Ibrahimi & ors v Commonwealth of Australia (No 9)

In the early hours of the morning of 15 December 2010, Suspected Illegal Entry Vessel No. 221, which had sailed from Indonesia carrying a number of persons seeking illegal entry into Australia, became shipwrecked off the coast of Christmas Island. As a consequence, a number of those on board were drowned, and a number were rescued. By a further amended statement of claim, the plaintiffs have brought proceedings for damages against the defendant arising out of that incident.

The plaintiffs bring the proceedings as representative proceedings on behalf of:

The proceedings have been continued by the plaintiffs pursuant to Part 10 of the Civil Procedure Act 2005 (NSW). Consequent upon an order made pursuant to r. 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) by Beech-Jones J on 30 October 2015, I am required to consider and determine a total of 18 specific questions which are set out below.

The following abbreviations have been adopted for the purposes of this judgment:

The hearing of the proceedings extended over a number of days, following which submissions were made orally and in writing. Much of the documentary evidence was tendered by consent. That material included transcripts of some of the evidence given at an inquest into the deaths of those on board SIEV 221 which was conducted before the State Coroner for Western Australia in 2011. The material also contained a document entitled “SIEV 221 Internal Review” [1] , which was the report of a review of the incident giving rise to these proceedings which was conducted by Sharon Nyakuengama, the Acting National Director (Enforcement and Investigations) of the Australian Customs and Border Protection Service. That review was conducted by Ms Nyakuengama pursuant to a direction from the Chief Executive Officer, Mr Carmody, on 17 December 2010 that there be “an internal review into the actions of Customs and Border Protection, including Border Protection Command (BPC), relating to the incident on 15 December 2010 when a vessel now known as (SIEV 221) foundered on rocks at Rocky Point, near Flying Fish Cove, Christmas Island (the incident) with resulting loss of life” [2] .

The review concluded (inter alia) that there was no “actionable intelligence that would indicate that the vessel foundered at Christmas Island on 15 December 2010 had departed Indonesia or was likely to arrive at Christmas (sic) around that time”, that “the posture of BPC assets on the morning of 15 December 2010 was in accordance with the relevant policies, processes and procedures”, and that the material available “indicated that all persons involved have acted in accordance (sic) policies, processes and procedures relevant to the exercise of their duties…” [3] .

References were made in the course of submissions to those conclusions. Whilst the report of the review forms part of the evidence before me, I regard it as being of limited weight. Obviously, those persons charged with the responsibility of conducting the review and preparing the report were not bound by the rules of evidence. The conclusions reached following the conduct of the review are not binding on me.

The following witnesses gave oral evidence at the hearing before me:

To a large extent, the facts are not in dispute and are established by the evidence I have summarised below. To the extent that issues have arisen as to those facts, or as to the acceptance or rejection of particular evidence, I have dealt with those issues in the course of addressing the individual questions that I am required to determine.

Christmas Island is located to the west of the coast of Western Australia. Pursuant to s. 5 of the CIA, it is declared to be accepted as a territory under the authority of the defendant, and is known as the Territory of Christmas Island. The territorial waters of Christmas Island extend 12 nautical miles from its coast.

Section 7 of the CIA sets out the laws in force on Christmas Island in the following terms:

Section 8 of the CIA is in the following terms:

Section 8A of the CIA is in the following terms:

Section 15B of the AIA is in the following terms:

The effect of s. 15B of the AIA is that laws in force on Christmas Island have effect in, and in relation to, the coastal sea of Christmas Island, being:

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

The following particular locations on and around Christmas Island are relevant for the purposes of this judgment:

BPC is the lead Government agency for Australia’s border protection, and combines its resources and expertise to provide security for Australia’s maritime areas [5] . In doing so, it works in conjunction with the Australian Fisheries Management Authority, the Australian Quarantine and Inspection Service and other Commonwealth, State and Territory agencies. In December 2010 the Commander of BPC was Rear Admiral Timothy Barrett [6] .

BPC is specifically responsible for co-ordinating and controlling operations to protect Australia against a number of threats recognised by the Australian Government. These include maritime security threats which, in turn, include threats posed by unauthorised maritime arrivals [7] .

BPC conducts law enforcement and security operations on behalf of various Federal Government agencies [8] . In 2010, for the purposes of managing multiple arrivals on Christmas Island, BPC worked with other agencies to improve offload procedures for PIIs, and to destroy unseaworthy vessels quickly in order to return to patrol as soon as possible [9] . In performing these roles, BPC was the primary law enforcement agency for maritime purposes. However, BPC is not an intelligence collection agency. Specifically, it is not an intelligence collection agency in respect of the arrival of SIEVs. It receives, and depends upon, intelligence received from other agencies, as well as from overseas authorities, to carry out its functions [10] .

In 2010 BPC had a number of vessels, including seven RAN patrol boats designed to perform surveillance and response activities. The combined assigned workforce to operate BPC vessels was about 330. BPC’s assets for the purposes of intercepting SIEVs also included aircraft. All of its assets operated 24 hours per day, 7 days per week and 365 days per year. The assets used by BPC for the purposes of intercepting SIEVs could be deployed in any part of Australia’s maritime domain, so as to meet Government policy and related requirements. However, in accordance with what was then Government policy in respect of irregular maritime arrivals, those assets operated by BPC which were directed towards the interception of such arrivals were generally deployed in the area across northern Australia [11] .

Importantly, BPC was not a search and rescue organisation, and was not resourced or directed to conduct surveillance for search and rescue purposes. That said, BPC’s assets were available to be called upon to respond to emergencies at sea in accordance with responsibilities imposed by the International Maritime Organisation SOLAS Convention, and the NA. It was pursuant to those obligations that BPC responded to the incident which is the subject of these proceedings, such incident being described by Rear Admiral Barrett as “unprecedented” [12] .

The GAMSA is a document published under the direction of the Australian Government, and issued by BPC. Its stated purpose is expressed in the following terms:

Chapter 2 of the GAMSA, entitled “Stakeholders and Roles” includes the following:

The GAMSA identifies various security threats, the response to which is the responsibility of BPC. Chapter 8 of the GAMSA, entitled “Irregular maritime arrivals”, addresses the security threat posed by irregular maritime arrivals, the consequences of that threat, and the general measures and co-ordination arrangements put in place to manage it. The GAMSA describes the nature of the threat in the following terms:

The GAMSA identifies BPC as the lead agency for on-water response [16] .

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

The Pirie was a Darwin based patrol boat, 57m in length and 305 tonnes in weight. It had a crew of about 25 and had a top speed, in fair weather conditions, of about 25 knots [18] . It had the capacity to launch RHIBs.

In December 2010 the Pirie’s Commanding Officer was Commander Mitchell Livingstone [19] . At that time, the Pirie was part of a border control operation known as “Operation Resolute” which was being conducted in Australian Territorial waters off Christmas Island, and which was directed, at least in part, to the interception of SIEVs [20] .

As the Commanding Officer, Commander Livingstone was subject to standing orders from Rear Admiral Barrett [21] . Commander Livingstone agreed that part of the underlying intention of those standing orders was to intercept and escort any illegal or maritime arrival [22] :

The Triton was a part of the Australian Customs fleet and in December 2010 was used to patrol in the northern waters of Australia. It was under the command of Enforcement Commander Matthew Saunders [23] . Its Master was Andrew Stammers who was employed by a private contractor, Gardline Australia [24] . As the Master, he had control of the vessel [25] . Commander Saunders had control of its operational command [26] .

The Triton was a trimaran or in other words, a vessel with three hulls. It was approximately 98m in length, and 2,236 tonnes in weight. In 2010 it was used to patrol the maritime zones in the northern part of Australia, and to respond to threats to Australia’s maritime domain, including threats of illegal fishing and irregular maritime arrivals [27] . Between 2008 and 2010, 95% of the Triton’s functions involved dealing with SIEVs [28] . Those functions were mainly conducted in the area of Ashmore Reef (located off the northern coast of Western Australia) but were also conducted in the vicinity of Christmas Island [29] .

The Triton carried two response tenders with boarding teams to enable the boarding of vessels at sea. It was surveyed to carry a total of 98 persons including 35 crew members. Of the 35 crew members, about 20 were Customs officers and the remaining 15 were civilians [30] .

On 6 December 2010 the Triton departed Broome, Western Australia, to commence patrol in Australia’s northern waters. The primary purposes of that patrol included detecting illegal fishing activity, and detecting the presence of, and intercepting, SIEVs. On about 8 December 2010, the Triton intercepted two SIEVs at Ashmore Reef which were carrying a total of 108 PIIs. Having taken them on board, the Triton departed Ashmore Reef on the morning of 9 December 2010 and made its way to Christmas Island with the intention of unloading the PIIs there. The Triton arrived at Christmas Island on 12 December 2010 [31] .

Enforcement Commander Saunders had originally intended to offload the PIIs at Flying Fish Cove. However, when the Triton arrived at Christmas Island the weather was extremely rough, with 4 to 5 metre swells and winds of 30 to 35 knots. These conditions prevented the PIIs from being off loaded at Flying Fish Cove. Accordingly, Enforcement Commander Saunders made a decision to steam the Triton on a short racetrack in the lee on the eastern side of Christmas Island, the lee providing some shelter from the prevailing weather conditions. The Triton remained on the eastern side of Christmas Island for the next 48 hours [32] .

The Colin Winchester was a 7.5m patrol catamaran delivered to the AFP in 2008 which was used around the area of Christmas Island. Its Master in 2010 was Shane Adams who was also the Vice Commander of the VMRS [33] . It was used for a number of purposes including general patrol work, specific marine patrols which were undertaken to search for illegal fishing, search and rescue functions and, on occasions, assisting in the interception of SIEVs until such time as assistance from the RAN or ABF became available.

The Colin Winchester was generally stored at Flying Fish Cove. However on 15 December 2010 it was out of survey, as a consequence of which the AFP had been directed to cease using it for patrol operations other than in a SOLAS situation, and only then if the seas were at least partially smooth, and the wave height did not exceed 1.5m from crest to trough [34] .

The Sea Eye was the designated volunteer rescue boat for Christmas Island. It was a 7.5m catamaran owned by the Australian Government which provided it to the VMRS for use in rescue operations. It was stored at the VMRS operations centre at Flying Fish Cove. If the Sea Eye was unavailable or out of service, the VMRS could also use a number of privately owned vessels [35] .

As at 15 December 2010 the Sea Eye was out of survey. However, the vessel could still be used in a SOLAS emergency at the discretion of its Master, providing that it was considered safe to do so [36] .

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

The DTS was a classified document designed to inform relevant parties, on a daily basis, of the existence of maritime threats. It provided an assessment of the threat status (in respect of individual vessels departing for Australia [38] ) based on an analysis of material obtained from a variety of sources.

A SATM was also produced daily for the purposes of allowing BPC to organise its assets in order to intercept any SIEV to which it was alerted. The SATM detailed the name of the organiser of the vessel(s), the likely departure date, the likely arrival location, the arrival window dates and the likely number of PIIs on board [39] .

A SATM was issued on 14 December 2010 at 16:00 AEDT [40] containing 2 entries. The first had a threat status of “medium”, based on a probable arrival at Christmas Island sometime between 10 and 14 December 2010. The second had a threat status of “low” based on a probable arrival at Ashmore Reef between 14 and 17 December 2010.

A further SATM was issued on 15 December 2010 at 09:40 AEDT. It contained two entries both of which had a threat status of “low”. The first referred to an expected arrival at Ashmore Reef [41] . The second was an expected arrival at Christmas Island between 21 and 26 December 2010 [42] .

The documents in Exh. C establish that the threat status for arrivals of SIEVs was medium between 12:00 midday on 14 December 2010 and 5:40 on 15 December 2010, and was low thereafter. That generally accords with the evidence of Commander Livingstone [43] .

At about 10:20 on the morning of 14 December 2010, in the course of the Pirie conducting its patrol, Commander Livingstone was informed of the sighting of a CCOI which was located 300 yards north of Flying Fish Cove. At approximately 10:47 he established contact with the CCOI, which was later identified as SIEV 220. He watched it proceed in a westerly direction, away from Flying Fish Cove, at a speed of approximately 6 knots [44] . He described the prevailing weather conditions at the time as “particularly rough”, such conditions being characterised by rain squalls, winds of 20-25 knots, and a swell of between 3 and 4 metres [45] . Visibility was poor, due primarily to the rain squalls and wind [46] . Commander Livingstone was able to make visual contact with SIEV 220 at a range of 5 nautical miles but due to the weather conditions he could not maintain consistent radar contact [47] . Commander Livingstone agreed [48] that SIEV 220 was typical of the kind of unseaworthy SIEVs arriving at Christmas Island at or around this time.

At approximately 11:12 the Pirie found itself in close proximity to SIEV 220 which was then several miles to the north of Flying Fish Cove [49] . Commander Livingstone concluded that in light of the prevailing conditions to the north of Christmas Island, it was not safe to board SIEV 220 at that location. He therefore directed SIEV 220 to alter course, and proceed south-east towards Ethel Beach on the leeward (i.e. eastern) side of Christmas Island which provided some protection from the weather [50] . At approximately 13:47 SIEV 220 reached Ethel Beach and was boarded by crew members from the Pirie. There were 8 PIIs and 3 crew members on board SIEV 220. At about 18:00 they were transferred ashore to Ethel Beach in RHIBs launched from the Pirie. The Pirie then oversaw the safety of the hulk of SIEV 220 [51] .

A considerable amount of evidence was given which went to the issue of whether it was necessary in the circumstances for the Pirie to continue to oversee SIEV 220, or whether it could have left and resumed patrol in its racetrack. In his evidence, Commander Livingstone firstly explained that anchoring SIEV 220 was not an option [52] :

The weather conditions also made it difficult for the Pirie to maintain visibility of SIEV 220 during the night, as a consequence of which there was a need to remain close by. There was a strong north-west wind, averaging 27 knots and gusting to 35 knots, with consistent drizzle and occasional rain squalls. Visibility had been reduced to 5 nautical miles outside the rain squalls, and 200 yards within them. The swell was from the north-west at a level of 3m [53] . These conditions brought about not only reduced visibility, but a corresponding reduction in the efficacy of the radar systems on the Pirie, which was further reduced in the case of small wooden vessels such as SIEV 220. As a matter of practicality, it was not possible to maintain simultaneous surveillance over all areas [54] . The Triton had maintained a position further to the south-east of Christmas Island, seeking shelter from the prevailing conditions. No other Australian Government vessels were operating in the vicinity of Christmas Island on 14 or 15 December 2010 [55] .

Commander Livingstone explained that, leaving aside the difficulties in anchoring SIEV 220, it was necessary to have the Pirie remain in the vicinity of the lee of Christmas Island, in close proximity to SIEV 220, because of the need to ensure the safety of the members of the steaming party who were on board. He explained that SIEV 220 was a vessel which was barely seaworthy, and that the members of the steaming party on board (who were from the crew of the Pirie) had no navigational aids and were experiencing extremely rough weather conditions. He also explained that there was a necessity to be in a position to give the steaming party on board SIEV 220 advice as to the presence of any relevant hazards, to supply them with necessary provisions, and to recover them if conditions required it. In making this decision, Commander Livingstone took into account the fact that the threat level was such that the imminent arrival of a further SIEV was not expected. He also considered that these were tasks that he could not delegate to the Triton, bearing in mind that at that time the Triton had on board in excess of 100 PIIs, and that it too was sheltering from the weather [56] .

In cross-examination, Commander Livingstone rejected the suggestion that there was no need for the Pirie to remain in such close proximity to SIEV 220, and that the Pirie’s racetrack could have been extended to the north [57] :

In the period leading up to the morning of 15 December 2010, the Pirie remained overseeing SIEV 220 on a short racetrack in the vicinity of Ethel Beach, east of Christmas Island. In his evidence at the Coronial Inquest, Rear Admiral Barrett explained that between midnight on 14 December 2010 and dawn on 15 December 2010, the Pirie was operating to the east and north-east in the lee of Christmas Island performing surveillance duties. He explained that the area of surveillance covered by the Pirie at that time was a smaller area than might otherwise have been the case, due to the fact that the Pirie had custody of SIEV 220, and was required to ensure the safety of that vessel, and the Pirie crew members who comprised the steaming party on board, until such time as the vessel could be safely sunk. He also explained that the Pirie was sheltering in the leeward of the island so as to give the crew some temporary respite from the conditions on the northern side of the island, as well as to provide an engineer with appropriate conditions in which to undertake maintenance work on one of the Pirie’s engines [58] .

It was always the intention of Commander Livingstone to resume patrol as soon as he could do so [59] . Further, and even though the Pirie was positioned on the leeward side of the island, Commander Livingstone was aware of the deteriorating weather conditions to the north-west in the hours leading up to 15 December. He agreed that the conditions he had observed on 14 December were likely to be significantly worse by the early morning of the following day [60] .

In the period leading up to 06:00 on 15 December, the Pirie was patrolling southeast of Nui Nui point, approximately 1500m to the east of Ethel Beach, and was using only one engine in order to conserve fuel. At this time, the Triton was also on the eastern side of Christmas Island, to the south of Ethel Beach, and patrolling in a track which required the use of only one engine [61] . The Triton was still waiting for the weather to improve so that the PIIs who had embarked at Ashmore Reef could be offloaded [62] . Enforcement Commander Saunders said that the weather conditions at that time on the eastern side of Christmas Island remained “very rough”, with a 2m to 3m swell, and winds gusting up to 25 knots .

