Ibrahimi v Commonwealth of Australia

1. [1]

   MEAGHER JA: I have had the benefit of reading the detailed reasons of Payne JA and agree with his Honour’s reasons and proposed orders.

2. [2]

   PAYNE JA: This case arises from the tragic events of 15 December 2010 when 50 people died after a boat on which they were travelling to Australia was smashed on the rocks at Christmas Island. Fortunately, 41 people on board the vessel were able to be rescued. Representative proceedings were commenced in the Supreme Court on behalf of:

   1. (1)

      passengers on board SIEV 221 who suffered physical and/or psychological injury as a result of the events surrounding the loss of the SIEV 221 (the Passenger Claimants);

   2. (2)

      persons who were not passengers on board SIEV 221 but who suffered psychological injury as a result of the events surrounding the loss of the SIEV 221 (the Nervous Shock Claimants);

   3. (3)

      persons who, pursuant to s 9 of the Fatal Accidents Act 1959 (WA) are entitled, as persons for whose benefit an action under s 6 of that Act might be brought by the executor or administrator of a deceased passenger, to bring an action for the benefit of the relatives of deceased passengers who died as a result of the events surrounding the loss of the SIEV 221 (the Compensation to Relatives Claimants);

   4. (4)

      passengers on board SIEV 221 who lost material possessions as a result of the events surrounding the loss of the SIEV 221 (the Property Damage Claimants);

   5. (5)

      persons who, pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) are entitled, as representatives of the estates of passengers on board SIEV 221 who lost material possessions as a result of the events surrounding the loss of the SIEV 221, to bring an action for damages arising from that loss (the Property Damage Estate Claimants).

3. [3]

   On 30 October 2015, an order for the hearing and determination of separate questions identified from the pleadings was made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). The primary judge, Bellew J, answered those 18 separate questions: Ibrahimi & Ors v Commonwealth of Australia (No 9) [2017] NSWSC 1051. Those questions and answers are included at Annexure A to these reasons. For the reasons which follow, the appeal against his Honour’s decision must be dismissed.

Relevant facts

1. [4]

   In answering the separate questions, the primary judge made detailed findings of fact. In what follows, the most important of those factual findings are summarised.

2. [5]

   Christmas Island is located approximately 2,500 kilometres to the west of the coast of Western Australia, in the Indian Ocean. Pursuant to s 5 of the Christmas Island Act 1958 (Cth), it is declared to be a Territory under the authority of the Commonwealth of Australia. Subject to limited exceptions, the laws of Western Australia are in force in the Territory of Christmas Island by virtue of s 8A(1) of the Christmas Island Act. That section provides:

3. [6]

   Christmas Island experiences a monsoon season between November and February each year. This season is characterised by harsh weather conditions, particularly affecting the north-west area of the island, including large sea swells and gale force winds. Those weather conditions can make navigation for vessels approaching Christmas Island from the north difficult.

4. [7]

   The Maritime Border Command, formerly known as and referred to in the primary judgment as the Border Protection Command, is the Australian Government agency responsible for civil maritime security operations in Australia’s maritime areas. I will continue to refer to the agency as the Border Protection Command for the purposes of this judgment.

5. [8]

   At the relevant time, Border Protection Command was specifically responsible, amongst other duties, for responding to unauthorised maritime arrivals in Australia’s maritime areas, which it characterised as maritime security threats.

6. [9]

   In order to understand the facts described below, it is important to have a sense of the geography of Christmas Island. Most of the relevant events described take place in the area shaded in red in the diagram:

7. [10]

   In 2010, Border Protection Command had a number of vessels and aircraft for the purposes of intercepting vessels identified as Suspect Irregular Entry Vessels (“SIEVs”). The primary judge found that, although Border Protection Command’s vessels and aircraft were available to be called upon to respond to emergencies at sea in accordance with its responsibilities imposed by the International Maritime Organisation Safety of Life at Sea (“SOLAS”) Convention and the Navigation Act 1912 (Cth), Border Protection Command was not a search and rescue organisation.

8. [11]

   Operation Resolute was a Border Protection Command operation in force on 14 and 15 December 2010. Relevantly to the present case, Operation Resolute involved barrier patrols by naval vessels on a “racetrack”, or perimeter, around Christmas Island. The primary judge found that Operation Resolute was directed, at least in part, to the interception of SIEVs.

9. [12]

   The HMAS Pirie was an Australian Navy patrol boat that was, at the relevant time, part of Operation Resolute. Part of the underlying intention of the standing orders given to the Pirie’s Commanding Officer, Commander Livingstone, was to intercept and escort any irregular maritime arrivals. As part of Operation Resolute, the Pirie commenced a barrier patrol generally north of Flying Fish Cove on 9 December 2010.

10. [13]

    The ACV Triton was part of the Australian Customs fleet and in December 2010 was being used to patrol the northern waters of Australia under the command of Enforcement Commander Matthew Saunders. On 8 December 2010, during a patrol near Ashmore Reef, the Triton intercepted two SIEVs carrying approximately 108 irregular immigrants. Having taken them on board, the Triton made its way to Christmas Island with the intention of unloading the irregular immigrants there. The Triton arrived at Christmas Island on 12 December 2010. Prior to the events of the morning of 15 December 2010, the inclement weather conditions had meant that the 108 irregular immigrants had not been able to be disembarked and they remained on board the Triton.

11. [14]

    Two documents, the Daily Maritime People Smuggling Threat Status (“DTS”) and the SIEV Arrival Threat Matrix (“SATM”), were produced daily in connection with Border Protection Command to inform relevant officers of the Australian Government of the existence of maritime threats.

12. [15]

    The DTS provided an assessment of the “threat status” about individual vessels departing for Australia. The SATM contained information including the likely departure date, the likely arrival location, the arrival window dates and the likely number of irregular immigrants on board.

13. [16]

    An SATM was issued on 14 December 2010 at 16.00 AEDT containing two entries. The first had a threat status of “medium”, based on a probable arrival of a SIEV at Christmas Island between 10 and 14 December 2010. The second had a threat status of “low” based on a probable arrival of a SIEV at Ashmore Reef between 14 and 17 December 2010. A further SATM was issued on 15 December 2010 at 9.40 AEDT (which was 5.40am on Christmas Island), containing two entries, both of which had a threat status of “low”. In December 2010 Christmas Island was 4 hours behind AEDT. Christmas Island Time is GMT +7.

14. [17]

    Based on these two SATMs, the primary judge found that the threat status for arrivals of SIEVs at Christmas Island was “medium” between 12.00 midday on 14 December 2010 and 5:40am on 15 December 2010 and was “low” thereafter.

15. [18]

    On 14 December 2010, SIEV 220 was sighted north of Flying Fish Cove, off the coast of Christmas Island, by the Pirie in the course of conducting its patrol. The weather conditions at the time were “particularly rough” with rain squalls, high winds and low visibility. Because of the rough weather conditions, the fact that the Pirie’s port engine had suffered an engineering defect, the fact that the Pirie’s crew needed to rest and the current arrival threat status, the Pirie escorted SIEV 220 to Ethel Beach on the south east side of Christmas Island, reaching there at approximately 13.47 on 14 December 2010.

16. [19]

    SIEV 220 was boarded by crew members of the Pirie. At 6pm that evening eight irregular immigrants and three crew members from SIEV 220 were transferred ashore to Ethel Beach. The Pirie then oversaw the safety of SIEV 220. A “steaming party” from the crew of the Pirie remained on board SIEV 220.

17. [20]

    Rear Admiral Barrett, the commander of Border Protection Command with responsibility for Operation Resolute, explained in evidence at a coronial inquiry (which was tendered before the primary judge) that since the Pirie had custody of SIEV 220, it was required to ensure the safety of the vessel until such time as it could safely be sunk.

18. [21]

    Commander Livingstone, the commanding officer of the Pirie, gave evidence that anchoring SIEV 220 was not an option and the weather conditions also made it difficult for the Pirie to maintain visibility of SIEV 220 during the night. The weather also decreased the efficacy of the Pirie’s radar systems, necessitating the Pirie remaining close to SIEV 220. In making the decision to remain close to SIEV 220, Commander Livingstone took into account the fact that the threat level as he understood it meant that the arrival of a further SIEV at Christmas Island was not imminent.

19. [22]

    In the period leading up to dawn on 15 December 2010, the Pirie remained near SIEV 220 on a short racetrack in the vicinity of Ethel Beach, which had the additional benefit of being on the leeward side of the island, giving some respite from the turbulent weather. Commander Livingstone’s intention was to resume the broader patrol around Christmas Island as soon as he could do so. At the same time as the Pirie was overseeing SIEV 220, the Triton, which still had around 100 irregular immigrants on board, was on the south-east of Christmas Island, seeking shelter from the prevailing conditions. Enforcement Commander Saunders said that the weather conditions on 15 December 2010 remained “very rough”. Indicative locations of the vessels were as follows:

20. [23]

    No other Australian Government vessels were operating in the vicinity of Christmas Island on 14 or 15 December 2010.

21. [24]

    A more detailed map of the places relevant to the proceedings assists in understanding the detail of what took place on the morning of 15 December:

22. [25]

    SIEV 221 was first sighted at about 5.40am by Mr Ross Martin, a Customs officer present on Christmas Island to conduct training of Customs Officers, from the balcony of his room at Mango Tree Lodge overlooking the northern coastline of Christmas Island. Mr Martin described SIEV 221 as a “very basic vessel”. He observed puffs of black smoke coming from the vessel’s exhaust, which indicated to him that it was being propelled by its engine. He noted that there were whitecaps around the vessel in a swell of 3 to 4m but said he had no cause for alarm at that point.

23. [26]

    At about 5.43am, Mr Martin telephoned Mr Leslie Jardine, the Customs Duty Officer, and informed Mr Jardine of his observations. Based on his observations, he did not suggest that a SOLAS situation had arisen.

24. [27]

    At about 5.49am, Mr Jardine called the Customs National Operations Centre (“CNOC”) and advised them of Mr Martin’s report. Based on what he had been told by Mr Martin, Mr Jardine did not advise CNOC that SIEV 221 was in distress.

25. [28]

    At about 5.50am, after speaking with Mr Jardine, Mr Martin returned to his balcony and noticed that SIEV 221 had altered course and was now heading south. He contacted his Manager, Mr Warwick Conlon, but not because he thought SIEV 221 was in danger. After speaking with Mr Conlon, Mr Martin noticed that SIEV 221 had again altered course. He observed people standing on the ship, whistling and shouting. At that point, the vessel disappeared from his sight as it continued moving towards Flying Fish Cove, apparently under its own power.

26. [29]

    At about 5.45am, Mr Shane Adams, the Vice-Commander of the Volunteer Marine Rescue Services (“VMRS”) on Christmas Island heard a transmission over a marine radio from another member of the VMRS, Mr Alan Thornton, reporting a SIEV close to the rocks near Rocky Point on Christmas Island.

27. [30]

    At about 5.55am, Mr Adams walked to a vantage point in the parking lot of the Golden Bosun Tavern. Mr Adams noted that it appeared as if a storm was building and there was a heavy sea swell. Mr Adams observed SIEV 221 about 150m from the shore. It appeared to be under power and attempting to steer around the roughest section of the water. Mr Adams did not consider that SIEV 221 was in any immediate danger at that point. He expected that the relevant authorities would try and intercept the vessel and take control of it and its occupants.

28. [31]

    At about 6.00am, Mr Martin drove from Mango Tree Lodge to Flying Fish Cove, assuming that SIEV 221 might attempt to land there. Not initially able to see SIEV 221, he parked at Golden Bosun Tavern. At about that time, he received a telephone call from Mr Bruce Christensen, from Border Protection Command, to whom he expressed concerns about the safety of SIEV 221 and those on board. Mr Martin in evidence did not accept that a “potential shipwreck” situation had by then developed.

29. [32]

    At about 6.11am, when Mr Martin next observed SIEV 221, he could not see any black smoke coming from its exhaust and the vessel was not moving across a fixed point. He considered, at that time, that SIEV 221 may have lost power and be in distress.

30. [33]

    Between 5.55 and 6.00am, Enforcement Commander Saunders of the Triton was alerted by the Australian Maritime Security Operations Centre (“AMSOC”) to the possible presence of a SIEV. The Triton was, at this point, south of the Pirie on the leeward side of Christmas Island. The SIEV the subject of this call was obviously SIEV 221. Enforcement Commander Saunders was told that the SIEV was about 300m off Rocky Point at the time. Enforcement Commander Saunders was not informed that the vessel was in danger or distress and was not asked to respond.

31. [34]

    At about 6.00am, the Pirie commenced lowering a Rigid Hull Inflatable Boat (“RHIB”) into the water to replace the steaming party that remained on SIEV 220. Commander Livingstone estimated that by about 6.11am, the RHIB was clear of the Pirie’s side.

32. [35]

    Shortly after 6.00am, Commander Livingstone of the Pirie 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. It was agreed that HMAS Pirie would investigate the reported sighting, while the Triton would move north to oversee the steaming party on board SIEV 220.

33. [36]

    Whilst Commander Livingstone agreed that any SIEV which found itself approximately 300 yards from the coast of Christmas Island would be in some danger, the primary judge found that the information conveyed to Commander Livingstone at this time fell short of a confirmation of the presence of any SIEV. Enforcement Commander Saunders had no immediate concern about the safety of the SIEV although he agreed that such vessels were not usually seaworthy according to Australian standards and that the state of the ocean at the time was rough to very rough.

34. [37]

    At about 6.15am, as Mr Adams walked along the northern coastline of Christmas Island, SIEV 221 was struck by an incoming swell. It appeared that its fuel drum had been washed overboard. The loss of the drum from the stern of SIEV 221 terminated its fuel supply and caused the engine to fail. Mr Adams described this as changing the situation drastically. For the first time since SIEV 221 came under Mr Adams’ observation, he formed the view that it was in danger and that a potential SOLAS situation had arisen, primarily because the swell was pushing the vessel towards the cliffs.

35. [38]

    Mr Adams considered that there were two possible responses on his part: attempting to launch a VMRS vessel or another vessel, or assisting as best he could from the shore with, for example, life jackets. Two additional vessels, an AFP catamaran called the Colin Winchester and a designated volunteer rescue boat called the Sea Eye, were also in the vicinity of Christmas Island. It was not safe or viable, however, to launch either of these or any other vessel which might have been available to the VMRS, given the prevailing weather conditions.

36. [39]

    At about 6.28am, Mr Martin observed SIEV 221 being violently pushed and pulled by the swell and taking on large amounts of water from waves crashing over its sides. Parts of the vessel were beginning to break up. At this point, it was clear to Mr Martin that a SOLAS situation had arisen.

37. [40]

    Following the 6.00am call from Enforcement Commander Saunders, Commander Livingstone gave instructions to his crew to prepare the Pirie to head north to investigate the reported SIEV. Preparing the Pirie took some time because of the need to clear the launched RHIB and ready the Pirie’s port engine, which had not been needed for the patrol it had been conducting and which had been shut down to conserve fuel. By about 6.21am, the Pirie headed north at what Commander Livingstone considered to be the maximum safe speed in the prevailing weather conditions.

38. [41]

    At about 6.21am, Commander Livingstone was contacted by Northern Command Headquarters, Christmas Island (“NORCOM”), confirming the presence of SIEV 221 to the north of Rocky Point. Commander Livingstone advised that he was proceeding north, at the maximum possible speed, with his remaining RHIB. He was informed by NORCOM that the Pirie would need both of its RHIBs (it was equipped with two) because of the number of people on board SIEV 221. Due to this message, at about 6.23am, the Pirie returned south to recover the RHIB it had previously launched and had left in the vicinity of SIEV 220. This took about 10 minutes. By about 6.32am, the Pirie resumed traveling north at the maximum speed possible in the prevailing conditions.

39. [42]

    At about 6.32am, Commander Livingstone received a message requesting assistance from NORCOM, stating that a SIEV was 50m off Rocky Point, had lost engines and was heading towards the coast. Commander Livingstone 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”. He stated that the message from NORCOM clarified the situation and gave “an added degree of urgency” to the situation.

