FEDERAL COURT OF AUSTRALIA
Jenkings v Northern Territory of Australia [2017] FCA 1263
ORDERS
First Applicant AARON HYDE Second Applicant | ||
AND: | NORTHERN TERRITORY OF AUSTRALIA Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Respondent’s applications for orders:
(a) pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the FCR) to strike out the pleadings as representative pleadings;
(b) pursuant to s 33N(1) of the FCA Act; and
(c) pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to transfer the proceedings to the Supreme Court of the Northern Territory;
are refused.
2. The Respondent’s application for the striking out of paragraphs [49], [63] and [78] to [82] of the Second Further Amended Statement of Claim (2FASC) is allowed and those paragraphs are struck out.
3. The Respondent’s application for the striking out of paragraphs [69] to [72] of the 2FASC is refused.
4. The Applicants have leave to file and serve a Third Further Amended Statement of Claim, with that leave to be exercised by 27 November 2017.
5. The application for leave to intervene, brought by the plaintiffs in proceedings before the Northern Territory Supreme Court, No 14 of 2015 (21508784), No 15 of 2015 (21508785), No 19 of 2015 (21510204) and No 26 of 2015 (21513348) is, subject to their identities being disclosed appropriately to the Court, allowed.
6. Subject to the condition referred to in Order 5, the intervenors’ application for the amendment of the Further Amended Originating Application and 2FASC in the manner identified by them in Schedule 1 to the Submissions in Reply filed on 18 May 2017, is allowed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WHITE J:
1 On 23 December 2016, the two Applicants commenced a representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). The Group Members are defined (in substance) as those persons who, as at 23 December 2016: (a) were, or had been, detained in a youth detention centre of the Northern Territory within the meaning of the Youth Justice Act (NT) (the YJ Act); and (b) who, while so detained, had suffered, or allege to have suffered, false imprisonment, assault, battery or other forms of adverse action by conduct of a Commissioner, a Superintendent, a person exercising delegated functions of a Superintendent or by a staff member in a detention centre. The Applicants also plead that the conduct they allege involved racial discrimination made unlawful by s 9 of the Racial Discrimination Act 1975 (Cth) (the RD Act).
2 They seek damages at common law (including aggravated and exemplary damages) and orders under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), again for themselves and for the Group Members. In addition, the Applicants seek, to the extent necessary, orders for themselves and the Group Members pursuant to s 44 of the Limitations Act 1981 (NT) extending the limitation period fixed by the YJ Act.
3 This judgment concerns two interlocutory applications. The first is the Further Amended Interlocutory Application by the Respondent (the Territory) seeking:
(a) an order pursuant to r 16.21 of Federal Court Rules 2011 (Cth) (the FCR) striking out the Applicants’ pleadings as representative proceedings on the basis that they do not comply with the requirements of s 33C(1) of the FCA Act;
(b) in the alternative to (a), an order pursuant to s 33N(1) of the FCA Act that the proceeding no longer continue as a representative proceeding under Pt IVA of the FCA Act;
(c) in addition to (a) or (b), an order pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) that the proceeding be transferred to the Supreme Court of the Northern Territory;
(d) an order pursuant to r 16.21 of the FCR striking out specified paragraphs of the Applicants’ Second Further Amended Statement of Claim (2FASC).
4 For the reasons which follow, I refuse the relief sought in (a), (b) and (c), but will strike out certain paragraphs of the 2FASC with corresponding leave to re-plead.
5 The second interlocutory application is made by four persons who are presently excluded from group membership. They seek leave to intervene so as to pursue an amendment of the Applicant’s proceedings with the effect that they be included as Group Members. I will refer to this as the Application to Intervene. As will be seen, neither the Applicants nor the Territory oppose the leave sought in the Application to Intervene and, subject to a matter of identification, I grant the relief sought by these parties.
6 Initially, the Territory had put in issue this Court’s jurisdiction to hear and determine the Applicants’ proceedings, but it did not press that contention. I am satisfied that the Court does have jurisdiction with respect to the Applicant’s claims.
7 It is convenient to address the interlocutory application of the Territory first. Counsel recognised that there was considerable overlap between the matters bearing on the Territory’s s 33C(1) and s 33N(1) applications. Nevertheless, they involve conceptually different matters and I propose to consider them separately.
Section 33C of the FCA Act
8 Section 33C of the FCA Act provides:
(1) Subject to this Part, where:
(a) 7 or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c) the claims of all those persons give rise to a substantial common issue of law or fact;
a proceeding may be commenced by one or more of those persons as representing some or all of them.
(2) A representative proceeding may be commenced:
(a) whether or not the relief sought:
(i) is, or includes, equitable relief; or
(ii) consists of, or includes, damages; or
(iii) includes claims for damages that would require individual assessment; or
(iv) is the same for each person represented; and
(b) whether or not the proceeding:
(i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or
(ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
9 The principles relating to s 33C and its cognates in other legislation are well settled and it is not necessary to repeat them in detail in these reasons. It is sufficient to note that s 33C(1) is central to the scheme in Pt IVA for the bringing of representative proceedings. It contains three requirements, described in Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 at [28] as “threshold requirements”. They are a numerical requirement (subs (1)(a)), a “circumstances” requirement (subs (1)(b)), and a “common issue” requirement (subs (1)(c)).
10 In Timbercorp Finance Pty Ltd v Collins [2016] HCA 44; (2016) 339 ALR 11, Gordon J said of s 33C at [105]:
These conditions in s 33C are central to the scheme set out in Pt 4A. The purpose of commencing a group proceeding is so that a substantial common question of law or fact can be decided for at least seven persons whose claims involve the same, similar or related circumstances. Section 33C expressly recognises that each group member may, as an individual, have different claims against the defendant, but the foundation of the group proceeding is that they all have an interest in the resolution of a substantial common question of law or fact.
11 In Wong v Silkfield at [26], the High Court said of s 33C:
In terms, s 33C(1) looks to the claims made by seven or more persons against the same person, being claims which are in respect of, or arise out of, the same, similar or related circumstances, and asks whether claims so understood give rise to a substantial common issue of law or fact.
The Court went on to confirm, at [28], that there will be a substantial common issue of law or fact for the purposes of s 33C(1) if there is an issue which is “real or of substance” and, at [30], that is not necessary for an applicant to show that litigation of the common issue is likely to resolve wholly, or to any significant degree, the claims of all group members.
12 It is established that, while each group member must have a claim against the respondent, it is not necessary for each group member to have the same claim as all other group members: Guglielmin v Trescowthick (No 2) [2005] FCA 138; (2005) 220 ALR 515 at [30].
13 Section 33H requires an application concerning a representative proceeding or a document filed in support of such an application to contain information concerning the s 33C(1) matters. It provides:
(1) An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:
(a) describe or otherwise identify the group members to whom the proceeding relates; and
(b) specify the nature of the claims made on behalf of the group members and the relief claimed; and
(c) specify the questions of law or fact common to the claims of the group members.
(2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.
14 Section 33H operates to facilitate an assessment, shortly after the commencement of a proceeding, of whether it satisfies the requirements of s 33C(1): Petrusevski v Bulldogs Ruby League Ltd [2003] FCA 61 at [17]. That assessment is to be made by reference to the documents and, in particular the pleadings, filed by the applicant commencing the proceeding.
15 A proceeding which does not satisfy the requirements of s 33C(1) is not properly commenced and is liable to be struck out: Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487 at [125]. However, it is open to the Court in such circumstances to order that the proceedings continue as proceedings brought by the applicants in their own right: Philip Morris at [125].
16 It is for the Applicants to show that they have satisfied the requirements of both ss 33C and 33H: Philip Morris at [138].
17 Initially the Territory contended that none of the three requirements in s 33C(1) was satisfied in the present case. However, at the hearing it withdrew that contention with respect to the numerical requirement. Before addressing the Territory’s submissions concerning subpara 1(b) and (c), it is appropriate to summarise and note some aspects of the pleading in the 2FASC.