Although Commander Livingstone was not aware of any precise arrangements for the Triton to take over the control of SIEV 220 on 15 December, he accepted that it was obviously a larger vessel with additional personnel, such that if another SIEV arrived, there would have been discussions about the most appropriate deployment of the available resources [63] .

Ross Martin, Chief Engineer at ABF, had arrived on Christmas Island on 11 December 2010 to conduct induction training for Customs Officers. Mr Martin was staying at Mango Tree Lodge, which is located approximately 100m from the northern coastline of Christmas Island [64] .

At about 05:40 on 15 December 2010, Mr Martin walked out onto the balcony of his room at Mango Tree Lodge. He looked to the north and saw what he described as a “very basic” vessel [65] which was about 500 to 600m off the coast of Christmas Island [66] . The vessel was later identified as SIEV 221. At that time, the swell was coming from the north and the vessel was “running with the weather” [67] . Mr Martin said he had no cause for alarm at that point, although he described “whitecaps” (or wave crests) around the vessel, in a swell of 3 to 4m [68] .

Mr Martin observed puffs of black smoke coming from the vessel’s exhaust on the starboard side, as well as towards its rear, leading him to form the view that it was being propelled by its engine. He also saw that the vessel was bearing from left to right and travelling in a generally south-easterly direction (although, as he described it [69] , “a bit more east than south”). Mr Martin said that at this point the vessel was “making way” [70] or in other words, moving forward under its own power [71] . Mr Martin certainly did not consider that a SOLAS situation had arisen at that point [72] .

At about 05:43, Mr Martin telephoned Leslie Jardine, the Customs Duty Officer, and informed Mr Jardine of his observations. Consistent with what he had observed and with the view that he had formed, he mentioned nothing to Mr Jardine about any SOLAS situation having arisen [73] . Mr Jardine indicated to Mr Martin that he had not previously been made aware of the presence of the vessel [74] . At about 05:49, Mr Jardine called CNOC and advised of Mr Martin’s report [75] . Based on what he had been told by Mr Martin, Mr Jardine had no reason to, and did not, advise CNOC that SIEV 221 was in distress [76] because he did not think that there was any emergency [77] :

Shane Adams, a special constable in the AFP and the Vice-Commander of the VMRS, lived near the Golden Bosun Tavern. At about 05:45 he heard a transmission over a marine radio from a person whom he recognised as Alan Thornton, another member of the VMRS. Mr Thornton was using the call sign “Christmas Island VMR” and was attempting contact call sign “Australian warship” [78] . Mr Thornton broadcast a message in words to the effect:

Mr Adams left his home and walked approximately 100m to a car park at the front of the Golden Bosun Tavern. He thought that it was about 05:55 by this time. He said that there was a strong north-westerly wind, and a heavy sea from the north-west with a swell of about 3 to 4m. The sky was very overcast and it appeared as if a storm was building. The swell was breaking up on the cliff face and washing back out to sea, creating what Mr Martin described as a “washing machine” effect, and rendering the surrounding waters unpredictable and hard to navigate [80] .

Mr Adams looked out to sea and saw SIEV 221 about 150m from the shore. He described SIEV 221 as follows [81] :

When Mr Adams first sighted SIEV 221 it was under power, moving in a north-westerly direction at a speed of about 8 knots, and attempting to steer around the roughest section of the water. Mr Adams could see dark black smoke coming out of the vessel’s exhaust and was able to hear the sound of the diesel engine. He saw approximately 60 people congregated between the wheel house and the bow [82] .

Mr Adams did not consider that SIEV 221 was in any immediate danger at that point, or that it was in any danger of breaking down [83] . He stated, in particular, that he did not think that a SOLAS situation had developed, and that the circumstances where not of a kind to which VMRS would usually respond. He expected that the relevant authorities would try and intercept the vessel, and take control of it, and its occupants [84] . Mr Adams reiterated in cross-examination that he did not regard SIEV 221 to be in any immediate danger at this time [85] :

He added that he did not regard the vessel as being in danger of breaking down [86] .

At about 05:50, after speaking with Mr Jardine, Mr Martin returned to the balcony of his room at Mango Tree Lodge. When he did so, he noticed that SIEV 221 had altered course and was now heading south, towards that part of the northern coastline of Christmas Island adjacent to Mango Tree Lodge [87] . He described the vessel as proceeding “beam on”, in a swell of close to 6m which was “hitting the coastline and reverberating out” [88] . Mr Martin described the coastline adjacent to Mango Tree Lodge as being of “a similar rocky shape” as the coastline surrounding most of Christmas Island [89] .

Mr Martin then left the balcony for a short time to contact his Manager, Warwick Conlon [90] . He explained that he not do because he thought that SIEV 221 was in danger [91] , although he did admit to having what he described as an “abnormal” feeling in light of the fact that the vessel had altered course [92] .

Upon his return from speaking with Mr Conlon, Mr Martin noticed that SIEV 221 had altered course again. It was now proceeding (still under its own power) in a generally westerly direction towards Flying Fish Cove and was approximately 100m offshore [93] . Mr Martin saw people standing at the bow of the vessel, in the forward and midship section, and in the area surrounding the wheelhouse. He could hear people on board whistling and shouting, although he said that the shouting did not sound like screaming. At that point, the vessel disappeared from Mr Martin’s line of sight as it continued moving generally towards Flying Fish Cove. Mr Martin did not make any further contact with anyone at that stage because he still did not think that SIEV 221 was in any immediate danger. He said that as he observed it proceeding towards Flying Fish Cove, it appeared to be continuing to do so under its own power [94] .

Assuming that SIEV 221 may attempt to land, Mr Martin drove from Mango Tree Lodge to Flying Fish Cove at about 06:00. Not initially able to see SIEV 221, he parked his vehicle at the Golden Bosun Tavern [95] . At about that time, he received a telephone call from Bruce Christensen from BPC to whom he expressed some concerns about the safety of the SIEV 221 [96] . He agreed that he was worried for those on board [97] . However, he did not accept that it was obvious that a “potential shipwreck” had developed and was adamant that such a possibility did not cross his mind [98] .

However when he next observed SIEV 221 at approximately 06:11, Mr Martin could not see any black smoke coming from its exhaust and the vessel was not moving across a fixed point. With the vessel drifting between 20m and 50m from the coastline, Mr Martin considered, for the first time, that it had lost power and may be in distress. He said at that time the weather was overcast and that although it was not raining, it was very windy with “a lot of whitecaps” on the water. Mr Martin also observed that towards the shore, waves were bouncing back off the coastline towards the ocean. As the incoming and outgoing waves passed through each other, they peaked at a high level [99] .

Enforcement Commander Saunders was alerted by AMSOC to the possible presence of a SIEV although there is a slight discrepancy in the evidence as to when this occurred. Enforcement Commander Saunders’ evidence was that he took the call at approximately 05:55 [100] . The Triton’s log suggests that it was received at 06:00 [101] . In my view, little turns on that difference. At this point, the Triton remained south of the Pirie on the leeward side of Christmas Island.

The SIEV which was the subject of the call to Enforcement Commander Saunders was obviously SIEV 221. It was reported to be about 300m off Rocky Point at the time [102] . Although he agreed that he was aware that SIEVs were, generally speaking, not particularly seaworthy, Enforcement Commander Saunders was not informed that the vessel was in danger or in distress, and was not asked to respond [103] .

At about 06:00 the Pirie commenced lowering a RHIB into the water to replace the steaming party on board SIEV 220 which had remained nearby [104] . Commander Livingstone estimated that the launch commenced sometime after 6:10 or 6:15 [105] . Notwithstanding the fact that the lee of the island provided some shelter, the weather remained inclement, with rain, reduced visibility and a wind speed of between 27 and 35 knots [106] .

Shortly after 06:00, Commander Livingstone received a radio call from Enforcement Commander Saunders on the Triton, who enquired as to whether or not Commander Livingstone had received any information about a SIEV in the vicinity of Flying Fish Cove. Prior to receiving that call Commander Livingstone knew nothing of the possible presence of such a vessel [107] . His evidence was that the information conveyed to him fell short of confirming the presence of a SIEV in the area. He said, in particular, that there was, in that call, “certainly no confirmation or sense of urgency that a response was required”, describing the call as “more a question rather than … confirmation” of the presence of a SIEV to the north [108] . It was agreed that the Pirie would investigate the reported sighting, whilst the Triton would move further north in order to maintain oversight of the steaming party on board SIEV 220 [109] . Commander Livingstone then put immediate steps in place to head north [110] .

Commander Livingstone agreed that any SIEV which found itself approximately 300 yards off the coast of Christmas Island would be in some danger [111] :

However, it must be emphasised that the information conveyed to Commander Livingstone fell short of a confirmation of the presence of any SIEV, and was more in the nature of an enquiry.

Enforcement Commander Saunders had no immediate concern about the safety of the SIEV, the possible presence of which had been identified at that time [112] . He agreed that he was aware from the information that he had received that the reported vessel was of a type that he had regularly intercepted, and that such vessels were not generally seaworthy according to Australian standards [113] . He also agreed that the sea state was “certainly rough to very rough”, and that the vessel was reported to be located on the side of the island which was particularly affected by monsoonal conditions [114] . Enforcement Commander Saunders was cross-examined as to his stated lack of concern [115] :

He was then asked [116] :

Following the call from Enforcement Commander Saunders, Commander Livingstone gave instructions to his crew to prepare the Pirie to head north to investigate the reported SIEV.

At that time the Pirie remained southeast of Nui Nui Point. From that position, visual coverage of Rocky Point was obscured by the presence of a 237m hill, as well as the prevailing weather conditions. These factors, and what Commander Livingstone referred to as the “resulting clutter”, all combined to reduce the effective range of the radar systems on the Pirie [117] . In these circumstances, despite the fact that the members of the steaming party on board SIEV 220 had been there for 12 hours and were fatigued, Commander Livingstone decided that only two members of the party should be replaced. He explained that he considered it more important to proceed immediately north to investigate the possible presence of another SIEV, rather than take the extra time to replace the entire steaming party [118] .

In order to head north, it was necessary for Commander Livingstone to:

Commander Livingstone explained in cross-examination that carrying out these tasks took some short time [120] :

Commander Livingstone explained that the Pirie’s port engine was in fact being started as it was tracking to the north, and that he had commenced to head in that direction after receiving the call from Enforcement Commander Saunders on the Triton [121] . He agreed that having received that call he had continued to launch the RHIB to relieve members of the steaming party on board SIEV 220 [122] :

Commander Livingstone was then asked [123] :

Commander Livingstone was then asked further questions, by reference to the Pirie’s log, about the time it had actually taken the Pirie to commence travelling to the north [124] :

The evidence thus establishes that by about 06:11, the RHIB launched by the Pirie was clear of its side and the Pirie was proceeding north to investigate the reported presence of what was SIEV 221 [125] . By about 06:18 the Pirie’s port engine was available for use. By about 06:21 the Pirie was heading north at a speed of about 18 knots. In the light of the prevailing weather conditions Commander Livingstone considered that to be the maximum safe speed [126] .

At about 06:15, as Mr Adams walked along the northern coastline of Christmas Island and SIEV 221 was approximately 100m away from him, the vessel was struck by an incoming swell, resulting in backwash from the cliff face and causing it to list heavily from starboard and then to port. As it did so, Mr Adams was able to see the section of the hull that was below the water line. When it listed to its port side, he saw the 44 gallon drum roll off the stern and into the water, leaving a 40mm brown hose lying on the stern. When the drum hit the ocean, the water turned brown and Mr Adams detected a strong smell of diesel fuel [127] . Mr Adams said that at about the same time, the smoke and noise from the vessel’s exhaust stack stopped and it appeared to cease moving forward. Mr Adams heard someone attempting to restart the engine several times without success [128] . It is evident that the loss of the drum from the stern of SIEV 221 terminated its fuel supply and caused the engine to fail.

The drum having been swept away, Mr Adams described the situation having changed “drastically” [129] . For the first time since SIEV 221 initially came under his observation he formed the view that it was in danger. He thought that a potential SOLAS situation had arisen, primarily because the swell was pushing the vessel towards the cliffs, in circumstances where it appeared to have lost power [130] .

At approximately 06:28, from his vantage point at the Golden Bosun Tavern, Mr Martin observed SIEV 221 being “violently pushed and pulled in both directions by the incoming and outgoing swell”, and taking on large amounts of water from waves crashing over its sides. Parts of the vessel were beginning to break up. At that point, it had become clear to Mr Martin that a SOLAS situation had arisen [131] .

DVD footage which was tendered in evidence depicted (inter alia) SIEV 221 in close proximity to the cliff face on the northern coastline of Christmas Island. That footage simply confirms the observations made by Mr Martin and Mr Adams.

At the point at which he formed the view that a SOLAS situation had arisen, Mr Adams considered that there were two possible responses, namely [132] :

According to Mr Adams, the second option was the only practical one in the circumstances. He formed the view that it would be neither safe nor viable to launch the Sea Eye, the Colin Winchester, or any other vessel which might have been available to the VMRS, given the prevailing conditions. He also explained that he was aware that the VMRS was trying to contact the RAN by radio, and that he believed that the RAN and Customs would be able to assist. He also believed that neither the VMRS nor the AFP would be able to reach the scene any faster than the RAN or Customs, or do anything more than what Navy and Customs' vessels were capable of doing to assist those on board [133] .

Mr Adams also explained, based on his experience, that even if the Sea Eye had been in proper repair and not out of survey it could not have been taken out to assist in any rescue operation. He regarded the conditions as too rough, such that it would have been unsafe to attempt to operate the Sea Eye in that kind of weather [134] .

Mr Adams also stated that the conditions prevented the use of any privately owned vessels that may have been available to the VMRS [135] . He said that the conditions were too dangerous for the deployment of small craft of that nature and that even had it been possible to launch any VMRS vessel at the time (be it the Sea Eye or some other vessel) it would have taken approximately 1 hour to transport it to Ethel Beach, launch it, and then travel to Rocky Point. Accordingly, even had it been possible to launch a vessel from Ethel Beach, it would not have arrived at Rocky Point any faster than the Pirie or the Triton, or any RHIB or tender which may have been launched from them [136] .

Mr Adams also explained that the Colin Winchester could only be launched with a medium to high tide at Flying Fish Cove, and could not be launched at Ethel Beach. Bearing in mind the conditions, he took the view that even if the Colin Winchester had not been out of survey, it similarly could not have been used to assist in any rescue operation because it would not have been capable of coping with the sea conditions. He said any attempt to use the Colin Winchester would have resulted in the lives of those on board being placed in serious danger [137] .

It should be noted that the evidence of Mr Adams regarding the unsuitability of the Sea Eye and the Colin Winchester to respond to the situation which had arisen was not the subject of any substantive challenge in cross-examination.

At about 06:21 Commander Livingstone was contacted by NORCOM, at which time the presence of SIEV 221 to the north of Rocky Point, close to the coast, was confirmed. Commander Livingstone advised that he was proceeding north, at the maximum possible speed, with his remaining RHIB (having left the second RHIB behind). He was informed by NORCOM that the Pirie would need both RHIBs because of the number of people on board SIEV 221 [138] . Accordingly at about 06:23, the Pirie turned south to recover the RHIB which it had previously launched, a process which took about 10 minutes. By about 06:32, it had resumed travelling north at the maximum speed which was possible in the prevailing conditions [139] . At approximately 06:32 Commander Livingstone received a message from NORCOM in the following terms:

He explained that by this time his priority had changed from one of “care taking” SIEV 220, to “shaping the best response (he) could with Pirie to a SIEV to the north”. However, he emphasised that the objective of getting to Rocky Point as quickly as he could had in fact commenced when he was originally alerted to the possible presence of a SIEV by Enforcement Commander Saunders [141] :

Commander Livingstone said that the message he had received from NORCOM at about 06:32 “certainly clarified the situation” and that as a consequence, there was “an added degree of urgency” which “helped re-focus (his) priorities from SIEV 220 to what we might have to deal with to the north”. He also agreed that the fact that SIEV 221 was apparently close to the rocks, and had no engine power, combined to pose a threat of danger [142] . In cross-examination, Commander Livingstone explained the situation in this way [143] :

At about 06:34 Commander Livingstone directed the crew of the Pirie to prepare for an imminent boarding, and to prepare to launch the RHIBs. At approximately 06:35, an alarm sounded, indicating a fault in the Pirie’s port main engine. This resulted in that engine being shut down, with Commander Livingstone ordering that the speed of the starboard main engine of the Pirie be reduced to avoid damaging both. This had the effect of reducing the speed of the Pirie to approximately 11 knots. Commander Livingstone then re-started the port main engine, a process which took about one minute. He took the view that the speed of the port main engine should be restricted so as to reduce the chance of it shutting down again. He increased the speed of the starboard engine so as to lead, and to compensate for the port engine, and estimated that in these circumstances the Pirie was travelling about 16 knots [144] .

