 3 May 2017) T307 LL10-12.

[49] [1981] HCA 45; (1981) 147 CLR 589.

[50] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 339 ALR 11, [39], [53].

[52] Ibid [49]-[50] (citations omitted).

[53] [1999] HCA 48; (1999) 199 CLR 255.

[56] Silkfield Pty Ltd v Wong (1998) 90 FCR 152, 169 (emphasis added).

[58] Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255, [28]-[32] (citations omitted).

[62] 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [20].

[63] See Ibid, 'Third Defendant's Draft List of Issues'.

[64] Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 2 May 2017) T167 LL16-23 (emphasis added).

[67] Fourth Amended Statement of Claim dated 7 April 2017, [5].

[68] [1985] HCA 41; (1985) 157 CLR 424.

[71] [2015] NSWSC 1771 ('Rodriguez').

[73] AS v Minister for Immigration and Border Protection [2014] VSC 593, [61] (Kaye J).

[74] [2017] VSC 137 ('AS [No 7]').

[75] See, eg, 'First Defendant's Outline of Submissions with Respect to the List of Issues' dated 27 April 2017, [9]; 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [43].

[76] 'Plaintiff's Outline of Submissions: List of Issues to be Determined at Trial' dated 26 April 2017, [30].

[80] [2017] VSC 137.

[81] Order of the Honourable Justice McDonald dated 24 February 2017.

[82] Order of the Honourable Justice McDonald dated 3 March 2017.

[83] 'Report of the Security Expert Conclave Conducted on 28 February 2017' dated 3 March 2017, 2-5.

[84] 'Food and Water Expert Conclave held on March 15th 2017: Joint Report' dated 17 March 2017, [10], [14]-[15], [20], [21], [23], [29]-[30] (citations omitted).

[85] AS [No 7] [2017] VSC 137, [107].

[88] See AS v Minister for Immigration and Border Protection [2014] VSC 593, [61]; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, [18] (Gummow J).

[89] [2001] VSC 372.

[91] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27.

[93] [2015] NSWSC 1771, [16].

[94] Civil Procedure Act 2010 (Vic) s 7(1).

[95] See 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [21(a)].

[96] [2009] FCAFC 26 ('Merck').

[99] 'First Defendant's Outline of Submissions with respect to the List of Issues' dated 27 April 2017, [16]; 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [56].

[100] 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [56(a)].

[101] Fourth Amended Statement of Claim dated 7 April 2017, [117(b)].

[103] 'Further and Better Particulars of the Plaintiff's Third Amended Statement of Claim' dated 12 August 2016.

[105] Fourth Amended Statement of Claim dated 7 April 2017, [118], [182].

[108] 'Plaintiff's Proposed Additional Question for the List of Issues' dated 4 May 2017, [1]; Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 3 May 2017) T380 LL25-27.

[109] 'First Defendant's Outline of Submissions with respect to the List of Issues' dated 27 April 2017, [5], [10]; 'Second Defendant's Submissions - Questions for Determination' dated 26 April 2017, [7.6]; 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [4], [21(c)], [48].

[110] 'Third Defendant's Outline of Submissions on List of Issues for Determination at Trial' dated 28 April 2017, [48].

[111] Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 2 May 2017) T233 LL9-19.