The 2FASC
18 The 2FASC commences with a description of the persons on whose behalf the Applicants bring the proceedings. The description which matches that in the Further Amended Originating Application, is as follows:
1. Each applicant brings this claim on his own behalf and on behalf of represented persons pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) being persons (Group Members) who at 23 December 2016:
1.1 were or had been detained in a youth detention centre of the Northern Territory of Australia within the meaning of the Youth Justice Act (NT) (Act) (youth detention centre); and
1.2 during the period or periods in which the Group Member was detained in a youth detention centre, suffered or allege to have suffered one or more of:
a) false imprisonment;
b) assault;
c) battery;
ca) excessive, unreasonable, unnecessary, inappropriate and/or unlawful use of:
i) force;
ii) restraint;
iii) search; and/or
iv) isolation;
cb) being accommodated in substandard conditions; and/or
cc) being from time to time deprived of food, water, clothing and bedding as forms of punishment;
by an act or omission of:
cd) a director or commissioner for the purposes of the Act or a person taken to have been delegated the director’s or commissioner’s powers necessary to perform the director’s or commissioner’s functions in respect of youth detention centres under the Act (commissioner);
d) a superintendent of a youth detention centre, a duly authorised delegate of a superintendent, or a person, pursuant to the Act, taken to have been delegated a superintendent’s powers and functions necessary to perform a superintendent’s functions under s 151(3)(c) of the Act (superintendent); or
e) a member of the staff of a detention centre or a person, pursuant to the Act, taken to be a member of the staff of a detention centre (member of staff); and
1.3 was not a plaintiff in any of the following proceedings in the Supreme Court of the Northern Territory:
a) No. 14 of 2015, Case Number: 21508784;
b) No. 15 of 2015, Case Number: 21508787;
c) No. 19 of 2015, Case Number: 21510204;
d) No. 26 of 2015, Case Number: 21513348;
e) No. 16 of 2016, Case Number: 21615113; and
f) No. 24 of 2016, Case Number: 21617890.
…
2. As at the date of the commencement of this proceeding, seven or more Group Members have claims against the respondent.
19 Some aspects of this pleading may be noted. The first of four cumulative criteria of group membership is that group members be persons who had been detained in a “youth detention centre” as defined in the YJ Act. The second is that the detention of these persons occurred between 1 August 2006 (the date of commencement of the YJ Act) and 23 December 2016 (the date of commencement of the proceedings). The third is that persons in the group have suffered, or allege to have suffered, one or more of the torts of assault, battery or false imprisonment or have been subjected to one or more of conditions specified in subparas (ca), (cb) or (cc). The fourth is that the tort or the subjection to conditions have occurred by an act or omission of a person who is an officer of a specified kind or a staff member in a youth detention centre. I understand the reference to a commissioner to be a reference to the Commissioner of Correctional Services in the Northern Territory and that the superintendents are the persons appointed pursuant to s 151 of the YJ Act. The final criterion is of a negative kind, namely, that the person not be one of six persons who have commenced proceedings in the Supreme Court of the Northern Territory. Four of these persons are the applicants seeking leave to intervene.
20 The next section of the 2FASC contains pleadings concerning the two Applicants. In respect of the First Applicant (Mr Jenkings), the 2FASC pleads that he is 18 years old, that he was detained in “youth detention centres” at “various times” and for “various periods” between 2014 and 9 September 2016, that he is Aboriginal and that he was, at all relevant times whilst detained in youth detention centres, a child.
21 In relation to the Second Applicant (Mr Hyde), the 2FASC pleads that he is now 20 years old and had been detained in “youth detention centres” at “various times” and for “various periods” between about February 2012 and 27 June 2014. He too was a child at the times of his detentions. The 2FASC pleads that Mr Hyde is not an Aboriginal person.
22 The 2FASC pleads in some detail provisions of the YJ Act and the Youth Justice Regulations (NT) (the Regulations) concerning the detention of youths in detention centres and alleges in [35] that the Applicants and Group Members, while in detention, retained a right to “residual liberty”, particularised as the right to enjoy all civil liberties which had not been taken away expressly or by necessary implication by their detention in accordance with the YJ Act.
23 The 2FASC then pleads, at [36], circumstances which “would” constitute the wrongful imprisonment of a detainee and, at [37]-[38], circumstances which “would” constitute the battery or assault of a detainee.
24 Next, the 2FASC pleads incidents concerning the First Applicant said to constitute an assault or battery and/or his false imprisonment (at [42]-[49]) and incidents concerning the Second Applicant said to constitute assault, battery and/or false imprisonment in his case (at [55]-[63]). In the interests of brevity, I will set out in these reasons only the pleading concerning the First Applicant:
42. In or about April 2016, a number of members of staff threatened to spray tear gas in the first applicant’s room at Don Dale Youth Detention Centre, entered the first applicant’s room, handcuffed the first applicant and removed him from the room.
43. Immediately following the matters described in paragraph 42, the members of staff pushed the first applicant to the floor of a cell in the High Security Unit (HSU) of the youth detention centre and punched him twice to the back of his head, causing his face to strike the floor of the cell forcefully.
44. Immediately following the matters described in paragraph 43, the members of staff dragged the first applicant from the cell and placed him in cell number 18, which had no closed circuit television monitoring, pushed the first applicant to the floor of cell number 18 and punched, kicked and struck the first applicant with batons and shields.
45. In the course of the incidents described in paragraphs 42 to 44, the members of staff assaulted and/or battered the first applicant.
Particulars
45.1 The first applicant had a continuing apprehension that imminent physical contact would be made with his body by members of staff of the youth detention centre;
45.2 The members of staff handcuffed the first applicant in circumstances where the superintendent did not hold the opinions required by s 153(4) of the Act and/or had not authorised the use of handcuffs;
45.3 The first applicant suffered physical contact to his body by numerous members of staff of the detention centre numerous times;
45.4 The first applicant did not consent to any physical contact being made with his body by any member of staff of the youth detention centre;
45.5 The members of staff used more force than was reasonably necessary;
45.6 Further particulars may be provided following discovery and/or interrogatories.
46. The first applicant was isolated in cell number 18 for two days and was not permitted out of the cell at any time during that period.
47. The isolation of the first applicant described in paragraph 46 was unlawful.
Particulars
Further particulars will be provided following discovery and/or interrogatories.
48. By reason of the matters in paragraphs 46 and 47, the respondent falsely imprisoned the first applicant.
49. On a number of occasions, during his periods of detention in a youth detention centre, the first applicant was assaulted, battered and falsely imprisoned by the superintendent or members of staff of the detention centre.
Particulars
49.1 On several occasions the first applicant was kept in isolation;
49.2 On one occasion in or about July 2016, the first applicant was restrained in handcuffs, placed in a cell in the HSU and pushed and kicked in his back while in handcuffs in the cell;
49.3 On several occasions the first applicant was subjected to strip searches otherwise than in accordance with s 161 of the Act.
49.4 Further particulars may be provided following discovery and/or interrogatories.
25 The corresponding pleadings concerning the Second Applicant contain allegations of incidents of a generally similar kind. There is no pleading that the conduct giving rise to the pleaded incidents concerning the First Applicant also involved the Second Applicant, or vice versa.
26 Each Applicant alleges that, by reason of the pleaded conduct, he suffered “deprivation of residual liberty, discomfort, humiliation, helplessness, indignity, frustration and outrage” (at [50] and [64] respectively) and claims damages, aggravated damages and exemplary damages. They seek these remedies against the Territory on the basis that it is vicariously liable for the impugned conduct.
27 The claims in tort of the Group Members are pleaded in Part IX of the 2FASC as follows:
73. Group Members, while detained in a youth detention centre, suffered one or more of:
73.1 false imprisonment;
73.2 assault; and/or
73.3 battery;
by an act or omission of a superintendent or a member of staff for which the respondent is vicariously liable.
Particulars
The material facts and particulars of Group Member claims will be provided after the initial trial of the applicants’ claims and common issues.
74. The cognate claims of Group Members, which arise from the false imprisonment, assault, and/or battery of Group Members will be pleaded and particularised after an initial trial of the applicants’ claims and common issues.
28 The 2FASC concludes with allegations of discrimination in contravention of the RD Act. Paragraphs [78], [79] and [80] plead aspects of the conduct of commissioners, superintendents and other members of staff of the Territory employed in youth detention centres, as follows:
78. At all relevant times commissioners, superintendents and/or members of staff routinely subjected Group Members to:
78.1 excessive, unreasonable, unnecessary, inappropriate and/or unlawful use of:
a) force;
b) restraint;
c) search; and/or
d) isolation;
78.2 being accommodated in substandard conditions; and/or
78.3 being from time to time deprived of food, water, clothing and bedding as forms of punishment.
79. The conduct described in paragraph 78 included routine breaches of restrictions under the Act and Regulations:
79.1 on the use of force referred to in paragraphs 23 to 27 above;
79.2 on the use of handcuffs or other restraints referred to in paragraphs 21 to 27 above;
79.3 on the use of search, including strip search, referred to in paragraphs 29 to 31 above;
79.4 on the use of isolation referred to in sub-paragraph 23.7 and paragraph 28 above;
79.5 on the use of procedures for management of risk of self-harm referred to in paragraph 34 above.
80. The conduct described in paragraph 78 included:
80.1 routine breaches of a superintendent’s obligation to ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise;
80.2 routine breaches of the Australasian Juvenile Justice Administrators Standards for Juvenile Custodial Facilities (Revised Edition, March 1999); and
80.3 routine breaches of the Australasian Juvenile Justice Administrators Juvenile Justice Standards 2009.
29 As can be seen, [78] pleads the subjection to conditions which formed part of the third cumulative requirement of Group Membership. The plea is that Group Members were “routinely” subjected to these conditions and that this occurred “at all relevant times”.