Commander Livingstone said that at this point he was unsure whether the circumstances might require a SOLAS response, but that he erred on the side of such a response being required. He determined that each RHIB should carry 4 boarding team members, as well as a bowman and a coxswain. This meant that there would be a total of 8 crew members ready to board SIEV 221 and recover passengers. Commander Livingstone, in accordance with the standard operating procedure for a SOLAS situation, ordered that all lifejackets and life rings on the Pirie be gathered and placed into the RHIBs [145] .

Whilst still some distance from Rocky Point, Commander Livingstone formed the view that in light of the conditions, the Pirie would not be able to safely launch the RHIBs in that area. He also thought that once launched, the RHIBs would be able to reach Rocky Point much faster than the Pirie, due to the Pirie’s restricted engine capacity. In these circumstances, and in order to prepare for the launch of the RHIBs, the Pirie reduced speed and altered its course to the south so as to provide a lee to enable the safe launching of the RHIBs [146] . Commander Livingstone was cross-examined about that process [147] :

In re-examination, Commander Livingstone expanded upon what was required to launch the RHIBs [148] :

The launch of the RHIBs from the Pirie commenced at approximately 06:38. By approximately 06:46 both had been launched and were proceeding to Rocky Point. However, Commander Livingstone explained that the RHIBs were prevented from travelling at their full speed because of what he described as “the large swell, frantic sea state and reduced visibility”. These factors exceeded all of the standard risk profile limits for normal launch and recovery of the RHIBs, and had necessitated launching them in the lee of the island [149] .

At approximately 06:58, the Pirie commenced to round North-East Point, at which time Commander Livingstone explained that the Pirie became exposed to the "full force of the 3 to 4 metre swells from the north-west, rough sea, 30 knot gusting winds and the rain". He said that visibility varied between 500 yards and one nautical mile. At 06:59, he received a message informing him that SIEV 221 was "breaking against the rocks" [150] .

At approximately 06:35 CNOC was advised by Customs Officer Pickett that SIEV 221 was positioned approximately 100 yards off the northern coastline of Christmas Island. It was reported that the vessel was foundering off the cliff face but had so far not struck the rocks. At about the same time, the Triton received a radio call from the Pirie advising that it had received a report that SIEV 221 had no engine power, and was on the rocks [151] .

At approximately 06:40, Mr Martin observed that SIEV 221 had started to make contact with the rocks at the bottom of the cliff face of the northern coastline. He said that each time the vessel hit the rocks, it would further disintegrate. He saw people throwing life jackets into the water, and saw some of the passengers from SIEV 221 jump from the vessel into the water trying to grab them. He said that there was a strong smell of diesel fuel, and he saw a large diesel slick forming around the vessel as it continued to founder and disintegrate [152] .

At about 06:40-06:45, Mr Adams ran to the edge of the cliff face, at which time SIEV 221 was about 75m away. Swell and sea spray were breaking over the cliffs [153] and Mr Adams heard people on the vessel shouting [154] :

Mr Adams left the cliff face and with the assistance of others, gathered a number of life jackets. When he returned at about 07:10 he noticed that SIEV 221 had moved about 150m towards Flying Fish Cove and was only about 8m from the cliff face. He said that by that stage the sea state appeared to have worsened. In particular, the 3 to 4m swells were now closer together, thus intensifying the effect of the backwash from the cliff face. Mr Adams then formed part of what he described as a “human chain” to pass life jackets down to the edge of the cliff face. At this time SIEV 221 was directly in front of him. He could not see any smoke coming out of the exhaust and could not hear any sound from the engine, all of which lead him to form the view that the vessel had lost both power and steerage [155] .

Mr Adams said that he could hear people on the vessel, including children, screaming. He then saw the bow of SIEV 221 make contact with the cliff face. One person leapt from the bow of SIEV 221 onto the rocks. The backwash then took the vessel about 5m from the cliffs and spun it around [156] .

Over the next 10 minutes the vessel continued to get pushed towards the cliff face by the swell, before being pulled away by the backwash. Mr Adams continued to hold life jackets with other volunteers. At that point, Mr Adams saw a wave approaching which he described as being “much larger than the 3 to 4m swells that had been coming in”. He bent over at the waist and grabbed a rock for support, before turning to look at SIEV 221 [157] . He described what he then saw in the following terms [158] :

At about 06:35 the Triton received a radio call from the Pirie advising that SIEV 221 was reported to have no engine power and was on the rocks. Enforcement Commander Saunders understood this to mean that the vessel was in danger of breaking up, with the result that people would be in the water. As a consequence, and in circumstances where he had not been advised up to that point that anyone on board SIEV 221 was in distress or required any assistance, it became clear to him that the situation was urgent. He gave instructions to commence preparations for the launch of the Triton's two tenders [159] .

At about 06:41 the Triton’s second engine was brought on-line. Enforcement Commander Saunders briefed his tender crews as to the unfolding circumstances, [160] and instructed them to prepare for a SOLAS situation, the nature of which he explained in his evidence [161] :

By about 06:55 the Triton’s second engine had been started, and the Triton was heading north at a speed of about 15 knots which was the maximum safe speed in the prevailing conditions. At about that time the Triton received a radio transmission from the Pirie advising that there were approximately 50 people in the water off Rocky Point. This meant that the Triton would need to launch both of its tenders in order to rescue people from the water [162] .

As the Triton approached North-East Point, Enforcement Commander Saunders concluded that it would be too dangerous to attempt to launch the tenders at that location, let alone at Rocky Point (the latter location being even more exposed to the prevailing weather conditions). He ordered that Triton be slowed to a speed of 6 knots and that it change course slightly to the south so as to provide a lee for the safe launch of the tenders [163] .

The first tender (“tender 1”) was launched from the Triton at approximately 07:04, and the second at approximately 07:05, each with a crew of three. Both were ordered by Enforcement Commander Saunders to proceed directly towards Rocky Point to assist SIEV 221. In the meantime, the Triton continued towards the same destination [164] .

It was Enforcement Commander Saunders’ recollection that vessels arrived in the vicinity of Rocky Point in the following order [165] :

Each of the RHIBs launched from the Pirie had radioed Commander Livingstone at approximately 07:00 to indicate that they had arrived at the scene. At that time the scene remained obscured from the Pirie but by approximately 07:05, the Pirie had proceeded sufficiently around North-East Point so as to bring the RHIBs within its view. At about 07:07, Commander Livingstone received a report from the RHIBs that there were people in the water, and that life jackets and life rings were being deployed. By that time, Commander Livingstone could see what he thought were either people or debris in the water, although he said that the combined effect of rain, sea spray and a large swell made it very difficult to get a clear view [166] .

Commander Livingstone explained that at this point, his main concerns were [167] :

Commander Livingstone gave specific evidence regarding the dangers inherent in a RHIB approaching SIEV 221 [168] :

By approximately 07:08, both of the Triton’s tenders were also on the scene. By this time, the RHIBs launched from the Pirie were recovering people from the water. Commander Livingstone explained that due to the unsurveyed coastline, lack of sea room at the scene, and adverse weather conditions, the closest that the Pirie could be positioned to Rocky Point was approximately 300 yards [169] .

On and from approximately 07:24, survivors from SIEV 221 were disembarked and taken aboard the Pirie. Between about 11:09 and 13:02, the Pirie’s RHIBs ferried survivors (as well as the bodies of some of those who did not survive) ashore, and assisted one of the tenders launched from the Triton in doing the same. Over the ensuing two days, the Pirie conducted additional searches but no further survivors or bodies were found [170] .

The Triton arrived at the scene at approximately 07:30, at which time Enforcement Commander Saunders observed people being retrieved from the water. The Triton took up a position about 1 nautical mile from the coastline to provide support to the tenders and RHIBs, and to operate, with the Pirie, as a command centre. Enforcement Commander Saunders said that it was too dangerous to place the Triton any closer to SIEV 221, describing the weather at that point as “severe”, with 5m waves crashing into the cliffs at Rocky Point in a wind of about 30 knots. He could see that there was both debris and people in the water adjacent to the coastline. He did not see the hulk of SIEV 221 and concluded that it must have either sunk, or been broken up by being smashed against the rocks [171] .

The prevailing conditions obviously rendered the recovery of survivors from SIEV 221 both difficult and dangerous. There was, in Enforcement Commander Saunders’ view, a particular danger that if the tenders came too close to the cliffs, they too would be lifted up and/or smashed onto the rocks by the waves. The tenders collected survivors from the water and transported them to the Pirie and to the Triton, before returning to search for more survivors. The tenders had to be retrieved by the Triton each time in order for the survivors to be offloaded before the tender could be relaunched. Although Enforcement Commander Saunders considered that this was inherently dangerous given the prevailing conditions, he nevertheless regarded it as being necessary in order to save lives [172] .

At approximately 07:32, after returning to the Triton, tender 2 developed engine problems which continued for several minutes. As a consequence, Enforcement Commander Saunders concluded that tender 2 would not be able to return to attempt further rescues because it would be too dangerous for it to continue to operate near to the rocks in the rough conditions on reduced power. He instructed tender 2 to collect a life raft from the Triton and tow it to the scene before returning. This was because he thought the life raft might be able to be used to receive and hold survivors. The life raft was deployed on the Triton’s port side at approximately 07:37 and tender 2 then towed it closer to the SIEV. At that time, tender 2 had six survivors on board. However, at approximately 07:47, Enforcement Commander Saunders was advised that the towline to the life raft kept breaking. At approximately 08:18, he gave instructions to cut the life raft adrift as it was not being utilised [173] .

A considerable amount of evidence was given as to whether it was viable in the circumstances to tow SIEV 221 away from the cliff face at Rocky Point.

Commander Livingstone said that even if SIEV 221 had not struck the rocks prior to the arrival of the RHIBs or the Pirie, it would still not have been a viable option to attempt to tow it [174] . He explained that this was so for a number of reasons.

Firstly, he said that even in ideal conditions with an experienced towing party, it would have taken about 30 minutes to effect a tow. He explained that he first learned of the possible presence of a CCOI just after 06:00 and that SIEV 221 had first struck the cliff face at Rocky Point at about 07:00. He said that it was impossible for the Pirie to proceed to the scene of SIEV 221 from its position at 06:00, and effect a tow prior to SIEV 221 striking the cliff face [175] .

Secondly, he explained it would have been necessary to embark a party on to SIEV 221 in order to attach a tow line to it. To do that, it would have been necessary for a RHIB to get alongside SIEV 221. Commander Livingstone said that in the prevailing conditions, and bearing in mind that SIEV 221 was close to the cliff face, such a manoeuvre would have been dangerous, and would have carried with it “every chance” of the RHIB being punctured which, in turn, would have created a risk of people falling into the water [176] .

Thirdly, he explained that in order to tow SIEV 221 it would have been necessary for the towing party (on the assumption that they had managed to embark) to attach a tow line to a strongpoint on SIEV 221. According to Commander Livingstone, there were no strongpoints on SIEV 221 sufficient to support a tow. He stated that the attachment of a tow line to SIEV 221 was such that any attempt to tow it would have resulted in “tearing the vessel apart” [177] .

Fourthly, he said that the members of any towing party who might have managed to embark SIEV 221 would have been placed in grave danger while preparing for the tow. This was because SIEV 221 was not under power, was at the mercy of the sea and wind, such that could well have struck the cliffs with the towing party on board [178] .

Fifthly, he said that even if a tow line could have been attached to SIEV 221, and an attempt made to tow it away from the cliff, it would necessarily have been towed directly into the prevailing weather, giving rise to a very high likelihood of SIEV 221 broaching (i.e. tipping over on its side) as a consequence of a combination of the wind and the force of the tow [179] .

Sixthly, he explained that in any event, the RHIBs were not equipped, and were not sufficiently powerful, to generate the force necessary to overcome the conditions and tow SIEV 221 [180] . Moreover, given the prevailing conditions, the tow line which was required to tow SIEV 221 would have been too large to attach to the RHIB without causing the RHIB damage [181] .

Seventhly, he said that in order to tow SIEV 221 from its position it would have been necessary for the Pirie in order to enter unsurveyed waters, within 300 yards of the cliff face, in extreme weather conditions. According to Commander Livingstone, this would not only have placed the Pirie in grave danger, but would have reduced its manoeuvrability [182] .

In Commander Livingstone’s view, all of these factors meant that any attempt to tow SIEV 221 away from the cliff face would have been reckless, and would have created a very high likelihood of an even greater loss of life, including the loss of members of the crew of the Pirie [183] .

Commander Livingstone was cross-examined at length in relation to this issue [184] :

Enforcement Commander Saunders explained that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, it would have been neither possible nor practical for either tender to have attempted to tow SIEV 221 [185] . He held that view for the following reasons.

Firstly, he explained that in order to effect a tow it would have been necessary to embark a boarding party on SIEV 221, which would have required positioning a tender sufficiently close to SIEV 221 to allow the boarding party to transfer. This, he said, would have placed the tender at risk of being thrown onto the rocks by the surge of the swell and the heavy sea conditions [186] . He also explained that the members of the boarding party would have been at significant risk of falling into the water while attempting to transfer from the tender to SIEV 221, because of having to jump from one moving platform to another in rough weather conditions [187] .

Secondly, he said that even assuming it was possible to embark a boarding party on SIEV 221 without losing the tender or some (or all) of the boarding party, the boarding party would have been at great risk of being swept onto the rocks, along with SIEV 221 [188] .

Thirdly, he described the response of passengers on board a SIEV as unpredictable and difficult to manage, particularly in weather conditions of this kind. It was his view that passengers were likely to be fearful and in a state of panic, and that there was a risk that they could rush or overrun the boarding party, thus affecting the stability of the SIEV in the prevailing conditions [189] .

Fourthly, he explained that in order to effect a tow of SIEV 221 it would have been necessary to find suitable points on SIEV 221 which were strong enough to withstand the force of the tow in the prevailing conditions. He said that in his experience, SIEVs are notoriously unseaworthy, poorly constructed, and overloaded, all of which would have rendered it difficult to find a strong point. He said that those difficulties would have been exacerbated by the fact that SIEV 221 was heavy by reason of having taken on excess water. The members of any boarding party would have been at risk of being swept onto the rocks whilst searching for suitable tow points [190] .

Fifthly, even assuming suitable tow points could be found, Enforcement Commander Saunders explained that a tender would have needed to position itself alongside SIEV 221 to get close enough to throw a tow line onto SIEV 221. For the same reasons as those previously set out [191] this would have resulted in the tender being placed in danger of being swept onto the rocks [192] .

Sixthly, he said that even if towing could have been commenced, there would have been a risk of SIEV 221 being positioned “beam on”, or in other words side-on into the prevailing swell, rendering it highly susceptible to rolling and capsizing.

Seventhly, he explained that in the extreme conditions there was a risk of:

Eighthly, he explained that the necessary steps directed towards towing SIEV 221 would necessarily have taken time to complete, during which time SIEV 221 would likely have moved closer to the rocks. He said that even in more favourable conditions, such as in a calmer sea state and with an empty SIEV, it would take 20 to 30 minutes to set up a suitable tow. In light of the conditions at the time, it would have taken significantly longer to do so [194] .

Finally, he explained even if the entirety of these difficulties could have been overcome, he would still have had serious doubts about the capability of a tender to tow SIEV 221 away from the rocks to safety, given all of the prevailing conditions [195] .

For all of these reasons, Enforcement Commander Saunders explained that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, he would not have directed the tenders to attempt to tow SIEV 221 away because such a direction would have placed the lives of the tender crew, and the boarding party, at great risk, and would have amounted to a breach of his duty to ensure their safety [196] .

Enforcement Commander Saunders was also cross-examined at some length in relation to this issue. He was first asked [197] :

Enforcement Commander Saunders agreed that tenders of the kind launched from the Triton had, in the past, been used for towing purposes [198] . He also explained that they had been used for the purpose of towing SIEVs into a position where they could be scuttled in calm waters [199] , and agreed that he had no experience in (inter alia) attaching a line to a SIEV in the kind of conditions prevailed on 15 December 2010. [200] He was then asked [201] :

Enforcement Commander Saunders was then asked [202] :

He was then asked [203] :

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

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

The plaintiffs’ case is that what was an obvious tragedy should never have occurred, and could have been avoided:

It is the plaintiffs’ position that the delay in commencing the rescue operation was of critical importance. They argue, in particular, that had rescue personnel been sent out even a short time earlier, they would have faced a far less severe situation, and in particular would have arrived at Rocky Point before SIEV 221 hit the cliff face.

The plaintiffs also submit that upon the statutory forfeiture of SIEV 221 to the defendant, the defendant assumed duties and responsibilities analogous to those owed by an occupier of premises to an entrant.

The plaintiffs further argue that all of these circumstances form the basis for an action for breach of statutory duty, having regard to particular provisions of the NA.

The defendant submits that the plaintiffs’ principal claim in negligence, based upon an alleged failure on its part to take reasonable care in the exercise of its powers and the deployment of its resources, is based upon an asserted duty of care that is unsupported by precedent, contradicted by principle, and lacking in evidentiary support. The defendant submits that the duty of care alleged by the plaintiffs is incapable of arising at law, and that the legal and factual context of the present case does not support its recognition.