40. [43]

    At about 6.34am, Commander Livingstone directed the crew of the Pirie to prepare for an imminent boarding and to prepare to launch the RHIBs. At about 6.35am, an alarm sounded, indicating a fault in the Pirie’s port main engine. The engine had to be shut down and the speed of the starboard main engine of the Pirie had to be reduced to avoid damaging both engines. The Pirie’s speed was significantly reduced. Commander Livingstone re-started the port engine, a process which took about one minute, and took the view that the speed should be restricted to reduce the chance of it shutting down again. The Pirie continued to travel north at a slightly reduced speed.

41. [44]

    Commander Livingstone said that at this point he was unsure whether the circumstances would require a SOLAS response, but erred on the side of one being required including equipping the RHIBs with crew and life-saving equipment. Whilst still some distance from Rocky Point, he 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 more quickly than the Pirie because of the Pirie’s restricted engine capacity. To enable the safe launching of the RHIBs, the Pirie reduced speed and altered its course to the south to provide a lee in which to launch the RHIBs.

42. [45]

    At about 6.35am, Customs Officer Pickett advised CNOC that SIEV 221 was about 100 yards off the northern coastline of Christmas Island and that the vessel was foundering but had not yet struck the rocks. At about 6.35am 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. It became clear to him that the situation was urgent. He gave instructions to commence preparations to launch the Triton’s two tenders (smaller boats carried by the Triton).

43. [46]

    At about 6.38am, the launch of the RHIBs from the Pirie commenced. By about 6.46am both had been launched and were proceeding to Rocky Point. Both, however, were prevented from traveling at their full speed because of “the large swell, frantic sea state and reduced visibility”.

44. [47]

    At about 6.40am, 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 stated that each time the vessel hit the rocks it would further disintegrate. He saw people throwing life jackets into the water and some of the passengers from SIEV 221 jump from the vessel into the water trying to grab them.

45. [48]

    At about 6.40-6.45am, Mr Adams ran to the edge of the cliff face, at which time SIEV 221 was about 75m away. Mr Adams heard people on the vessel shouting “no engine”. Mr Adams left the cliff face and, with the assistance of others, gathered a number of life jackets.

46. [49]

    At about 6.41am, the Triton’s second engine was brought on-line, making it available for use. Enforcement Commander Saunders briefed his tender crews and instructed them to prepare for a SOLAS situation.

47. [50]

    By about 6.55am, the Triton’s second engine had been started and the Triton was heading north at the maximum safe speed in the prevailing conditions. At about this time, the Triton received a radio transmission from the Pirie advising that there were about 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.

48. [51]

    At about 6.58am, the Pirie rounded North-East Point into the brunt of the inclement weather conditions.

49. [52]

    At 6.59am, Commander Livingstone received a message informing him that SIEV 221 was “breaking against the rocks”.

50. [53]

    At about 7.00am, each of the RHIBs radioed Commander Livingstone to indicate they had arrived at the scene. At about 7.05am, the Pirie had proceeded sufficiently around North-East Point to bring the RHIBs within view. At about 7.07am, Commander Livingstone received a report from the RHIBs that there were people in the water and life jackets and life rings were being deployed.

51. [54]

    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. He ordered that the Triton slow and change course slightly to the south, to provide a lee for the safe launch of the tenders.

52. [55]

    The first tender was launched from the Triton at approximately 7.04am, and the second at approximately 7.05am. Both were ordered by Enforcement Commander Saunders to proceed directly towards Rocky Point to assist SIEV 221. In the meantime, the Triton continued towards Rocky Point.

53. [56]

    At about 7.08am, both of the Triton’s tenders were on the scene. By this time, the Pirie’s RHIBs were recovering people from the water.

54. [57]

    Mr Adams returned at about 7.10am. At that time, SIEV 221 was only about 8m from the cliff face. There was a large, 3 to 4m swell, coupled with an intense backwash from the cliff face. Mr Adams formed part of a “human chain” to pass life jackets to the edge of the cliff face. Mr Adams could hear people on the vessel screaming. He saw the bow of SIEV 221 make contact with the cliff face. The backwash took the vessel about 5m from the cliffs and spun it around. Over the next 10 minutes, the vessel continued to be pushed towards the cliff by the swell before being pulled away by the backwash. Mr Adams then observed a large wave pick up the vessel and dash it onto the cliff face. After the wave receded, most of the vessel had broken up.

55. [58]

    From approximately 7.24am, survivors from SIEV 221 were disembarked and taken aboard the Pirie.

56. [59]

    At about 7.30am the Triton arrived. 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.

57. [60]

    At about 7.32am, the Triton’s second tender developed engine problems. Enforcement Commander Saunders concluded that it would be too dangerous for it to continue to operate near to the rocks in the rough conditions on reduced power. He instructed the second tender to collect a life raft from the Triton and tow it to the scene before returning. The life raft was deployed on the Triton’s port side at about 7.37am. At about 7.47am, Enforcement Commander Saunders was notified that the towline to the life raft kept breaking. At about 8.18am he gave instructions to cut the raft adrift as it was not being utilised.

58. [61]

    Between about 11.09am and 1.02pm, the Pirie’s RHIBs ferried survivors (as well as some of the deceased) ashore and assisted one of the Triton’s tenders to do the same. Over the next two days, the Pirie conducted additional searches but did not find further survivors or bodies.

59. [62]

    The following factual findings are critical to the causation issues on this appeal.

60. [63]

    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 viable to attempt to tow it because:

    1. (1)

       even in ideal conditions and with an experienced towing party, it would have taken about 30 minutes to effect a tow. Commander Livingstone first learned of the possible presence of SIEV 221 just after 6.00am, SIEV 221 first struck the cliff face at Rocky Point at about 7.00am and it would have been impossible for the Pirie to proceed to the scene of SIEV 221 from its position at 6.00am and effect a tow prior to SIEV 221 striking the cliff face;

    2. (2)

       it would have been necessary to embark a party on to SIEV 221 to attach a tow line to it. To do that, an RHIB would have had to get alongside SIEV 221. This would have been very dangerous in the prevailing conditions and might have led to the RHIB itself being punctured;

    3. (3)

       in order to tow SIEV 221, an embarked towing party would have had to attach a tow line to a strongpoint on SIEV 221. Commander Livingstone did not think there were any strongpoints on SIEV 221 sufficient to support a tow, and any attempt to tow it would have resulted in “tearing the vessel apart”;

    4. (4)

       any members of the towing party who managed to embark SIEV 221 would have been placed in grave danger while preparing for the tow;

    5. (5)

       even if a tow line could have been attached, SIEV 221 would have had to be towed directly into the prevailing wind, raising a high likelihood of SIEV 221 breaking up;

    6. (6)

       in any event, the RHIBs were not equipped and were usually not sufficiently powerful to generate the force necessary to overcome the conditions and tow a vessel of the size of SIEV 221;

    7. (7)

       in order to tow SIEV 221 from its position, the Pirie would have had to enter unsurveyed waters, within 300 yards of the cliff face, in extreme weather conditions.

61. [64]

    In Commander Livingstone’s view, which was not effectively challenged in evidence, 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 loss of members of the Pirie's crew. Commander Livingstone‘s evidence that “at no point was towing the SIEV a realistic option” was accepted by the primary judge.

62. [65]

    Enforcement Commander Saunders gave evidence that even if the Triton or its tenders had arrived at Rocky Point before SIEV 221 struck the rocks, it would not have been possible or practical for either tender to have attempted to tow SIEV 221, for several reasons:

    1. (1)

       in order to effect a tow, it would have been necessary to embark a boarding party on to SIEV 221, which would have required a tender to be sufficiently close to SIEV 221 to allow the boarding party to transfer. This would have placed the tender at risk of being thrown on to the rocks and members of the boarding party would have been at risk of falling into the water;

    2. (2)

       even assuming it was possible to embark a boarding party, they would have been at great risk of being swept onto the rocks along with SIEV 221;

    3. (3)

       it would have been difficult to manage the responses of the passengers on board SIEV 221, given that they were likely to be panicked, and might have posed a threat to the crew;

    4. (4)

       in order to effect a tow, it would have been necessary to find suitable points on SIEV 221 that were strong enough to withstand the force of the tow in the prevailing conditions. He said that in his experience, SIEVs were notoriously unseaworthy, poorly constructed and overloaded, all of which would render it difficult to find a strongpoint;

    5. (5)

       even assuming suitable tow points could be found, a tender would have had to be alongside SIEV 221 to get close enough to throw a tow line on to SIEV 221. This would have resulted in the tender being placed in danger of being swept onto the rocks;

    6. (6)

       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 to the prevailing swell, rendering it highly susceptible to rolling and capsizing;

    7. (7)

       in the extreme conditions there were risks of the tow point failing, SIEV 221 breaking apart from the force of the tow, the presence of debris in the water affecting the operation of the tender’s jets, and members of the boarding party or people on board SIEV 221 being injured or falling overboard during towing;

    8. (8)

       even if a tow had been attempted, completing the necessary steps before towing would have taken time to complete, about 20 to 30 minutes even in favourable conditions. During that time SIEV 221 would have moved closer to the rocks;

    9. (9)

       even if the entirety of these difficulties could have been overcome, the tender might not have had the power or capability to tow SIEV 221 away from the rocks to safety, given the prevailing conditions.

63. [66]

    For the above 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 boarding party at great risk, and would have amounted to a breach of his duty to ensure their safety. This evidence was accepted by the primary judge.

Notice of appeal

1. [67]

   In their notice of appeal filed 19 December 2017, the appellants advance the following grounds of appeal:

Appellants’ submissions

1. [68]

   The appellants submitted that the key issues on the appeal could be grouped into three broad categories. It is convenient for the purpose of analysing the issues to adopt those categories:

2. [69]

   The appellants submitted that the evidence demonstrated that:

   1. (1)

      the areas 12 miles north of Christmas Island are within Australia’s search and rescue zone, while beyond that is Indonesia’s search and rescue zone;

   2. (2)

      anyone arriving at Christmas Island by ship was confronted by rocky shores with only a couple of sheltered access points, one of which was Flying Fish Cove, and the other, Ethel Beach; and

   3. (3)

      Commonwealth vessels, the Pirie and the Triton, were stationed on or near Christmas Island as part of Operation Resolute.

3. [70]

   The appellants submitted that the point of having those vessels stationed was “to prosecute the government’s policy of ensuring that no irregular entrant to Australia touched foot directly onto Australian soil, even though this [Christmas Island] had been excised from the migration zone”. The appellants submitted that this purpose, of stationing vessels to intercept and disembark irregular maritime arrivals, was well-known.

4. [71]

   The appellants submitted that the primary judge erred in finding that the Commonwealth did not owe a duty of care to any members of the class which included passengers on board the SIEV 221 at [244] and [245]; of relatives of passengers on board the SIEV 221 at [266]; of rescuers or onlookers (which included employees and agents of the respondent) at [288]; and of passengers in respect of loss of property and possessions at [292].

5. [72]

   The appellants submitted that there were various ways in which the primary judge could and should have found a duty owed by the respondent to the appellants.

6. [73]

   The appellants submitted that a duty was owed by the respondent flowing from an established category of duty.

7. [74]

   First, the appellants submitted that there was an “obligation to safely disembark…asylum seekers before they get to Australia”. The appellants submitted that Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; [2018] UKSC 4 provided a relevant analogy. By having vessels patrol and intercept SIEVs, the Commonwealth created the circumstances in which the irregular immigrants on SIEV 221 were harmed. By deciding to take the Pirie off its “normal patrol”, particularly given the existence of a “high” threat alert status, the Commonwealth breached that duty. The Commonwealth had control over the “attractiveness” of Christmas Island as a destination and over the ownership of the vessel when it came in to Australian waters, and this “attractiveness” arose out of Operation Resolute and the standing orders of those involved in the operation. In oral submissions, the appellants emphasised that it was “well-known” to people smugglers and irregular maritime arrivals that there was a permanently stationed vessel on Christmas Island tasked with intercepting and disembarking SIEVs. The appellants submitted that it was well-known that Christmas Island was a destination for those asylum seekers and that it was well-known to people smugglers that they could “let [asylum seekers] come to Australia on leaky boats because at the other end the navy would be there to look after them and…Border Protection Command knew this”. The appellants submitted that this conclusion followed from the evidence given by Rear Admiral Barrett, the commander of Operation Resolute, to the coronial inquiry, the transcript of which was tendered before the primary judge. The appellants submitted that the primary judge did not deal with this evidence. The appellants further submitted that Rear Admiral Barrett was aware that the presence of response vessels made Christmas Island an attractive destination for people smugglers, along with its proximity to Indonesia. The appellants submitted that the Commonwealth’s actions in stationing vessels on Christmas Island and patrolling formed part of the “matrix of the arrival of these SIEVs” which, the appellants argued, would not be heading for Christmas Island unless the people smugglers were sure they would be intercepted.

8. [75]

   Secondly, the appellants submitted that there was an established category of duty of care owed by the respondent to its employees and agents. The failure to take reasonable care to avoid loss and damage arising from the “accepted and foreseeable risk” that a SIEV approaching Christmas Island would, if not intercepted, be shipwrecked on the shore of Christmas Island, exposed employees and agents of the Commonwealth to nervous shock by witnessing the events; the immediate aftermath; or physical harm arising from involvement in rescue attempts.”

9. [76]

   Thirdly, the appellants submitted, as a basis for finding a duty of care owed by the respondent to them, that there was a pre-existing category of duty owed in the Lowns v Woods (1996) Aust Torts Reports 81-376 sense in relation to the rescue operation following Mr Jardine’s request for the navy to intercept the SIEV. The appellants submitted that the primary judge erred in finding that Lowns v Woods was not analogous to the present case.

10. [77]

    Fourthly, the appellants submitted that the primary judge erred in failing to consider whether the particular circumstances of this case enlivened an existing category of duty and only had regard to the multifactorial test in addressing a novel duty of care. The relevant salient factors which were said to generate an existing category of duty included the ongoing patrol operation constituting a positive act of the respondent, and the accepted category of duty owed by the respondent to its “servants and agents” who were engaged in a rescue operation and witnessed the catastrophic loss of life.

11. [78]

    Fifthly, the appellants submitted that the primary judge incorrectly conflated the absence of authority establishing a duty in precisely the same factual situation with there being no need to look at pre-existing categories of duty and only viewed duty through the prism of a novel duty.

12. [79]

    The appellants submitted that the Commonwealth’s ongoing and continuous engagement in an operation in proximity to the arrival place for the regular and foreseeable arrival of irregular immigrants was relevant to the application of pre-existing approaches to a duty of care. The appellants submitted that it was reasonably foreseeable that there was a shipwreck risk arising from SIEVs approaching Christmas Island in dangerous conditions, and that there was at least a duty owed by the Commonwealth to its own employees to prevent the foreseeable harm to them of witnessing and responding to a shipwreck.

13. [80]

    The appellants submitted that the respondent sought to make a false dichotomy between labelling Border Protection Command a “law-enforcement operation” versus a “search and rescue operation” and that these labels made no difference to the true purpose of Operation Resolute.

14. [81]

    The appellants submitted that too much emphasis was placed on whether the words “in distress” were used to describe SIEV 221 in the phone calls notifying Border Protection Command of its presence. The appellants submitted that the Commonwealth was clearly in receipt of information that made it plain that the vessel was in danger and that Commander Livingstone ought to have known that SIEV 221 was approaching the windward side of the island and was in distress.

