The plaintiffs’ causes of action were framed in negligence and breach of statutory duty. Broadly speaking, it was alleged that what occurred was a tragedy that could have been avoided had a Commonwealth Border Protection Command vessel intercepted the boat prior to the shipwreck or rendered assistance earlier after the shipwreck.
The plaintiffs /appellants appealed to the NSW Court of Appeal.
“The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by others) … It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes.”In this case, there was no evidence that any act by the Commonwealth increased the risk of harm.
Payne JA also noted that, as a general rule, the common law “casts no duty up on a man to go to the aid of another who is in peril or distress, not caused by him”: Hargrave v Goldman (1963) 110 CLR 40;  HCA 56.
Payne JA noted that the recognition of a novel duty of care, despite the above problems, depended on the existence of “salient features” in the relationship between tortfeasor and victim, such a control, assumption of responsibility, and knowledge of vulnerability by the tortfeasor. Payne JA assessed all of these features and drew the following conclusions:
Assumption of responsibility: The appellant contended that the Commonwealth was responsible for the conditions of the shipwreck, by encouraging an expectation among people smugglers that their boat would be intercepted if in any danger. Payne JA found there was no evidence for this proposition. Payne JA also rejected the submission that the naval patrols represented an assumption of responsibility. Those patrols were for a law enforcement purpose, not a rescue purpose.
Vulnerability: Payne JA noted that ‘vulnerability’ for the purpose of determining if a novel duty of care arises is not concerned with vulnerability in a general sense, but rather vulnerability to protect themselves from the consequences of the tortfeasors want of reasonable care. In this case, the persons on SIEV 221 had voluntarily embarked on the vessel, and even if they were fleeing persecution in their country of origin they were not fleeing persecution from Indonesia. The persons on the SIEV 221 were not vulnerable, as they were able to protect themselves from the Commonwealth’s alleged want of duty of care: by not embarking on the vessel in the first place.
Control: Payne JA noted that a crucial question to determining whether to recognise a novel duty of care was the degree to which the Commonwealth had control over the situation. If a statutory agency has little control over a risk of harm, that tends against the recognition of a novel duty: Graham Barclay Oysters Pty Ltd v Ryan  HCA 54. Applying those principles, Payne JA noted that the Commonwealth had very little ability to safely intercept the vessel in monsoon conditions, next to the shore of Christmas Island. It had no control in the relevant sense. The fact that SIEV 221 was, as a matter of law, the property of the Commonwealth under the Migration Act did not amount to control.
Consistency and coherence with other law: Finally, Payne JA noted that to recognise a novel duty of care in this case would be contrary to objectives of the Migration Act, which is designed to prevent irregular arrivals by sea. If a suggested duty of care would give rise to inconsistent obligations, that is ordinarily a reason for denying that the duty exists: Sullivan v Moody  HCA 59.
The Court of Appeal upheld the primary judge’s conclusion that no novel duty of care arose in this case, and dismissed the appeal with costs.