The defendant further submits that it was not responsible for conducting an ongoing search and rescue operation for SIEVs in the waters surrounding Christmas Island in 2010, and that it did not have control over (inter alia) the conditions at sea, and the relevant risk of harm that eventuated. The defendant submits that it was able to control only its response to the emergency, which required the use and deployment of limited resources, and which was necessarily required to be balanced against the wider policy and security objectives that governed BPC’s operational mandate.

Further, the defendant submits that even if the plaintiffs could establish that a duty of care was owed, there is no evidence to support the conclusion that its alleged failures caused or contributed to any loss and damage which may have been suffered. In particular, the defendant submits that:

The defendant further submits that it did not assume any duties or responsibilities as a result of becoming the owner of SIEV 221, and that any asserted duty arising as a consequence of the statutory forfeiture of the vessel is fundamentally inconsistent with the nature of statutory forfeiture as a measure of penalising the criminal conduct of illegally entering Australia.

In terms of the claims brought by the plaintiffs alleging breach of statutory duty, it is the defendant’s position that properly construed, the provisions upon which the plaintiffs rely do not ground a cause of action for damages.

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

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

There is uncontradicted evidence that Operation Resolute was in force on 14 and 15 December 2010 and that it was directed, at least in part, to the detection and interception of SIEVs. Question 1 is therefore answered in the following terms:

Paragraphs [25] to [30] of the FASOC [205] plead the following:

It was submitted on behalf of the plaintiffs that the question of the source of a duty of care to the plaintiffs arose in:

It was submitted that the interception duty arose because the defendant:

It was submitted that the earlier response duty arose as a consequence of:

It was submitted that the readiness duty arose, in the context of an assumed duty of a rescue service, from the placement of search and rescue facilities pursuant to the exercise of statutory functions so as to ensure that such facilities would be fit for purpose, and that reasonable care would be exercised in maintaining such search and rescue capacity.

To the extent that the defendant relied upon analogies which were sought to be drawn from so-called “emergency services” cases, the plaintiffs submitted that such cases were readily distinguishable. It was submitted that none of the authorities upon which the defendant relied in that respect involved “the very complex and unique factual matrix” of the present case, and that the defendant’s reliance upon that line of authority reflected an unsatisfactory approach towards concluding that the plaintiffs’ case should fail. It was emphasised that the rescuers in the present case were Navy personnel who were highly skilled professionals, and it was submitted that in those circumstances, given the obviously treacherous conditions which prevailed on 15 December 2010, they were the only persons who had the adequate skill to rescue the passengers on board SIEV 221. It was submitted that it must have been obvious to them that serious harm would occur to the passengers on board SIEV 221 if they did not respond and that accordingly, a duty of care was owed to those passengers.

Whilst acknowledging that “the law of the land” does not generally recognise any good samaritan rule, senior counsel for the plaintiff submitted that the “law of the sea” had always demanded a higher degree of care, vigilance and diligence, and imposed a duty on a person to come to the aid of a stranger in peril. It was submitted that even though there may not be any positive duty on a member of the public to come to the aid of a stranger, there remained a duty upon the master of a vessel to go to the aid of, and render assistance to, a person in distress at sea. This, it was submitted, was because of the specific nature of the obligations imposed by the NA, as well as the operation of international instruments which dealt with the safety of life at sea.

It was further submitted that just as an occupier owes a duty of care to all persons coming on to premises, so did the defendant owe a duty of care to those on board SIEV 221. This, it was submitted, arose by virtue of the fact that the defendant became the owner, and thus the occupier, of SIEV 221 as a consequence of its statutory forfeiture pursuant to s. 261A of the MA. It was submitted that as a consequence, the defendant owed to those on board SIEV 221 a duty analogous to that owed by an occupier of premises to an entrant.

It was further submitted that a conclusion that a duty of care was owed was supported by the fact that those on board SIEV 221 were, to the knowledge of the defendant, vulnerable and unable to protect themselves from risk of injury once they were on the vessel. It was submitted that they had no control over its passage and were entirely at the mercy of people smugglers, such that the only other group of people who did have power over their fate, and who were within the vicinity of Christmas Island at the relevant time, were the officers of the defendant. The vulnerability of those on board was said to stem from the fact that:

Senior counsel for the plaintiffs took particular issue with the suggestion that they were seeking to impose a duty on the defendant which was unrestricted in location, circumstance and time. He emphasised that the duty sought to be imposed was limited to the particular circumstances of the present case. He submitted that there had, over time, been a consistent rejection of a universal or absolute approach to the determination of whether a common law duty of care existed in a given set of circumstances, and that in the present case the duty of care arose from a unique set of facts, which included the arrival of persons on a vessel:

Senior counsel for the plaintiffs accepted, as I understood it, that the question whether a duty of care was owed in circumstances such as the present had not been the subject of judicial consideration, and that if a duty of care was found to be owed it would be novel. However, he submitted that a conclusion that a duty was owed would not represent a “radical” development in the common law, which had not been reticent formulating new sets of circumstances in which such a duty was found to be owed. He submitted, in particular, the present case demonstrated that the defendant’s officers on Christmas Island had, at the relevant time, substantial control and authority over the risk that eventuated as evidenced by (inter alia) its:

Senior counsel for the plaintiffs also cautioned against what he submitted was the defendant’s attempt to categorise those on board SIEV 221 as having acted unlawfully. It was submitted that any attempt by the defendant to disentitle the plaintiffs to the availability of a cause of action at common law by “incorrectly colouring them as being outside of the law” should be rejected.

It was also emphasised that the plaintiffs did not seek to impose upon the defendant a duty to anticipate all unforeseen possibilities. However, it was submitted that:

Senior counsel for the defendant submitted that there is no general duty at common law to rescue and that although there are some limited exceptions to that general principle, a public authority exercising statutory powers should not be regarded by the common law any differently from the citizen, and in particular, should not be considered to have an obligation to act as a rescuer. It was submitted that in the absence of a statutory direction, the mere existence of a statutory power does not impose a duty to exercise that power for the protection of others.

It was submitted that in determining whether a duty of care arose in the present case, it was firstly necessary to identify the relevant aspects of the relationship between defendant as a public authority, and the plaintiffs as a class of persons to whom the duty was said to be owed. It was submitted that in the circumstances of the present case, the relevant aspects included (although were not limited to):

In addressing those matters it was submitted that it was particularly important, for the purposes of determining whether a duty of care existed, to consider the nature and degree of control exercised by the defendant over the risk of harm that eventuated. Senior counsel stressed however, that the capacity of a public authority to exercise managerial or regulatory control to avert a risk of harm which did not emanate from matters for which it was responsible, and which it did not create, was not a relevant aspect of control.

It was further submitted that where an asserted common law duty of care was directly inconsistent with statutory duties or where, even if not directly inconsistent, such a duty would distort the focus of the performance of statutory duties (for example, by stimulating conduct which it was the policy of the law to suppress) or cause those statutory duties to be exercised in a defensive way, no duty of care will arise.

The submissions advanced on behalf of the defendant also made reference to a number of authorities in which emergency service providers, and law enforcement personnel, were found not to have owed a duty of care in particular circumstances. By analogy, senior counsel submitted that no duty of care was owed in the present case.

Against a background of these general propositions, senior counsel for the defendant advanced a number of specific submissions which, he argued, supported a conclusion that the duty of care for which the plaintiffs contended was not one which was recognised by the law.

It was submitted that the duty of care asserted by the plaintiffs was a duty to take affirmative action to avert a risk of harm to another, in circumstances where that risk was not created by the defendant. It was submitted that properly understood, the duty asserted by the plaintiffs was really a duty that the defendant employ the resources of BPC to avoid the wrecking of a SIEV at Christmas Island by intercepting it. It was submitted that as a general proposition, such a duty to take affirmative action will not arise because a public authority has no duty to take reasonable care to protect other persons merely because the legislature has vested it with a power, the exercise of which could prevent harm.

It was submitted that the primary purpose of BPC in conducting an operation such as Operation Resolute was to respond to, and protect the Australian community from, identified threats, including the irregular arrival of persons from other countries. It was submitted that such operations were conducted, and the relevant powers exercised, by BPC for the purposes of protecting Australia’s interests, by ensuring that only those persons who had a lawful right to do so entered Australia, remained in Australia, and integrated into the Australian community. It was submitted, in particular, that the powers and operations of BPC were not granted or exercised, and that operations were not conducted, for the benefit of a particular class of persons, and specifically not for the benefit of persons arriving unlawfully into Australia to ensure their safe arrival in this country. It was further submitted that in circumstances where powers and operations were exercised and conducted by BPC for broad public purposes (including for the purposes of protecting Australia’s national interests) and not for the benefit of any particular class of persons, such powers and operations were not appropriate subjects for the imposition of a common law duty of care.

It was submitted that the operations of BPC (in its capacity as a civil maritime law enforcement operation) responding to, and protecting Australia from, threats in its maritime domain, were analogous to the traditional functions of police maintaining the peace. It was submitted that generally, the common law had not recognised that a duty of care was owed by police in the exercise of their functions of preventing and suppressing crime, and protecting life and property. It was submitted that by analogy, the same conclusion should be reached in the circumstances of the present case. It was submitted, in particular, that it was important to bear in mind that the defendant had acted in the context of a danger which had already been created, and damage which already had been caused, over none of which it had any control.

In developing the submission that the defendant had no control over the risk of harm which eventuated, senior counsel submitted in particular that the defendant had no control over:

It was further submitted that this was not a case where the defendant had, by its actions, assumed any responsibility for the safety of any persons. It was submitted that the conduct of operations by the defendant, through BPC, to protect Australia from threats to its maritime domain and enforce Australia’s migration laws, did not amount to, or incorporate, any assumption of responsibility to ensure that any person entering Australia unlawfully was able to do so safely. Further, it was submitted that any reliance placed upon the operations of BPC by persons unlawfully coming to Australia to intercept them, and to ensure their safe passage, was not one which the common law recognised as reasonable.

It was further submitted that in the absence of any action on its part which served to increase the risk of harm, the fact that the defendant had responded to the arrival of SIEV 221, and had attempted to rescue those on board, did not lead to a conclusion that it owed a duty of care in the conduct of that rescue. It was submitted that there was no allegation (and no basis for an allegation) that anything done by the defendant in attempting to rescue those on board SIEV 221 had increased the risk of harm, or rendered the situation worse. It was further submitted that just as the defendant did not owe a duty of care to come to the rescue of SIEV 221, it did not owe a duty of care by attempting a rescue, provided its actions did not worsen the situation which had arisen, and which had necessitated the attempted rescue in the first place.

Senior counsel for the defendant further submitted that passengers on SIEVs generally, and those on SIEV 221 in particular, were not “vulnerable” in the relevant sense because they were able to protect themselves from the consequences of the conduct which was alleged to be negligent. Put simply, it was submitted that those on board SIEV 221 could have completely avoided the risk of harm by not travelling to Australia in the first place.

It was further submitted that the class of persons to whom the duty of care was said to be owed was a wholly self-selecting, and potentially limitless, class, such that the duty was said to be owed to any person who presented “uninvited and unheralded” as a consequence of SIEVs approaching Christmas Island. Senior counsel for the defendant submitted that the common law did not recognise a duty of that width, where no relationship of neighbourhood existed. It was submitted that to conclude to the contrary would be to “stretch the concept of neighbourhood beyond its breaking point”.

It was further submitted that the duty of care asserted by the plaintiffs was inconsistent with other duties and principles. It was submitted that as members of a disciplined force, BPC personnel operating the defendant’s assets did so in the context of a chain of command which had, as its object, responding to, and meeting, threats in Australia’s maritime domain, according to the exigencies of the time and Government policy of the day. It was submitted that a common law duty of the kind asserted by the plaintiffs had the potential to distort the performance of the obligations of BPC, by giving privilege or priority to one maritime threat (unlawful arrival) over, and at the expense of, other maritime threats (eg illegal fishing). In other words, it was submitted that the duty posited by the plaintiffs would have the potential to convert BPC into something that it was never intended to be, namely a search and rescue organisation for unlawful arrivals in Australia. It was further submitted that a Commander of a Commonwealth vessel confronted with another vessel in need of assistance, necessarily faced conflicting priorities, namely the need of the vessel in distress for assistance on the one hand, and the need to ensure the safety of his or her crew on the other.

It was further submitted that there is an inherent tension between providing assistance to those in distress at sea, and the underlying policy of the MA to prevent, deter and control the unlawful entry of persons into Australia. It was submitted that although BPC vessels could (and on occasions did) render assistance to vessels in distress, it was no part of the role of the common law to resolve such tension by recognising a duty of care, the objective effect of which would be to stimulate the conduct which was the policy of the legislature, as expressed in the MA, to suppress.

Finally, it was submitted that there was no authority, or settled principle, supportive of the duty of care asserted by the plaintiffs in the present case, and that, by a process of analogical reasoning, such authority as there was weighed firmly against a conclusion that such a duty existed.

The plaintiffs, through senior counsel, obviously accept that their case against the defendant rests, at least in part, upon establishing the existence of a duty of care. They also accept that the posited duty of care is appropriately categorised as novel. However, they argue that historically, the common law has evolved in a way which reflects a preparedness to impose a duty of care in the face of changing circumstances.

There is no general test for determining whether, for the purposes of the law of negligence, a duty of care is owed in a given set of circumstances. Different cases necessarily raise different issues. Determining whether a duty of care is owed requires an evaluation of a number of factors which may operate in favour, or against, a conclusion that a duty of care is owed [206] . The ultimate determination of that question may also involve a process of analogical reasoning [207] .

In Caltex Refineries (Qld) Pty Limited v Stavar [208] Allsop P (as his Honour then was) firmly rejected the adoption of a fixed, formulaic approach to determine whether a duty of care is owed. His Honour explained the correct approach in the following way [209] :

His Honour pointed out that it was not compulsory, in any given case, to make findings about all of those factors, and made it clear that those which were identified as being relevant did not comprise an exhaustive list. Rather, his Honour observed [210] that the list was a “non-exhaustive universe” of relevant considerations. In that particular respect, Basten JA emphasised that such a multifactorial approach should not be treated as a “shopping list”, to the point where all of the identified considerations must be present before it can be said that a duty of care will arise [211] .

Control, which was one of the factors to which his Honour referred, is of fundamental importance in determining whether a duty of care is owed, particularly where a public authority is said to owe the duty [212] . For example, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [213] some emphasis was placed on the fact that the relevant public authorities had physical control over the structure (in one case, a bridge and in the other case, a footpath) which were said to be the respective sources of the risk of harm. The existence of that control was significant in determining whether a duty of care existed [214] .

In Crimmins v Stevedoring Industry Finance Committee [215] the respondent, who was the regulator of stevedoring operations throughout Australia, was found to owe a duty of care to the appellant, a waterside worker, on the basis that (inter alia) it had exercised control over the appellant by directing him to places of work where there were risks of injury of which the respondent was (or ought to have been) aware, and in respect of which it knew (or ought to have known) that the appellant was especially vulnerable. McHugh J observed [216] :

In the present case, the plaintiffs allege that the relevant risk of harm was the risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island due to poor weather, poor navigation, running out of fuel or a combination of those (and perhaps other) factors. In my view, even accepting that there was such a risk, the defendant had no control over it. The defendant did not put the plaintiffs at any risk of harm. The defendant could not (and obviously did not) direct those in charge of SIEV 221 to navigate a particular route to Australia. Whilst there is no doubt that the weather conditions around Christmas Island on the morning of 15 December 2010 were treacherous, the defendant was not in control of those conditions. The defendant had no control (and, on the evidence, knew nothing at all about) the level of skill of those operating SIEV 221. The defendant similarly had no control over the fact that SIEV 221 was, to say the least, a primitive vessel which was unseaworthy by Australian standards.

I am therefore satisfied on the evidence that on the morning of 15 December 2010, the circumstances which faced the defendant, and which gave rise to the identified risk, were circumstances over which it had no control.

The one matter over which the defendant did have control was its response to the risk of harm which had arisen. That is quite different from having control over the factors which give rise to the risk in the first place. In that respect, the defendant’s position may be likened to that of a bushfire authority faced with fighting a bushfire. Just as a bushfire authority has no control over the spark which ignites the fire, the defendant in the present case had no control over the factors which gave rise to the risk of a shipwreck [217] . The fact that the defendant may have had the power to seize SIEV 221, detain those on board and arrest people smugglers does not alter that position Those powers do not ground a duty of care.

It follows that in my view, the defendant’s lack of control tends against a conclusion that it owed a duty of care to the plaintiffs.

Vulnerability is another factor which has been identified as being relevant to the question of whether or not a duty of care was owed by the defendant in the present case. I am unable to accept the submission of senior counsel for the plaintiffs that for present purposes, the relevant vulnerability is founded in the personal circumstances of the plaintiffs, or matters of that general nature. In the present context, vulnerability refers to the inability of those on board SIEV 221 to protect themselves from the consequences of the defendant’s conduct which is said to have been negligent [218] .

Those on board SIEV 221 were not vulnerable in that sense. As senior counsel for the defendant pointed out, they could have protected themselves completely simply by not undertaking the voyage on SIEV 221. The absence of any relevant vulnerability also tends against a conclusion that a duty of care was owed.

One of the principal submissions advanced on behalf of the plaintiffs was based upon what was said to be a special duty imposed on mariners. The “law of the sea”, it was submitted, had always demanded a higher degree of care, vigilance and diligence than the “law of the land”, to the extent that the former imposes a duty on a person to come to the aid of a stranger in peril. A number of United States decisions were relied upon by the plaintiffs in support of that proposition.