15. [82]

    The appellants submitted that “[t]he duty argued for by [them] was …[a] duty arising from the proper application of the multifactorial approach…”. It was submitted that the primary judge erred in his Honour’s application of that multifactorial test to establish a novel duty, and in particular that his Honour:

    1. (1)

       incorrectly treated the question of control as an absolute constraint in the multifactorial test where a public authority is involved;

    2. (2)

       incorrectly found that the respondent had no control over an accepted risk of harm, without regard to the Commonwealth’s control over the ability to intercept the vessel by reason of the ongoing patrol operation, had it been executed with reasonable care;

    3. (3)

       failed to give consideration to the factors which clearly favoured a duty of care from the list of ‘salient features’ in Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258, including: the accepted foreseeability of harm if the vessel was not intercepted; the existence of a defined and determinate class of relationship between the defendant and the classes of plaintiff; the very serious nature of the harm where the vessel is not intercepted; the degree and nature of control able to be exercised to avoid harm; and the vulnerability of the plaintiffs to the harm from the conduct of removing the patrol, given once on the vessel with no interception facility the passengers could not escape and only the Commonwealth had any legal ability to take control of the vessel by interception;

    4. (4)

       erred in finding that the respondent had no control over the accepted risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island in circumstances where the defendant had control over the ongoing patrol;

    5. (5)

       erred in finding that those on board SIEV 221 were not vulnerable. The reliance placed on Brookfield Multiplex v Owners - Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 for the proposition that vulnerability was a necessary pre-requisite for establishing a duty of care was misplaced, as that case was about pure economic loss;

    6. (6)

       “…appears to have been heavily influenced by the position he adopted that those who sought asylum were engaged in an illegal venture and it would be contrary to policy to afford them the protection of a common law duty of care”;

    7. (7)

       made an erroneous finding in relation to any duty to rescue. In relation to the application of s 265 of the Navigation Act, the appellants submitted that they do not rely upon a statutory duty;

    8. (8)

       failed to take into consideration that the respondent owned the SIEV 221 for the purposes of the multifactorial test. The respondent’s ownership of the vessel was “…of importance to the factors involved in the multifactorial approach because it created a relationship between the Commonwealth and the occupants of the vessel by giving the [respondent] exclusive legal control over the vessel”;

    9. (9)

       erred in finding that there was an absence of “any relevant relationship” between the respondent and the passengers on board or their relatives”, in circumstances where there was a relationship between the respondent and those on the vessel by reason of the respondent’s ownership of it; and

    10. (10)

        erred in construing s 261A of the Migration Act 1958 (Cth) as being inconsistent with the existence of a duty of care towards the occupants of the vessel who were not guilty of any criminal offence. The appellants submitted that there is no basis in the text or context of the legislation which makes the Commonwealth’s ownership a different class of ownership to any other form with any lesser rights or responsibility.

16. [83]

    In oral submissions the appellants emphasised that, in the context of the Commonwealth having control over SIEV 221, the automatic forfeiture effected by s 261A of the Migration Act (in this case a contravention based on people smuggling) meant that the Commonwealth controlled the vessel. The appellants submitted that the decisions in Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229 and Tran v The Commonwealth (2010) 187 FCR 54; [2010] FCAFC 80 establish that at the time SIEV 221 was forfeited it was owned and thus controlled for all relevant purposes by the Commonwealth.

17. [84]

    The appellants submitted that the forfeiture effected by the Migration Act included an automatic and immediate transfer of ownership when the vessel crossed into Australian waters. The appellants submitted that this legal ownership meant that the Commonwealth had a right and an obligation to intercept the vessel which was their property and that this goes to control. The appellants submitted that the extent of this control could be seen in the fact that the man in charge of SIEV 221 was convicted of people smuggling after the event, but the Commonwealth acted to attempt to seize the vessel even though his guilt had not yet been proved. The appellants submitted that this legal ownership became an incident of control which went to the duty of care (although they emphasised that it was one factor in the matrix of obligations imposed upon the Commonwealth by the facts of the case). The appellants submitted that ownership gave rise to a duty to ensure the vessel was navigable and seaworthy and to ensure that people who occupy the vessel do not come to foreseeable harm.

18. [85]

    The appellant submitted that the respondent’s conception of the purposes of the Border Protection Command operation under the Migration Act – that it essentially involves the deterring, suppression and control of irregular maritime arrivals of unlawful noncitizens – was misconceived. Regarding the purposes of the Migration Act, the appellant submitted that s 4 expresses its objects as being “to regulate, in the national interest, the coming into and presence in Australia of non-citizens; to provide for visas permitting non-citizens to enter or remain in Australia, which Parliament intends to be the only source of the right of non-citizens to so enter or remain; to require persons to identify themselves so that the Commonwealth Government can know who the non-citizens are so entering”. The appellant submitted that the respondent’s submissions did not reflect the objects as set out in the legislation. Section 4 of the Migration Act is in the following terms:

19. [86]

    The appellants submitted that passengers on SIEVs were always seeking to apply for visas under s 45 of the Migration Act. The appellant, effectively, submitted that it should be taken on judicial notice that people on board SIEVs would make applications for protection visas on arrival and that there was an immigration processing regime put in place on Christmas Island for that purpose: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37.

20. [87]

    The appellants submitted that, although arriving in Australia without a visa is a contravention of s 42 of the Migration Act, it is not a crime or misdemeanour. The appellants submitted that the use of the nomenclature “law enforcement and security operations” could not provide immunity from the common law duty of care.

21. [88]

    The appellants submitted that there was a clear and express object of the Migration Act at the time to give effect to Australia’s protection obligations under the Refugee Convention by creating an entitlement to apply for and be granted a visa on that basis under s 36 of the Migration Act.

22. [89]

    The appellants submitted that there was nothing in the Act to suggest a Parliamentary purpose to deter, suppress and control irregular maritime arrivals of unlawful non-citizens by failing to reduce the shipwreck risk. The appellants submitted that, to the contrary, the Commonwealth operation was to intercept irregular maritime arrivals and process their visas.

23. [90]

    The appellants also submitted, in respect of the ongoing patrol issue, that there was a failure by the Commonwealth adequately to communicate to the Triton and Pirie that there was danger of an irregular maritime arrival on the relevant morning, and these vessels should have been dispatched on the SOLAS operation earlier than they were.

24. [91]

    The appellants submitted that the finding that there was no viable option to tow SIEV 221 away from the rocks failed to deal with other possibilities such as disembarkation from the vessel of the passengers with the assistance of the Australian Navy personnel.

25. [92]

    The appellants submitted that the purpose of the Navigation Act, to ensure the safe navigation of Australian flag vessels in Australian waters, meant that the proposition that s 227B did not apply since SIEV 221 was not an Australian flag vessel when it left its port is incorrect as at the time of the incident the SIEV 221 was both owned by the Australian Government and in territorial waters. Accordingly, the appellant submitted, s 227B and the obligations of a shipowner to ensure that a ship owned by it is seaworthy should be given full force and effect in accordance with their purpose. It was submitted that this was a matter which supported the imposition of a duty of care.

26. [93]

    The essence of the remaining submissions made by the appellants on this issue was that the primary judge failed to decide a material issue: whether a duty of care was owed by the respondent to the members of the class of onlookers and/or rescuers who were employees or agents of the respondent and the fact that, “clearly, the [respondent] owed a duty to take reasonable care to avoid injury and damage to its employees and agents at Christmas Island who were at risk of harm arising from the shipwreck risk”.

27. [94]

    The appellants submitted that the primary judge erred in failing to give proper weight to the evidence that the prevailing threat level of the arrival of a SIEV at Christmas Island at the time of Commander Livingston’s decision to not return to his patrol was “High”.

28. [95]

    The appellants submitted that, based on a fair reading of Exhibit C, the primary judge’s finding of fact at [44]-[45] that “the threat status for arrivals of SIEVs was medium between midday 12.00 on 14 December 2010 and 5:40am on 15 December 2010, and was low thereafter” was incorrect.

29. [96]

    In oral submissions the appellants emphasised what they submitted was an erroneous finding, namely that the threat status of arrivals at the relevant time was medium, when documentary evidence shows that the threat status was high. The relevance of this, the appellant submitted, was that because Commander Livingstone thought the threat status was medium he chose not to go back out on patrol but remained in the lee of the island and adopted a “posture” that, the appellant submitted, was clearly not designed to intercept SIEVs, especially those coming from the north, which was the most common path for arrivals.

30. [97]

    The appellants submitted that the primary judge erred at [354], [355] and [369] by drawing an incorrect inference of fact from the primary facts, namely that when Commander Livingstone received the communication from Enforcement Commander Saunders at around 6.00am on 15 December 2010, he was alerted to the possible, as opposed to confirmed, presence of a SIEV at Rocky Point. That inference was contrary to the primary evidence, namely the log of the Pirie, the communications log of the Triton and the recordings and the transcript of the recordings of the communication.

31. [98]

    The appellants also submitted that there was error at [367]–[375] by the primary judge answering Question 12 “no” without any reference to or consideration of the evidence of the NORCOM watchkeeper log. It was submitted that:

    1. (1)

       Border Protection Command had communication available with the Pirie and had the capacity to give the vessel command instructions;

    2. (2)

       Border Protection Command received information at 5.48am on 15 December 2015 from Customs at Christmas Island and had advised NORCOM that a Contact of Interest had been sighted 150m off Rocky Point;

    3. (3)

       Border Protection Command recorded by 6.03am that there was a “confirmed Critical Contact of Interest 250m off Rocky Point” (within the “danger zone” accepted by the primary judge at [355]);

    4. (4)

       the information had been conveyed by a Customs Officer from the shore;

    5. (5)

       the Customs Officer had, the day before, stressed the danger faced by SIEV 220 which was 400m out from the rocks in less severe weather conditions; and

    6. (6)

       the above information held by NORCOM was not passed on to the Pirie until 6.25am.

32. [99]

    In addition, the appellants submitted that the primary judge erred in not referring to or considering the evidence of the CNOC Critical Incident Running Sheet that on 15 December 2010:

    1. (1)

       at 5.47am Customs Officers had advised CNOC that a Contact of Interest had been sighted 200 meters offshore near Mango Tree Lodge;

    2. (2)

       at 5.48am, Border Protection Command was advised of this sighting;

    3. (3)

       at 5.53am a Contact of Interest SMS was sent to the CNOC SMS list (which included the Enforcement Commander of Triton); and

    4. (4)

       at 6.06am an email was sent to Border Protection Command advising of details.

33. [100]

    The appellants submitted that the primary judge failed to draw the correct inference from the primary facts by failing to find that the Commonwealth could and should have sent the Pirie and/or Triton to the assistance of SIEV 221 at sometime between 5.48am and 6.03am on 15 December 2010. The appellants submitted that the primary judge erred at [367]-[374] by failing to decide material issues raised by the appellant, namely whether the earlier arrival of the Pirie and/or its RHIBs would have substantially reduced the risk of harm to the class members.

34. [101]

    The appellants submitted that, whether or not the words “in distress” were used to describe SIEV 221 in telephone calls between 5.47am and 6.25am on the relevant morning, the relevant issue was why information communicated by Officer Jardine to the Commonwealth’s offices in Darwin and Canberra who had the authority to order the Pirie or Triton to respond, was not passed on to Commander Livingstone until after until 6.25am.

35. [102]

    The appellants submitted that the respondent’s submission that the information provided by Officer Jardine at 5.47am was passed to the Pirie and Triton less than 20 minutes later is inconsistent with the evidence of Commander Livingstone, and the log of communications showing that the Pirie was first told the vessel was within 200m of the shore at 6.25am (37 minutes later).

36. [103]

    The appellants submitted that, ultimately, the primary judge erred by answering Question 12 “No”.

37. [104]

    The appellants submitted that the primary judge erred in finding, at [306] and [307], that the Shipwreck Risk was an “inherent risk” that could not have been avoided even if the greatest possible skill and care had been exercised. The appellants submitted that it could clearly have been avoided had the Pirie been on its “usual” patrol. This was evident, it was submitted, from the success of the Christmas Island interception operation. The appellants submitted that the primary judge erred at [304]-[307] and [312] by failing to give proper weight to the evidence that 51 SIEVs had safely arrived at Christmas Island in the period 1 January 2010 to 15 December 2010 either by landing or by being intercepted by Operation Resolute in the vicinity of Christmas Island. Likewise, the appellant submitted that the findings at those paragraphs did not give proper weight to the evidence that SIEV 220 was safely intercepted by the Pirie on 14 December 2010 in similar conditions faced by SIEV 221 without any loss of life and without approaching the shore.

38. [105]

    The appellants submitted that the primary judge erred at [391] by finding that the evidence did not support a conclusion that even if the Pirie had undertaken a patrol further to the north of Christmas Island it would have detected the SIEV 221 and, if so, would have been able to intercept it. The appellants submitted that the primary judge failed to give proper weight to several items of evidence:

    1. (1)

       the evidence of Commander Livingstone that the purpose of his usual patrol was to detect vessels on their usual approaches to Christmas Island;

    2. (2)

       of the 51 SIEVs arriving at Christmas Island between January 2010 and December 2010, only three had not been intercepted and arrived at Christmas Island. Of 97 SIEVs which had arrived at Christmas Island since June 1996, only seven SIEVs had not been detected or intercepted;

    3. (3)

       the unchallenged evidence of one of the representative plaintiffs, Mr Shahyari, that SIEV 221 was within range of the lights of Flying Fish Cove sometime between 4am and 5am, while it was still dark. The normal barrier patrol path of the Pirie would have been across Flying Fish Cove;

    4. (4)

       SIEVs generally attempted to make themselves known to the Navy and in this case, those on board SIEV 221 were making efforts to alert the attention of people on shore to their presence;

    5. (5)

       SIEV 221 had been observed by some locals steaming on an east-west track north of the Island from sunrise, from at least 5:40am;

    6. (6)

       when the Pirie did round Rocky Point it was able to visually locate the vessel quickly; and

    7. (7)

       the Pirie had available to it an effective suite of surveillance devices including PRISM, the Electro-Optical Device and visual observation.

39. [106]

    The appellants submitted that the objective evidence was contrary to the Commonwealth’s suggestion that, had the Pirie been on its “normal” patrol, it would not have seen SIEV 221.

40. [107]

    The appellants submitted that it was clear that the day before, in similar conditions, the Pirie was able to see SIEV 220. The appellants submitted that the Pirie’s Electro-Optical device had a visibility of between five and seven miles depending on the conditions and was night-time infrared which would have picked up heat signals from the engine of the vessel. Further, the appellants submitted that the surest objective evidence was that by 5.40am, people standing on the shore of Christmas Island could see SIEV 221 with their naked eyes, making it unbelievable that a state of the art Navy vessel would have been unable to detect the SIEV.

41. [108]

    The appellants submitted that the trial judge was in error to find that the failure of the Pirie to be on its normal patrol would have made no difference to the occurrence of the shipwreck.

42. [109]

    The appellants submitted that the principal basis upon which the primary judge rejected the plaintiff’s contention that an earlier response to the information held by the defendant about the proximity of the SIEV to the rocks would have likely reduced the loss of life and magnitude of the loss and damage suffered by members of the class was to reject the proposition that a line could have been passed to the SIEV whilst it was still intact by the RHIBs who could have then held it off the rocks.

43. [110]

    The appellants contended that the principal matters leading to Bellew J’s rejection of the possibility of the SIEV being held in place by the RHIBs with a tow line were:

    1. (1)

       His Honour’s failure at [393] to exclude the opinion evidence of Commanders Saunders and Livingstone when neither witness was qualified as an independent expert in the towing capacity of RHIBs and had exposed no reasoning for their conclusions; and

    2. (2)

       his failure to admit the expert evidence of Mr Dag Pike (see Ibrahimi v Commonwealth (No 3) [2016] NSWSC 1438) regarding the towing capacities of RHIBs.

44. [111]

    The appellants submitted that, in relation to the evidence of Mr Pike, there could not be said to be any gross disconformity (cf HG v The Queen (1999) 197 CLR 414; [1999] HCA 2) between his field of expertise and Mr Pike’s opinions on the capacities of RHIBs in the weather conditions about which he had been instructed. In oral submissions, the appellants repeated their complaint that the primary judge did not allow the evidence of Mr Pike, the inventor of RHIBs, and “contrasted” this with His Honour allowing the evidence of Commander Livingstone (who the appellant submitted was an enforcement commander but had only operational experience of RHIBs).