30 The 2FASC alleges at [77] that approximately 90% of the children detained in the youth detention centres were Aboriginal. Paragraph [81] alleges that the conduct described in [78] to [80] involved “distinctions, exclusions and restrictions based on race in that the commissioners, superintendents and/or members of staff would not have conducted themselves in the way alleged had the overwhelming majority of children in youth detention centres not been Aboriginal”. Paragraph [82] pleads that the conduct alleged in [78] to [80] affected Aboriginal and non-Aboriginal Group Members equally “but would not have occurred had the overwhelming majority of children in youth detention centres not been Aboriginal”.
31 Paragraph [83] alleges that the “distinctions, exclusions and restrictions based on race” pleaded in [78] to [81] had the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights or fundamental freedoms recognised in the International Convention for the Elimination of all forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CROC).
32 The 2FASC then contains pleas, in relation to each of the two applicants, that they suffered loss and damage by reason of the breaches of the RD Act, particularised as “insult, humiliation and distress” and “impairment of [the Applicants’] enjoyment of the human rights and fundamental freedom” earlier pleaded.
33 Finally, the 2FASC pleads the RD Act claim of Group Members as follows:
101. Group Members, while detained in a youth detention centre, suffered one or more of the conduct of commissioners, superintendents and staff members described in paragraphs 78 to 80 with the effects described in paragraphs 81 to 83.
102 The cognate claims of Group Members, which arise from unlawful discrimination against Group Members in breach of s 9(1) of the RDA for which the respondent is vicariously liable will be pleaded and particularised after an initial trial of the applicants’ claims and common issues.
The related circumstances requirement
34 The “circumstances” requirement in s 33C(1)(b) is expressed in the alternative, with each alternative requiring a gradually less demanding connection between the circumstances giving rise to the claims of the group members. If the circumstances are not the same, they must be similar and, if not similar, they must be related.
35 Although the submissions of the Territory were directed principally to the common issue requirement, it contended that the range and scope of the allegations foreshadowed to be made by the Group Members in these proceedings are so “prohibitively wide” as to be unable to satisfy even the requirement that the circumstances be “related”. This was necessarily so, it submitted, because the circumstances on which the Applicants rely are the kind of torts alleged to have been committed by Commissioners, Superintendents and detention centre staff and not the same conduct or matters giving rise to those torts. That conduct or those matters are capable of almost infinite variety, differing from case to case according to:
the time at which the tort or torts were said to occur (in effect, at any time over a period of over 10 years);
the diverse places at which they are alleged to have occurred (there is evidence that the Northern Territory had five separate youth detention centres in the period from 1 August 2006 to 31 December 2016 in addition to holding cells at the Darwin Magistrates Court and Youth Justice Court);
the number of officers and staff members involved (there is evidence that, putting to one side casual staff, the Department of Correctional Services in the Northern Territory (DCS) employed at least 175 staff in youth detention centres in the same period);
the variety of conduct said to constitute the torts (holding detainees in isolation, the use of restraints (of different kinds), the use of teargas, the use of dogs, the use of force and physical violence (of different kinds), searches and examinations); and
the content of the relevant law and regulations, including individual detention centre rules, which were in force from time to time.
36 Counsel for the Territory sought to demonstrate the diversity of circumstances which may be encompassed by the Group Members’ claims by advancing the following hypotheticals:
(a) A alleges that he was falsely imprisoned in consequence of an administrative failure by the Superintendent to release him from the Don Dale Detention Centre when his sentence expired on 1 January 2016;
(b) B alleges a battery against her person by a youth justice officer at Aranda House in December 2006 when excessive force was used to restrain her physically after she had threatened to assault another detainee;
(c) C alleges an assault consisting of a threatened application of force by a youth justice officer. The officer swore at the detainee and had threatened to use force to return the detainee to his cell if he did not do so voluntarily and immediately;
(d) D alleges that the use of restraints against him when he travelled outside the detention centre on various occasions was unnecessary and unlawful, with each incident amounting to an assault and battery.
37 While emphasising that these were hypothetical circumstances only, counsel submitted that they indicated the potential width of the range and scope of the Applicants’ allegations and that the circumstances relating to the Applicants’ own claims would not, in the terms used by Rares J in Carr v Commins Hendriks Pty Ltd [2016] FCA 1282 at [27], “be sufficiently illustrative of the wide variety of potential factual situations”.
38 In short, the Territory submitted that the claim of each Group Member will turn on its own particular facts and circumstances and that the circumstances of the claim of one Group Member need not have any relationship with the circumstances of the claim of another, unless assessed at a high level of abstraction.
39 The principles to be applied in relation to the related circumstances requirement are settled. In Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384, French J said, at 404-5:
The question whether the claims of the persons who are proposed as members of a group arise out of “the same, similar or related circumstances” as required by s 33C(1) is not to be answered by an elaboration of that verbal formula. It contemplates a relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit. Each claim is based on a set of facts which may include acts, omissions, contracts, transactions and other events. As appears from s 33C(2), the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word “related” suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.
(Emphasis added)
40 The purpose of the legislation to which French J referred in the second of these paragraphs is the provision of “an efficient and effective procedure to do with multiple claims” – see the Minister’s Second Reading Speech to which the High Court referred in Wong v Silkfield Pty Ltd at [20].
41 The observations of Mansfield J in Guglielmin v Trescowthick (No 2) at [48] are pertinent presently:
In any representative proceeding there may well be differences between the positions of the various group members in respect of their claims against the respondents. That is likely to be the case whenever a complex representative action is instituted, that is a representative action involving a course of conduct rather than one transaction or piece of conduct or a representative action involving a large number of respondents. With an active mind, one could find a plethora of differences in any such representative proceeding. It is the nature of such proceedings that there are differences between the positions of the parties. That is why there is needed a relatedness of circumstances, rather than exactly the same circumstances, in the claims of the group members. Representative proceedings are not intended only to be available in the more straightforward of circumstances where the conduct of one respondent on one occasion is alleged to have resulted in loss to a number of persons.
(Emphasis added)
42 Section 33C(2) of the FCA Act indicates that claims may be in respect of the same, similar or related circumstances even if concerned with separate contracts or transactions or involve separate acts or omissions.
43 In determining whether claims are in respect of, or arise out of, the same, similar or related circumstances, it is appropriate to have regard to their differences as well as their similarities, and to the complexity of the claims (Guglielmin v Trescowthick (No 2) at [47]). Some differences are to be expected. As Mansfield J also pointed out in Guglielmin v Trescowthick (No 2), differences between individual claims are almost inevitable whenever the subject of a representative action is a course of conduct rather than a single event resulting in loss to many. The potential diversity of the individual claims and their complexity in such cases does not of itself indicate that they may not be “in respect of, or arise out of, … related circumstances”.
44 Section 33C(1)(b) does not require the claims themselves to be the same, similar or related: only for the circumstances from which they arise or which they concern to have that character. Some of the submissions made on behalf of the Territory did not reflect that circumstance.
45 The present case may well be towards the centre of the spectrum to which French J referred in Zhang. Nevertheless, I consider that the matters to which the Applicants refer do indicate a sufficient relatedness of circumstances. Those matters include:
(a) all Group Members were youths who had been detained in youth detention centres in the Territory;
(b) common legislative and regulatory provisions applied to the youth detention centres and to the conduct of officers and staff members in those centres;. The fact that the relevant provisions of the YJ Act had been amended with effect from 9 September 2014 and again from 1 August 2016 and that some detention centres had their own rules does not alter this circumstance because it seems that there is an underlying core of common regulatory provisions;
(c) the conduct said to constitute the false imprisonment, assault or battery and other forms of adverse action are said to be incidents in a form of systemic conduct by officers or staff members;
(d) the conduct is said to constitute a form of racial discrimination.
46 In short, I am not satisfied that the potential for there to be significant differences between the claims of individual Group Members has the consequence that they cannot be regarded as being in respect of, or arising out of, related circumstances. This part of the Territory’s application fails.
The common issue requirement
47 It was common ground that the common issue requirement will be satisfied if there is at least one substantial issue of law or fact common to all the claims.
48 The Further Amended Originating Application filed on 21 April 2017, identified the questions of law or fact said to be common to the claims of all Group Members as:
1. In the circumstances of the allegations in the accompanying [2FSAC], the identification of the matters relevant to the principled application of section 44 of the Limitation Act (NT).
2. Whether the commencement of the present proceeding under Part IVA of the [FCA Act] on behalf of Group Members constitutes the institution of an action by Group Members for the purposes of section 44 of the Limitation Act (NT).
3. The nature and scope of the respondent’s vicarious liability for conduct of commissioners, superintendents and members of staff as pleaded in paragraphs 9, 10 and 11 of the [2FASC].
4. Whether the common law of Australia recognises the existence of residual liberty of persons who are otherwise lawfully detained on remand or under sentence of a court.
5. The nature and scope of the residual liberty, if any, of detainees in youth detention centres within the meaning of the Act (youth detention centre).