The first was Walsh v Zuisei Kaiun K. K [219] , a case in which a sound pilot fell into the water and drowned whilst attempting to transfer to a launch from the vessel he was piloting. Proceedings for wrongful death were instituted against (inter alia) the shipowner. The shipowner argued that it could not be liable in negligence as there was no duty to rescue, particularly in circumstances where there had been no finding of negligence against it in respect of any of the circumstances which led to the deceased’s fall into the water.

In the course of delivering judgment, the court observed that the decision in Moragne v States Marine Lines Inc [220] had created a non-statutory remedy for wrongful death arising from the violation of maritime duties. The court also noted that the Death on the High Seas Act [221] provided guidance as to the attribution of responsibility in such cases, and that in Mobil Oil Corp. v Higginbotham [222] it had been observed that the Death on the High Seas Act should be the courts’ primary guide in matters of this nature.

In reaching a conclusion that the shipowner owed the deceased a duty of care, the court said [223] :

The decision in Walsh was applied in Bach v Trident Shipping Co. Inc [224] . In that case, the deceased collapsed on the floor of the wheelhouse of a vessel and died. No crew member attempted to perform CPR or give any other direct first aid to the deceased, although an order was made to drop anchor. In concluding that the shipowner owed the deceased a duty of care, the court said [225] :

The court cited the decision in Walsh as authority for that last proposition. In a subsequent decision of Caminiti v Tomlinson Fleet the Court found [226] that it was implicit and inherent in general maritime law that there was a duty to rescue strangers in peril [227] .

It is plain from these authorities that the Death on the High Seas Act provides considerable guidance to courts in the United States in cases of compensation arising from deaths at sea. Its provisions obviously have no application in this country.

To the extent that the plaintiffs relied upon s. 265 of the NA in this regard, I have considered those provisions in my determination of Question 14 [228] . For the reasons advanced, s. 265 of the NA does not, in my view, impose a duty to rescue at sea.

Moreover, and in circumstances where the authorities upon which the plaintiff relied are obviously not binding on me, I was not directed to any Australian authority which supports the proposition that in a maritime context, a duty of care is imposed to rescue a stranger in peril. Australian courts have consistently concluded that there is no general duty to rescue.

In Stuart v Kirkland-Veenstra [229] Gummow, Hayne and Heydon JJ observed [230] :

In the same case Crennan J & Kiefel J (as her Honour then was) said [231] :

Senior counsel for the plaintiffs sought to distinguish the decision in Stuart on its facts. I accept that the facts were different. In particular, Stuart was not a maritime case. However, their Honours spoke of a general common law principle that there is no duty to rescue, or take affirmative action to protect another person from harm. That general principle is one which is fundamentally at odds with that advanced by the plaintiffs, whose position in this respect is based principally upon the United States authorities to which I referred and which are not binding on me. I am unable to accept the proposition that in this country, the common law imposes a duty of care to rescue a stranger in peril, be it in a maritime context or otherwise.

In support of their position in respect of this issue, the plaintiffs also sought to rely on the decision in Lowns v Woods [232] . In that case the defendant, a medical practitioner, was found to have breached his duty of care because of his refusal to treat the victim of an epileptic attack, having been personally asked by the victim’s sister to administer treatment. In concluding that the defendant was negligent, Cole JA (with whom Kirby P (as his Honour then was) agreed) concluded that the trial judge had correctly found that as a general proposition, the common law does not impose a duty to assist a person in peril, even where it is foreseeable that the consequences of a failure to do so will be the injury or the death of a person, and that something other than the foreseeability of harm is required before the law imposes a duty to intervene. However, his Honour found that in the circumstances of that case, having regard to the fact that the victim was physically proximate to the defendant, as well as the fact that the defendant was a medical practitioner to whom a direct request for assistance was made (in circumstances where he was not impeded in responding), the necessary proximity was established.

Senior counsel for the plaintiffs sought to argue that in the present case, BPC personnel who were “highly skilled professionals” were effectively in the same position as that of the defendant in Lowns. However it is important to bear in mind that the decision of the majority in Lowns re-stated the general principle that the common law does not impose a duty to assist a person in peril. What took the facts of that case outside that general principle were the particular matters to which Cole JA explicitly referred. There are no analogous factors in the present case. The decision in Lowns is clearly distinguishable, and in my view, provides no support for the plaintiff’s position.

It is also important to bear in mind what BPC was actually doing on the morning of 15 December 2010, namely exercising its powers to address such maritime threats as were apparent at the time. The evidence does not support a conclusion that in doing so, BPC assumed any responsibility to ensure the safe arrival of persons who were seeking to enter Australia illegally. For the reasons I have set out, there was no general duty imposed upon BPC to rescue. The fact that it did engage in a rescue does not lead to the conclusion that a duty of care arose. As Stuart-Smith LJ observed in Capital and Counties PLC v Hampshire County Council and ors. [233] :

A similar approach was taken in State of NSW v Tyszyk [234] . In that case, the respondent, a furniture removalist, had parked his truck adjacent to an apartment building. Upon stepping out of his truck he was hit on the shoulder by a piece of downpipe that fell from the building. The downpipe had been dangling from the building for some time prior. Two police officers were at the scene, having been called there by a person who reported the downpipe. The respondent sued the State of NSW, alleging that police (for whom the State was vicariously liable) had breached a duty of care owed to him. The primary judge upheld the respondent’s claim against the State, who appealed. In allowing that appeal Campbell JA (with whom the other members of the Court agreed) said [235] :

His Honour’s reference to Alexandrou was a reference to the decision in Alexandrou v Oxford [236] . In that case, the plaintiff’s clothing shop was burgled on a Sunday evening. The burglars’ entry activated the shop’s exterior and interior alarms, as well as a recorded telephone message to the local police station stating that the alarm had been activated. Two police officers promptly attended the scene but failed to inspect the rear of the shop where the burglars had forced entry. Some hours later goods were removed from the shop. The plaintiffs sued the Chief Constable for the value of the goods stolen, alleging that the police had been negligent by, inter alia, failing to take adequate precautions to discover why the alarm had been activated, and by assuming that it was a false alarm. At trial, the primary judge found that the theft would have been prevented if the police officers had properly inspected the rear of the premises and that the police had thereby been in breach of a duty of care owed to the plaintiff. The Court of Appeal concluded that the police owed no duty of care of the kind alleged.

It is also important to bear in mind that the evidence in the present case does not support a conclusion that anything done by the defendant in attempting to rescue any person from SIEV 221 increased the relevant risk of harm, or rendered an already serious situation any worse. Ordinarily, the common law does not impose a duty of care on a person to protect another from risk of harm unless that person has created the risk. In that respect, the position of a public authority is no different to that of an individual citizen. A public authority has no duty to take reasonable care to protect other persons merely because the Parliament has vested it with a power, the exercise of which could protect others from the risk of harm. It follows that a public authority will not generally be liable in negligence by failing to exercise a discretionary power that is vested in it for the benefit of the general public. If, however, the authority uses its powers to intervene in a particular field of activity, and in doing so increases the risk of harm, then it will ordinarily come under a duty of care [237] . In the present case, there is no evidence whatsoever that anything done by the defendant, through BPC, increased the risk of harm. This also tends against a conclusion that a duty of care was owed.

Further in my view, some analogy can be drawn between the position of the defendant in the present case and that of emergency service providers who have been found, in various factual scenarios, not to owe a duty of care [238] . Senior counsel for the plaintiffs sought to distinguish that line of authority on (inter alia) the basis that in the present case the defendant chose to engage in a rescue operation. That is obviously so. However as I have noted [239] , that does not lead to the conclusion that the defendant assumed a responsibility to assure the save arrival of those on board SIEV 221, particularly in circumstances where nothing done by the defendant made the situation worse.

Another of the principal submissions advanced on behalf of the plaintiffs sought to draw an analogy between the position of the defendant arising from the statutory forfeiture, and its consequent ownership, of SIEV 221, and the position of an occupier of premises. Section 261A of the MA has the effect of forfeiting, to the defendant, a vessel which is used or involved in a contravention of the MA involving the bringing, or coming to Australia, of unlawful non-citizens, or the entry or proposed entry of unlawful non-citizens into Australia. The section is in the following terms:

Section 261B of the MA makes provision for the seizure of the thing which is forfeited under s. 261A:

Section 261D requires an officer to give written notice of a seizure to the owner of the thing seized:

Section 261F of the MA provides that if after 21 days of notice being given no claim is made for the thing, the thing is taken to be forfeited:

Section 261G provides that in the event that a written claim is made, the Minister may order that the thing is not forfeited, or that it will be condemned as forfeited unless proceedings are instituted within one month to recover it.

Section 261H provides that if such proceedings are not brought, then the thing is taken to be forfeited.

There is no issue that on 3 September 2012 Ali Khorram Heydarkhani was convicted of an offence contrary to s. 233B(1) of the MA, namely that he facilitated the bringing or coming to Australia of non-citizens, and engaged in conduct that gave rise to a danger of death or serious harm, in circumstances where he was reckless to that danger. That offence arose out of the arrival of SIEV 221 [240] . There is therefore no issue that SIEV 221 was a vessel which had been used or involved in a contravention of the MA [241] , as a consequence of which it was forfeited to the defendant pursuant to s. 261A. Used in that sense, the word “forfeiture” refers to the divestiture of title to the property which is forfeited [242] .

However, it is one thing to conclude that the owners of SIEV 221 were divested of their title to SIEV 221 by the operation of statute. Whether, in those circumstances, the defendant became the owner of the vessel, such that it assumed duties and responsibilities analogous to those owed by an occupier of premises to an entrant is another question entirely. In my view, the answer to that question lies, at least in part, in the underlying purpose of s. 261A of the MA, and the nature of statutory asset forfeiture arising from criminal conduct.

In International Finance Trust Co Limited v NSW Crime Commission [243] French CJ traced the history of asset forfeiture by reason of criminal conduct [244] before stating [245] :

Whilst the statutory provision then under consideration was different [246] , his Honour’s observations are nevertheless apposite to a consideration of the operation of s. 261A of the MA. Clearly, statutory forfeiture of the kind for which s. 261A makes provision acts as a means of deterring serious criminal activity.

The nature of s. 261A was more specifically considered in Tran v Commonwealth [247] . In that case Rares J [248] traced the history of the enactment of the section, from which it is plain that its principal aim is to address the smuggling of human cargo by sea, and to allow the removal or destruction of vessels which are found to be unseaworthy, a risk to safety or navigation, or a threat to the environment.

In the same case, Besanko J described the nature of statutory forfeiture in the following way [249] :

In my view, there is nothing in the legislative history of s. 261A of the MA, nor is there anything in its terms, which supports the proposition that upon forfeiture of SIEV 221 the defendant assumed duties and responsibilities of the kind submitted by the plaintiffs. I am fortified in that view by the fact that statutory forfeiture is a penalty. Consistent with that, one of the purposes of s. 261A is to deter the commission of people smuggling offences. In my view, it would be fundamentally inconsistent with that underlying purpose to conclude that upon forfeiture, the defendant assumed a liability analogous to that imposed upon an occupier of premises. The incongruity in concluding that such a liability could arise from the precise conduct which the forfeiture provisions specifically seek to deter will be self-evident. The provisions of s. 261F of the MA, pursuant to which anything seized is condemned and forfeited to the Commonwealth 21 days after the notice of seizure has been given under s. 261D, also tend against the conclusion that upon seizure and the consequent forfeiture of SIEV 221, the defendant assumed liabilities of the kind asserted on behalf of the plaintiffs.

The broader underlying policy of the MA generally is also inconsistent with the duty of care posited by the plaintiffs. Section 4(1) of the MA provides (inter alia) that its object is to “regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens”. Importantly, s. 4(2) expresses an intention on the part of the Parliament that the MA “be the only source of the right of non-citizens to so enter or remain”. The underlying policy of those provisions was explained in Plaintiff S4/2014 v Minister for Immigration and Border Protection [250] where it was observed (citations omitted) [251] :

Those observations were consistent with those in an earlier decision of Al-Kateb v Godwin [252] :

It follows, as the defendant submitted, that there is a tension between the policy of the MA to prevent and deter its contravention on the one hand, and assisting those persons who, in contravention of the MA unlawfully come to Australia and, in doing so, find themselves in distress at sea on the other. In CPCF v Minister for Immigration and Border Protection Crennan J observed [253] :

In its submissions, the defendant properly acknowledged that BPC vessels do, on occasions, go to the assistance of vessels in distress at sea. Obviously they did so in the present case. However, I accept the submission that to recognise a common law duty of care, the objective effect of which would be to stimulate the conduct which the underlying policy of the MA seeks to suppress, would be to highlight the tension of which Crennan J spoke. As the defendant submitted, the fact that an asserted common law duty is apt to stimulate conduct which, as a matter of policy, the law seeks to suppress, tends completely against the recognition of such a duty [254] .

Finally, and consistent with the concession that the precise circumstances of the present case had not previously been the subject of any judicial consideration, senior counsel for the plaintiffs was unable to take me to any authority which supported the proposition that a duty of care was owed. For the reasons I have outlined, the adoption of the approach set out by Allsop P in Caltex Refineries (Qld) tends against the existence of such a duty, as does the application of analogical reasoning.

For all of these reasons, the defendant did not owe the plaintiffs a duty of care of the kind postulated by Question 2.

Question 2 is answered No.

It was submitted on behalf of the plaintiffs that in light of the potentially catastrophic consequences for any passenger in the event that a SIEV became shipwrecked due to the failure by the defendant to take reasonable care in the conduct of the interception operation, the defendant ought to have foreseen that the family members of such a passenger, upon learning of the passenger being killed, injured or put in peril, might suffer a recognised psychiatric illness. It was submitted that in these circumstances the defendant owed a duty to take care to avoid a foreseeable risk of mental harm to those family members.

Senior counsel for the plaintiffs did not contend that the defendant had guaranteed a safe passage of the vessel to, or the safe arrival of the vessel at, Christmas Island. He also acknowledged that no assurance of safety had been given by the defendant to any of the persons on board. However, he submitted that those on board were entitled to rely on the fact that the defendant had, in protecting Australia’s borders, assumed responsibility in the interception of vessels, and the preservation of the lives of the passengers on board.

For the reasons relied upon in respect of question 2, it was again submitted that the defendant had relevant control over the risk of harm and specifically, the risk of a shipwreck of a SIEV at Christmas Island. It was submitted that the defendant could (and did over a long period of time) control the risk of a shipwreck at Christmas Island by maintaining surveillance of the approaches to the island from the north, thus providing a barrier patrol in order to be able to exercise of its powers to intercept and detain vessels, and those on board.

The defendant submitted that even if it could be demonstrated that some (or all) of the relatives of those on board SIEV 221 had suffered a recognised psychiatric illness, no duty of care arose. It was submitted that in determining whether, for the purposes of an action in negligence, a defendant owed a duty to take care to avoid recognisable psychiatric injury, the central question was whether, in all the circumstances, the risk of sustaining such an injury was reasonably foreseeable. It was submitted that in these circumstances, the duty of care alleged by the plaintiffs was incapable of arising in the present case for a number of reasons.

Firstly, it was submitted that there was no pre-existing relationship between the defendant and the passengers on board SIEV 221, and that the defendant did not owe any duty of care to any primary victim.

Secondly, it was submitted that the defendant did not assume any responsibility for the safety of any person entering Australia unlawfully on board a SIEV, and that to the extent that any of the passengers on board SIEV 221, or their family members, relied upon the defendant and its servants to guarantee a safe passage to Christmas Island, such reliance was not reasonable.

Thirdly, it was submitted that the defendant had no control over the relevant risk of harm, and that its control was limited to control over its response to the emergency.

Finally, it was submitted that the existence of a duty to take care to avoid the risk of psychiatric harm to relatives of passengers on SIEV 221 was inconsistent with the wider duties and operational responsibilities owed by BPC, and the Commanders of vessels owned or operated by the defendant, such duties and responsibilities being consistent with the underlying policy of the MA.

The claims made by the family members of passengers on board SIEV 221 are claims for damages for pure mental harm. In these circumstances, Part 1B of the CLAW (ss. 5Q to 5T) applies by virtue of s. 5R.

Section 5Q is in the following terms:

Section 5S is in the following terms:

The common law position in respect of whether a defendant owes a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury was set out in Tame v State of NSW [255] . In that case, the High Court concluded that the fundamental question for determination in such a case is whether, in all of the circumstances, the risk of the plaintiff sustaining such an injury is reasonably foreseeable [256] .

Subsequently, in Wicks v State Rail Authority of NSW; Sheehan v State Rail Authority of NSW [257] , the High Court concluded that s. 32 of the CLAN (the terms of which are essentially identical to those of s. 5S of the CLAW) was to be understood against the background provided by the common law as stated in Tame [258] . The Court said (citations omitted) [259] :

These observations apply to s. 5S of the CLAW, given the similarity between its terms and those of s. 32 of the CLAN.