45. [112]

    The appellants submitted that they did not make an application to supplement Mr Pike’s report when the primary judge made a Dasreef order regarding the admissibility of the expert evidence: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. The appellants submitted that the primary judge did not give them the option of supplementing the report to make it admissible, although this was at an early stage in the trial, and it was conceivable that Mr Pike could have been contacted and asked to supplement the report.

46. [113]

    The appellants submitted that Commander Livingstone clearly appreciated that any vessel in the proximity to the cliffs that SIEV 221 was in imminent danger. The appellants submitted that, therefore, the Commonwealth knew or ought to have known that a vessel in the position of SIEV 221 was in serious trouble.

47. [114]

    The appellants submitted that if Commander Livingstone had been properly informed about the position and state of SIEV 221, he would have “moved the timeline forward” so that the Pirie would have arrived before SIEV 221 lost power and that this would have made a difference to whether or not those on board SIEV 221 were rescued.

48. [115]

    The appellants submitted that the Court should find that it would have taken Commander Livingstone the same amount of time to prepare the Pirie and travel to Flying Fish Cove if he were informed of a SOLAS situation (or a more urgent circumstance involving SIEV 221) at 5.40am or 5.50am as opposed to 6.05am.

49. [116]

    The appellants submitted that the primary judge erred at [367]–[374] by failing to have regard to the evidence of Commander Livingstone of the timing of the responses of the Pirie once he was appraised of the full circumstances of the situation of the SIEV 221 at around 6.25am to arrival on the scene at 7.00am. It was submitted that had Commander Livingstone commenced preparations between 5.47 and 6.03am he would have placed the Pirie on the scene between 6.22 and 6.38am, before the SIEV 221 broke up on the rocks; and

50. [117]

    The appellants submitted that, contrary to the respondent’s submission that the Pirie was preparing to assist SIEV 221 from 6.00am, the proper view of the evidence was that Commander Livingstone was only fully underway by 6.32am.

51. [118]

    The appellants further submitted that the primary judge erred by failing to draw the proper inference of fact from the primary evidence at [370] and [371], namely, by reference to the transcript of Commander Livingstone’s evidence to the coronial inquest, that had he commenced his rescue operation at 6.00am, the RHIBs and the Pirie would have been on the scene of the SIEV 221 before it broke up and would have been able to make a more efficacious rescue.

52. [119]

    The appellants submitted that, had the threat level been understood as “high” rather than either “medium” or “low” as Commander Livingstone believed that he would have had the Pirie on patrol on the original racetrack and would therefore have been in a different position at the time SIEV 221 arrived.

53. [120]

    The appellants submitted that had the RHIBs arrived earlier there was a possibility of a better outcome. The appellants submitted that the RHIBs could have towed SIEV 221 out of danger, despite Commander Livingstone’s evidence that this would have been impossible. This was because the crew on that day performed feats of heroism that “nobody knew…[they] were capable of until they were put to the task”. Despite the evidence of Commander Livingstone that the RHIBs were not equipped to do such a thing, what they actually did to effect the rescue “far exceeded their expectations”, that “these coxswains…may well…have been able to throw a line”, and that “the problem with the case has always been that the capacity of everybody involved was always underestimated”.

54. [121]

    The appellants further submitted that the primary judge erred at [393] by failing to give any weight to the evidence of Officer Shane Adams that the AFP had towed a SIEV vessel to sheltered waters at North West Point.

Respondent’s submissions

1. [122]

   The respondent submitted that the appellants conceded before the primary judge that the duties alleged were novel. The primary judge, therefore, analysed the existence of the alleged duties by reference to the “salient features” test: Caltex v Stavar at [102]-[103] per Allsop P.

2. [123]

   Given this analysis, the respondent submitted that the appellants’ criticism of the primary judge for an alleged failure to consider “whether the circumstances of this case enlivened existing categories of duty” was not open to the appellants.

3. [124]

   In any event, the respondent submitted, any attempt by the appellants to fit the alleged duties within established categories was without substance for several reasons:

   1. (1)

      Operation Resolute was not, as the appellants suggested, a “positive act which generated a duty of care for…passengers on board a SIEV approaching Christmas Island”. The respondent submitted that the analogy the appellants sought to draw between the present case and the decision of the UK Supreme Court in Robinson was flawed, as the “positive act” generating a duty in that case only did so because it created the risk of the plaintiff being injured. In this case, however, the primary judge found that there was “no evidence whatsoever that anything done by the respondent, through BPC, increased the risk of harm”. The respondent submitted that a closer analogy to Operation Resolute was the police patrol in Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15, in which no duty of the police to protect the respondent from self-harm was found;

   2. (2)

      while the appellants submitted the primary judge failed to have regard to an accepted category of duty owed by the Commonwealth to Commonwealth personnel who participated in the rescue of people on board SIEV 221, the duties advanced by the appellants were directed to “rescuers”, not Commonwealth personnel per se. The respondent submitted that the duty the Commonwealth owed to its personnel arises not because they were “rescuers”, but out of their status as Commonwealth personnel: Groves v Commonwealth (1982) 150 CLR 113; [1982] HCA 21. The respondent submitted that, since the discharge of the Commonwealth’s duty of care to its personnel may require it not to direct them to attempt unreasonably dangerous activities (such as, potentially, a rescue of the kind the appellants alleged should have been carried out), the duties contended for by the appellants are incoherent with the duty of the Commonwealth to its personnel.

4. [125]

   The respondent submitted that the primary judge’s application of the multi-factorial analysis was correct and that his Honour did not treat control as an absolute constraint, but rather as one of the factors to be weighed in determining whether or not a duty of care was owed.

5. [126]

   The respondent further submitted that the law is very clear that there is no general duty to rescue, and the only derogation from that is where the rescuer has created some additional risk or danger by their actions.

6. [127]

   The respondent submitted that the characterisation by the appellants of Operation Resolute as an assumption of responsibility for the safe arrival of SIEVs into Australia was a “radical distortion of its true nature”. The respondent submitted that Border Protection Command was not a search and rescue agency and Operation Resolute was not a search and rescue operation. On the contrary, its purpose was to deter, supress and control irregular maritime arrivals into Australia.

7. [128]

   The respondent submitted that the UK Supreme Court case of Michael v The Chief Constable of South Wales Police [2015] 1 AC 1732 at [112]-[115] is authority for the proposition that intervention or the provision of assistance by public authorities in response to risks of harm not created by them does not generally give rise to a duty of care to provide assistance, except so as not to make the situation worse.

8. [129]

   The respondent submitted that Admiral Barrett’s evidence, which was not referred to below at all, did not support the appellant’s case, and that there was no actual evidence that any of the plaintiffs had the knowledge that Christmas Island was a well-known destination where people smugglers thought the Australian Navy would look after SIEVs they intercepted.

9. [130]

   The respondent submitted that the fact that when the Pirie and Triton were first alerted to the presence of SIEV 221 there was no suggestion that it was in distress and that they were not in physical proximity to SIEV 221 (but were on the lee side of Christmas Island, 20-25 minutes sailing time away), meant there could be no analogy to the duty to respond and rescue in Lowns v Woods.

10. [131]

    The respondent submitted that, contrary to the appellants’ suggestion that the primary judge “treated the question of control as an absolute constraint in a multifactorial test where a public authority is involved”, the primary judge in fact recognised the importance of control, concluded that it was absent, and treated this as a matter which “tends against a conclusion that [the respondent] owed a duty of care to the plaintiffs”. This, the respondent submitted, was a “wholly orthodox and correct analysis”.

11. [132]

    The respondent submitted that while, as the appellants submitted, the Commonwealth did have control over its response to the risk of a shipwreck (i.e. control over its ability to intercept the vessel), the capacity of a public authority to take action to protect another person from harm is not a relevant species of control. Further, the respondent submitted, if the risk of harm was characterised as a risk arising from the failure of the Commonwealth to intercept the vessel prior to it being wrecked (rather than the risk of harm from a SIEV being wrecked), a public authority would always have relevant control.

12. [133]

    The respondent submitted that the basis of a duty of an occupier is actual control over entrance and power to safeguard a property from defects, as distinct from ownership simpliciter, based on Northern Sandblasting v Harris (1997) 188 CLR 313; [1997] HCA 39 at 336 per Brennan CJ and 359 per Gaudron J; and Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [80] per Gaudron J and [150]-[152] per Gummow and Hayne JJ.

13. [134]

    These decisions cite with approval the decision of the House of Lords in Wheat v E Lacon & Co Ltd [1966] AC 552. At 589, Lord Pearson held that “the foundation of occupier’s liability is occupational control, i.e. control associated with and arising from presence in and use of or activity in the premises”. At 579-580, Lord Denning drew a distinction between an owner who had wholly demised her or his premises, which would not give rise to a duty, and a situation where common areas of a multi-unit apartment were not demised or the case of a licence as opposed to a lease. Based on these distinctions, the respondent submitted that the primary judge correctly found that even if the Migration Act vested ownership in the Commonwealth by way of the forfeiture provision, this did not automatically give rise to control or a duty of care.

14. [135]

    The respondent submitted that the authorities as to occupier’s liability show that new ownership does not give rise to a duty of care in the circumstances, that ownership is not synonymous with control and that ownership must be coupled with actual control (rather than where there is a tenant or where the owner is physically removed) that gives rise to a duty of care based on ownership.

15. [136]

    Vulnerability is a salient feature requiring analysis when a novel duty is alleged against a public authority, namely “the degree of vulnerability of those who depend on the proper exercise by the authority of its powers”: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [149] per Gummow and Hayne JJ. Vulnerability in this context refers to a plaintiff’s inability to protect themselves from the respondent’s want of reasonable care: Brookfield at [57] per Hayne and Kiefel JJ. The primary judge concluded that this factor was absent because “those on board SIEV 221…could have protected themselves completely simply by not undertaking the voyage on SIEV 221”.

16. [137]

    The respondent submitted that the primary judge was correct to conclude there was no relevant vulnerability of those on board SIEV 221, as there was no practical compulsion on those on board SIEV 221 to board the vessel and unlawfully travel to Australia.

17. [138]

    The respondent submitted that there was an inherent tension between the policy and provisions of the Migration Act, which seeks to deter unlawful non-citizens traveling to and remaining in Australia, and the duties of care for which the appellants contended. The respondent submitted that the trial judge correctly identified this tension as arising from the fact that the objective effect of the duty would be to stimulate the conduct which the Migration Act seeks to prevent and deter, because it would oblige the Commonwealth to take steps to ensure the successful arrival of unlawful maritime voyages to Australia.

18. [139]

    The respondent submitted that the primary judge’s conclusion did not involve any notion of it being the purpose of the Migration Act to promote the loss of life at sea, or that unlawful non-citizens seeking to enter Australia are outlaws. The respondent submitted that the fact that a common law duty would be apt to stimulate conduct the law seeks to suppress is a factor militating against the duty of care: C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at [41].

19. [140]

    The respondent submitted that the primary judge correctly concluded that the statutory forfeiture of SIEV 221 pursuant to s 261A of the Migration Act, effective upon its entry into Australia, provided no foundation for a common law duty of care because:

    1. (1)

       the nature and purpose of the forfeiture effected by s 261A of the Migration Act is a penalty to deter conduct made unlawful by the Migration Act: Tran at [195] per Besanko J. The respondent submitted that, as the primary judge held, it would be incongruous with the nature and purpose of the statutory forfeiture to use s 261A as an occasion to found a duty of care owed by the Commonwealth to people on board the vessels unlawfully travelling to Australia; and

    2. (2)

       attaching the label of “ownership” to the statutory forfeiture in s 261A did not advance the appellants’ assertion of a duty of care.

20. [141]

    The respondent submitted that the appellants had demonstrated no error in the primary judge’s conclusions that there was no evidence any onlookers suffered psychiatric harm, that there was no relevant control on the part of the Commonwealth, the Commonwealth did not create or increase the risk of harm, and there was no pre-existing relationship between the Commonwealth and the onlookers.

21. [142]

    The respondent submitted that the primary judge’s conclusion that the risk a SIEV heading towards Christmas Island would be shipwrecked was an “inherent” and “obvious” risk within the meaning of ss 5E and 5F of the Civil Liability Act 2002 (WA), respectively, and was fatal to the duties for which the appellants contended.

22. [143]

    The respondent submitted that the class to whom the duties alleged by the appellants were said to be owed, being passengers on the SIEVs approaching Christmas Island, their family members, and bystanders and rescuers present for the arrival of the SIEV, was both self-selecting and could not be identified in prospect. The respondent submitted that the common law will not recognise a duty to a class of that width: Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [107]-[108] and [336]. Further, the respondent submitted that the relationship between the Commonwealth and the class so defined could not plausibly be said to be so close and direct as to be one of “neighbourhood” in the Donoghue v Stevenson sense.

23. [144]

    The respondent submitted that the appellants’ submission that the primary judge incorrectly determined the threat status for arrivals, even if accepted, would not demonstrate that Commander Livingstone’s decision to keep the Pirie on a short racetrack on the leeward side of Christmas Island on the evening of 14 December 2010 and morning of 15 December 2010 was an unreasonable decision, given the competing concerns and responsibilities during the storm and considering the Pirie’s custody of SIEV 220.

24. [145]

    The respondent further submitted that the primary judge’s findings concerning the threat status on the evening of 14 December 2010 and morning of 15 December 2010 were correct.

25. [146]

    The respondent submitted that the only finding of fact that the appellant sought to challenge was the primary judge’s finding regarding the threat status at the relevant time, but that this finding of fact was not relevant to the primary judge’s conclusions regarding a duty of care being owed. This was because, whether or not the threat level was medium or high, on the basis of the information known to Commander Livingstone at the relevant time, the Commander’s decision to stay on the leeward side of the island was reasonable and open.

26. [147]

    The respondent submitted that a high threat status does not translate into imminent distress. The respondent further submitted that the primary judge’s finding regarding the threat status was correct.

27. [148]

    The respondent submitted that Commander Livingstone was not asked about whether, had he known the threat level was high, he would have done something differently.

28. [149]

    The respondent submitted that the primary judge’s conclusion that there was no delay, let alone unreasonable delay, in the Pirie responding to SIEV 221 was correct and inevitable, based on the facts.

29. [150]

    Underpinning the appellants’ case on unreasonable delay, the respondent submitted, is an assumption that it was possible or practical for Border Protection Command’s assets to instantaneously react to Mr Martin’s sighting of SIEV 221. The respondent submitted that this is obviously a false assumption.

30. [151]

    The respondent submitted that, in the circumstances, it was open to the primary judge to find that the evidence did not establish 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 respondent submitted that the appellants’ submissions did not support a different conclusion, for several reasons:

    1. (1)

       little to no weight could be given to the number of SIEVs which had been detected and intercepted near Christmas Island by Border Protection Command from 1996 to 2010 because, as the respondent submitted, no evidence revealed the size or make of those vessels or whether the interception operations were conducted in similar weather and sea conditions to those facing the Pirie on 14 and 15 December 2010;

    2. (2)

       Commander Livingstone rejected the “oversimplified” proposition that, had the Pirie conducted a barrier patrol further to the north of Christmas Island on 15 December 2010, it would have detected SIEV 221 because the precise course of the patrol might have varied according to the Commanding Officer’s discretion and it might have taken a different approach. Further, even if the Pirie had detected SIEV 221 on radar, it would not necessarily have investigated in the absence of visual confirmation, which would have been difficult in the darkness and prevailing weather conditions; and

    3. (3)

       there was no evidence that the crew or passengers on board SIEV 221 attempted to make their presence known prior to arriving within sight of Christmas Island. The methods used to try and get the attention of those on the shore, yelling and using flashlights, would not have been effective in the inclement weather and darkness.

31. [152]

    The respondent submitted that there was no basis for challenging the factual findings of the primary judge in relation to whether the Pirie would have detected SIEV 221 if it had resumed its patrol on the racetrack. The evidence did not support a finding that the Pirie would have been able to detect SIEV 221 using its other surveillance devices. The respondent further submitted that SIEV 220, which was detected, was picked up during the day and in much better conditions.