6. Whether isolation of detainees, within a youth detention centre contrary to s 53(5) of the Act, infringes the residual liberty of a detainee.
7. [Deleted]
8. The extent to which the use of force or threat of the use of force to the person of a detainee not specifically authorised by the Act infringes residual liberty or is otherwise tortious conduct.
9. [Deleted]
10. The limits to the use of restraints under the Act before 1 August 2016.
11. Whether regulation 73 of the Youth Justice Regulations (NT) (Regulations) is inconsistent with section 161 of the Act.
12. Whether a search of a detainee conducted in purported compliance with regulation 73 of the Regulations (but not in terms authorised by section 161 of the Act) can constitute an assault and/or battery of the detainee.
13. The appropriate measure of damages for false imprisonment infringing the residual liberty of persons under the age of 18.
14. Whether the young age of a person subjected to deprivation of residual liberty is an aggravating factor.
15. Whether the conduct alleged in paragraphs 78 to 80 of the 2FASOC occurred.
16. Whether the conduct alleged in paragraphs 78 to 80 of the 2FASOC was based on race within the meaning of s 9(1) of the RDA.
17. Whether non-Aboriginal detainees of youth detention centres suffered unlawful discrimination based on race in breach of s 9(1) of the [RD Act] in the circumstances alleged in paragraphs 78 to 83 of the 2FASOC.
18. Whether the conduct alleged in paragraphs 78 to 80 of the 2FASOC had the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the human rights or fundamental freedoms of Aboriginal and non-Aboriginal Group Members alleged in paragraph 83 of the 2FASOC.
19. Whether damages are available under s 46PO(4)(d) of the AHRC Act as compensation for losses constituted by the impairment of the applicants’ and Group Members’ enjoyment of the Human Rights and fundamental freedoms described in paragraph 83 of the 2FASOC.
49 Of these 17 separate questions, the Applicants relied at the hearing on only Questions 1 and 2 which relate to the operation of s 44 of the Limitation Act, Question 3 regarding the Territory’s alleged vicarious liability, and Questions 16, 18 and 19. Counsel for the Applicants conceded that Question 4 (and in effect Questions 5, 6, 8 and 14) did not raise a question common to all claims. He also conceded that Question 11 (and in effect Question 12) did not raise such a question given that the 2FASC did not plead that all Group Members had been subjected to a search in breach of s 161 of the YJ Act.
Questions 1 and 2
50 Questions 1 and 2 concern s 44 of the Limitation Act which empowers a court to extend the time fixed by that Act or any other Northern Territory Act for (relevantly) the institution of an action. It will be pertinent in this case because s 215(4) of the YJ Act as in force before 8 September 2014, and s 215B of the YJ Act as in force from 9 September 2014, provide for a six month limitation period.
51 Paragraphs [69]-[72] of the 2FASC are relevant to Questions 1 and 2. In [69] and [70], the Applicants plead:
[69] If necessary, which is not admitted, the first applicant seeks on his own behalf and on behalf of Group Members, pursuant to section 44(1) of the Limitation Act (NT), an extension of the time for instituting this action otherwise limited by s 215(4) of the Act, in force until 8 September 2014.
[70] Additionally or alternatively, if necessary, which is not admitted, the first applicant seeks on his own behalf and on behalf of Group Members, pursuant to section 44(1) of the Limitation Act (NT), an extension of the time for instituting this action otherwise limited by s 215B of the Act.
52 It is not necessary to set out [71] and [72] separately because in those paragraphs, the Second Applicant makes the same claims as had the First Applicant in [69] and [70].
53 There is a question as to whether s 44 of the Limitations Act can apply in respect of the limitation period fixed by s 215(4) of the Limitation Act as in force until 8 September 2014. That question arises by reason of s 5 of the Limitations Act:
This Act does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to s 3.
54 The YJ Act is not an enactment listed in s 3. Read literally, this could be taken to mean that the power to extend time contained in s 44 of the Limitations Act is not available in respect of actions to which the limitation period fixed by the YJ Act applies. However, there is a settled line of authority in the Northern Territory to the effect that the subject matter of s 5 is the preservation of special limitation periods prescribed by enactments other than those to which s 3 refers and that it does not have the effect of excluding courts exercising the power under s 44 to extend the time fixed by a special act. These include the decisions of the Full Court of the Supreme Court of the Northern Territory in Vershuuren v Toms’ Tyres Corporation Ltd (1992) 86 NTR 1 at 7-8; Drover v Northern Territory of Australia [2004] NTCA 11; and Johnson v Northern Territory of Australia [2014] NTSC 18. Those decisions do not of course bind this Court but, having regard to usual principles, this Court would depart from them only if satisfied that they were clearly wrong. The Territory did not foreshadow any submission to that effect. In these circumstances, it was unsurprising that counsel for the Applicants did not contend that the question of the operation of s 5 of the Limitations Act in this case in relation to the six month limitation period fixed by the YJ Act gave rise to a “substantial” common question of law.
55 Further, and in any event, the possible significance of s 5 does not arise under s 215B of the YJ Act as subs (2) of that provision provides expressly that subs (1) does not prevent a court exercising jurisdiction under s 44 of the Limitation Act.
56 There is, however, a fundamental reason why s 44 does not give rise to a substantial common question. In Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd [2017] FCA 14, Griffiths J held that the commencement of proceedings under Pt IVA of the FCA Act on behalf of group members constituted the institution of an action by the group members for the purposes of s 44. Accordingly, not all Group Members will require an extension of time. Those who complain of conduct occurring in the six months before 23 December 2016, will be regarded as having instituted their actions within time. The issues concerning the application of s 44 will not concern these Group Members.
57 That being so, Questions 1 and 2 cannot be regarded as giving rise to a substantial common question.
Question 3
58 The Territory accepted that Question 3 is common to all Group Members. It submitted nevertheless that the question did not satisfy the requirements of s 33C(1), having regard to the following:
(a) the question is solely a question of law;
(b) the answer to the question of law may be found in Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 (PAC Inc v ADC);
(c) absent a contextual foundation, the question is abstract and unreal;
(d) absent a denial by the Respondent of vicarious liability, the question is not in issue.
59 Some of these matters may be disposed of shortly. As the Applicants’ counsel pointed out, satisfaction of s 33C is a threshold requirement which is not dependent on the attitude which a respondent might take in its pleading. A respondent’s admission of an issue which is both common and substantial does not foreclose the existence of the issue, although in some circumstances it may bear upon the issues which arise under s 33N. If the Territory admits its vicarious liability in respect of the claims of the Group Members, then the common issue which it accepts exists will have been resolved. If it denies vicarious liability, the common issue will remain to be resolved. On either approach, the threshold requirement would have been satisfied.
60 The circumstance that the question is one of law rather than fact does not preclude the question from satisfying the requirements of s 33C(1)(c).
61 It is doubtful that the decision in PAC Inc v ADC provides the complete “answer” to the question of law. That decision concerned (relevantly) the vicarious liability of a school for the sexual abuse of a 12 year old boarder by one of its employed housemasters. The High Court reviewed the authorities bearing upon the existence of vicarious liability in cases of that kind and gave guidance as to the approach to be adopted in its determination:
[81] Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
(Emphasis added)
62 As can be seen, the High Court identified “the relevant approach” to be adopted in cases of the kind then under consideration, namely, the sexual abuse of children entrusted to an employee’s care or supervision. The present claim is not of that kind. No doubt the approach suggested in PAC Inc v ADC will be of considerable assistance in the present proceedings but, contrary to the Territory’s submission, I do not think that it should be held at this stage that the approach will be decisive. There are some obvious differences between the conduct in question in PAC Inc v ADC and the present. In particular, the conduct in question in these proceedings does not turn on the employees’ ability “to achieve intimacy with the victim” , this being a matter which the High Court said may be “especially important” in determining whether the apparent performance of an employee’s role may be said to provide the “occasion” for the wrongful act.
63 The determination of the alleged vicarious liability of the Territory in the present proceedings is likely to involve the determination of issues common to all claims, if only of the principles to be applied and the matters pertinent to the existence or otherwise of the claimed vicarious liability.
64 So far, I have been speaking of vicarious liability in the common law. However, the issue of vicarious liability in the present proceedings in respect of any conduct found to infringe the RD Act will be governed by s 18A of that Act. Section 18A provides:
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
65 As can be seen, there are material differences between the statutory imposition of vicarious liability under s 18A, on the one hand, and the common law position, on the other. The decision of the High Court in PAC Inc v ADC does not address the former.
66 Section 18A may well give rise to some common questions. That is especially so given the pleading of “routine” conduct in [81] and [82] of the 2FASC. If conduct of that kind be established, the enquiry under s 18A(2) may relate to the conduct of the Territory in relation to the system or practice of officers and staff members rather than in relation to the acts of individual employees.