Many of the factors considered in respect of Question 2 are also relevant in determining Question 3, and support a conclusion that no duty of care was owed by the defendant to the relatives of passengers on board SIEV 221. Those factors include the defendant’s lack of control over the matters giving rise to the risk of harm, as well as the fact that the defendant did not assume the responsibility of providing to those on board SIEV 221 a safe passage to Australia.

The absence of any relevant relationship between the defendant and either the passengers on board or their relatives also supports a conclusion that the defendant did not owe a duty of care to the family members of passengers on board. In Annetts v Australian Stations Pty Limited [260] the appellants had agreed to their son being employed by the respondent on a cattle station after being given several assurances by the respondent as to the conditions under which their son would work. The respondent acted contrary to the assurances which had been given, causing the appellants’ son to abscond. He was later found dead from dehydration, exhaustion and hypothermia, following which the appellants brought proceedings against the respondent for damages for psychiatric injury. In concluding that the respondent owed the appellants a duty of care, the High Court emphasised that there was a relevant relationship between the appellants and the respondent which supported the existence of such a duty. Gleeson CJ [261] concluded that the relationship between the parties was sufficient, in combination with reasonable foreseeability of harm, to give rise to a duty of care, even though the appellants did not directly witness their son’s death. Gaudron J concluded [262] that it was possible to identify special features of the relationship between the parties, such that the respondent should have had the appellants in contemplation as persons closely and directly affected by its acts and omissions in relation to their son. Gummow and Kirby JJ concluded [263] that the “connections” between the parties were indicative of the existence of a duty of care.

A similar approach was taken in Gifford v Strang Patrick Stevedoring Pty Limited [264] . In that case, the children of an employee of a stevedoring company who was crushed to death at work by a vehicle which had been negligently operated by another employee sued the deceased’s employer. None of the children witnessed the accident. They were subsequently told of their father’s death and claimed to have suffered psychiatric injury as a consequence. The High Court concluded that the deceased’s employer owed a duty of care to his children to avoid causing them a recognisable psychiatric illness. In reaching that conclusion, emphasis was placed on the existence of the relevant relationship [265] . In that regard McHugh J said [266] :

In the present case, no relevant relationship existed which rendered the family members of those on board SIEV 221 a neighbour of the defendant. In circumstances where, for the reasons I have set out in my consideration of Question 2, the defendant had no control over the relevant risk of harm, I am unable to accept that any relevant relationship arose upon the arrival of SIEV 221 in Australian waters, or when the defendant came to be the owner of the vessel.

Further, the underlying policy of the MA is, for the reasons previously set out [267] , inconsistent with the proposition that the duty posed by this question was owed.

It follows that in my view, no duty of care was owed by the defendant to the relatives of passengers on board SIEV 221 to avoid foreseeable psychiatric injury to those relatives.

Question 3 is answered No.

It was submitted on behalf of the plaintiffs that the duty of care owed by an employer to its employees not to cause psychiatric or physical harm where the employee has acted as a rescuer should be extended to apply to the present circumstances, and a conclusion reached that the defendant owed a duty of care not to put rescuers and onlookers in a position where it was foreseeable that mental harm would arise.

It was submitted that the defendant had control over whether it could intercept, or respond to, the presence of a SIEV, and thus prevent a shipwreck, or at least ameliorate its effects. It was submitted that in the context of a shipwreck, there was likely to be an immediacy of involvement of bystanders, and that the evidence in the present case established that bystanders were, in fact, called upon to assist in the rescue efforts which had been mounted.

The defendant accepted that an employer owes a duty not to cause psychiatric (as well as physical) injury to an employee, including in circumstances where an employee has acted as a rescuer. The defendant also accepted that a common law duty of care may be owed to rescuers, albeit in limited circumstances. However, the defendant submitted that the duty owed by an employer, upon which the plaintiff’s relied, could not be extended to cover the circumstances of the present case for a number of reasons.

In terms of the rescuers, it was firstly submitted that the plaintiffs’ evidence failed to establish many of the important factual elements which were required to support the existence of a duty of care. For example, it was submitted that fundamentally, there was no medical evidence that any rescuer had suffered a recognised psychiatric injury.

Secondly, it was submitted that those authorities which supported the proposition that a duty of care may be owed to a rescuer did so in circumstances in which the party said to owe the duty was responsible for creating or causing the peril that necessitated the rescue. It was submitted that the circumstances of the present case were fundamentally different, because the defendant did not create, had no control over, and had no capacity to affect, the relevant risk, and the conditions and circumstances which had unfolded on the morning of 15 December 2010. Those conditions and circumstances included the weather, the sea state, the seaworthiness of SIEV 221, the skill and experience of the vessel’s crew, and the geographical features of the northern side of Christmas Island.

Thirdly, it was submitted that there was no relevant relationship between the defendant and the rescuers. In terms of any rescuers who were employees of the defendant, it was submitted that the facts of the present case were distinguishable from those authorities in which a defendant employer had been found to have controlled the conditions at the place of work where the relevant accident occurred, and thus owed a duty of care.

Fourthly, it was submitted that the existence of a duty to take care to avoid the risk of psychiatric harm to persons attempting to rescue people on board a SIEV was inconsistent with the wider duties and operational responsibilities owed by BPC personnel, and by Commanders of seafaring vessels owned or operated by the defendant, as well as being inconsistent with the underlying policy of the MA.

In terms of the onlookers, the defendant accepted that there was no absolute bar to the recovery of damages for psychiatric injury suffered by onlookers who had no pre-existing relationship to the primary victim. However, it was submitted that the weight of authority supported the proposition that recovery of damages by unrelated onlookers would typically be permitted only in exceptional circumstances. The defendant advanced a number of submissions in support of those propositions.

Firstly, it was again submitted that many of the important factual elements required to support the existence of a duty of care had not been established by the plaintiffs including, for example, the fact that any onlooker had suffered a recognised psychiatric injury.

Secondly, it was submitted that the absence of any pre-existing relationship between onlookers and those on board SIEV 221 weighed against a conclusion that a duty of care was owed by the defendant.

Thirdly, it was submitted that there was an onus on the plaintiffs to establish some exceptional circumstance(s) that would justify the imposition of a duty of care, and that no such circumstances had been identified.

Fourthly, it was submitted that the presence of onlookers at the scene could not fairly be described as a reasonably foreseeable consequence of any conduct of the defendant.

Fifthly, it was submitted that the onlookers did not contribute to, and were not involved in, the accident that caused death and injury to the passengers on board SIEV 221.

Finally, and for the reasons previously advanced, it was submitted that the defendant did not have the control over the relevant risk of harm.

The plaintiffs did not direct me to any evidence supporting a conclusion that any person who participated in attempts to rescue passengers on board SIEV 221, or any person who witnessed the relevant events, had suffered a recognisable psychiatric illness. In the absence of such evidence, any claim for damages for psychiatric injury to rescuers and onlookers must necessarily fail. However, the substance of the issues which are raised by this question, should nevertheless be addressed. In doing so I turn firstly to the position of the rescuers.

There is no doubt that an employer owes a duty not to cause injury to an employee. That duty will extend to circumstances which include those in which an employee has acted as a rescuer [268] . However, whether a duty is owed to a rescuer where the factual circumstances fall outside the relationship of employer and employee is less clear.

In Chapman v Hearse [269] a person who had stopped to render assistance to the victim of a motor vehicle accident was himself struck by a vehicle and killed. It was concluded that subsequent injury inflicted by passing traffic upon those rendering aid after an earlier accident was by no means unlikely [270] . That conclusion was reached, at least in part, based upon analogies drawn from the so-called “rescue cases” [271] .

In Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW Beazley JA (as her Honour then was), referring to the decision in Chapman, said [272] :

Her Honour took a similar approach in McDonald v Shoalhaven City Council [273] .

Whilst the issue of whether a duty of care may be owed to rescuers has been described as problematic [274] , there is no authority for the proposition that such a duty can never arise. Whether it does will necessarily depend upon the facts and circumstances of the particular case.

The facts of the present case are such that, in my view, no duty of care was owed to rescuers, or to onlookers. The fact that the defendant had no control over the relevant risk of harm and was not responsible for causing the peril which required SIEV 221 to be rescued, along with the absence of any relevant pre-existing relationship, are all factors which tend against the existence of a duty of care.

Question 4 is answered No.

The plaintiffs relied on their previous submissions.

The defendant relied on its previous submissions.

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

Question 5 is answered No.

It was submitted on behalf the plaintiffs that in the period between September and December 2010, the shipwreck risk was foreseeable, and that the defendant knew or ought to have known that this was the case. It was further submitted that during this period, and from the perspective of the defendant, the shipwreck risk was not insignificant because it:

The defendant accepted that there was a risk that a SIEV approaching Christmas Island from the north might be shipwrecked. However, the defendant submitted that in the present case such risk did not arise from anything done by the defendant, but rather from:

Further, the defendant submitted that any risk was both inherent and obvious and that accordingly, the defendant was not liable.

As to the inherent nature of the shipwreck risk, it was submitted that there was always a risk that a small, wooden and overcrowded vessel that had travelled across the open ocean to gain illegal entry into Australia, might encounter weather and sea conditions which it, and its crew, were ill-equipped to withstand or navigate safely, such that it became wrecked against the coastline of Christmas Island. It was submitted that the inherent unpredictability of the weather and conditions at sea, and in the waters in the immediate vicinity of Christmas Island, meant that if those conditions were sufficiently rough or dangerous, the shipwreck risk could not be avoided even if the defendant had exercised the utmost skill and care in the exercise of its powers and functions.

It was further submitted that the shipwreck risk was an obvious risk because a reasonable person in the position of those persons on board SIEV 221, in circumstances where they had boarded a vessel of that type which would be exposed to the full force of the elements in travelling across the open ocean to gain illegal entry into Australia, would apprehend that the vessel might sink or be wrecked, resulting in catastrophic loss of life. It was submitted that it would be obvious that the weather and conditions at sea can be both extreme and dangerous, and can be capable of causing severe damage to any vessel, as well as injury or death to any persons on board.

As the defendant properly conceded there was, on the morning of 15 December 2010, a risk of the kind postulated by this question. However, for the reasons discussed in my consideration of Question 2, the conduct of the defendant did not give rise to that risk. Rather, the risk was brought about by factors over which the defendant had no control.

Moreover, for the reasons set out below, the risk was both inherent and obvious. It was therefore a risk in respect of which the defendant cannot be held liable.

In terms of the risk being inherent s. 5E of the CLAW provides (inter alia) as follows:

Section 5P of the CLAW is in the following terms:

Section 5I(1) of the CLAN is in similar terms:

In determining whether a risk is an inherent risk, it is firstly necessary to look at the circumstances which existed before the risk materialised [276] . In the present case, the evidence establishes that SIEV 221 was a primitive, and by Australian standards, a barely seaworthy vessel. The evidence also establishes that in that condition, and in circumstances where it was obviously overcrowded, SIEV 221 sailed from Indonesia to Australia for the purposes of allowing those on board to attempt to enter Australia illegally.

The very nature of the voyage that was undertaken, namely a voyage on the open seas from Indonesia to Australia, was such that there was always a risk that adverse weather and sea conditions would be encountered. The primitive nature of SIEV 221 was such that it was not properly equipped to withstand those conditions, giving rise to a risk that it would be shipwrecked and/or sink. Moreover, the vessel arrived at Christmas Island in the monsoon season, a period which attracts trying weather conditions which render it particularly difficult for vessels approaching (as SIEV 221 did) from the north.

All of those circumstances gave rise to a situation where, if it transpired that the weather conditions were treacherous (as turned out to be the case) the shipwreck risk could not (for the reasons discussed more fully in my consideration of Questions 9, 10, 12 and 13 below) have be avoided even if the greatest possible skill and care had been exercised.

I am therefore satisfied the shipwreck risk was an inherent risk within the meaning of s. 5E of the CLAW. That leads to a consideration of the provisions of s. 5P and, more specifically, a consideration of whether, in the circumstances, the harm that in fact eventuated was the result of the occurrence or materialisation of the inherent risk. For the reasons already expressed, the answer to that question in the present case is clearly yes. Having regard to s. 5P of the CLAW, the defendant is not liable for any harm suffered by the plaintiffs from the materialisation of an inherent risk.

The associated issue raised by this question is whether the shipwreck risk was an obvious risk. Section 5E of the CLAW provides that the term “obvious risk” has the meaning given to it by s. 5F which is in the following terms:

Section 5N of the CLAW is in the following terms:

Section 5O of the CLAW is in the following terms:

The effect of s. 5N of the CLAW is to create a presumption, on the part of a person who has suffered harm, of awareness of the risk of such harm if the risk was obvious, unless the person proves on the balance of probabilities that he or she was not so aware. The effect of s. 5O of the CLAW is that there is no duty of care to warn of an obvious risk.

There was, for the reasons I have previously stated, an obvious risk that a vessel such as SIEV 221 might sink or be wrecked, in circumstances where it would be exposed to the full force of any prevailing weather conditions on the course of its voyage. It must have been obvious to those on board that the vessel would be so exposed, that weather conditions can be dangerous, and that such conditions have the capability to cause death or serious injury. None of the evidence before me in the present case discharges the onus imposed upon the plaintiffs by s. 5N of the CLAW.

I am satisfied in these circumstances that the shipwreck risk was an obvious risk within the meaning of s. 5F of the CLAW. As a consequence, there was no duty on the defendant to warn of that risk.

Question 6 is answered:

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

Question 7 is answered:

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

Question 8 is answered:

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

It was submitted on behalf of the defendant that it did not owe any duty of care and that accordingly, the primary premise upon which this question was based was not made out. However, it was the defendant’s position that even if a conclusion was reached that a duty of care was owed, the question nevertheless should be answered in the negative.

It was submitted that the evidence established that the Sea Eye and the Colin Winchester were not BPC assets and, as such, did not fall within the scope of the duties of care pleaded in the FASOC. The defendant further submitted that even if the Sea Eye and the Colin Winchester had been in survey, they could not have prevented the wreckage of SIEV 221 because:

Senior counsel for the defendant accepted that the likely seriousness of the harm resulting from the wreckage of a SIEV was high. However, he submitted that there was no evidence to support a conclusion that there was any unreasonable delay in sending the Sea Eye and/or the Colin Winchester for repair, and having them returned.

Finally, it was submitted that the activity creating the harm in the present case, namely the unlawful travel to Australia by SIEV 221 in contravention of the MA, had no social utility, was a contravention of Australian law, and was an activity which was the policy of the Commonwealth Parliament, as expressed in the MA, to suppress.

Question 9 is predicated on the premise that the defendant owed a duty of care to the plaintiffs. For the reasons previously expressed, I have concluded that no duty was owed. In light of that conclusion, the remaining issues raised by this question do not strictly arise. However, as they were the subject of detailed submissions from both parties, it is appropriate that I consider and determine them.

The resolution of this question invites consideration of s. 5B(2) of the CLAW which is in the following terms:

I accept that there was a high probability that harm would eventuate if care were not taken, that such harm would be likely to be serious, and that the burden of taking precautions to avoid the risk of harm was not unduly onerous.

However, the unchallenged evidence of Mr Adams, which I accept, that even if the Sea Eye and/or the Colin Winchester had been in an acceptable condition, they could not have been safely used on the morning of 15 December 2010 given the prevailing conditions. His evidence also establishes that the time which would have been taken to:

Further, even if it is accepted that the likely seriousness of the harm resulting from a SIEV being wrecked at Christmas Island was high, the plaintiffs did not direct me to any evidence which would support a conclusion that there was any unreasonable delay in having either the Sea Eye or the Colin Winchester sent for repair and return.

Further, as I have already pointed out, the activity which created the harm in the present case was the travel to Australia, on an unseaworthy vessel, by a group of persons whose aim was to enter Australia illegally in contravention of the MA. That activity constituted one of a number of maritime threats, to the prevention of which Operation Resolute was directed and which, as a matter of prevailing Government policy, was prohibited. The activity creating the harm therefore had no social utility whatsoever.

Question 9 is answered No.

It was submitted on behalf of the plaintiffs that this question should be answered in the affirmative because:

It was submitted on behalf of the defendant that Commander Livingstone had explained why it was not practicable to anchor SIEV 220 or allow it to drift away, and why there was an associated necessity for the Pirie to remain on the eastern side of the island on the evening of 14 December and the morning of 15 December. It was submitted that the evidence established that the decision of Commander Livingstone to limit his patrol on the evening of 14 December 2010 to a short racetrack, so as to stay within visual contact with SIEV 220, was an entirely reasonable one, and an appropriate discharge of his responsibility to preserve the welfare of his crew. It was submitted that the effect of taking the precaution which the plaintiffs allege ought to have been taken would have resulted in the members of the Pirie’s crew who formed the steaming party on board SIEV 220 being left effectively unattended, and exposed to considerable danger.

Although the defendant accepted that the likely seriousness of the harm resulting from a SIEV being wrecked at Christmas Island was high, it was submitted that there was no evidence to support a conclusion that even if the Pirie had been patrolling further north of Christmas Island during the evening of 14 December 2010 and the morning of 15 December 2010, it would have detected SIEV 221.

As is the case with Question 9, Question 10 is predicated upon the proposition that a duty of care was owed by the defendant, in circumstances where I have found to the contrary. However, the other issues which are raised by the question should be addressed in light of the submissions made by the parties.