32. [153]

    The respondent noted that the exact position of the racetrack was not mandated, but it was generally to the north and would vary with discretion and practical considerations.

33. [154]

    The respondent submitted that the primary judge was correct to admit the opinion evidence of Commanders Livingstone and Saunders. The respondent submitted that both men were highly experienced in their roles, were both present on 15 December 2010 and personally observed the weather conditions and the scene which confronted rescuers. Both also set out the reasoning underpinning their opinions regarding the futility of towing SIEV 221.

34. [155]

    In relation to the evidence of Mr Pike, the respondent submitted that the trial judge was correct to exclude his evidence because he made no attempt to set out the calculations and reasoning upon which he based his opinion that certain boats would have been capable of towing SIEV 221 away from danger.

35. [156]

    The respondent submitted that the factual findings of the primary judge, which were “relatively unchallenged” by the appellants, clearly demonstrated that it was not feasible for an RHIB to tow SIEV 221.

36. [157]

    The respondent submitted that the appellant did not put forward any concrete reasons why the primary judge’s rejection of the evidence of Mr Pike was not justified. The respondent further submitted that the appellants could have supplemented Mr Pike’s report after the primary judge ruled it inadmissible, but chose not to seek leave to do so. Further, the respondent submitted that the primary judge’s reasons for rejecting Mr Pike’s report were sound.

37. [158]

    The respondent submitted that even if Commander Livingstone and Saunders’ evidence had been improperly admitted, the onus was on the appellants to establish that towing SIEV 221 using an RHIB would have been feasible, and the appellants did not establish this.

38. [159]

    Regarding Mr Adams’ evidence, the respondent submitted that since he was not present at the event and did not know which vessels were involved in the tow, the trial judge was correct to not have regard to his evidence in forming his Honour’s conclusions.

39. [160]

    The respondent submitted that, contrary to the appellant’s written submissions that SIEV 221 was in fact in distress at sea and that the Commanding Officers ought to have known that, the evidence suggested that it was not in distress.

40. [161]

    Further, the respondent submitted that there was no evidence that SIEV 221 was actually in distress at 6.00am, and that it did not lose power until an exceptional wave hit it at about 6.15am, washing the fuel overboard.

41. [162]

    The respondent submitted that the appellants’ pleading in this regard was not open and, in any event, was wrongly premised and would have made no difference to the result as a matter of causation.

Consideration

1. [163]

   In accordance with s 75(iii) of the Commonwealth Constitution, this Court’s authority to adjudicate the present matter, in which the Commonwealth is a party, must derive from a federal law: Commonwealth v Limerick Steamship Co Ltd (1924) 35 CLR 69; [1924] HCA 50 at 95 (Isaacs and Rich JJ); Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393; [1926] HCA 8 at 400 (Knox CJ, Gavan Duffy and Powers JJ), 405 (Isaacs J). Current authority identifies the Judiciary Act 1903 (Cth), s 39(2) as conferring such authority: Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287; [2002] HCA 37 at [6], [9] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), explained in Rizeq v Western Australia [2017] HCA 23; (2017) 91 ALJR 707 at [101] (Bell, Gageler, Keane, Nettle and Gordon JJ). Moreover, independently of its consent, the Commonwealth was amenable to suit under s 75(iii) of the Commonwealth Constitution, as acknowledged by ss 56, 64 of the Judiciary Act: Commonwealth v Mewett (1997) 191 CLR 471; [1997] HCA 29 at 545–52 (Gummow and Kirby JJ, Brennan CJ and Gaudron J agreeing).

2. [164]

   Further, in accordance with ss 79 and 80 of the Judiciary Act and the common law, the legal system governing this tort action in federal jurisdiction is the lex loci delicti: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [53], [87] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); cf Rizeq at [9] (Kiefel CJ), [53], [56] (Bell, Gageler, Keane, Nettle and Gordon JJ).

3. [165]

   The parties accepted that the Territory of Christmas Island, or the coastal sea surrounding it, was the location in substance of any alleged tortious conduct engaged in by the Commonwealth. Acts in force on the mainland of that Territory are taken to have effect in that sea (Acts Interpretation Act 1901 (Cth), s 15B(3)), and, subject to exceptions not presently relevant, provisions of the law of Western Australia are adopted as law in that external Territory (Christmas Island Act, s 8A(1)). Thus, in practical terms, the substantive issues in this matter are to be resolved according to the common law of Australia as amended by Western Australian legislation, in particular the Civil Liability Act.

4. [166]

   Before embarking on a consideration of the issues raised in the notice of appeal, it is important to identify the pleaded issues in relation to the requirements of Part 1A, Division 2 “Duty of care” and Division 3 “Causation” in the Civil Liability Act which provided:

5. [167]

   The appellants’ pleading identified two duties of care said to be owed by the Commonwealth to the appellants and the group members. The first was a duty of care owed to the passengers of SIEVs approaching Christmas Island to take reasonable care in the exercise of its powers and deployment of resources in conducting the interception operation, so as to avoid foreseeable risks of physical injury, death and property damage to those passengers. The second was a duty of care owed to the family members of passengers on a SIEV approaching Christmas Island and the bystanders and rescuers who witness the shipwreck of such an SIEV, to take reasonable care in the exercise of its powers and the deployment of resources in conducting the interception operation, so as to avoid foreseeable risks of mental harm to them.

6. [168]

   The appellants’ pleading identified the relevant risk of harm as “the Shipwreck Risk”, being a “risk that in the course of the Interception Operation, a SIEV might, if not intercepted on approaching Christmas Island from the north, be shipwrecked on the rocky coast of Christmas Island due to poor weather, poor navigation, running out of fuel, or a combination of those factors, thereby leading to catastrophic loss of life”.

7. [169]

   The foreseeability of the Shipwreck Risk (s 5B(1)(a) of the Civil Liability Act) was described as being that the Commonwealth through its servants and agents at Border Patrol Command:

   1. (1)

      knew of the Shipwreck Risk; or

   2. (2)

      alternatively, ought to have known of the Shipwreck Risk.

8. [170]

   There were alleged to be three precautions against a risk of harm which a reasonable person in the Commonwealth’s position would have taken. The first, the so-called “Readiness Precaution” (s 5B(1)(c) of the Civil Liability Act) failed at trial and was only faintly sought to be revived on appeal, in one paragraph of the written submissions. The “Readiness Precaution” related to two vessels, the Colin Winchester, procured for use by the AFP in marine operations at Christmas Island, including search and rescue, and the Sea Eye, procured for use by the Volunteer Marine Rescue Service in search and rescue operations at Christmas Island. The essence of the precaution pleaded was that the Commonwealth should not permit the Colin Winchester and the Sea Eye to remain out of survey so as to be incapable of use as search and rescue vessels in poor weather. An alternative was pleaded, that the Commonwealth should have replaced the Colin Winchester and the Sea Eye with vessels capable of being used as search and rescue vessels in bad weather close to shore. The alternative did not arise on the appeal because the relevant separate question, Question 9, solely addressed the question of the Sea Eye and Colin Winchester remaining out of survey:

9. [171]

   Question 9 was answered “No”, as there was no evidence supporting a conclusion that there was any unreasonable delay in having the Colin Winchester and the Sea Eye repaired. Further, his Honour accepted Mr Adams’ evidence that even if the Colin Winchester and the Sea Eye had been in an acceptable condition they could not have been safely deployed on the morning of 15 December 2010. That finding was not challenged. The only challenge advanced to the answer to this question on appeal was to his Honour’s finding that the activity creating the harm in this case had no social utility. The appellants’ assertion that the primary judge found that “there was no social utility whatsoever in the safe reception of refugees to Australian territory in accordance with Australia’s international obligations” is incorrect and a serious misstatement of his Honour’s finding. In any event, the pleaded precaution of repair of the Colin Winchester and the Sea Eye was rejected at trial and no reason has been shown to disturb that finding. Ground 16 of the notice of appeal which was the only ground addressing the “Readiness Precaution” should be dismissed.

10. [172]

    The second precaution, the “Ongoing Patrol Precaution” (s 5B(1)(c) of the Civil Liability Act) was maintained on appeal, although in a different way to the submission made to the primary judge. The essence of the appellants’ case was that on 14 December 2010, Border Patrol Command was on “high” alert for the probable arrival of a SIEV at Christmas Island. In the early morning of 14 December 2010 an unidentified vessel, later to be known as SIEV 220, arrived off the shoreline of Christmas Island. Shortly thereafter, HMAS Pirie left its “usual” surveillance station north/north west of Christmas Island and detained SIEV 220. HMAS Pirie escorted SIEV 220 to the eastern side of Christmas Island. Later on 14 December 2010 crew of HMAS Pirie boarded SIEV 220 and removed the passengers. A steaming party from the Pirie remained on board SIEV 220. HMAS Pirie commenced a north-south track at the eastern side of Christmas Island to monitor SIEV 220, which was unable to be taken to shore or destroyed at sea due to poor weather.

11. [173]

    Due to what were said to be a number of relevant factors about the likely arrival of another SIEV, it was pleaded that on the evening of 14 December 2010, a reasonable public authority in the position of the Commonwealth would in response to the Shipwreck Risk have taken the precaution of:

    1. (1)

       not permitting the Pirie to continue on a limited north-south track which did not take it far enough to the north to detect incoming SIEVs either by sight or by navigation radar; or

    2. (2)

       in the alternative, returning the Pirie to patrol at the “usual station” for interception of SIEVs in territorial waters to the north of Christmas Island.

12. [174]

    The third precaution, the “Earlier Response Precaution” (s 5B(1)(c) of the Civil Liability Act) was at the heart of the appeal. The case advanced on appeal which I have described above at [97]–[103], especially at [100], was quite different to the pleaded case. The essence of the pleading was that SIEV 221 was not seaworthy. It was pleaded that SIEV 221 was observed from the shore of Christmas Island between about 5.10am and 5.40am. (It should be observed at this point that the appellants failed to secure findings about any observation of SIEV 221 before Mr Martin at 5.40am and that conclusion is not challenged on appeal).

13. [175]

    It was pleaded that at about 6.00am the Commanding Officers of both the Pirie and the Triton knew or ought to have known that SIEV 221 was approaching the windward side of the Island and was in distress at sea. By reason of the subsequent information received, it was pleaded that a reasonable servant or agent of the Commonwealth, in the position of the Commanding Officers of the Pirie and the Triton, would have in response to the Shipwreck Risk and the information available to them by about 6.00am on 15 December 2010, taken the Earlier Response Precaution, being:

    1. (1)

       immediately sailing the Pirie and the Triton towards Flying Fish Cove; and

    2. (2)

       immediately deploying their available RHIBs and tenders towards Flying Fish Cove to tow or anchor SIEV 221; and

    3. (3)

       not stopping the Pirie to collect an additional RHIB.

14. [176]

    As will become apparent, the appellants in this Court sought to mount a different case to that pleaded and the one the subject of the separate questions.

15. [177]

    In relation to causation (s 5C(1)(a) of the Civil Liability Act), the appellants pleaded that:

    1. (1)

       had the Commonwealth taken the Ongoing Patrol Precaution, on the evening of 14 December 2010 the Pirie would have been deployed in the usual station in territorial waters north of Christmas Island and intercepted SIEV 221 prior to its arrival at Flying Fish Cove and avoided the shipwreck; and

    2. (2)

       had the Commonwealth taken the Earlier Response Precaution, the Pirie and the Triton, or the RHIBs and tenders deployed from them, would have reached SIEV 221 before it first smashed into rocks at Flying Fish Cove and anchored or towed SIEV 221 to safety, thereby avoiding the shipwreck. Alternatively, the HMAS Pirie and the ACV Triton, or the RHIBs and tenders deployed from them, would have reached SIEV 221 before it began to disintegrate, and rescued the passengers of SIEV 221 before they drowned. (emphasis added)

16. [178]

    The appellants failed in proving any aspect of their causation case before the primary judge. As will be apparent from the description of the submissions made on appeal at [116]–[118] above, the appellants also sought to re-cast their causation case in fundamental ways in this Court.

Issue 1: Was there an error in relation to the finding that the defendant owed no duty of care to any of the plaintiff class by failing to look to established categories of duty and by misapplying the multifactorial test for any novel duty

1. [179]

   This issue encompasses grounds 1-12 and 36 of the notice of appeal, which each address findings by the primary judge relevant to the pleaded duties of care.

2. [180]

   As set out at [167], the appellants’ further amended statement of claim asserted, with respect to each category of damage, a duty on the Commonwealth “to take reasonable care in the exercise of its powers and the deployment of resources in the conduct of the Interception Operation”. That formulation was apparently not thought by the appellants to describe a sufficiently precise set of conditions capable of giving rise to a duty of care. To meet that problem, the appellants’ written closing submissions to the primary judge posited three separate duties based on the allegedly reasonable precautions which had been pleaded for the purposes of s 5B of the Civil Liability Act: “the Interception Duty”, “the Earlier Response Duty” and “the Readiness Duty”.

3. [181]

   These formulations were very fact specific. In Crimmins v Stevedoring Committee (1999) 200 CLR 1; [1999] HCA 59, McHugh J explained that:

4. [182]

   In Stuart v Kirkland-Veenstra, Gummow, Hayne and Heydon JJ said:

5. [183]

   On the appeal, the appellants purported to describe their case before the primary judge as revolving around “two main axes”:

   1. (1)

      that the Commonwealth owed a duty to the classes of plaintiff to carry out the ongoing patrol operation with reasonable care so as to avoid the “Shipwreck Risk”. This, apparently, is a reversion to the original way the duty of care was framed. It was submitted that the Commonwealth’s decision that the Pirie would not undertake its “usual patrol” on the evening of 14 December and morning of 15 December was a breach of the duty which caused the shipwreck; and

   2. (2)

      that the Commonwealth, once it “commenced the rescue operation”, at 5.43am by Mr Jardine’s call, owed a duty to undertake that rescue without causing further risk of harm to the plaintiff class by unreasonable delay in carrying out the rescue. This “axis” of the case is a significant departure from the way the case was pleaded and conducted.

6. [184]

   There was a contest on the appeal about whether the primary judge erred in failing to consider the appellants’ case as one which was based, at least in part, on “established categories of duty”. That expression was apt to mislead in this case. Summary descriptions of circumstances tending to support the existence of a duty should not be equated with the identification of an established duty of care owed by one class of person to another in respect of a type of harm. The former may summarise – but they cannot avoid the need to apply – general principles governing the recognition of novel duties of care. Whatever the meaning of that expression, it is clear that the appellants accepted before the primary judge that each duty of care they propounded was novel.

7. [185]

   In relation to Question 2, which concerned a duty to take care so as to prevent foreseeable physical harm to the passengers on SIEV 221, the appellants said:

8. [186]

   It is true that paragraph [94] of the respondent’s submissions addressed Question 3, being the alleged duty to avoid psychiatric harm to the relatives of the passengers on board SIEV 221. However, the appellants’ concession was plainly referable to Question 2, which concerned the duty to exercise reasonable care to prevent physical harm to the passengers of SIEV 221. The submission that what was involved was a “novel duty of care” was repeated by the appellants, verbatim, at [267] of their written submissions which also dealt with Question 2.

9. [187]

   Senior Counsel for the appellants was recorded by the primary judge as accepting that the duties of care alleged were novel, at [176] and [196] of the judgment. Despite the wide-ranging attack by the appellants on virtually every paragraph of the primary judge’s reasons, no ground of appeal addressed his Honour’s findings in these paragraphs. The respondent was correct to submit that the appellants’ case below was that each of the pleaded duties involved a novel duty of care.

10. [188]

    In any event, the appellants’ submissions referring to established categories of duty must be rejected. To demonstrate this, I will address those submissions as set out at [74]-[78] above in turn.