67 However, I am not willing to rest a finding that a common question arises on this basis. In the first place, s 18A(2) appears to be a matter of defence to be raised, if at all by the Territory. Secondly, as will be seen, I consider that the present pleading by the Applicants of the RD Act claims are flawed. The question of vicarious liability depends on those claims being viable and the shortcomings in the pleadings means that there is some doubt about that viability. That being so, I think it preferable to proceed on the basis that Question 3 does involve a substantial common question with respect to vicarious liability at common law. It may also do so in relation to vicarious liability under s 18A but that cannot be determined until the underlying pleading has been finalised.
Questions 16 and 18
68 In relation to Questions 16 and 18, the Applicants’ written outline of submissions articulate the common issue as being whether the alleged systemic (routine) conduct of the Territory’s officers and employees impaired the enjoyment by Group Members of any of the fundamental rights and freedoms pleaded in [83] of the 2FASC and, if so, which. This articulation involved a reasonably high degree of abstraction. The written submissions in support of the articulated common issue also involved a reasonably high level of generality:
The common nucleus of operative facts or legal issues is the operation of the [YJ Act] and the [RD Act]. The common course of conduct in relation to the [RD Act] alleged in paragraph [78] to [82] of the [2FASC] and the respondent’s vicarious liability for that alleged in paragraph 11 of the [2FASC] are sufficient to raise a substantial common issue.
(Emphasis added and citation omitted)
69 In his oral submissions, counsel for the Applicants articulated the common question in similar terms to those contained in the written outline. He submitted “the common question is to identify those human rights and fundamental freedoms enjoyed by detainees which were impaired by the impugned conduct”.
70 There are a number of aspects of the pleading in [78] to [83] of the 2FASC which may explain counsel’s confining of the common question in the manner just identified.
71 Counsel did not contend that Question 15 (whether the pleaded routine conduct had occurred) gave rise to a common question. There would have been a difficulty in sustaining a submission to that effect having regard to the diverse forms of conduct alleged. That diversity has the consequence that a finding that one form of conduct affecting one Group Member did occur and did infringe a human right of that Group Member would not be determinative of whether a different form of conduct affecting another Group Member infringed the same or a different human right of that Group Member. It is pertinent in this respect that the Applicants do not plead that all Group Members suffered from each of the forms of impugned conduct. A simple illustration is that the 2FASC does not contain an allegation that the First Applicant was deprived of food as a form of punishment, whereas this is said to be one of the kinds of conduct experienced by other Group Members.
72 The Applicants’ submissions seemed to attach considerable significance to the plea that the officers and employees had “routinely” engaged in the impugned conduct (2FASC [78]), and that the impugned conduct included “routine” breaches of restrictions imposed by the YJ Act and the Regulations and other specified obligations and standards (2FASC [79] and [80]). As I understand it, these pleas are to the effect that the officers and employees of the DCS had regularly or repeatedly, or as incidents of a course of conduct, engaged in the impugned conduct.
73 It could be said that the Court’s satisfaction that the officers and employees had engaged in the impugned conduct routinely may make it easier for the Court to accept the claims by each Group Member that the alleged conduct had occurred in his or her case. That is to say, the Court would then have a form of similar fact or tendency evidence of the kind to which s 97 of the Evidence Act 1995 (Cth) refers. However, if the pleas were confined to this purpose, there would still be a real question as to whether they raised a substantial common issue. That is because the very diversity of the alleged conduct, the range and numbers of the personnel involved, the number of locations at which the conduct is said to have occurred, and the range of restrictions or standards said to have been breached, would count against satisfaction that the impugned conduct had occurred in one set of circumstances being probative of the occurrence of conduct of a generally similar kind in other circumstances. Perhaps because of these considerations, the Applicants did not rely on reasoning of this kind.
74 The gist of the Applicants’ allegations in [78] to [83] of the 2FASC is that the officers and staff members of the DCS engaged in the routine use of force and other inappropriate conduct, thereby routinely breaching the YJ Act, the Regulations and particular Standards in a way which involved discrimination of the basis of race. The Applicants do not allege that the DCS officers and staff members treated Aboriginal Group Members differently from non-Aboriginal Group Members but instead that the whole cohort of Group Members was treated differently than would have been the case had it not been comprised overwhelmingly by Aboriginals.
75 The question of whether discrimination of this kind had occurred seemed to be raised by Questions 16 and 17, but counsel’s articulation of the common question did not rest on this. Instead, as noted, counsel confined the common question in effect to one aspect of the issue of discrimination, namely, whether the impugned conduct, if found to be based on race, had had the effect of impairing the Group Members’ enjoyment or exercise of any of the identified human rights or fundamental freedoms in the sense used in s 9(1) of the RD Act.
76 On my understanding, this would be an issue common to the claims of all Group Members only if all had experienced at least one of the impugned forms of conduct. The 2FASC does not contain any plea to that effect as the forms of conduct are pleaded in the alternative. That leaves open the possibility that some Group Members did not experience each form. I doubt in this respect that the allegation that the impugned conduct was “routine” can be understood as an allegation that each Group Member experienced each of the forms of conduct. Moreover, even if all did experience at least one form of the impugned conduct, there is no allegation that they experienced it to the same extent or that all were affected in the same way. That being so, it would be difficult to conclude that a determination that an impairment had occurred in one case would be binding in another. Perhaps the best that can be said is that the principles bearing upon the determination of impairment would be common.
77 I am not willing at this stage to find that a determination of principles in this context would involve a common question. That is because of the shortcomings in the form of the pleadings in [78] to [83] which will lead to them being struck out. That being so, there is uncertainty as to the very viability of the claim from which the common question is said to arise.
Question 19
78 This question raises the issue of whether damages are available under s 46PO(4)(d) of the AHRC Act as compensation for loses constituted by the impairment of the Applicants’ and Group Members’ enjoyment of the human rights and fundamental freedoms pleaded in [83] of the 2FASC.
79 Section 46PO of the AHRC Act provides (relevantly):
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
…
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
…
(5) In the case of a representative proceeding under Part IVA of the [FCA Act], subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the [FCA Act].
…
80 Two matters about s 46PO(4) may be noted. The first is that subs (d) refers to “damages by way of compensation for any loss or damage”. The second is that the enumerated matters are not exhaustive of the kinds of orders (including orders for the payment of damages) which may be made.
81 In relation to the RD Act claims, the Further Amended Originating Application indicates that the Applicants seek for themselves and for the Group Members “[t]he remedies under s 46PO of the [AHRC Act] set out under the heading ‘Remedies Sought’”. Paragraph [3] of those remedies is as follows:
The Applicants ask the Court for
…
3. Orders pursuant to s 46PO(4)(d) of the AHRC Act requiring the Respondent to pay to the Applicants and Group Members damages by way of compensation for any loss or damage suffered because of the conduct of the Respondent, including losses constituted by the impairment of the Applicants’ and Group Members’ enjoyment of the human rights and fundamental freedoms described in paragraph 84 [sic] of the 2FASOC.
(Emphasis added)
82 The 2FASC does not contain an articulation of the claim for damages on behalf of the Group Members in respect of the alleged breaches of s 9(1) of the RD Act. Instead, the 2FASC pleads in [102] that the claims of the Group Members will be “pleaded and particularised after an initial trial of the Applicants’ claims and the common issues.”
83 Despite the terms of [3] of the relief sought as quoted above, counsel for the Applicants submitted that there is an issue as to whether s 46PO(4), whether by subpara (d) or otherwise, permits an award of compensation for contraventions of s 9(1) which do not result in loss. He submitted that this was a common issue affecting the trial of all Group Members.
84 In support of this submission, counsel relied on passages in the judgment of Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457 in which her Honour adverted to the possibility that damages may be awarded for infringements of s 9 of the RD Act even though those infringements did not result in loss. The relevant passages are as follows:
[1625] The applicants did not seek orders other than the kind usually sought under s 46PO: that is, compensation for actual loss and damage proven to have been suffered by an individual. In that sense, the applicants’ case treated proof of non-economic or economic loss or damage as an integral element in securing an order for compensation under s 46PO(4).
[1626] In my opinion, it was possible for orders to be sought under s 46PO on a different basis. In his recent text on Damages and Human Rights (Hart Publishing, 2016), Jason Varuhas draws a distinction (see p 25) between what he calls the “vindicatory torts” (trespass to land or goods, battery, assault, false imprisonment, defamation) and the “compensatory torts” (negligence being the principal example he gives). In the former category, Varuhas contends, correctly in my respectful opinion, that what is being vindicated by an award of damages is the infringement of a right itself, rather than compensation for actual loss or damage. He refers (at p 54) to false imprisonment cases where compensation is expressed as given for loss of liberty itself: see, eg, R v Governor of Brockhill Prison; Ex parte Evans (No. 2) [1999] QB 1043 at 1060 (Lord Woolf MR). So too (although less frequently, he concedes) for assault, where the infringement of personal bodily integrity can lead to compensation: see, eg, Forde v Skinner (1830) 4 Car & P 239; 172 ER 687 (in which parish officers cut off a woman’s hair by force and without her consent); Loudon v Ryder [1953] 2 QB 202 (in which the defendant broke into the plaintiff’s flat and assaulted her); and Ms B v An NHS Hospital Trust [2002] EWHC 429 (in which the claimant was given invasive artificial ventilation without her consent, leading to declarations and a nominal award of damages). Trespass to land is, Varuhas contends, in the same category: damages are given for the interference with exclusive possession, whether or not damage is caused to the land: Plenty v Dillon [1991] HCA 5; 171 CLR 635 at 647. In Plenty at 654-55, Gaudron and McHugh JJ said:
True it is that the entry itself caused no damage to the appellant’s land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land. … The appellant is entitled to have his right of property vindicated by a substantial award of damages.
(Emphasis added.)
[1627] Eschewing any bright lines between human rights law as “public law” and torts as “private law”, Varuhas criticises developments in United Kingdom law which diminish the role and importance of damages in human rights cases. He criticises cases such as Anufrijeva v Southwark LBC [2003] EWCA Civ 1406; [2004] QB 1124 and R (Faulkner) v Secretary of State for Justice [2013] UKSC 47; [2013] 2 AC 254 which characterise damages as a remedy of last resort in human rights cases because “public law” remedies – bringing the breach of rights to an end for example – are the remedies which it is said should be given prominence. Varuhas instead contends that a “vindicatory” approach should be taken, by analogy with those torts which recognise the need to vindicate the importance of basic and fundamental rights by an award of damages for the infringement of the right itself.
[1628] It should be said at once that Varuhas’ text is concerned principally with human rights law in jurisdictions with bills of rights, whether statutory or constitutionally entrenched. It should also be said that, as the authorities to which I refer at [1613] demonstrate (Richardson in particular), it is not the case that damages for breaches of statutory equality rights (as a subset of human rights) are approached by Australian courts from any secondary perspective, as if monetary compensation is less important than other remedies. Quite the opposite. In that sense, Varuhas’ concerns may not be apparent in Australian cases. Further, Varuhas criticises courts in the United Kingdom for tying the “quantum of awards for non-pecuniary loss to Strasbourg levels of awards, which are far lower than domestic scales for equivalent losses” (at p 95). The case law of the European Court of Human Rights, to which Varuhas refers, is far less of an influence on Australia law.
[1629] However, his emphasis on the origins of many torts in the vindication of a fundamental right is not without significance for the grant of relief under statutory provisions such as s 46PO, especially read with prohibitions such as those in s 9. If s 9 is, as the authorities emphatically state, concerned with the protection of equality before the law, and concerned to prohibit the nullification or impairment of the enjoyment of human rights on an equal footing, then why would it not be the case that compensation could be ordered to vindicate such a right, without proof of actual damage? I do no more than ask the question, because in this case, the applicants have not sought to develop such an argument. Had they done so, interesting questions might have arisen about what compensation could be ordered for the first five contraventions of s 9 that I have found proven – including whether such orders could be made in a class action of this kind, equally in favour of each class member, where the right infringed was a community’s right to have policing services following a death in custody provided to that community in an independent and impartial way.
85 It may accepted that, as the authorities currently stand, the passages in Wotton identify a question which may have to be determined at some stage.
86 Counsel for the Territory submitted that Question 19 did not raise a common question because all the Court would determine in the case of the Applicants was whether the particular matters which they allege constituted an impairment of an enjoyment of a human right. He submitted that any such finding would be fact-based having regard to the circumstances of the Applicants and otherwise would be at such level of generality and not determinative of anything in relation to the claims by other Group Members.
87 I do not accept that submission. Of course, any award of damages would turn on the facts of an individual case. But to say that does not preclude the determination that an infringement of s 9(1) which is not productive of loss may, as a matter of principle, sound in damages and that s 46PO(4) permits an award of damages of that kind. Such a determination could be binding in relation to the claims of all Group Members.
88 For these reasons, I accept that Question 19 may give rise to a question of common application. However, again the existence of the question turns upon there being a pleading of viable RD Act claims. Given that I will uphold the Territory’s criticisms of the pleading of those claims, that stage has not yet been reached.
Summary on the questions of general application
89 In summary, I am satisfied that Question 3 gives rise to at least one substantial common issue. Question 1 does not involve such a question. Questions 16, 18 and 19 may do so, but that depends upon the Applicants being able to plead viable RD Act claims.
Section 33N of the FCA Act
90 Section 33N provides:
33N Order that proceeding not continue as representative proceeding where costs excessive etc.
(1) The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:
(a) the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
(b) all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or
(c) the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or
(d) it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.
(2) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court.
(3) Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just.
91 The Territory submits that, even if the Applicants have satisfied the s 33C(1) threshold requirements, the Court should nevertheless exercise the discretion under s 33N and order that the proceedings no longer continue under Pt IVA. It raises a number of matters in support of that submission, including:
(a) the litigation costs are likely to exceed those of individual proceedings by reason that, unless and until all claims by all Group Members are fully pleaded, it will be unable to make fully informed forensic choices in order to confine its own proof to essential evidence, limit the issues in dispute, make concessions or attempt to resolve matters extra-judicially;
(b) all of the relief sought by the Group Members can be obtained by means of separate proceedings, which could be heard together when practical and convenient to do so;
(c) the representative action will be inefficient and ineffective as the claim of each Group Member will depend on its own unique circumstances and the different rules in force in the various detention centres;
(d) it is otherwise inappropriate that the claims be pursued as a representative action when:
(i) the Group Members are or were minors and may be exposed to adverse determinations of liability and res judicata or estoppel if their claims are not properly advanced (citing Schanka v Employment National (Administration) Pty Ltd (No 2) [2001] FCA 1623; (2001) 114 FCR 379);
(ii) the Territory does not have a full pleading of claims by all Group Members and so does not know the manner in which the case is put against it and is therefore unable to make informed forensic choices to meet that case (citing Zhang at 405 (French J)).
92 As can be seen, these submissions reflected closely the terms of subs (a) to (d) of s 33N(1).
93 There is considerable scope for doubt about proposition (a), and it does not seem to pay due regard to efficiencies to be achieved by the determination of common questions. Nor do the submissions give due regard to the ability of the Court to put in place appropriate arrangements for the determination of individual claims once the common questions have been determined.
94 Further, on their face, the matters advanced by the Territory would be applicable in many representative actions brought pursuant to Pt IVA, and yet experience does not bear out its concerns.
95 However, I consider that it is not necessary to reach a final view about these submissions. That is because I consider that, in the circumstances that the Territory has not yet filed a defence, it would premature for the Court to determine that the proceeding not be permitted to continue as a representative action. The absence of a defence means that there has been no crystallisation of issues which the Court can assess in the context of s 33N.
96 In the ordinary course, the Territory would by now have filed a defence. However, when the Territory raised a challenge to the Court’s jurisdiction, I considered it appropriate, in accordance with the usual principles, for that question to be determined at the outset and before directions were made in respect of the filing of a defence. The Territory abandoned its challenge to jurisdiction only shortly before the present hearing but despite that change in circumstance, did not file a defence.
97 The significance of an application under s 33N being made before the filing of a defence was addressed by Lindgren J in his judgment in Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 at [18]:
The applications under s 33N were made at a procedurally early stage. Defences have not yet been filed. In substance, the applicant commenced a representative proceeding which ex hypothesi, the legislature intended she be entitled to commence because of the presence of substantial common issues of law and fact, yet the Court was immediately asked to accept that the proceeding would not provide an efficient and effective means of dealing with the claim of the Group Members. I do not mean to suggest that an application under s 33N at such an early stage of a properly commenced representative proceeding would always be premature: if there were an incompatibility or conflict between the representative party’s case and the cases of the represented parties … or if the only substantial common issue were one of law on which a decision in the case of one group member would bind the others, it may be thought not efficient or effective for the representative proceeding to continue. But ordinarily one would expect that, in an attempt to give effect to the legislative intention, a means will be sought, by case management techniques, to enable a representative proceeding to continue to the stage of resolution of the substantial common issues on the basis that after that stage is completed, an order under s 33N or directions under s 33Q will be made …
(Citations omitted)
98 In Guglielmin v Trescowthick (No 2), Mansfield J referred to and applied this passage, saying at [76]:
The defences are yet to be filed. When they are filed, the real issues between the parties may more readily emerge. The further management of this proceeding may include consideration of the creation of sub-groups within the claim group. It may include consideration of orders for the separate trial of issues. It may include directions that the issues of relevance be refined by reference to the circumstances of particular sub-groups or members of the claim group, as a preliminary step to considering how the hearing should progress.
99 I respectfully adopt that reasoning and consider that it is apposite presently. Further, like Mansfield J, I am conscious that an order under s 33N at this stage would effectively put a very large number of the Group Members out of Court. The Court should be cautious before adopting such a step.
100 Accordingly, the Territory’s application under s 33N is refused. Given the basis for the refusal, I am not minded on my present understanding, to make an order under s 33N(2) but will hear from the parties on that question.
The cross-vesting application
101 The third application of the Territory is for an order that these proceedings be transferred, pursuant to s 5(4) of the Cross-vesting Act, to the Supreme Court of the Northern Territory.
102 Ms Pikoulos, a lawyer employed by the Solicitor for the Northern Territory, has deposed to the existence of six actions in the Supreme Court brought by or on behalf of youth detainees seeking damages in respect of conduct said to have occurred while they were in detention. In four proceedings, the plaintiffs identified as “LO”, “EA”, “KW” and “JB”, made allegations of assault and battery while they were detained at the Don Dale Youth Detention Centre (DDDC). Their claims included allegations of:
(a) the deployment of CS gas on 21 August 2014;
(b) the use of handcuffs, ankle shackles and spit hoods in August 2014;
(c) physical violence by youth justice officers in the period between August 2014 and April 2015.
The majority of the allegations arose out of an incident which occurred at the DDDC on 21 August 2014 and its aftermath.
103 The four proceedings brought by LO, EA, KW and JB were tried together in the Supreme Court of the Northern Territory between 26 September 2016 and 18 October 2016. Judgment was delivered on 21 March 2017: LO v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 (LO v NT).
104 The plaintiffs in the remaining two proceedings are Dylan Voller and Levi Aldenhoven as litigation guardian for Jake Roper. They make allegations of false imprisonment, assault and battery of a generally similar kind to those made by the four plaintiffs in the earlier proceedings. Those matters have not yet come to trial.
105 The Territory sought the transfer of the proceedings to the Supreme Court of the Northern Territory for the following reasons:
(a) the present action is related to the matter of Dylan Voller (and, although the Territory did not rely on it specifically, the claim of Jake Roper);
(b) the issues for determination involve principally questions as to the application of Northern Territory laws;
(c) there has already been one determination of related matters in the Supreme Court and it is in the interests of justice that these claims be heard in the same forum;
(d) the effect of s 4 of the Cross-vesting Act is that the Supreme Court of the Northern Territory has jurisdiction to hear and determine the claims brought pursuant to s 46PO of the AHRC Act, that is, the jurisdiction of this Court with respect to such claims is not exclusive.
106 The Supreme Court Act of the Northern Territory does not have an equivalent of Pt IVA of the FCA Act. Order 18 of the Supreme Court of the Northern Territory Rules does provide for the bringing of representative proceedings, but only when numerous persons have the “same interest” in a proceeding. The regime contemplated by Order 18 is not as advantageous to members of a class as is Pt IVA of the FCA Act. Accordingly, an order for transfer would mean that the Applicants and the Group Members would lose the procedural advantages provided by the regime in Pt IVA. Such a consequence would not be in the interests of justice. I respectfully agree with the reasoning of Hollingworth J in relation to an issue of this kind in Hall v Australian Finance Direct Ltd [2005] VSC 306 at [76]-[94]. The circumstance that the proceedings will involve the interpretation of laws of the Northern Territory and that some individuals have commenced proceedings the Supreme Court of the Northern Territory does not alter the locus of the interests of justice. Nor does the fact that the Supreme Court has already determined in one judgment that claim of four individuals in relation to specified incidents have that effect. I note that counsel for the Territory was unable to identify any particular procedural efficiency or other matter indicating that advantages of efficiency or economy would be obtained if the proceedings are transferred to the Supreme Court.
107 Accordingly, I decline this aspect of the Territory’s application.
The striking out of pleadings
108 By [4] of its Further Amended Interlocutory Application, the Territory sought, in the alternative to the orders sought under ss 33C(1) and 33N(1), orders pursuant to r 16.21 of the FCR striking out particular paragraphs of the 2FASC. They are [49], [63], [69] to [70] and [78] to [83]. The Territory contended that these pleadings are evasive or ambiguous (subr (1)(c)), likely to cause prejudice, embarrassment or delay in the proceeding (subr (1)(d)), and/or fail to disclose a reasonable cause of action (subr (1)(e)). In relation to [78] to [83] of the 2FASC, the Territory seeks the striking out for an additional reason, namely, the failure of the 2FASC to meet the requirements of r 16.41 that a statement of claim provide the necessary particulars of each of its pleaded claims.
109 The Territory’s strike out application was made relatively belatedly and was included in the Amended Interlocutory Application by a grant of leave at the hearing.
110 The principles relating to the application of rr 16.21 and 16.41 are settled and need not be rehearsed in these reasons. Some matters bearing upon the application of those principles in the context of Pt IVA proceedings were addressed by Sackville J in Philip Morris at [129]-[137]. His Honour’s reasons have has been approved in a number of subsequent cases, including Williams v FAI Home Security Pty Ltd (No 2) [2000] FCA 726 at [15]-[16]; Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2001] FCA 1073 at [7]; Peter Hanne & Associates Pty Ltd v Village Life Limited [2008] FCA 719 at [40]-[42].
111 The propositions identified by Sackville J can be summarised as follows:
(a) Part IVA does not abrogate the general pleading requirements applicable to proceedings in this Court and an inadequately pleaded representative proceeding may be struck out or dismissed;
(b) in contrast to a failure to satisfy the threshold requirements specified in s 33C(1), inadequacies in the pleadings do not necessarily mean that the proceeding cannot continue as a representative action. Whether they have that effect will depend on their nature and whether they are curable by amendment or may be addressed through other case management techniques;
(c) the fact that the ordinary rules of pleadings apply to Pt IVA proceedings does not mean that applicants in such proceedings are bound to plead material facts specific to each group member;
(d) regard should be had to the principal functions of pleadings, namely, to provide a statement of the case sufficient to allow the opposing party a fair opportunity to meet it, to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial, and to enable the opposing party to understand and assess the pleaded case for the purposes of settling the litigation. The extent of the pleading necessary to satisfy these requirements depends on the general subject matter of the proceedings and on what is required to convey to the opposite party the case which it must meet;
(e) in the context of Pt IVA proceedings, these purposes may be achieved by the pleading of the case of each class member at a reasonably high level of generality. If the rules of pleading do not permit this degree of flexibility, serious inroads will be made into the utility of the procedure established by Pt IVA;
(f) whether the pleading of the claims of group members at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached.
112 As can be seen, these principles concern mainly the pleading of the claims of group members. The position is different in respect of the pleading of an applicant’s own claims. There is no reason why the pleading of those claims should not comply with the Court’s pleading requirements: Peter Hanne & Associates at [41]. Even with respect to the claims of group members, the level of generality should not be so great that a respondent cannot reasonably be expected to know, with some precision, the case which it is to meet: Peter Hanne & Associates at [42]; Williams v FAI Home Security (No 2) at [16].
Paragraphs 49 and 63 of the 2FASC
113 Paragraph [49] of the 2FASC which contains the pleading of the First Applicant’s allegations of assault, battery and false imprisonment has been set out earlier in these reasons. Paragraph [63] is the counterpart pleading in relation to the Second Applicant and, subject to one matter to be mentioned shortly, is not relevantly different.
114 The Territory submitted that [49] is embarrassing in that it pleads the occurrence of three distinct torts on multiple unspecified occasions in a rolled up way. The provided particulars do not distinguish between the allegations of assault, battery and false imprisonment with the consequence that there is uncertainty as to which cause of action applies to which particular and in what respects.
115 In my view, these complaints about the adequacy of the pleadings are well made and should be upheld. The matters pleaded in [49] seem to extend beyond the particular matters pleaded in [42] to [48]. The shortcomings in the pleadings are not made good by the allegations in [36] to [38] of conduct which “would” constitute wrongful imprisonment, battery or assault, as the case may be.
116 There are other problems with [49]. While it may be understandable that the First Applicant is unable to provide particulars of the dates or occasions upon which the alleged false imprisonment occurred at least until after discovery, he has not provided any other particulars such as the place or places or occasions on which the alleged false imprisonment occurred, nor has he pleaded any material fact to support the allegation that the keeping in isolation constituted a form of false imprisonment. Particulars of this kind would seem to be necessary having regard to s 153(5) of the YJ Act, which provides:
If the superintendent is of the opinion that a detainee should be isolated from other detainees:
(a) to protect the safety of another person; or
(b) for the good order or security of the detention centre,
the superintendent may isolate the detainee for a period not exceeding 24 hours or, with the approval of the Commissioner, not exceeding 72 hours.
117 Paragraph [49.3] alleges that on several occasions (again without any form of particularity) that the First Applicant was subjected to strip searches “otherwise than in accordance with s 161 of the Act”. The First Applicant does not plead any material facts concerning the manner in which the strip searches are said to have been otherwise than in accordance with s 161. The manner of pleading in [49.3] implies that the occasions on which the First Applicant was subjected to strip searches otherwise than in accordance with s 161 of the YJ Act were a subset of the overall occasions on which he was subjected to strip searches. If that be so, the First Applicant should be able to provide some particularity now of his claim that some of the strip searches did not comply with s 161.
118 I am not overlooking that [49.4] provides that further particulars may be provided following discovery and/or interrogatories. The deferral of particulars until after discovery will often be appropriate when applicants do not themselves have the necessary information and it is reasonable to suppose that the respondent will. However, it is ordinarily to be expected that, before a respondent is ordered to make discovery, applicants should provide particularly of their allegations to the extent that they are able. The extent of the discovery to be provided by a respondent is to be defined by reference to the pleadings. General discovery is not required. In particular, subject to any contrary order, discovery in this Court is defined to documents which are directly relevant to an issue defined by the pleadings. On my assessment, the pleading of the First Applicant in [49] does not meet the minimum standard or precision necessary to define an issue in respect of which discovery should be ordered.
119 It is not necessary to address the Territory’s remaining critique of [49]. I am satisfied that it should be struck out.
120 The identified shortcomings affecting [49] also affect [63] in relation to the claim of the Second Applicant. In addition, [63.4(b)] alleges conduct not authorised by the YJ Act and the Regulations by reason of non-compliance with “the Emergency Management Protocol”. There is no pleading of particulars of the non-compliance the protocol alleged.
121 Paragraph [63] will also be struck out.
Paragraphs 69 to 72 of the 2FASC
122 Paragraph [69] and [70] are set out earlier in these reasons. Paragraphs [71] and [72] are the counterpart pleadings made by the Second Applicant. Together, they concern the claims made by the Applicants for extensions of time under s 44 of the Limitation Act.
123 The Territory noted that s 44(3) makes the grant of extensions of time conditional upon the Court’s satisfaction that an applicant has ascertained facts material to his or her case within the period of 12 months prior to the institution of the action and that it is just in the circumstances for the extension to be granted and that [69] to [72] do not plead any material facts said to have been ascertained by the Applicants.
124 This particular submission of the Territory is based on a misunderstanding of the effect of s 44. The limitation imposed by s 44(3) on a court’s power to extend time applies only to limitation periods fixed by the Limitation Act itself. Those limitations will not apply in this case because the relevant limitation period is fixed by the YJ Act. Accordingly, there is no necessity for the Applicants to plead “facts material”.
Paragraphs 78 to 83 of the 2FASC
125 Paragraphs [78] to [80] are set out earlier in these reasons. Paragraph [82] pleads that the conduct alleged in [78] to [80] affected Aboriginal and non-Aboriginal Group Members equally “but would not have occurred had the overwhelming majority of children in youth detention centres not been Aboriginal”. Paragraph [83] alleges that the “distinctions, exclusions and restrictions based on race” pleaded in [78] to [81] had the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights or fundamental freedoms recognised in the ICERD, the ICCPR and the CROC.
126 The allegations in 2FASC [78] to [83] can be summarised in the following way. Throughout the period between 1 August 2006 and 23 December 2016, officers and staff members in detention centres subjected Group Members routinely to specified forms of conduct; those specified forms of conduct “included” breaches of obligations and restrictions which were applicable under the YJ Act, Regulations and of relevant Standards, and involved distinctions based on race which had the effect of impairing the Group Members’ enjoyment or exercise of specified human rights or fundamental freedoms. More succinctly still, the allegation is that, over a period of approximately 10 years, Group Members were subjected, while in detention, to unauthorised forms of conduct which were based on race and which infringed their fundamental human rights.
127 Counsel for the Territory characterised some of the pleas in [78] to [83] as “being extraordinarily broad and general”. I agree that that is a fair characterisation of the pleadings. Numerous matters indicate that that is so. Paragraph [78.1] does not contain any particularisation of the force, restraint, searches or isolation pleaded, let alone particularisation of the allegations that those diverse forms of conduct were “excessive, unreasonable, unnecessary, inappropriate and/or unlawful”. There is no particularisation of the allegations in [78.2] that Group Members were routinely accommodated in “substandard conditions”. There is no particularisation of the provisions in the YJ Act or the Regulations or the Standards which are said to have been breached routinely in the manner specified in [79.1] to [79.5]. Paragraph [80] leaves uncertain whether it is an allegation in respect of all Superintendents of all detention centres. There is no pleading of facts capable of supporting a conclusion that the conduct of the officers and employees in the detention centres would have been different had the overwhelming majority of children in youth detention centre not been Aboriginal. The absence of such a pleading is especially stark given the express pleading in [82] that the impugned conduct affected Aboriginal and non-Aboriginal Group Members equally.
128 The Applicants submitted that the pleading of [78] to [83] conforms with s 9(1) of the RD Act and with the requirements of s 46PO of the AHRC Act. However, neither of those provisions concerns the content of pleadings. That subject matter is governed by the FCR.
129 As already noted, it may be permissible for the claims of Group Members to be pleaded at a high level of generality. The Applicants emphasised this in relation to [78] to [83] of the 2FASC. If the pleading in those paragraphs had concerned only the claims of Group Members, there may have been some force in this submission. However, it is apparent that the pleas in these paragraphs are critical to the RD Act claims of the Applicants themselves and not just to the individual claims of other Group Members. Further, the allegations of systemic or routine conduct of a kind which would not have been engaged in had the detainees not been Aboriginal is akin to an allegation of institutional racial discrimination. Such an allegation is particularly serious and, if pursued, is likely to be the subject of extensive forensic endeavour. That being so, a proper pleading is especially necessary. At this stage, apart from the allegations that, at all relevant times approximately 90% of the children in youth detention centres were Aboriginal, the Applicants’ allegations do not rise above a bare unparticularised assertion that discrimination on race has occurred. Such a pleading is inadequate.
130 For these reasons, I consider that [78] to [83] should struck out.
Opportunity to re-plead
131 The 2FASC is the fourth version of the Statement of Claim filed by the Applicants. The first amended form is not significant for present purposes because the amendments it made were of a limited kind. It is, however, the fact that the Applicants have had the opportunity to reflect on their pleadings and to put them in appropriate form.
132 Nevertheless, I am satisfied that the Applicants should have the opportunity to re-plead. As already noted, the challenge by the Territory to the adequacy of the pleading was raised only belatedly and the Applicants did not have the opportunity before the hearing to consider amending of the pleadings in the light of the Territory’s critique. I do not think it should be held, in these circumstances, that there is no prospect of the Applicants producing an acceptable pleading. Leave to amend will be granted.
The Application to Intervene
133 By an interlocutory application filed on 1 May 2017, the four individuals whose claim was the subject of the decision in LO v NT, seek leave, pursuant to r 9.12 of the FCR, to intervene in the proceedings for the purpose of seeking:
(a) an order amending the definition of the Group Members to include them as Group Members; and
(b) an order amending the claims brought in the proceedings to include their claims, other than those claims which were determined by the judgment in LO v NT.
134 The background to the application is this. The four individuals were within the description of the Group Members when the proceedings were first filed on 23 December 2016. On 8 March 2017, I granted the Applicants leave to amend the proceedings so as to exclude the six individuals (including the four prospective intervenors) who had commenced their own proceedings in the Supreme Court of the Northern Territory. The parties to the proceedings now recognise that the claims pursued by the four prospective intervenors in the Supreme Court were more confined than the claims in the present action. That being so, the prospective intervenors seek the orders outlined earlier.
135 Neither the Applicants nor the Territory oppose the application to intervene and, if intervention is granted, the orders sought by the intervenors. Subject to one matter, leave to intervene will therefore be granted, pursuant to r 9.12 of the FCR. The qualification is that the intervenors must be identified properly to the Court. At the moment the Court has been provided with some identifying letters only. These letters may continue to be used provided that the identity of the persons to whom they relate has been otherwise provided.
136 Having granted the intervention, I will also order, on the intervenors’ application, that the Further Amended Originating Application and the 2FASC be amended in the way they propose. Those amendments are to be effected by the filing and service by the Applicants of amended documents at the same time as their exercise (if that occurs) of the leave to amend the 2FASC to which I referred earlier.
Summary
137 In summary, for the reasons given above, the applications by the Territory for orders pursuant to ss 33C(1) and 33N(1) of the FCA Act are refused, as is the Territory’s application for the transfer of the proceedings to the Supreme Court of the Northern Territory. The application by the Territory for the striking out of paragraphs [49], [63] and [78] to [82] inclusive of the 2FASC is allowed and those paragraphs are struck out. The application by the Territory for the striking out of paragraphs [69] to [72] is refused. The Applicants have leave to file and serve a Third Amended Statement of Claim with that leave to be exercised by 27 November 2017. Subject to the proper identification of the prospective intervenors, the intervention sought by the interlocutory application filed on 1 May 2017 is allowed, and the Further Amended Originating Application and the 2FASC are to be amended in the manner they propose.
138 I will hear the parties as to costs and as to consequential matters, including the question of whether any order should be made pursuant to ss 33N(2) of the FCA Act.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. |