Again, in terms of s. 5B(2) of the CLAW, I accept that there was a probability that harm would occur if care were not taken, that the harm was likely to be serious, and that the burden of taking precautions was not unduly onerous. For the reasons set out previously [278] the activity creating the harm had no social utility.

The factors set out in s. 5B(2) of the CLAW are not the only relevant factors which bear upon this question. Before considering a number of other factors, it is appropriate that I make some observations about Commander Livingstone, whose evidence bears directly upon this question.

Commander Livingstone impressed me as a careful, diligent and highly responsible Commanding Officer. On the morning of 15 December 2010, he was faced with a combination of serious circumstances, in response to which he was required to balance a number of competing responsibilities. It was clear to me, from the manner in which he gave his evidence, that Commander Livingstone gave careful consideration to each decision that he was required to make on that morning.

The evidence given by Commander Livingstone which bears upon this question was the subject of three particular challenges in cross-examination. The first concerned his decision to have the Pirie remain on the leeward side of the island on the evening of 14 December 2010, and into the morning of 15 December 2010. Commander Livingstone advanced a number of reasons for making the decision that he made. Those reasons were, in my view, cogent and compelling, and reflected Commander Livingstone having given them considerable thought. On a fair reading of the cross-examination in respect of this issue, Commander Livingstone’s evidence was not, in my view, impugned in any material way. His decision to have the Pirie remain on the eastern side of the island, in close proximity to SIEV 220, was in my view, a sound and responsible exercise of judgment for a number of reasons.

There was an obvious necessity for the Pirie to maintain visibility of SIEV 220 during the night of 14 December. As Commander Livingstone explained, maintaining visibility was rendered difficult due to the weather conditions, and the corresponding reduction in the efficacy of the Pirie’s radar systems. There was a clear need to ensure the safety of the crew of the Pirie who formed the steaming party on board SIEV 220. As a matter of common sense, the prevailing weather conditions and the primitive nature of SIEV 220 could well have combined to necessitate the recovery of the steaming party on board SIEV 220, in order to preserve their safety. In these circumstances it was clearly necessary for the Pirie to remain close by so as to be able to effect such recovery if the circumstances required it.

It is also important to bear in mind that the evidence of Commander Livingstone as to the necessity for the Pirie to remain in close proximity to SIEV 220 was corroborated by the evidence given by Rear Admiral Barrett at the Coronial Inquest. A transcript of that evidence forms part of the evidence before me, and it was admitted without objection or challenge from the plaintiffs.

Further, Commander Livingstone was entitled to, and quite properly did, take into account the fact that the prevailing threat level at the time was not indicative of the imminent arrival of a further SIEV. That fortified his view that remaining in close proximity to SIEV 220 was the preferred option.

I am also unable to accept the submission advanced on behalf of the plaintiffs that the standing orders issued to Commander Livingstone mandated, to the exclusion of every other consideration, that he maintain positive surveillance in the Pirie’s original racetrack, so as to allow it to effectively and safely intercept any approaching SIEV. Taken at face value, that was what the standing orders required. However, it could not possibly be the case that the standing orders mandated that action be taken even in circumstances where, to do so, could have resulted in the welfare of the Pirie’s crew being placed in significant jeopardy. As a matter of common sense, the terms of any standing orders must necessarily remain subject to prevailing circumstances and conditions, and which impact upon whether such orders can, or should, be followed.

The second specific challenge to Commander Livingstone’s evidence (which was related to the first) concerned his decision to limit the Pirie’s patrol to a short racetrack so to allow it to remain within visual contact of SIEV 220. For the reasons already set out, that decision was both sound and reasonable in circumstances where a number of the Pirie’s crew were embarked on SIEV 220 as members of the steaming party. Moreover, delegating the task of surveillance of SIEV 220 to the Triton, so as to allow the Pirie to resume its racetrack was not, in my view, a viable option. There were, after all, in excess of 100 PIIs on board the Triton at the time. The difficulty in the Triton assuming responsibility for the surveillance of SIEV 220 in those circumstances will be obvious.

In these circumstances, I am satisfied that the decision of Commander Livingstone to remain on the leeward side of the island in close proximity to SIEV 220 was prudent, well founded, entirely reasonable, and a proper discharge of his duties as the Commander of the Pirie. This is particularly so in circumstances where he had no reason to suspect the arrival of another SIEV, given the existing threat level.

Moreover, and in any event, even if Commander Livingstone had decided to resume surveillance further to the north of Christmas Island on the evening of 14 December and into the morning of 15 December, the evidence does not support a conclusion that the Pirie would have detected SIEV 221 in those circumstances. This is particularly so in light of the unchallenged evidence of Commander Livingstone as to the nature of the weather conditions, their effect on the Pirie’s ability to detect other vessels through its radar systems, and their effect upon the level of visibility.

The third aspect of Commander Livingstone’s evidence which is relevant to this question, and which was the subject of cross-examination, concerned his determination that it was not practicable to anchor SIEV 220. For the reasons Commander Livingstone explained in his evidence, anchoring SIEV 220 was not viable because (inter alia) a suitable anchorage location could not be readily found, and the prevailing circumstances rendered it effectively impossible to conduct a survey with a view to finding such a location.

Question 10 is answered “No”.

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

It was submitted that in these circumstances, this question should be answered Yes.

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

It was submitted that in these circumstances, as at 06:00 on 15 December 2010, Commander Livingstone did not know, and had no reason to suspect, that SIEV 221 was in distress.

Mr Martin’s unchallenged evidence, which I accept, was that he first saw SIEV 221 at approximately 05:40. He was adamant that he did not consider SIEV 221 to be in distress at that time, or indeed for some considerable time after that. The circumstances which lead Mr Martin to form his initial view that SIEV 221 was not in distress included the fact that the vessel was making way, and was steering around dangerous waters. It is therefore entirely unsurprising that when Mr Martin telephoned Mr Jardine to report the sighting of SIEV 221, he mentioned nothing about the vessel being in distress. It is equally unsurprising that, acting on the information which he was given by Mr Martin, Mr Jardine did not advise CNOC that SIEV 221 was in distress.

The other witness who made observations of SIEV 221 in the early hours of 15 December 2010 was Mr Adams. He too formed the view when he first saw the vessel that it was not in distress. It is clear from his evidence that amongst the circumstances which led him to form that view were the fact that when he first saw SIEV 221 it was under power, he could see smoke coming from the exhaust, and he was able to hear the sound of its engine. Again, the facts which led Mr Adams to form the view that SIEV 221 was not in distress at that point are entirely reasonable, and I accept his evidence.

It is also clear from the evidence of Commander Livingstone that when he received the communication from Enforcement Commander Saunders around 06:00 on 15 December he was alerted to the possible, as opposed to the confirmed, presence of a SIEV. His evidence as to what he was told was completely consistent with the evidence of the observations which had been made by Mr Martin and Mr Adams up to that point. I am satisfied that Commander Livingstone was certainly not informed, at or around 06:00, that there was an SIEV in distress. There is no evidence to support a conclusion that Commander Livingstone knew, or had reason to suspect, that SIEV 221 was in distress at the time that he received the communication from Enforcement Commander Saunders. The first such notification he received was at about 06:32 from NORCOM which, he said, changed his priorities.

The plaintiffs relied on the fact that Commander Livingstone gave evidence that any vessel inside 300 yards of Rocky Point would be in danger. That reliance is misplaced. Whilst that was certainly Commander Livingstone’s view, I am satisfied on the evidence that the information which he received from Enforcement Commander Saunders did not include any information that SIEV 221 was within any such “danger zone”. On the contrary, it was clear from his evidence that the information originally conveyed to him at around 06:00 was in the nature of an alert to the possible presence of a SIEV in the vicinity, rather than a confirmation of that fact.

Question 11 is answered No.

It was submitted on behalf of the plaintiffs that if Commander Livingstone had been asked to respond to SIEV 221 at some time between 05:40 and 06:00 (05:40 being the time at which SIEV 221 was first seen by Mr Martin) he:

It was submitted that these and other precautions would have reduced the probability of the harm occurring because (inter alia):

It was further submitted on behalf of the plaintiffs that the evidence supported a conclusion that the RHIBs could have established a line to or from SIEV 221, and then towed it to prevent it from impacting on the rocks. It was also submitted that the RHIB could have pushed the bow or stern of SIEV 221 into the wind, significantly reducing the risk of broaching.

It was submitted on behalf of the defendant that leaving aside the fact that no duty of care was owed, any suggestion that the defendant’s response was unreasonable should be rejected for a number of reasons.

Firstly, it was submitted that upon becoming aware of the possible presence of SIEV 221 just after 06.00, Commander Livingstone immediately commenced to make preparations to head north. It was pointed out that this could not have happened instantly and that it necessarily took time, simply because in order to sail north the Pirie was required to:

The defendant pointed to the evidence of Commander Livingstone that these tasks took about 15 minutes to complete, and submitted that:

It was submitted that this evidence did not establish that there had been any delay, let alone any unreasonable delay, on the part of the Pirie in responding the reported sighting of SIEV 221. It was also emphasised that at no stage of the cross-examination of Commander Livingstone was it specifically put to him that he had delayed responding to the initial report he had received of the possible presence of a SIEV in the vicinity.

It was further submitted that the evidence established that upon learning of the possible presence of another SIEV, the Triton promptly sailed north to be closer to SIEV 220, so as to watch over it and thus permit the Pirie to investigate the reported sighting. It was submitted that in the context of what was known at the time, and in light of the competing the demands of the Commanding Officers of the Pirie and the Triton respectively, that was a proper division of responsibility.

Senior counsel for the defendant also submitted that the evidence established that at 06:35 Enforcement Commander Saunders became aware, for the first time, that SIEV 221 was not under power and was “on the rocks”. Only then did it become apparent to him that the situation had become urgent, at which time the Triton immediately prepared to head north and deploy its tenders. It was submitted that the evidence did not establish any delay in the Triton’s response. It was also submitted that it had not been specifically put to Enforcement Commander Saunders in cross-examination that he had delayed in responding to SIEV 221 upon becoming aware that it was in distress.

It was further submitted that the plaintiffs’ allegation that the Pirie should have launched its RHIBs, and the Triton should have launched it tenders, shortly after 06:00 could not be sustained in light of the fact that:

Again, in terms of s. 5B(2) of the CLAW, I accept that there was a probability that harm would occur if care were not taken, that the harm was likely to be serious, and that the burden of taking precautions was not unduly onerous. For the reasons set out previously [279] the activity creating the harm had no social utility.

In considering this question it is necessary to bear in mind the plaintiffs’ pleaded case. Paragraphs [68] and following of the FASOC [280] are pleaded in the following terms:

The first aspect of what is said to have been the defendant’s unreasonable response concerns the asserted failure on the part of both the Pirie and the Triton to “immediately” sail towards Flying Fish Cove upon first being made aware of the sighting of SIEV 221. To begin with, and as I have already observed [281] , the evidence of Commander Livingstone (which I accept) makes it clear that he was not advised of the confirmed presence of any SIEV when he was contacted by Enforcement Commander Saunders on the morning of 15 December. Moreover, the use of the term “immediately” suggests that it was possible for both the Pirie and the Triton to, in effect, instantaneously proceed to Flying Fish Cove. The evidence demonstrates that for differing reasons, neither vessel was in a position to do so.

In terms of the Pirie’s response, the evidence of Commander Livingstone was that there were several tasks which were necessary to be undertaken in order to allow the Pirie to sail north, and which took about 15 minutes to complete. The cross-examination as to that issue does not cause me to doubt that those steps were necessary. I am satisfied on the evidence that:

Those facts do not support a conclusion that there was any delay, let alone any unreasonable delay, in the Pirie’s response.

Similarly, in terms of the Triton, I am satisfied on the evidence that:

In my view, the evidence does not support a conclusion that the response of either the Pirie or the Triton was delayed, let alone delayed unreasonably.

There is also considerable merit in the submission advanced by the defendant that if the RHIBs or the Tenders had arrived at Flying Fish Cove in advance of the Pirie and the Triton, and had immediately commenced retrieving survivors, they would have found themselves in the position of not being able to offload those survivors, so as to be able to attempt to make further rescues.

Question 12 is answered No.

In terms of the readiness precaution, it was the plaintiffs’ principal submission that had the Sea Eye and/or the Colin Winchester been sufficiently modified to render them suitable for, and capable of, being used as sea rescue vessels, it would have included making them capable for launch on the leeward side of the island in a sea rescue situation, and thus available for deployment from the time the first notification of the presence of any SIEV.

In terms of the ongoing patrol precaution, it was submitted that the evidence concerning the manner in which SIEV 220 was dealt with on the previous day provided a proper basis to conclude that at the very least, had the Pirie intercepted SIEV 221 before its engines failed, a shipwreck would probably had been averted. It was submitted, in particular, that the evidence of Commander Livingstone that he would not have been able to persuade SIEV 221 to follow him, if intercepted, was based on nothing more than generalised speculation, and was inconsistent with other unchallenged evidence in the case to the effect that the passengers on the vessel were seeking to attract attention.

In terms of the earlier response precaution it was submitted that on the whole of the evidence it was probable that had such precaution been taken, the RHIBs could have either fastened a line to the SIEV to prevent the shipwreck, or maintained a position until such an operation could be conducted. It was submitted that in all of the circumstances, the prospects in those circumstances of saving more lives would have been substantial.

It was submitted on behalf of the defendant that the causal hypotheses pleaded by the plaintiffs at paragraphs [72] – [79] of the FASOC were that had the defendant taken one or more of the stated precautions:

It was submitted on behalf of the defendant that such hypotheses were both misconceived, and unsupported by the evidence.

In terms of the readiness precaution, it was submitted that the evidence clearly demonstrated that even if the Sea Eye and the Colin Winchester had been available, neither would have been suitable to be deployed in an attempt to assist SIEV 221. It was further submitted that the evidence established that in order to organise the launch of any vessel from Christmas Island on the morning of 15 December 2010 it would have been necessary to organise a crew, collect the vessel, transport it to a launching ramp, launch it and then travel to Rocky Point, all of which would have taken (at best) approximately one hour. It was submitted that the evidence established that the members of the VMRS only became aware of the presence of SIEV 221 at around 05.45 on 15 December, and that SIEV 221 commenced to strike the rocks at Rocky Point sometime between 06.40 and 06.50 such that in these circumstances, even if they had been launched, the Sea Eye and the Colin Winchester, or indeed any VMRS vessel, would not have reached SIEV 221 in time. It was further submitted that there was no evidence that these vessels would have been capable of towing, or would have been equipped to tow, SIEV 221, particularly given the number of passengers on board.

In terms of the ongoing patrol precaution, it was submitted that there was no evidence to support the conclusion that even if the Pirie had undertaken a patrol further to the north of Christmas Island on the evening of 14 December 2010, it would have detected SIEV 221 and would have been able to intercept it. It was submitted, in particular, that it was necessary to bear in mind the fact that visibility was limited, and that the weather conditions substantially hampered the effectiveness of the Pirie’s radar systems.

In terms of the earlier response precaution it was submitted that the evidence of Commander Livingstone, as well as that of Enforcement Commander Saunders, supported a conclusion that any attempt to tow SIEV 221 away from the rocks at Christmas Island would have been reckless, and would have carried a very high likelihood of the loss of further life, including the loss of life of the crew of the Pirie and/or the Triton. It was submitted that the plaintiffs had not adduced any evidence to demonstrate that an attempt to tow SIEV 221 would have been a safe, practical, responsible or realistic option given the prevailing conditions, and that any suggestion that Commander Livingstone and/or Enforcement Commander Saunders were negligent for failing to effect, or attempt to effect, a towing operation should be rejected.

Paragraph [6](i) of the FASOC [282] defines the readiness precaution as follows:

Paragraph [6](j) defines the ongoing patrol precaution as follows:

Paragraph [6](l) defines the earlier response precaution as follows:

Paragraphs [72] – [79] are in the following terms:

In terms of s. 5B(2) of the CLAW, I accept that there was a probability that harm would occur if care were not taken, that the harm was likely to be serious, and that the burden of taking precautions was not unduly onerous. For the reasons set out previously [283] the activity creating the harm had no social utility.

In terms of the readiness precaution, I have already addressed the evidence concerning the Sea Eye and the Colin Winchester [284] . The unequivocal evidence of Mr Adams was that in light of the conditions which prevailed at the time, it would not have been safe or viable to launch the Sea Eye or the Colin Winchester, or any other vessel which would otherwise have been available to the VMRS. That evidence was not the subject of any challenge in cross-examination and I accept it. Further, Mr Adams’ evidence was that it would have taken approximately one hour for either vessel to be launched and reach Rocky Point.

It follows that even if the Colin Winchester and the Sea Eye had been in survey, and even if they had been launched at or about the time that SIEV 221 was first sighted, neither would have reached Rocky Point before SIEV 221 commenced to strike the rocks. In this regard the evidence establishes that:

In terms of the ongoing patrol precaution, I accept the defendant’s submission that the evidence does not support a conclusion that even if the Pirie had undertaken a patrol further to the north of Christmas Island it would have detected SIEV 221 and, if so, would have been able to intercept it. The Pirie’s ability to detect other vessels was seriously impaired. The evidence of Commander Livingstone, which I accept, was that the weather conditions seriously impeded visibility, and imposed a corresponding impediment upon the efficacy of the Pirie’s radar systems.