11. [189]

    First, the appellants’ reliance upon Robinson was wholly misplaced. The plaintiff in that case was injured when a group of men, including two police officers, knocked her over while struggling with one another in a shopping street. Lord Reed (with whom Lady Hale and Lord Hodge agreed) was at pains to distinguish that case, in which liability flowed from a positive act causing direct physical harm, from those hard cases in which liability is said to arise from some omission to prevent injury caused by nature or other persons:

12. [190]

    In the present case, however, the primary judge correctly noted at [225] that there was “no evidence whatsoever that anything done by the respondent, through [Border Protection Command], increased the risk of harm”. The appellants’ submissions before this Court only suggested otherwise insofar as actions by the Commonwealth were said to have induced reliance by the appellants causing their loss. But liability based on such reliance depends on the application of distinct principles, which are discussed at [216] below by reference to Australian authority, and which the facts in Robinson provided no occasion to reconsider.

13. [191]

    Secondly, the appellants’ oft-repeated submission that the primary judge somehow failed to apply an established category of duty of care “owed by the respondent to its employees and agents” must be rejected. There is a high degree of artificiality about this aspect of the appellants’ case. No putative member of the class said to be represented was identified. The primary judge found, which finding was unchallenged, that there was no evidence that any rescuer or onlooker had suffered mental harm as a result of the pleaded events.

14. [192]

    These were representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW). The High Court has emphasised that the subject matter of such proceedings is a set of claims by persons giving rise to substantial common questions of law and fact: Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [47]-[49] (French CJ, Kiefel, Keane and Nettle JJ), referring to ss 33C and 33H of the Supreme Court Act 1986 (Vic). The equivalent provisions in New South Wales are ss 157 and 161 of the Civil Procedure Act. The identification of such persons and questions is a critical element in the conduct of representative proceedings: see s 157(1) of the Civil Procedure Act. In the present case, 18 separate questions were posed under r 28.2 of the Uniform Civil Procedure Rules 2005.

15. [193]

    The separate question relevant to this issue, Question 4, referred only to a duty owed by the Commonwealth to the class of “rescuers and onlookers”:

16. [194]

    The appellants’ complaint that “there was at least a duty of the Commonwealth to its own employees to prevent the foreseeable harm to them of witnessing and responding to a shipwreck” is an impermissible attempt to re-state the issue posed for the primary judge.

17. [195]

    Contrary to the essential complaint made by the appellants, the primary judge concluded at [283] that there was “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”, citing Mt Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60 at 389, 392, and 404. His Honour correctly observed that this question was not directed to whether the Commonwealth owed a duty to employees in their capacity as employees. His Honour thus identified the substance of this question as being whether a duty was owed to a rescuer “where the factual circumstances fall outside the relationship of employer and employee”. His Honour’s conclusion, drawing on his earlier findings, was that the Commonwealth had no control over the relevant risk of harm and was not responsible for causing the peril which required SIEV 221 to be rescued. The pleaded duties contended for by the appellants were addressed to “rescuers and onlookers”. Assuming, for the sake of argument, that Commonwealth employees are a sub-set of this broader group, any duty to them need not extend to “rescuers and onlookers” in general. In the present case, absent some other connection with the Commonwealth, the non-employees would not be owed a duty to take positive action to prevent psychiatric injury in circumstances where (for the reasons below) the persons rescued were owed no duty to prevent physical injury.

18. [196]

    The appellants did not plead a duty owed by the Commonwealth to its employees. The separate question posed did not address a duty owed by the Commonwealth to its employees. The primary judge found that the Commonwealth did owe a duty to its employees engaged in rescue operation, but that, given the pleading and the separate question, there was no occasion to examine the scope of that duty in this case.

19. [197]

    No error was shown in the primary judge’s conclusion that the pleaded duty of care owed to “rescuers and onlookers” did not arise as the Commonwealth had no control over the relevant risk of harm and was not responsible for causing the peril which required SIEV 221 to be rescued.

20. [198]

    For that reason, the challenge to the answer given by the primary judge to Question 4 should be rejected as must the submission that the primary judge overlooked the duty of care “owed by the respondent to its employees and agents”.

21. [199]

    Thirdly, the primary judge correctly rejected the appellants’ case relying on Lowns v Woods. For one thing, there are various impediments to identifying any “established category of duty” from that decision. It restates the general principle that the common law does not impose a duty to assist a person in peril. That principle was only held, by majority, not to govern the case because of the physical, circumstantial and causal proximity between the parties. Those concepts, and some of the considerations underlying them, have been substantially overtaken since they were advocated by Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 584.

22. [200]

    Regardless, Lowns v Woods may readily be distinguished. There, a doctor was requested in person to attend a seriously ill child in circumstances where the Medical Practitioners Act 1938 (NSW) made it “misconduct in a professional respect” to fail to do so. To impose a general duty in similar circumstances might be said not to impose any substantial burden on physicians. (In the case itself, the risk of profound brain damage could probably have been averted by a dose of Valium). By contrast, a Commonwealth officer required, on the appellants’ case, to rescue persons at sea could face several dangers: cf Natalie Gray and James Edelman, “Developing the law of omissions: a common law duty to rescue?” (1998) 6 Torts LJ 1 at 18.

23. [201]

    Fourthly, as I have explained, by reference to the appellants’ submissions, the primary judge correctly understood the appellants’ case as being that a novel duty of care was alleged.

24. [202]

    Fifthly, the related submission that the “primary judge incorrectly conflated the absence of authority establishing a duty in precisely the same factual situation with there being no need to look at pre-existing categories of duty” misstates the clear indication by the appellants in their written submissions that “[i]t would no doubt be a novel duty of care”.

25. [203]

    It follows that the primary judge did not err by failing to find a duty of care based on an “established category”.

26. [204]

    In addressing the essence of the appellants’ case on duty of care some foundational propositions may be stated. The mere foreseeability of harm does not produce a duty to prevent its occurrence: Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41 at 478 (Brennan J), 502 (Deane J). Rather, the recognition of a novel duty of care must follow from an analysis of the parties’ relationship informed by conclusions in earlier cases.

27. [205]

    That analysis should acknowledge the variety of “problems” tending to hinder the recognition, or qualify the scope, of duties of care, some of which were described as follows by a unanimous High Court (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59:

28. [206]

    The essential arguments in this case centred on three apparent problems. While each could bear on the existence of a duty, a question of law to be considered prospectively, they emerge most clearly from the pleadings and particulars as to breach, causation and damage which I set out above.

29. [207]

    First, the likelihood and extent of the harms suffered are not said to have been directly increased by any positive act of the Commonwealth. As reinforced at [213]–[215] below, the wrongs asserted are better understood as omissions, which engage the general principle stated by Windeyer J in Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56 at 66 that the common law “casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him”. That position has been justified as a recognition of individual autonomy, and historically, as embodying a distinction between misfeasance and nonfeasance: see Stovin v Wise [1996] AC 923 at 943–944 (Lord Hoffmann); Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3 at [101] (McHugh J). In Stuart v Kirkland-Veenstra, Gummow, Hayne and Heydon JJ explained:

30. [208]

    Secondly, the interception operation north of Christmas Island in December 2010 involved choices about the exercise, and non-exercise, of statutory and prerogative powers conferred for public purposes, including defence. The most prominent are the discretionary powers under the Migration Act, Part 2, Div 12A, to intercept and board ships, which are relevant to the group members’ case in two respects. Importantly for present purposes, duties of care were said to arise in part from the repeated exercise of those powers before the alleged wrongdoing. In addition, the alleged breach in the Pirie not maintaining a sufficient patrol to detect incoming SIEVs north of Christmas Island only caused harm within the Civil Liability Act, s 5C(1)(a) if the Pirie would have exercised its powers upon detecting SIEV 221. “Some adjustment” may thus be necessary, in the words of Mason J in Heyman at 456, “to accommodate the application of the principles and concepts of negligence to the acts and omissions” of the Commonwealth in this capacity.

31. [209]

    Thirdly, the primary judge held that a duty of care was “apt to stimulate conduct which … the law seeks to suppress” and was thus inconsistent with the “broader underlying policy” of the Migration Act: at [240]–[243], citing CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [213] per Crennan J. That conclusion may presuppose that the exercise of reasonable care by the Commonwealth to avoid loss of life and other harms at sea would, or does, in fact promote contraventions of the Migration Act and that the policy of that Act was to be pursued at any cost: see, in a related context, Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 at 611–614 (McHugh J). Neither premise is free from difficulty, though part of the group members’ argument accepts the correctness of the first (see [87]). In any event, this issue needs only to be resolved if the circumstances would otherwise justify the recognition of a duty of care. Other, more specific, problems of coherence are considered as they arise.

32. [210]

    The recognition of duties of care despite such problems has come to depend on the presence of “salient features” in the relationship between the alleged tortfeasor and victim, such as the former’s control, assumption of responsibility or knowledge and the latter’s vulnerability or reliance: Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; [1976] HCA 65 at 576–577 (Stephen J); Perre at [198]–[201] (Gummow J); Caltex v Stavar at [102]–[104] (Allsop P). Those expressions have, however, acquired restricted meanings from the cases in which they are applied: see, for example, the authorities collected in Ku-ring-gai Council v Chan [2017] NSWCA 226; (2017) 224 LGERA 330 at [69], [71], [81] as to “vulnerability” and “reliance”. Such restrictions prevent each salient feature from becoming, like “proximity”, a statement of conclusion without practical content, and they ensure that consideration of salient features is undertaken to facilitate, not supplant, analogical reasoning: see Brookfield at [20]–[25] (French CJ).

33. [211]

    Against that background, the appellants’ case identified the following circumstances as giving rise to a relevant duty of care:

    1. (1)

       actual knowledge of reliance by asylum seekers on the policy of exercising powers under the Migration Act to intercept SIEVs;

    2. (2)

       acquisition of SIEV 221 by reason of automatic forfeiture under s 261A of the Migration Act;

    3. (3)

       the status of Commonwealth officers as masters of vessels, obligated under the Navigation Act, s 265, and in accordance with international maritime law, to render assistance to people on a ship believed to be in distress;

    4. (4)

       control by the Commonwealth;

    5. (5)

       the vulnerability of the appellants;

    6. (6)

       provision of rescue facilities, and financial sponsorship of the operators of those facilities, on Christmas Island; and

    7. (7)

       the commencement of a rescue operation by Commonwealth vessels.

34. [212]

    The correctness and legal consequences of each allegation may now be addressed in turn.

35. [213]

    A public authority that chooses to perform an act authorised, but not required, by statute is generally liable for any negligence in its performance: Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, 456 (Lord Blackburn); Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14 at 220 (Dixon CJ, McTiernan, Kitto and Taylor JJ). However, it would not generally be liable for the mere choice not to perform such an act: Sheppard v Glossop Corporation [1921] 3 KB 132 at 145–146 (Scrutton LJ). Much therefore turns on the proper characterisation of harmful conduct as amounting to an act, as opposed to an omission.

36. [214]

    Yet, as Lord Hoffmann observed in Stovin v Wise at 945, “the conditions necessary to bring about an event always consist of a combination of acts and omissions” (emphasis added). Thus, meaningful use of the distinction between acts and omissions depends on a “common sense” approach to causation, which in this context entails an approach focused on the purpose of that distinction in the attribution of legal responsibility. The point is classically illustrated by a motorist whose driving, rather than failure to brake, is said to cause an accident. In that example, the former act (or series of acts) initiates a physical process which in the ordinary course of nature could bring about the event unless the person takes some further action: see also HLA Hart and Tony Honoré, Causation in the Law, (2nd ed 1985, Oxford University Press) 138–141; Pyrenees at [177] (Gummow J).

37. [215]

    Though, on any view, the patrol operation north of Christmas Island included a series of positive acts, none of them caused the shipwreck of SIEV 221. The Commonwealth is not said to have contributed to the weather on 15 December 2010, or the failure of the boat’s engine, or any other physical event or state of affairs capable of bringing about a shipwreck. The patrol operation is only said to have contributed to the risk insofar as it promoted an expectation that SIEVs would be safely intercepted. The appellants allege that this expectation was common amongst “asylum seekers”, engendered by “people smugglers”, and relied upon in the boarding of unseaworthy vessels. The chain of causation in that case includes what may be described as voluntary action by two separate groups of individuals: compare Stuart v Kirkland-Veenstra at [89].

38. [216]

    One difficulty for the appellants’ case is the rejection, by a majority of the High Court, of “general reliance” as a foundation for novel duties of care: Pyrenees at [18]–[20] (Brennan CJ), [157]–[165] (Gummow J), [225]–[232] (Kirby J). That expression has been understood as including an expectation that an entity will properly perform its public or private function, even where verification is impracticable: MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; (2012) 191 LGERA 292 at [94] (Allsop P, Basten JA and Bergin CJ in Eq agreeing); Brookfield at [57] (Hayne and Kiefel JJ). A fortiori, it must include an unverified expectation that an entity will choose to perform the function again in the future and do so properly. Thus, something more is needed, in the nature of a specific representation upon which reliance was, or should have been, anticipated and could reasonably be placed: Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1968] HCA 74 at 571 (Barwick CJ); Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [47] (Gleeson CJ, Gummow and Hayne JJ), [73]–[75] (Gaudron J).

39. [217]

    No such representation is shown on the evidence, including that of Rear Admiral Barrett, which was heavily relied upon in oral submissions. His evidence did not assist in establishing that “by having vessels patrol and intercept SIEVs, the Commonwealth created the circumstances in which the irregular immigrants on SIEV 221 were harmed”. The passage cited in oral argument was predicated on a series of assumptions which formed no part of the appellants’ case. Rear Admiral Barrett was asked, in the relevant passages, on the assumption that there were three naval vessels stationed permanently at different points around Christmas Island, to agree with the proposition that “hypothetically, if you did that and it became known to people smugglers, wouldn’t that act as a magnet, as an attraction…”.

40. [218]

    The high point for the appellants was that Rear Admiral Barrett said, in answer to a later question that “if there’s an expectation that there is someone to meet them that draws people” and completed this evidence by reference to US Coast guard experience that a larger number of response vessels generated an increase in boat arrivals. He concluded that, “It’s almost a self-generating concern and one to which I don’t know the answer”. There was no assumption of responsibility by the Commonwealth demonstrated by this evidence. No doubt for this reason the evidence was not mentioned by the appellants before the primary judge or in their lengthy written submissions in this Court. The appellants did not demonstrate in evidence that either generally or in this particular case, SIEVs “would not be heading for Christmas Island unless they were sure they would be intercepted”.

41. [219]

    As I have said, that evidence was based on assumptions about deployment of naval vessels at Christmas Island. That configuration of naval vessels did not reflect the actual deployment of naval vessels at Christmas Island in December 2010. The suggested deployment of naval vessels at Christmas Island in December 2010 was not a case conducted by the appellants; i.e. that deployment formed no part of any pleaded duty of care or breach of duty. Rear Admiral Barrett’s answers to the coronial inquest do not establish the claimed “knowledge” in the Commonwealth.

42. [220]

    But even if it were established that the Commonwealth knew that “people smugglers” used the deployment of Commonwealth vessels north of Christmas Island to persuade asylum seekers to board SIEVs destined for the Island, this would not demonstrate that the Commonwealth objectively represented by its conduct that it would continue – indefinitely or until further notice – to detect SIEVs entering Australian territorial waters and escort passengers to the Island, or otherwise to ensure their safety. Even less would it demonstrate that asylum seekers could reasonably rely on that representation as fettering the exercise of broad discretions, conferred for various public purposes, and as committing the Commonwealth to a course which, on the group members’ case, was in part promoting contraventions of Migration Act, s 233A.

43. [221]

    Whilst any assumption of responsibility can be a salient feature pointing towards the existence of a duty of care, the characterisation of Operation Resolute as an assumption of responsibility for the safe arrival of SIEVs in Australia is inaccurate. The primary judge found that Operation Resolute was properly characterised as a law enforcement operation. Further, Border Protection Command was not a search and rescue agency and Operation Resolute was not a search and rescue operation. There could be no reasonable reliance upon the operations of Border Protection Command to ensure the safe arrival of SIEVs.

44. [222]

    The appellants’ submission that the Commonwealth was “the immediate rescuing authority, who had responded to the pleas for assistance [from the passengers on board SIEV 221] and had notified them they had so responded” is not correct.

45. [223]

    The response of that Command did not follow any “plea for assistance” but was a consequence of a notification to the Triton and the Pirie of the sighting of a SIEV by Mr Martin. As the primary judge observed, nothing done by the respondent in this case made the situation of those on board the SIEV worse. In particular, there was no evidence that the provision or sponsorship of rescue facilities tended to dissuade intervention by any third party.

46. [224]

    The commencement of a rescue operation by Commonwealth vessels does not support the existence of a novel duty of care. As I have said, the “positive act” of the police in Robinson generated a duty of care in that case because the police action itself created the risk of the plaintiff being injured.

47. [225]

    In the present case, however, the primary judge correctly concluded that there was “no evidence whatsoever that anything done by the respondent, through [Border Protection Command], increased the risk of harm”. After 6.00am on 15 December, the Commonwealth became involved in a rescue operation. Unlike in Robinson, that operation did not create the conditions for the harm which was suffered by the passengers on board SIEV 221 or their families.

48. [226]

    As Hayne and Kiefel JJ observed in Brookfield:

49. [227]

    In Perre v Apand at [10], Gleeson CJ observed that “knowledge (actual, or that which a reasonable person would have) of an individual, or an ascertainable class of persons, who is or are reliant, and therefore vulnerable, is a significant factor in establishing a duty of care”. (emphasis added)

50. [228]

    In Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 78 ALJR 628 Gleeson CJ, Gummow, Hayne and Heydon JJ said:

51. [229]

    The relationship between the reliance of the group members here and the asserted vulnerability is critical. I have earlier rejected the submission that the evidence established any known reliance of a relevant class of persons upon the Commonwealth which would give rise to relevant vulnerability.

52. [230]

    The appellants’ submission that the primary judge treated vulnerability as “a necessary prerequisite for establishing a duty of care” should be rejected. The primary judge correctly treated the absence of vulnerability, properly understood, as a matter tending against a conclusion that a duty of care was owed.

53. [231]

    Accepting, for the purposes of consideration of this salient feature, the appellants’ submission that all of the passengers on SIEV 221 “were refugees with a well-founded fear of persecution if they were returned to the country of origin”, there was no evidence that any on board feared persecution in Indonesia from where they departed.

54. [232]

    Whilst it is correct that those on board had “no means of disembarking the vessel once they had embarked”, this does not address question of whether the appellants were unable to protect themselves from the consequences of the Commonwealth’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the Commonwealth.

55. [233]

    As I have said, the relevant risk of harm in the present case was the risk of harm from a SIEV being shipwrecked. It was not a risk arising from the failure of the Commonwealth to intercept the vessel prior to it being wrecked. The appellants failed to demonstrate that an ascertainable class of persons were reliant on the Commonwealth to protect them from the risk of shipwreck. The primary judge was correct to conclude that the ability of the class to protect themselves from the risk of shipwreck by not embarking on the journey was a factor tending against the imposition of the duty of care alleged.

56. [234]

    In Graham Barclay Oysters, Gummow and Hayne JJ pointed out that the degree and nature of control by a public authority over the relevant risk of harm is of fundamental importance in discerning the existence of an alleged common law duty of care:

57. [235]

    The reference to Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 is instructive. Gaudron, McHugh, Gummow and Hayne JJ there observed, rejecting a duty said to be owed by the International Rugby Football Board:

58. [236]

    Further, in relation to a public authority, McHugh J observed in Graham Barclay Oysters:

59. [237]

    Thus, as the primary judge concluded, the capacity of a public authority to take action to protect another person from harm is too remote to constitute legal or practical “control” for this purpose. The relevant risk of harm in the present case was the risk of harm from a SIEV being shipwrecked. It was not a risk of harm from the failure of the Commonwealth to intercept the vessel prior to it being shipwrecked. If the risk of harm is characterised in the way asserted by the appellants, a public authority would always have relevant control in a rescue case as it is self-evident that a person in need of rescue will always be exposed to an underlying risk if not prevented from engaging in the activity giving rise to that risk. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the Commonwealth.

60. [238]

    The authorities on occupier’s liability also demonstrate that ownership is not synonymous with control. The basis of a duty of an occupier is actual control over entrance and power to safeguard a property from defects, as distinct from ownership simpliciter: Northern Sandblasting v Harris at 336 per Brennan CJ and 359 per Gaudron J; Jones v Bartlett at [80] per Gaudron J and [150]-[152] per Gummow and Hayne JJ.

61. [239]

    In Northern Sandblasting v Harris, Gaudron J explained that prior to letting, a landlord is in a position to ascertain and control the state of the premises; the tenant and members of his or her household have no such ability and are dependent upon the landlord for their safety, save to the extent that they become aware of existing dangers.

62. [240]

    In Jones v Bartlett, Gummow and Hayne JJ said:

63. [241]

    The Commonwealth accepted that upon its entry into Australia SIEV 221 was subject to the automatic statutory forfeiture effected by s 261A of the Migration Act with the result that it was forfeited to the Commonwealth: Olbers; appeal dismissed (2004) 143 FCR 449; [2004] FCAFC 262. The primary judge concluded, however, that statutory forfeiture provides no foundation for the erection of a duty of care on the part of the Commonwealth in favour of the persons on board SIEV 221: at [239].

64. [242]

    Ownership by reason of statutory forfeiture did not give the Commonwealth control of the relevant risk of harm, being the risk that a SIEV might be shipwrecked on the coast of Christmas Island. That risk arose from the sea conditions, the weather on the day, the condition of the vessel, the skill of the crew and/or a combination of two or more of these factors. Despite the statutory forfeiture, the Commonwealth had no control over any of these factors.

65. [243]

    Moreover, it is clear that the forfeiture effected by s 261A of the Migration Act is imposed as a penalty to deter conduct made unlawful by the Migration Act: Tran at [195]. As the primary judge noted, it would be incongruous with the nature and purpose of statutory forfeiture to use it as an occasion to erect a duty of care owed by the Commonwealth to people on board vessels unlawfully travelling to Australia. This is not a plausible foundation for a duty of care owed by the Commonwealth to the people on board the vessel.

66. [244]

    I accept, as the appellants repeatedly submitted, the passengers on board SIEV 221 were not committing an offence against Australian law. It was, however, a contravention of Australian law to travel to Australia without a valid visa. That distinction does not resolve the inconsistency between the asserted duty and the purpose of the statutory forfeiture observed by the primary judge. Attaching the label “ownership” to the effect of statutory forfeiture does not advance the appellants’ assertion of the duty of care.

67. [245]

    The primary judge gave consideration to control as a salient feature at [200] – [205]. It is not correct, as the appellants submitted, that the primary judge “treated the question of control is an absolute constraint in the multifactorial test where a public authority is involved”. The primary judge concluded that control was relevantly absent and treated this as a matter which “tends against the conclusion that [the Commonwealth] owed a duty of care to the plaintiffs”.

68. [246]

    The provisions of the Navigation Act upon which the appellants relied do not advance the asserted duties of care. Section 208 of the Navigation Act provided, relevantly:

69. [247]

    The primary judge was correct to conclude that the Commonwealth did not “send” or “take” SIEV 221 to sea within the meaning of section 208. Hence, the Commonwealth could not have been criminally liable under the provision, which need not be considered further.

70. [248]

    The next provision relied upon, s 227B provided, relevantly:

71. [249]

    The primary judge was plainly correct to conclude that SIEV 221 was not “registered in Australia” and did not in an overloaded state go to sea from or arrive at a port in Australia. Even on the (no doubt questionable) assumption that the Commonwealth could be liable under this section as an “owner” by reason of the statutory forfeiture, such a liability – wholly divorced from any practical control by the Commonwealth – could not sensibly provide the foundation for a duty of care as asserted, especially to persons on the overloaded ship.

72. [250]

    More promising is the appellants’ case based on s 265, which relevantly provides:

73. [251]

    Section 317A further provides:

74. [252]

    The appellants do not challenge the primary judge’s conclusion at [411] that the penal sanction in s 265 excludes the implication of a civil cause of action for breach of that provision. In my view, their case is not advanced by re-characterising that provision, or s 317A, as the basis for a duty of care in negligence owed, presumably, by persons for whom the Commonwealth is vicariously liable. That is so principally because the limits on the statutory obligations cannot readily be accommodated in any general duty of care recognised at common law.

75. [253]

    For instance, by reason of s 265(1A), a master is not required to comply with s 265(1) if, “in the special circumstances of the case”, he or she “considers it unnecessary or unreasonable to do so”. Any duty of care based on that statutory obligation would need to include a corresponding limitation referring to the subjective beliefs of that master. However, to do so would require a departure from the generally objective principles governing liability in negligence.

76. [254]

    In any event, neither s 265 nor s 317A evinces a contrary intention to the general provision in s 3 that the Act “does not apply to or in relation to a ship belonging to, or operated by: (a) the Australian Defence Force; or (b) the naval, military or air forces of a country other than Australia.” Any limitation to the asserted duty of care that accommodated s 3 would exclude liability arising from the conduct of the Pirie.

77. [255]

    The provisions of the Navigation Act upon which the appellants rely do not support the imposition of a duty of care owed by the Commonwealth in the present case.

78. [256]

    I have earlier found that the reasoning of the primary judge on this issue may give rise to a legitimate question in that it may presuppose that the exercise of reasonable care by the Commonwealth to avoid loss of life and other harms at sea would, or does, in fact promote contraventions of the Migration Act and that the policy of that Act to prevent irregular arrivals by sea was to be pursued at any cost. It is unnecessary to resolve this issue as the circumstances here demonstrated do not otherwise justify the recognition of the pleaded duties of care.

79. [257]

    Had it been otherwise, the decision of the plurality in Sullivan v Moody at [55]-[62] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ would be apposite. In those passages the High Court concluded that if a suggested duty of care would give rise to inconsistent obligations that would ordinarily be a reason for denying that the duty exists. When public authorities, or their officers, are charged with the responsibility of exercising powers in the public interest, the law does not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

80. [258]

    The Commonwealth employees engaged in Operation Resolute plainly had responsibilities requiring them to engage in highly dangerous rescue activities. The broad duties alleged to be owed by the Commonwealth at least appear not to be compatible with the performance of those responsibilities and the Commonwealth’s powers over and obligations to its employees engaged in those activities. The appellants did not attempt to explain, either before the primary judge or in this Court, how the duties for which they contend might be reconciled with those responsibilities, powers and obligations.

81. [259]

    It follows that the challenges to the findings of the primary judge as to the existence of the pleaded duties of care fail. Grounds 1-12 and 36 of the notice of appeal should be dismissed.

82. [260]

    Had the Commonwealth owed to a subset of the group members a duty to take action to prevent a type of loss, there would have been cause to examine the scope of that duty. In Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42, Gummow J explained that duties of care are not owed in the abstract, but are “obligations of a particular scope and that scope may be more or less expansive depending on the relationship in question.” Similar reasoning may be found in many judgments in many cases. Kirby J stated in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5:

83. [261]

    Hayne J, in Romeo, also spoke in emphatic terms:

Issue 2: Was the finding that there was no breach of the duty:

1. [262]

   This part of the case addresses grounds 17-20 of the notice of appeal. The primary judge’s findings concerning the threat status on the evening of 14 December 2010 and morning of 15 December 2010 were correct.

2. [263]

   It will be recalled that at [44]-[45] his Honour found that “the threat status for arrivals of SIEVs was medium between midday 12.00 on 14 December 2010 and 5:40 on 15 December 2010, and was low thereafter” (emphasis added). Analysis of evidence about two sets of documents is critical to the appellants’ challenge to this finding. Regrettably, the evidence about those two sets of documents was limited and the only material before the Court was second hand, being explanations after the event of the contents of those documents. Some of the evidence was heavily redacted, also making interpretation difficult. The point now sought to be made by the appellants was not clearly put to any witness and, to the extent that there was evidence below about the issue, it was contrary to the inferences the appellants invited this Court to draw.

3. [264]

   The first is the DTS which was prepared by the “People Smuggling Intelligence Analysis Team and Border Protection Command Intelligence Centre”. That is a document designed to inform “designated stakeholders” of the current (daily) maritime people smuggling threat. A “High” threat status generally corresponds to an imminent departure for Australia where both passengers and the vessel are ready. The second document is the daily SATM.

4. [265]

   The DTS and SATM are produced to address different questions. The DTS is an examination of individual vessel departures targeting Australia whilst the SATM is a document intended to identify the “Arrival Threat Matrix”. Once these different purposes for the two separate documents are understood the appellants’ arguments are shown to be without merit.

5. [266]

   The DTS published at 16:47 AEDT on 15 December identified four ventures rated at “High”. That is, there were four individual vessels whose departure targeting Australia was imminent as both passengers and vessel were understood to be ready.

6. [267]

   The SATM published at 09:40 AEDT on 15 December (5.40am Christmas Island time) showed a threat status as “Low”. The primary judge’s finding of fact at [44]-[45] that “the threat status for arrivals of SIEVs was medium between midday 12.00 on 14 December 2010 and 5:40am on 15 December 2010, and was low thereafter” was thus correct. The “High” status referred to in the evidence, including the composite document relied upon by the appellants, was plainly a reference to the “High” departure threat status relating to four vessels whose departure targeting Australia was thought to be imminent.

7. [268]

   Even assuming the appellants’ analysis of the evidence to be correct, and the arrival threat status was “High”, the appellants failed to demonstrate that the Pirie would or should have been conducting a different patrol to the patrol it was in fact conducting on the morning of 15 December 2010. Commander Livingstone gave evidence that the barrier patrols he would conduct varied with conditions. His uncontradicted evidence was that there was no “usual patrol” of the kind alleged by the appellants.

8. [269]

   In better conditions Commander Livingstone might “lengthen” the racetrack of his patrol. The threat level relating to the arrival of a SIEV did not mandate that a particular barrier patrol be conducted. That remained a matter for “the captain’s discretion”. The document said by the appellants to provide to the contrary, the “Standing Patrol Instruction” to, inter alia the Pirie, was not put to Commander Livingstone, no doubt for the reason that the document did not provide an instruction to him on this topic other than to say that “patrol posture” should be determined and executed “appropriate to the prevailing advised threat, environmental conditions, ship’s material state and effective surveillance coverage”. Later in the document it was stated that the Christmas Island Response Vessel (“CIRV”), on 15 December 2010 the Pirie, “when the threat level is low or medium … may remain [in vicinity of Christmas Island] as long as a positive surveillance posture and short notice”. The only instruction to conduct a “barrier patrol” when the threat level is high is directed by the document to the Ashmore Reef Response Vessel. The finding of the primary judge, that the standing instruction did not mandate that a northern barrier patrol be conducted, regardless of all other issues, was correct.

9. [270]

   Further, the appellants’ submission that the primary judge incorrectly determined the threat status for arrivals, even if correct, would not demonstrate that Commander Livingstone’s decision to keep the Pirie on a short racetrack on the leeward side of Christmas Island on the evening of 14 December 2010 and morning of 15 December 2010 was an unreasonable or unspecified decision. This is because:

   1. (1)

      no evidence was adduced that if the threat status for arrivals had been “High” there was any expectation, let alone a requirement, that Commander Livingstone should conduct a barrier patrol in the waters north of the island;

   2. (2)

      the weather conditions and the state of his crew on the morning of 15 December 2010 made it appropriate, in Commander Livingstone’s view, to conduct shortened patrols on the leeward side of the island. The appellants did not establish that Commander Livingstone was not entitled to conduct patrols in the way he did; and

   3. (3)

      the Pirie had custody of SIEV 220 and a steaming party of Commander Livingstone’s crew were on board. Safely to disembark the people on board SIEV 220 it was necessary to travel to the leeward side of the island. It was common ground that it was not possible to anchor SIEV 220. Visibility of SIEV 220 was considered important by Commander Livingstone for the safety of his crew. The appellants’ case did not identify any basis for a submission that Commander Livingstone should have in effect abandoned those crew members and conducted barrier patrols on the north of Christmas Island, beyond the standing orders addressed immediately above.

10. [271]

    There was no breach of the duty shown to carry out the interception operation vitiated by an erroneous finding that there was a “Medium” arrival threat level. Grounds of Appeal 17-20 should be dismissed.

11. [272]

    This part of the case addressed grounds 21-24 of the notice of appeal. The primary judge’s conclusion that there was no delay, let alone unreasonable delay, in the Pirie responding to what Commander Livingstone was told about SIEV 221 was correct and inevitable, based on the facts proven at trial.

12. [273]

    SIEV 221 was sighted by Customs Officer Martin at about 5:40am on 15 December 2010 around 500 to 600m off the coast of Christmas Island. The vessel was under power and not in distress. At 5:43am Mr Martin informed Mr Jardine of his sighting and at 5.49am Mr Jardine informed the Customs National Operation Centre. There was no mention of SIEV 221 being in distress: at [59]. This finding is confirmed by the CNOC critical incident running sheet.

13. [274]

    At about 6.00am the Triton was “advised of a sighting of a SIEV off Rocky Point”. Again, there was no suggestion that the SIEV was in distress. Just after 6.00am Commander Livingstone received a call from the Triton enquiring whether he had received information about a SIEV in the vicinity of Flying Fish Cove. The Pirie’s log records “Report from Triton of another SIEV” at 6.05am.

14. [275]

    The primary judge found that the call from the Triton to the Pirie was an enquiry and fell short of a confirmation of the SIEV. When Commander Livingstone was notified of that possibility, the Pirie was in the course of changing the steaming party on board SIEV 220.

15. [276]

    Commander Livingstone responded by reducing the number of members of the steaming party being replaced, and by giving priority to the need to head north to investigate the report of a possible SIEV and commencing preparations to sail north. By 6.11am the RHIB was clear of the Pirie’s side and the Pirie commenced heading north. By 6.18am the Pirie’s second engine had been brought online and by 6.21am the Pirie was heading north at the best and safest speed permissible.

16. [277]

    The appellants’ submission that there was no response from the Pirie to the presence, or possible presence, of SIEV 221 until 6.25am is not correct. The Pirie was first informed that the SIEV 221 was in distress at about 6.32am. The primary judge accepted Commander Livingstone’s evidence that the Pirie’s response from just after 6.00am when he learned of the possibility of the SIEV did not differ materially from his response to a SOLAS situation.

17. [278]

    Less than 10 minutes after being informed of the possible presence of a SIEV, the Pirie was sailing north to investigate. Less than 20 minutes after that, it was sailing north at its best speed. In those circumstances the conclusion by the primary judge at [371] and [373] that there was no delay, let alone unreasonable delay, in the response of the Pirie, and his negative answer to Question 12, was correct.

18. [279]

    In this Court the appellants did not seriously advance a case challenging those findings but, rather, sought to develop a different case, namely was that there was unreasonable delay within the Commonwealth bureaucracy in informing the Pirie and the Triton of the sighting of SIEV 221 at 5.40am.

19. [280]

    That case was not pleaded or conducted at the trial. It is too late to raise it on appeal, particularly in circumstances where identified separate questions were answered by the primary judge, none of which were addressed to this issue.

20. [281]

    The essence of this case was summarised by Senior Counsel for the appellants as follows:

21. [282]

    The appellants accepted that SIEV 221 lost fuel and power at 6.15am and started drifting towards the rocks in rough seas. Relying on the following cross examination of Commander Livingstone, they submitted that this new case was made at trial:

22. [283]

    This cross-examination did not raise the issue now sought to be agitated.

23. [284]

    Returning to the pleading, it is clear that this issue was not raised. The relevant precaution identified in the pleading as the “Earlier Response Precaution” was pleaded at paragraphs 52 to 71 of the further amended statement of claim. In essence what was pleaded was that at 6.40 am on 15 December 2010 SIEV 221 entered Flying Fish Cove being internal waters of Christmas Island and that at 7.10am on 15 December 2010 it broke apart after smashing into rocks at Flying Fish Cove. It was pleaded that SIEV 221 was observed from the shore of Christmas Island between about 5.10am and 5.40am. There was no finding by the primary judge that SIEV 221 was observed before 5.40am, and no ground of appeal seeks such a finding.

24. [285]

    Paragraph 60 of the amended statement of claim, critically, provides:

25. [286]

    The relevant breach, pleaded by paragraph 68, is that:

26. [287]

    It was alleged that the commanding officers of the Pirie and the Triton did not take the Earlier Response Precaution.

27. [288]

    From the pleading it is clear that there was no allegation that between 5.40am and when the Commanding Officers of the Pirie and the Triton were told something at about 6.00am that there was any breach of any duty owed to the appellants.

28. [289]

    The relevant separate question, Question 12, addresses the issue arising on the pleading, and not this new case, as follows:

29. [290]

    No case was conducted below or pleaded about what is said to be some failure immediately to communicate information which was obtained at 5.40am.

30. [291]

    The appellant should not be permitted to run this new case on appeal. If this case had been run, it is plain that the Commonwealth could have led evidence to address it.

31. [292]

    In any event, underpinning the appellants’ case on unreasonable delay was an assumption that it was possible or practical for the Pirie and the Triton instantaneously to react to Mr Martin’s sighting of SIEV 221 at 5.40am. This assumption is obviously unrealistic, and there was simply no evidence led by the appellants about this issue.

32. [293]

    Grounds 21-24 of the notice of appeal should be dismissed.

c. Issue 3: Was there an error in the finding that there was no causation of any loss or damage:

1. [294]

   This part of the case addressed grounds 13-15, 29 and 34 of the notice of appeal. The primary judge did not err in finding that the evidence did not disclose 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”.

2. [295]

   First, the evidence did not support a finding that the Pirie would have been able to detect SIEV 221 in the dark on the morning of 15 December 2010 and prior to it approaching the cliffs. The performance of the Pirie’s radar systems was substantially hampered by weather conditions at Christmas Island on 14 and 15 December 2010.

3. [296]

   Secondly, references to SIEV 220 being detected the day before are unhelpful. SIEV 220 was intercepted by the Pirie in daylight on 14 December and only after the Pirie had been informed that a SIEV had been sighted 300 yards north of Flying Fish Cove. In contrast, it was dark when SIEV 221 came within visual range of Christmas Island. In addition, SIEV 220 was a smaller and more manoeuvrable vessel than SIEV 221. What was possible in daylight on 14 December in dealing with SIEV 220 is of little assistance in seeking to infer what was possible for the Pirie in detecting and intercepting SIEV 221 on 15 December.

4. [297]

   Thirdly, little weight can be given to the number of SIEVs which had been detected and intercepted near Christmas Island between 1996 and 2010. Numerical comparisons, without knowing something about the size of the relevant vessels and the weather and sea conditions at the time of the interceptions are apt to mislead. Commander Livingstone rejected the “oversimplified” proposition that, had the Pirie conducted a barrier patrol further to the north of Christmas Island on 15 December 2010, it would have detected SIEV 221, because the precise course of the patrol might have varied according to the commanding officer’s discretion and it might have taken a different approach. Further, even if the Pirie had detected SIEV 221 on radar, it would not necessarily have investigated that indication in the absence of visual confirmation, which would have been difficult in the darkness and prevailing weather conditions. No sufficient reason was advanced to question the acceptance of that evidence by the primary judge.

5. [298]

   The evidence was that the crew and passengers on board SIEV 221 only attempted to make their presence known prior to arriving within sight of Christmas Island between 4 and 5am on 15 December. The methods used to get the attention of those on the shore, yelling and using flashlights, were evidently not effective in the inclement weather and darkness.

6. [299]

   The Pirie’s racetrack on the evening of 14 December and early morning of 15 December was as follows:

7. [300]

   As I have concluded at [271], the exact position of the racetrack was not mandated.

8. [301]

   The primary judge did not err in concluding that there was no causation of any loss or damage by any breach of the duty to carry out the interception operation.

9. [302]

   Grounds 13-15, 29 and 34 of the notice of appeal should be dismissed.

10. [303]

    This part of the case addressed grounds 25-28 and 30-34 of the notice of appeal. There was no error in the primary judge’s admission in evidence of the statements of Commanders Livingstone and Saunders. Both men were highly experienced in their roles, and both were present on 15 December 2010 and personally observed the weather conditions and the scene which confronted SIEV 221 and the rescuers. Both also set out their reasoning underpinning their opinions.

11. [304]

    In relation to the evidence of Mr Pike, the trial judge was correct to exclude his report: Ibrahimi (No 3) [2016] NSWSC 1438. Mr Pike’s reports made no attempt to set out the calculations and reasoning upon which he based his opinion that certain boats would have been capable of towing SIEV 221 away from danger.

12. [305]

    The plurality in Dasreef said:

13. [306]

    To be admissible under s 79(1), the evidence must satisfy two criteria. The first is that the witness "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed "is wholly or substantially based on that knowledge". As the plurality explained in Dasreef:

14. [307]

    Mr Pike’s report fell well short of admissibility under s 79 of the Evidence Act 1995 (Cth). Shortly put, there was a failure to demonstrate that the opinions expressed by Mr Pike were based on his specialised knowledge founded on training, study or experience.

15. [308]

    There is no doubt that Mr Pike had considerable potentially relevant expertise. The primary judge found as much. It is, however, also correct, as the primary judge found, that the formula used by Mr Pike was not explained nor was its source identified. The formula was acknowledged to relate to tugs and vessels with displacement hulls rather than the vessels involved in this case. Mr Pike did not identify any basis for concluding that the formula was applicable here. The reasoning process for his conclusion that “it would require a bollard pull of 2 tonnes to start making any progress to windward when towing SIEV 221” was not exposed. No assumptions about apparently critical integers to that calculation such as the power of the vessel doing the towing, and the sea conditions, were exposed in Mr Pike’s reasoning. Despite these gaps, Mr Pike’s report expressed opinions about the towing capacity of individual vessels - the Zodiac 773 Hurricane (either alone or in combination with another such vessel), the Norsafe 850 RHIB (either alone or in combination with another such vessel) and the Wiltrading Pursuit 640 vessel. None of his calculations or reasoning for the opinions expressed was exposed.

16. [309]

    The primary judge correctly concluded that these omissions and lack of explanation was a matter going to the admissibility of the evidence, and not its weight. There were also issues addressed by Mr Pike which were outside the appellants’ pleaded case. His Honour correctly rejected those parts of the report.

17. [310]

    His Honour’s ruling was made on 4 October 2016. The trial was completed on 5 December 2016. In that time, the appellants could have supplemented Mr Pike’s report and made an application for leave to tender a revised report. No such leave was sought.

18. [311]

    The appellants did not establish that towing SIEV 221 using a RHIB or tender would have been feasible, and the primary judge was correct so to conclude. With respect to the trial judge’s answer to Question 13, the appellants’ contention that the RHIBs and tenders would have been able to rescue the passengers of SIEV 221 had they been deployed at an earlier time was comprehensively rejected by Commander Livingstone during cross-examination. No error was revealed in the primary judge’s acceptance of that evidence, which was compelling and, by reason of the inadmissibility of Mr Pike’s report, essentially uncontradicted.

19. [312]

    Mr Adams gave evidence that his “understanding” was that the Christmas Island Volunteer Marine Rescue Service had assisted the Australian Federal Police in towing a SIEV “from time to time” and that in August 2010 a tow of a SIEV had been effected to sheltered waters off North West Point. Mr Adams was not involved in any such operation. He did not know what vessels were involved in the tow. He did not know whether, in any of the towing events he had heard about, the SIEV had lost power or not. The primary judge did not err in failing to give this tentative and non-specific hearsay evidence any significant weight.

20. [313]

    I have earlier concluded that this breach (being an alleged failure immediately to communicate to Commanders Livingstone and Sunders at 5.40am rather than 6.00am) was not pleaded or raised before the primary judge. Nor did the appellants establish any causal link between such a breach and the loss and damage claimed.

21. [314]

    It was critical to such an argument that Commander Livingstone could and would have acted differently. The evidence, however, was to the contrary. When informed at 6.00am of the possibility of the SIEV at Rocky Point, Commander Livingstone travelled to Rocky Point as quickly as he could. Unchallenged findings to that effect were made by the primary judge:

22. [315]

    The hypothesis on which the appellants’ causation argument was based was that if informed of the existence of the SIEV at 5.40am on 15 December 2010, Commander Livingstone would immediately have travelled to Rocky Point, leaving crew behind on the unanchored SIEV 220 at Ethel Beach. The matter was explained by Senior Counsel for the appellants thus:

23. [316]

    Suppose, for the sake of argument, that hypothesis is accepted. Given the unchallenged finding that from 6.00am Commander Livingstone was operating with the objective of getting to Rocky Point as quickly as he could, it would have followed that, at best for the appellants, he would have started addressing that objective 20 minutes earlier, if informed at 5.40am rather than 6.00am of the presence of SIEV 221.

24. [317]

    It will be recalled that at about 6.15am, SIEV 221 was struck by an incoming swell and its fuel drum was washed overboard causing the engine to fail. This changed the situation “drastically”. At about 6.38am, the launch of the RHIBs from the Pirie commenced. By about 6.46am both had been launched and were proceeding to Rocky Point. Both, however, were prevented from traveling at their full speed because of “the large swell, frantic sea state and reduced visibility”. I reject the submission that the evidence permits a finding that the Pirie or its RHIBs would have arrived at Rocky Point before 6.15am, even if Commander Livingstone had been told of the existence of SIEV 221 at 5.40am. There is no basis in the evidence for the suggestion that he would have abandoned the crew members on SIEV 220 before proceeding to Rocky Point, no matter what he was told at 5.40am. It was never suggested to Commander Livingstone that he would do such a thing.

25. [318]

    Even assuming that it was possible for an immediate communication at 5.40am to have been made to Commander Livingstone, at the very best (for the appellants) that would have moved the timeline forward a maximum of 20 minutes. That timeline would then need to contend with the uncontested evidence that the majority of the Pirie’s crew were asleep at 5.40am. Assuming, however, a 20-minute timeline change in favour of the appellants, the Pirie’s RHIBs would not have arrived at Rocky Point until 6.40am, well after SIEV 221 had lost power.

26. [319]

    A further difficulty for the appellants’ causation case is that a 20 minute earlier arrival time of the Pirie also was not shown as likely to result in any different outcome. The Pirie rounded North East Point at 6.58am. Had it done so 20 minutes earlier, it would not have reached Rocky Point before 6.20am. By that time, SIEV 221’s engine had failed and there was no prospect of its “shepherding” the vessel away from the shore or giving it directions. This was conceded by Senior Counsel for the appellants to be the only action which the Pirie might have taken had it arrived earlier:

27. [320]

    The appellants did not demonstrate that a 20-minute earlier arrival time would have avoided or made any difference for the, undoubtedly tragic, outcome.

28. [321]

    Grounds 25-28, 30-34 of the notice of appeal should be dismissed.

Conclusion and orders

1. [322]

   At the outset of the appeal the Court was informed that the lead appellant, Mr Ibrahimi, had apparently changed his name by deed poll. Orders were made for the filing of documents changing his name in the proceedings.

2. [323]

   On 23 July 2018, the solicitors for the appellants sent an e-mail to the Court which noted that their clients had leave to file in the registry an amended notice of appeal within seven days of 4 July 2018 including a change of name identifying the first appellant as “Henry Smith” in substitution for his former name “Median Nazar Ibrahimi”, but stated that:

3. [324]

   Accordingly, the contingency upon which the order changing the name of the proceedings was made has not been fulfilled. No additional order on this issue is necessary.

4. [325]

   For the forgoing reasons I propose that the appeal be dismissed with costs.

5. [326]

   SIMPSON AJA: I agree with Payne JA.