Deng v Australian Capital Territory

[2021] ACTSC 69

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Deng v Australian Capital Territory
Citation:	[2021] ACTSC 69
Hearing Date:	22 April 2021
Decision Date:	23 April 2021
Before:	Elkaim J
Decision:	See [17]
Catchwords:	CIVIL LAW – APPLICATION IN PROCEEDING – Application to amend defence – contributory negligence – prejudice to the plaintiff – production of documents
Legislation Cited:	Human Rights Act 2004 (ACT)
Parties:	Atem Deng (Plaintiff) Australian Capital Territory (First Defendant)
The Magistrates Court of the Australian Capital Territory (Second Defendant)
Representation:	Counsel
S Sharmin (Plaintiff) A Hochroth (Defendants)
Solicitors
Ken Cush & Associates (Plaintiff)
ACT Government Solicitor (Defendants)
File Number:	SC 377 of 2020
ELKAIM J:

1.       The plaintiff commenced proceedings against the defendants in October 2020. His

allegations, as expressed in the Statement of Claim arise from the plaintiff’s arrest for

breaching a court order, notwithstanding that the order had previously been revoked. Consequently, says the plaintiff, he was wrongfully imprisoned. He seeks an assortment of declarations and damages. His asserted right to compensation includes compensation under the Human Rights Act 2004 (ACT).

2.       The defendants, who are jointly represented, filed a Defence on 12 February 2021. The defendants now wish to amend their Defence. To this end, they filed an Application in Proceeding on 16 April 2021. In addition to amending the Defence, the defendants also seek an order compelling the plaintiff to disclose various economic loss documents.

3.       The plaintiff opposes the orders sought.

1. The defendants wrote to the plaintiff’s solicitors on 6 April 2021 requesting consent to

   the proposed amendments. The letter attached a draft Amended Defence. The plaintiff’s

   solicitors chose not to respond, thus generating the application. There has been correspondence in the last few days concerning the amendments but it does not provide any details of the prejudice which is asserted to arise from the amendments.

5.       The plaintiff submitted that a primary reason for not allowing the amendments is that there is no explanation for them not having been sought much sooner. Counsel for the defendants frankly said that he had not thought of the amendments at an earlier time.

6.       The matter is listed for hearing on 3 May 2021. An explanation is usually a starting point for leave in an application of this sort. However I think the primary issue in relation to the amendments is whether they would produce any prejudice to the plaintiff, in particular in his capacity to commence the hearing on the above date.

7.       The amendments cover two areas. Firstly there is an amendment raising a legal issue (in paragraph 36aa). The plaintiff says that this amendment can be met. Secondly, the defendants wish to allege contributory negligence on the part of the plaintiff. This amendment is more contentious. The plaintiff submitted that it might be necessary to speak to potential witnesses who were present at the time of the material events. In addition the plaintiff raised a concern that, in order to establish the causation element of the contributory negligence, the defendants might need to call witnesses including the magistrates who were involved in the relevant proceedings. The plaintiff has received no notice of any such intention.

8.       The defendants submitted that any need to have spoken to potential witnesses would have arisen on the pleadings as they currently stand. The defendants also said that they had no intention of calling any witnesses in aid of the allegations of contributory negligence. They would rely only on cross-examination of the plaintiff.

9.       Having regard to the nature of the amendments about contributory negligence I do not think the prejudice envisaged by the plaintiff has been established. This conclusion is reached on the basis that the defendants will rely on the evidence of the plaintiff to establish the allegation. I intend to make this position a condition of the amendment.

10.     In relation to the economic loss documents, the plaintiff’s claim includes an allegation of

past and future economic loss. This loss forms part of the compensation to which he
says he is entitled.

11.     The plaintiff says that a number of the documents have already been produced and he does not possess some of the other documents sought. The documents he has already produced are those in paragraphs 2a and 2e of the application. There is no need to make further orders in respect of these documents.

12.    The plaintiff does not have any documents falling within paragraphs 2b and 2f. Accordingly no further orders are needed.

13.     The plaintiff opposes production of any of the documents sought in paragraphs 2c and 2d. He says that the defendants are embarking on a fishing expedition. The difficulty for the plaintiff however is that his economic loss claim, in particular for the period since his release from custody, could well be tested by some of the documents that are being sought. However I think the terms of these two subparagraphs are too wide and should be restricted to the period from 19 December 2019 to date.

1. In addition to the defendants’ application the plaintiff also asked for certain orders which

   are contained in draft Short Minutes of Order which were handed up during the hearing yesterday. Unfortunately, counsel for the defendants had not had the opportunity to take instructions on these orders so I stood the matter over until today, in the hope that the parties might reach agreement.

15.     In relation to the costs of the defendants’ application, notwithstanding the plaintiff not

responding promptly to the request for the amendments, I am of the view that the amendments should have been sought at a significantly earlier time. Further the

explanation that the amendments were “not thought of” is admirably frank, but not a very

good explanation.

1. I think the defendants should pay the plaintiff’s costs of the application.

17.     I make the following orders on the defendants’ application filed on 16 April 2021:

1.       The defendants have leave to file and rely upon an Amended Defence in the form annexed to the letter from the ACT Government Solicitor dated 6 April 2021.

2.       The leave granted in the above order is conditional upon the defendants relying only on the evidence of the plaintiff to establish the allegation of contributory negligence.

3.       The plaintiff is to provide the documents listed in paragraph 2c and 2d of the application except that the documents are limited to the period from 19 December 2019 to date.

4.       The documents which are the subject of Order 3 are to be provided to the defendants within seven days of these orders.

5.       The defendants are to pay the plaintiff’s costs of the application, but these

costs are not payable until the completion of the proceedings.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 23 April 2021