In terms of the earlier response precaution, I have already concluded [285] in determining Question 12 that there was no delay, let alone any unreasonable delay, in the response of the Pirie or the Triton.

Further, for the reasons advanced by Commander Livingstone and Enforcement Commander Saunders, towing SIEV 221 was not a viable option. A true appreciation of the fundamental difficulty, and the inherent danger, in attempting to effect a tow is evident from the footage of the conditions at Rocky Point at the time which was tendered in evidence. The fundamental task of attaching a tow line to SIEV 221 in those conditions was both difficult and dangerous. Moreover, it bordered on being futile. Even if a line were able to be attached (which, on the evidence, was a remote possibility), the evidence of Commander Livingstone and Enforcement Commander Saunders establishes that any towing manoeuvre was fraught with danger, and had the potential to result in even further loss of life if it were attempted.

Question 13 is answered No.

It was submitted on behalf of the plaintiffs that any suggestion that Australian naval vessels do not have an obligation to go the rescue of other vessels in distress at sea during peace time should be rejected. It was submitted that a contrary intention is evident from the terms of (inter alia) s. 3 of the NA.

It was further submitted that in any event, any attempt to exclude such vessels from the operation of s. 265 of the NA failed in respect of the Triton, and the Triton ought to have declared a SOLAS situation by at least 06:00 on 15 December 2010, and at that time rendered all assistance.

Finally, it was submitted that the obligation of the master of a vessel to go to the aid of another vessel in distress at sea is a well settled, and fundamental, part of admiralty law which finds statutory expression in the NA.

It was submitted on behalf of the defendant that there was nothing in s. 265 of the NA which gave rise to the “contrary intention” contemplated by s. 3. It was further submitted that s. 261A of the NA was a strong indicator that s. 3 had no application to s. 265. It was submitted that in enacting s. 261A, the legislature had specifically turned its mind to those sections within Division 11, Part IV which should apply to ships of the ADF, and had not included s. 265.

It was further submitted that s. 265 of the NA did not apply to the Pirie, which was a vessel belonging to, and operated by, the RAN (and therefore the ADF). It was accepted that s. 265 did apply to the Triton, it being a Customs vessel. However, it was submitted that s. 265 of the NA did not create a civil cause of action, and that its terms did not reflect an intention on the part of the Parliament that its contravention should give rise to such an action, because:

Section 3 of the NA provides as follows:

Section 10 provides as follows:

Section 261A provides as follows:

Section 265 provides as follows:

I have already dealt with, and rejected, the proposition that the common law imposes a duty upon the master of a vessel to go to the aid of a stranger in peril [286] . Further, I am unable to accept the submission that the Triton ought to have declared a SOLAS situation by 06:00 on 15 December. The evidence does not support a conclusion that any information conveyed to Enforcement Commander Saunders around that time suggested, in any way, that SIEV was in distress, much less that a SOLAS situation had developed.

I turn then to consider the terms of s. 265 of the NA. In doing so, it is to be noted that, fundamentally, any task of statutory construction begins and ends with a consideration of the statutory text [287] . In my view, there is nothing in the text of s. 265 of the NA which suggests, in any way, a contrary intention of the kind contemplated by s. 3 of the NA. Further, s. 261A of the NA serves as a clear indication that the Parliament specifically considered the question of which particular provisions should apply to ships belonging to, or operated by, the ADF, and had concluded that s. 265 should not do so. I am satisfied in these circumstances that s. 265 does not apply to the Pirie.

Further, even if it is accepted that s. 265 of the NA did apply to the Triton I am not satisfied that s. 265 impose a statutory duty of the kind asserted by the plaintiffs. I have reached that conclusion on the basis of the following analysis.

As the first step in determining whether s. 265 imposes a statutory duty, it is necessary to consider the circumstances in which a cause of action for damages for a breach of statutory duty will generally arise. In Byrne and Frew v Australian Airlines Limited [288] the following observations were made [289] :

For the reasons I have already expressed, the defendant was not under an existing common law duty of care. That is inconsistent with the conclusion that s. 265 of the NA creates a private right.

In Stuart, Crennan J and Kiefel J (as her Honour then was) having made reference to that passage from Byrne [290] continued [291] :

It follows that fundamental to the question of whether a cause of action for damages for a breach of statutory duty arises in the present case by virtue of s. 265 of the NA is whether the construction of s. 265 evinces a legislative intention that its contravention should give rise to such a cause of action. In my view, it does not do so for a number of reasons.

Section 265 is a penal provision, carrying with it a penalty of imprisonment. Prima facie, the attachment of a penal sanction to a legislative prescription excludes the implication of any additional civil liability [292] . In Cutler v Wandsworth Stadium Limited [293] Lord Simonds observed that if a statutory duty is prescribed, but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is “damnified by the breach” [294] . However his Honour went on to observe that the sanction of criminal proceedings emphasises that a statutory obligation is imposed for the public benefit, such that the breach of it is a public and not a private wrong [295] . Those observations support the conclusion that s. 265 excludes civil liability.

Further, and for the reasons previously set out [296] , I have come to the conclusion that the defendant did not owe any common law duty of care to those on board SIEV 221 obliging it to (inter alia) take care of those persons by rescuing them. The absence of such a duty tends against a conclusion that a provision such as s. 265 of the NA confers a private right of action [297] .

Finally, the provisions of s. 265(1A) operate to create a defence to the offence created by s. 265(1). The existence of that defence points away from a conclusion that s. 265 confers a civil cause of action for a breach of statutory duty [298] .

For all of these reasons, no action for breach of statutory duty arises from s. 265 of the NA.

Question 14 is answered “No”.

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

It was submitted on behalf of the defendant that the evidence established that:

It was submitted that in these circumstances the evidence did not disclose any basis for any allegation that the masters of the Pirie and the Triton, having reason to believe that SIEV 221 was in distress, failed to proceed with all practical speed to its assistance.

This question proceeds on the assumption that there was a breach of statutory duty on the part of the defendant. For the reasons set out in my consideration of question 14 [299] I have concluded to the contrary.

In any event, and for the reasons set out in my determination of question 12 [300] , there was no failure on the part of Commander Livingstone or Enforcement Commander Saunders to proceed with all practical speed to the assistance of the passengers on SIEV 221 once they each became aware that SIEV 221 was in fact in distress.

Question 15 is answered “No”.

It was submitted that upon the commission of a people smuggling offence, the original owners of SIEV 221 were divested of their ownership of the vessel, and that the defendant was thereupon vested with title. It was submitted that the automatic terms of such forfeiture were immutable, such that SIEV 221 became the defendant’s property.

It was submitted that any attempt to create a different “class” of ownership arising from the fact that title was vested by the operation of s. 261A of the MA was not supported by, and in fact was inconsistent with, authority. It was submitted that there was no basis in the language of either the NA or the MA for creating some new, and different, class of ownership of the vessel. It was submitted, in particular, that references to the “previous owner” in ss. 261D and 261F of the NA could not “resurrect some propriety interest in the vessel on the behalf of the owner”, such interest having clearly been extinguished by the operation of s. 261A.

In circumstances where a conviction had been recorded against Ali Khorram Heydarkhani for an offence contrary to s. 233B(1) of the MA relating to SIEV 221, the defendant accepted that SIEV 221 was a vessel which was used or involved in a contravention of the MA, and that this amounted to an offence. The defendant also accepted that in these circumstances SIEV 221 was subject to the automatic forfeiture provisions of s. 261A of the MA, the effect of which were that the previous owners of SIEV 221 were divested of their title to the vessel.

However it was submitted that those circumstances did not lead to the imposition of duties and obligations on the defendant in relation to (inter alia) the condition of the vessel and the safety of its passengers. It was submitted that to adopt such a construction of the relevant provisions of the MA would be “patently absurd”.

It was further submitted that the authorities made it plain that statutory forfeiture in s. 261A of the MA is a penalty, the purpose of which is to vindicate the law and deter the commission of certain proscribed conduct, namely, the bringing of persons to Australia who have no lawful right of entry. It was submitted that s. 261A of the MA was not a vehicle for the assumption, by the defendant, of the obligations and liabilities of the offending owner arising from the very conduct which the section seeks to deter and punish, nor was it an occasion for the assumption, by the defendant, of a duty to ensure that reasonable care is taken in bringing about the safe arrival, into Australia, of passengers in a forfeited vessel.

Finally, it was submitted that the continuing status of the “owner” of a forfeited vessel is recognised by ss. 261D and 261F of the MA, which confirm that the effect of the MA is not simply to novate the defendant as the owner of the forfeited vessel, and thus impose on the defendant all of an owner’s duties and obligations.

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

Question 16 is answered:

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

It was submitted on behalf of the defendant that the statutory forfeiture of SIEV 221 under s. 261A of the MA, as a penalty for the commission of an offence against the MA, could not sensibly be construed as giving rise to the assumption by the defendant, or the imposition upon the defendant, of the obligations of an owner of a vessel, particularly as to its operation in the very activity which gave rise to its forfeiture. It was further submitted that such statutory forfeiture could not be an occasion for the assumption, by the defendant, of a duty to ensure the vessel’s successful passage to Australia, that being the very conduct which the forfeiture was designed to punish and deter.

It was further submitted that the specific provisions of the NA which were relied upon by the plaintiffs did not assist their position. It was submitted, in particular, that there was no basis on which s. 208 of the NA could apply to the defendant in respect of SIEV 221 because the defendant had not, on any view, “sent” SIEV 221 to sea.

Further, in terms of s. 227B of the NA, the defendant submitted that SIEV 221:

Further, it was submitted that the term “owner of the ship” referred to in s. 227B(1) was only capable of being construed as a reference to a person who could determine its load. It was submitted, in particular, that the section was not to be construed as a reference to the defendant having acquired title to the vessel pursuant to s. 261A of the MA.

Section 208 of the NA is in the following terms:

Section 227B is in the following terms:

For the reasons previously expressed [302] , the fact that title in SIEV 221 was vested in the defendant pursuant to s. 261A of the MA did not result in the defendant assuming the obligations of an owner, whether in relation to the condition of the vessel or the safety of its passengers.

I am also unable to accept the submission advanced by the plaintiffs as to the proper construction of s. 208 of the NA. As I have previously noted [303] , the task of statutory construction begins and ends with a consideration of the statutory text. Moreover, in construing a statute, it is preferable to adopt a construction that will avoid an absurd outcome or consequences [304] .

The terms of s. 208 of the NA create an offence against a person who “sends” any ship to sea in an unseaworthy state, so that the life of any person is likely to be thereby endangered. The Macquarie Dictionary (6th Edition) defines the word “send” as follows:

On no view could it be said that the defendant caused, directed or ordered SIEV 221 to travel from Indonesia to Australia. To interpret the word “send” as meaning to allow a ship to remain at sea (as senior counsel for the plaintiffs argued) would be to read into the section words that are simply not there. It would also bring about the perverse result of imposing liability on the defendant in respect of matters over which it had no control, pursuant to a statutory provision which was designed to deter the very conduct from which the liability was said to arise.

I am similarly not satisfied that s. 227B of the NA has any application in the circumstances. As the submissions of the defendant pointed out, SIEV 221 was not a vessel registered in Australia, it did not go to sea from Australia and it did not arrive at any port in Australia.

Further, s. 227B creates an indictable offence against the master and owner of a vessel for allowing a ship to be overloaded. To the extent that the defendant was the “owner” of the vessel, its ownership was by virtue of s. 261A of the MA. By the time the defendant became the owner of the vessel, the overloading had already occurred.

Finally, ss. 208 and 227B of the NA are penal provisions. For the reasons set out in my consideration of Question 14 [305] the imposition of a penal sanction runs contrary to the proposition that a cause of action is available for breach of statutory duty.

Question 17 is answered “No”.

Paras. [52]-[71] of the FASOC [306] are as follows:

Paras. [80]-[92] of the FASOC are as follows:

It was submitted on behalf of the plaintiffs that any suggestion that amendments to the pleadings had expanded the proceedings in such a way as to constitute a “new cause of action” was inconsistent with submissions made on behalf of the defendant during the initial application for amendment.

It was further submitted that the proceedings had been commenced “by then unrepresented plaintiffs with no resources” and that there were “no serious limitation of actions issues which would prevent the court from doing justice in this case”.

Senior counsel for the defendant submitted that in paras. [80]-[92] of the FASOC the plaintiffs had pleaded a claim which was not included in either the SOC or the ASOC. It was submitted that what was pleaded in paras. [80]-[92] of the FASOC was a new cause of action, the key factual allegation in support of that claim being found at [88].

It was further submitted that the factual matters pleaded in paras. [68] and [88] of the FASOC were not specifically pleaded in the SOC or ASOC, each of which had merely particularised a failure to proceed with greater speed to the rescue of persons in distress. It was submitted that in these circumstances, the plaintiffs’ claim for breach of statutory duty to rescue did not arise from substantially the same facts as those which had already been pleaded.

It was further submitted that the claim pleaded in paras. [52]-[71] of the FASOC suffered from the same defect. Whilst the defendant accepted that the underlying cause of action in negligence pleased in the FASOC did not differ (at least in broad terms) from that which had been previously pleaded, the “factual substratum” regarding the asserted failures by Commander Livingstone and Enforcement Commander Saunders to respond to the situation with sufficient speed had not been adequately pleaded in the SOC or the ASOC.

Unfortunately, the submissions advanced on behalf of the plaintiffs in respect of this question did not engage with the issues. Whether the proceedings were commenced “by then unrepresented plaintiffs with no resources” is really not to the point. Moreover, as will be seen from the analysis set out below, there are several issues to be resolved in answering this question, the majority of which were not addressed in the plaintiffs’ submissions.

In order to resolve this question it is necessary to firstly trace the history of these proceedings. The proceedings were commenced on 16 December 2013 by the filing of the SOC. The defendant expressly accepted that the SOC was filed within the 3 year limitation period for personal injury claims provided for in s. 14 of the LAW and s. 18A of the LAN.

The ASOC was filed on 18 September 2014. The date of filing the ASOC was outside the relevant limitation period.

The FASOC was filed on 11 May 2015 which was similarly outside the relevant limitation period.

In terms of relevant statutory provisions, s. 64(1) of the CPA is in the following terms:

The effect of s. 64 is that the court has power to order the amendment of any document in the proceedings, or to grant leave to amend any document in the proceedings. Either order may be made, even if the amendment in question has the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings. In that event, the date of the commencement of the proceedings in relation to the specific cause of action is, subject to s. 65, taken to be the date on which the amendment was made.

Section 65 of the CPA is in the following terms:

The effect of s. 65 is to confer a power on the court to grant leave to amend a pleading so as to include a new cause of action that would otherwise be statute barred. The provision permits such an amendment if the claim based on the new cause of action arises out of “substantially the same set of facts as those involved in the original claim”.

It is not a valid objection to an amendment that some of the facts out of which the new cause of action arises are peculiar to it, or that some of the facts out of which the previous cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action arises from the previous one [307] . That question is to be answered as a matter of general impression, rand does not require precise similarity of the factual circumstances [308] .

Bearing these matters in mind, I turn firstly to consider this question as it concerns paras. [52]-[71] of the FASOC.

The essence of the cause of action pleaded in those paragraphs is to be found, in particular, in paras. [68]-[71] which assert, in effect, that the defendant, and in particular Commander Livingstone and Enforcement Commander Saunders, should have responded to the circumstances surrounding SIEV 221 earlier than they did. The SOC pleaded (inter alia) that the defendant breached its duty of care to the plaintiffs on a number of separate bases [309] , and particulars of negligence were specifically pleaded [310] . Those particulars included the following [311] :

These particulars were repeated in the ASOC [312] .

In the circumstances, I am not satisfied that paras. [52]-[71] of the FASOC add or substitute a new cause of action. The defendant expressly accepted that the underlying cause of action, namely the cause of action in negligence pleaded at paras. [52]-[71] of the FASOC, did not differ broadly from that pleaded in the SOC or the ASOC. It follows that those pleadings arise from substantially the same facts as those which had already been pleaded.

The pleadings in paras. [80]-[92] of the FASOC are headed “Breach of Statutory Duty to Rescue”. There was no pleading in those specific terms in either the SOC or the ASOC.

Para. [88] of the FASOC pleads that Commander Livingstone and Enforcement Commander Saunders each failed to cause the Pirie and the Triton respectively and the RHIBs and tenders launched from them, “to proceed with all practical speed to the assistance of those passengers”. That failure is said to have arisen by reason of the matters pleaded in paras. [61] to [68] of the FASOC. Those paras. plead (inter alia) that:

The effect of the matters pleaded at para. [61] and following of the FASOC is that a reasonable person in the position of Commander Livingstone and Enforcement Commander Saunders would, by no later than 06:00 on 15 December 2010, have deployed all available RHIBs and tenders and proceeded immediately towards SIEV 221.

Although none of these matters were specifically pleaded in the SOC or ASOC, the SOC did plead a failure on the part of Commander Livingstone to “proceed with greater speed to the rescue of persons in distress……” [313] . As a matter of impression (that being the appropriate approach) I am satisfied that the matters pleaded at paras. [80] to [92] of the FASOC arise from substantially the same facts.

Question 18 is answered as follows:

I make the following orders: