Federal Court of Australia

Campbell v Northern Territory of Australia [2022] FCAFC 37

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Leave to rely on the notice of contention be refused.

3.    The appellant pay the respondents’ costs of and in connection with the appeal as agreed or taxed.

4.    The first respondent pay the appellant’s costs of and in connection with the proposed notice of contention as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Issues in the appeal

1    The primary judge rejected the appellant’s claims that while a youth detainee held in detention in 2011 and 2012 he was falsely imprisoned by the second respondent in this appeal: Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089. The appeal against the primary judge’s order dismissing the claims involves three issues.

2    The first is an issue of construction involving the operation of the Youth Justice Act 2005 (NT) and the Youth Justice Regulations 2006 (NT), specifically whether the limitation in reg 72(1) of the Youth Justice Regulations (a “detainee must not be isolated in a cell except under section 153(5) of the Act”) applies to a detainee who has been temporarily transferred to a prison under s 154 of the Youth Justice Act. The appellant contends that the limitation in reg 72(1) continues to apply and the respondents contend that it does not. The primary judge decided this issue in the respondents’ favour. As a result, the primary judge dismissed the appellant’s claim for false imprisonment while he was isolated in a cell in the Darwin Correctional Centre between 28 December 2011 and 2 January 2012, after a temporary transfer of the appellant from the Don Dale Youth Detention Centre to the Darwin Correctional Centre under s 154 of the Youth Justice Act. We consider the primary judge was correct in his resolution of the construction issue.

3    The second is an issue of law concerning the operation of the limitation period in s 215B of the Youth Justice Act. The appellant contends that the limitation period in s 215B does not apply to his claims. The respondents contend that if the appellant is correct in respect of the first issue, then the limitation period in s 215B applies to prevent the appellant from making his claims. The primary judge decided this issue in the respondents’ favour. We consider the primary judge was correct in his resolution of the second issue.

4    The third issue is raised by the first respondent by a notice of contention and requires leave. The first respondent contends that the appellant is precluded from continuing this appeal by cl 7.3 of a settlement deed, which was approved on 15 December 2021, settling representative proceedings after the primary judge dismissed the appellant’s claims (on 9 September 2021) and after the filing of the notice of appeal by the appellant (27 September 2021), and by operation of the doctrine of merger as a result of the Court’s orders approving the settlement in Jenkings v Northern Territory of Australia (No 5) [2021] FCA 1585. We consider that this issue does not properly arise in the appeal and leave to file the notice of contention raising (or purporting to raise) the issue should be refused.

5    For these reasons, the appeal must be dismissed. The appellant should pay the respondents’ costs of the appeal. Leave to rely upon the notice of contention should be refused. The first respondent should pay the appellant’s costs of the application for leave to file a notice of contention.

The construction issue

6    As noted, reg 72(1) of the Youth Justice Regulations provides that a detainee must not be isolated in a cell except under s 153(5) of the Act. Section 153(5) of the Youth Justice Act provides that if the superintendent of a detention centre is of the opinion that a detainee should be isolated from other detainees to protect the safety of another person or 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 Director of Correctional Services appointed under the Prisons (Correctional Services) Act 1950 (NT), not exceeding 72 hours.

7    Section 154(1) of the Youth Justice Act permits the superintendent of a detention centre to apply by telephone to a magistrate for approval to transfer a detainee if the superintendent is of the opinion that an emergency situation exists and a detainee should be temporarily transferred to a prison to protect the safety of another person. By s 154(2) this power is available only if the detainee is 15 years of age or older. Section 154(3) provides that if the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison. By s 154(7) the period of transfer of the detainee must not exceed 24 hours, but s 154(8) provides that the superintendent may apply to a magistrate for an extension of the period of transfer.

8    The appellant was a detainee at Don Dale. He, along with other detainees, was involved in a serious disturbance at Don Dale on 26 December 2011. The superintendent of the detention centre applied for, and a magistrate approved, an order for transfer of the appellant to a prison under s 154(1) and (3) of the Youth Justice Act, and subsequent extensions under s 154(8) for an extension of the period of transfer were granted. As a result, the appellant was transferred to the Darwin Correctional Centre between 28 December 2011 and 2 January 2012.

9    The primary judge decided that the conditions of the appellant’s detention at the Darwin Correctional Centre involved the appellant being isolated: [416]. As noted, however, the primary judge did not accept that s 153(5) of the Youth Justice Act or reg 72(1) of the Youth Justice Regulations applied to the appellant while he was transferred under s 154(1). Accordingly, the primary judge concluded that the isolation of the appellant was authorised under s 6(2) of the Prisons (Correctional Services) Act which, at the relevant time, provided that the Director had control of all prisons and the custody of all prisoners: [406]-[408].

10    In argument during the appeal the appellant accepted that in order to succeed on this issue we had to conclude that s 153(5) of the Youth Justice Act and reg 72(1) of the Youth Justice Regulations applied to the appellant while he was transferred to Darwin Correctional Centre. It was not sufficient for the appellant to persuade us that while he was transferred to Darwin Correctional Centre the appellant was not a “prisoner” within the meaning of s 6(2) of the Prisons (Correctional Services) Act. This concession was properly made, as the only case the appellant had made below was that his isolation while in the Darwin Correctional Centre contravened s 153(5) of the Youth Justice Act and reg 72(1) of the Youth Justice Regulations and was thereby unlawful. The appellant did not contend below that his isolation, while in the Darwin Correctional Centre, was otherwise unlawful under the Prisons (Correctional Services) Act. This said, the appellant’s contention that the appellant was not a “prisoner” under the Prisons (Correctional Services) Act was an integral part of the appellant’s argument as to the proper construction of s 153(5) of the Youth Justice Act and reg 72(1) of the Youth Justice Regulations both before the primary judge and on appeal.

11    The problem for the appellant is that the arguments on his behalf fail to confront the text, context and objects of the Youth Justice Act and the Youth Justice Regulations.

12    Starting with the text, the obvious issue is this. Section 153(5) of the Youth Justice Act (the power of the superintendent to isolate a detainee) is a specific extension of the function given to the superintendent in s 153(1) of that Act. The function in s 153(1) is for the superintendent to “maintain discipline at the detention centre” (emphasis added). Section 152(3), however, provides that the “powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre”. How does s 152(3) relate to s 153(5)? The short answer is that s 152(3) does not transform functions of the superintendent in relation to a detainee which on their proper construction are only exercisable at the detention centre into functions exercisable in relation to a detainee who is not at the detention centre.

13    The immediate textual and contextual indicators that s 153(5) and, thus, reg 72 involve a function exercisable in relation to a detainee only at the detention centre for which the superintendent is superintendent are that:

(1)    the power in s 153(5) is conditioned on the opinion of the superintendent who is, by operation of s 151 of the Youth Justice Act, the “superintendent for a detention centre” (emphasis added);

(2)    the substance of the required opinion is that “a detainee should be isolated from other detainees” (emphasis added);

(3)    to be isolated there must be a physical place of isolation to which the detainee may be taken;

(4)    the only place of isolation in respect of which the superintendent has functions under the Youth Justice Act is the detention centre for which the superintendent is the superintendent;

(5)    it follows that the function in s 153(5) of causing a detainee to be isolated necessarily involves a place of isolation at the detention centre;

(6)    this is supported by the fact that the isolation contemplated by s 154(5) is isolation from other detainees and not from, for example, other patients at a hospital or prison to which the detainee has been transferred;

(7)    other detainees will be at the detention centre unless themselves subject to an order or permission to be absent from the detention centre;

(8)    the proper construction of s 153(5) cannot depend on the mere happenstance that a detainee may be in a hospital or a prison where there are other detainees meaning that it might be theoretically possible for such a detainee to be isolated from these other detainees. Rather, it is necessary to recognise that s 153(5) assumes that the power in s 153(5) will be exercisable by a superintendent only in respect of a place within the detention centre for which the superintendent is superintendent;

(9)    accordingly, reg 72(1) of the Youth Justice Regulations, which must be read consistently with s 153(5), concerns the function of the superintendent under s 153(5) to cause a detainee to be isolated from other detainees at a place forming part of the detention centre; and

(10)    as a result, the constraint in reg 72(1) (a detainee must not be isolated in a cell except under s 153(5) of the Act) applies to the isolation of a detainee in a cell at the detention centre.

14    A more detailed consideration of the statutory scheme of the Youth Justice Act and the Youth Justice Regulations, confirms these conclusions.

15    The Youth Justice Act establishes a special regime for dealing with youths who have committed or are alleged to have committed offences: ss 3 and 4 of the Youth Justice Act.

16    A “youth” is a person under 18 years of age: s 6(1) of the Youth Justice Act.

17    Parts 1 and 2 of the Youth Justice Act contain special procedures for the investigation, apprehension, remand, arrest, interview, search, prosecution, charge, bail, and identification of any youth. Part 3 concerns the diversion of youth who are believed on reasonable grounds to have committed offences. Part 4 concerns the Youth Justice Court. Part 5 concerns Court proceedings involving a youth. Under s 65(1)(d) the Court may remand a youth in custody. By s 65(2) if a youth is remanded in custody, he or she can be detained in a detention centre or, if the youth has turned 15 years of age, in either a prison or detention centre as ordered by the Court. The Supreme Court has the same powers under s 82(1). Section 5(1) defines “detention centre” to mean a youth detention centre approved under s 148 of the Youth Justice Act and “prison” to have the meaning in the Prisons (Correctional Services) Act.

18    Part 6 of the Youth Justice Act involves the disposition of proceedings involving a youth. Under s 81(6) the Court must impose a sentence of detention or imprisonment on a youth only as a last resort, and a sentence of imprisonment only if there is no appropriate alternative. Section 83(1) involves sentencing options, which include detention or imprisonment under s 83(1)(i)-(l). By s 83(3) the Court must not order the imprisonment of a youth who is less than 15 years of age.

19    Part 8 of the Youth Justice Act concerns youth detention centres. By s 148 the “Minister may approve an establishment to be a youth detention centre for this Act”. By s 149(1) a “youth must not be admitted to a detention centre except in accordance with this Act”.

20    Under s 151(1) of the Youth Justice Act the Director must appoint an employee to be the superintendent for a detention centre. By s 151(2) the superintendent of a detention centre is responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre. Section 152(1) provides that the superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions. By s 152(3):

The powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre.

21    Section 153(1) of the Youth Justice Act provides that the superintendent of a detention centre must maintain discipline at the detention centre. Section 151(3) provides that:

The superintendent of a detention centre:

(a)    must promote programs to assist and organise activities of detainees to enhance their wellbeing; and

(b)    must encourage the social development and improvement of the welfare of detainees; and

(c)    must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise; and

(d)    is responsible for the maintenance and efficient conduct of the detention centre; and

(e)    must supervise the health of detainees, including the provision of medical treatment and, where necessary, authorise the removal of a detainee to a hospital for medical treatment.

22    Sections 153(5) and 154 of the Youth Justice Act have been identified above.

23    Section 155 provides that the superintendent of a detention centre may approve handcuffs or a similar device to restrain normal movement to be used when escorting a detainee outside the detention centre.

24    Section 157(1) of the Youth Justice Act provides that the superintendent of a detention centre may delegate in writing any of his or her powers and functions under the Youth Justice Act to a member of the staff of the detention centre or a person authorised by the Director for s 165(b). Section 165(b) provides that the superintendent of a detention centre may, subject to the order of the Court under which the detainee is detained, permit a detainee to be absent from a detention centre for any period for a purpose approved by the superintendent if in the custody and under the supervision of, amongst other people, a person authorised by the Director. Section 157(2) provides that a police officer or a prison officer within the meaning of the Prisons (Correctional Services) Act, if called upon by the superintendent of a detention centre to assist in an emergency situation or in preventing an emergency situation from arising, is taken to have been delegated the powers of the superintendent necessary to perform the superintendent's functions under s 151(3)(c).

25    By s 158(1) of the Youth Justice Act the superintendent of a detention centre must keep a register containing certain particulars in relation to every detainee in the detention centre to the extent the particulars are reasonably ascertainable by the superintendent. Section 158(2) provides that if a detainee is absent from the detention centre for a period without being discharged from custody, the register must also contain certain information in relation to the detainee including, among other things, “the name and address of the person in whose care and custody the detainee was placed for the period of the absence and that person's relationship (if any) to the detainee”.

26    Section 164 of the Youth Justice Act provides that, unless the Director directs to the contrary under s 164(4):

(1)    A detainee who turns 18 years of age while serving a sentence of detention, or on remand in custody, in a detention centre must, within 28 days after turning that age, be transferred to a prison to serve the remainder of the sentence or period of remand.

(2)    If a detainee is transferred to a prison under subsection (1), the order of the Court sentencing the youth to a period of detention in a detention centre is taken to be an order sentencing him or her to a term of imprisonment for the period remaining to be served under the order.

27    Under s 166 of the Youth Justice Act the superintendent of a detention centre may release a detainee from the detention centre earlier than the detainee is entitled to be released in certain circumstances but more than 48 hours earlier than he or she would be entitled to be released but for s 166.

28    Section 167(1) of the Youth Justice Act provides that the superintendent of a detention centre or a member of the staff of the centre may exercise the powers of a police officer to arrest and take into custody a detainee who has escaped from a detention centre.

29    Section 178 of the Youth Justice Act provides that the superintendent of a detention centre must move a detainee from the detention centre to a hospital, in the event of illness of the detainee, on the order of the Director, a medical practitioner, or the Court. Section 179 is in these terms:

(1)    This section applies if a detainee is moved to a hospital under section 151(3)(e) or 178.

(2)    The superintendent of the detention centre from which the detainee was moved must make the necessary arrangements with the person in charge of the hospital to ensure the security and good order of the detainee while the detainee is in hospital.

(3)    While in the hospital, the detainee remains in lawful detention for this Act.

(4)    If the detainee is discharged from the hospital and his or her sentence of detention has not expired, the detainee must be returned to the detention centre to serve the remainder of the sentence.

30    Part 5 of the Youth Justice Regulations concerns “Detention centres and detainees”. Regulation 29 contains definitions including:

member of staff, in relation to a detention centre, means a member of the staff of the detention centre; and

Superintendent, in relation to a detention centre, means the superintendent appointed under section 151(1) of the Act for the detention centre.

31    Under regs 30 and 31 of the Youth Justice Regulations the Director or Superintendent may make a determination in relation to any aspect of the management and operation of the detention centre, and determinations relating to conduct of detainees may be referred to as rules of the detention centre. Regulations 32 to 73 concern the management of the detention centre and detainees as admitted to the detention centre (but for reg 52 which relates to visits to a detainee while the detainee is in hospital). Regulation 72(1), identified above, is in Pt 5 of the Youth Justice Regulations. Regulation 72 as a whole is in these terms:

(1)    A detainee must not be isolated in a cell except under section 153(5) of the Act.

(2)    If a detainee is isolated:

(a)    the detainee must be continuously monitored by closed-circuit television or physical observation by a member of staff; and

(b)    written observations by a member of staff, including the date, time and name of the member of staff, must be recorded at intervals not exceeding 15 minutes.

(3)    The Superintendent must keep a journal recording:

(a)    the date and time a detainee is isolated; and

(b)    the name of the detainee; and

(c)    the reason why the detainee was isolated; and

(d)    the time the on-call person in charge was notified and that person's name; and

(e)    the observations of a member of staff at intervals not exceeding 15 minutes and the name of the member of staff making the observation; and

(f)    the date and time of exercise periods and ablutions; and

(g)    details of any approval by the Director for isolation exceeding 24 hours; and

(h)    the date and time the detainee is released from the isolation cell.

32    Regulation 73(1) of the Youth Justice Regulations provides that the Superintendent or a member of staff may search a detainee:

(a)    when the detainee is admitted to the detention centre; and

(b)    on the detainee temporarily leaving, and returning to, the detention centre; and

(c)    on the detainee being transferred from the detention centre to a prison or another detention centre; and

(d)    on other occasions, and in the manner, directed by the Superintendent as he or she considers necessary.

33    The following propositions are evident from the text of the Youth Justice Act and the Youth Justice Regulations.

34    A youth remanded in custody can be detained in a detention centre or a prison: ss 65(2) and 82(1). The two places are different: ss 5(1) and 148.

35    The fundamental responsibility of a superintendent of a detention centre relates to detainees in the detention centre: s 151(2). However, as the Youth Justice Act provides for the absence of a detainee from a detention centre in certain circumstances, s 152(3) also provides that the functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre.

36    The limited circumstances in which a detainee may be lawfully absent from a detention centre are: (a) removal of a detainee from a detention centre to a hospital for medical treatment under ss 151(3)(e) and 178(1), (b) absence of a detainee from a detention centre for any period for a purpose approved by the superintendent if in the custody and under the supervision of identified persons under s 165(b), and (c) temporary removal of a detainee from a detention centre to a prison under s 154.

37    As noted, if a detainee is removed from a detention centre to a hospital as provided for in ss 151(3)(e) and 178(1), then under s 179 the superintendent of the detention centre from which the detainee was moved must make the necessary arrangements with the person in charge of the hospital to ensure the security and good order of the detainee while the detainee is in hospital and while in the hospital, the detainee remains in lawful detention under the Youth Justice Act.

38    There is no equivalent provision in respect of absence from the detention centre under s 165(b) because that section involves absence of a detainee from the detention centre as approved by the superintendent if the detainee is in the custody and under the supervision of identified persons. Section 165(b) therefore assumes that the detainee remains in lawful custody and subject to supervision while absent from the detention centre under s 165(b).

39    The same assumptions are apparent in s 154 – that the detainee is in lawful custody if transferred to a prison and will be subject to the Director’s supervision while in the prison. This assumption informs the operation of s 154(3), which provides that if the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison. But for s 154(3) such a transfer would be unlawful.

40    The text of the Youth Justice Act supports the soundness of these assumptions given that:

(1)    the Director (who is the Director of Correctional Services appointed under the Prisons (Correctional Services) Act) appoints the superintendent for the detention centre: s 151(1);

(2)    the superintendent is required to report to and obtain the approval of the Director under various provisions of the Youth Justice Act and the Director otherwise has supervisory functions in respect of a detention centre, as to which see ss 153(5), 158(3), 160(4), 164(4), 165(b)(iv), 176(2), 177(2), and 180(1);

(3)    while s 152(3) provides that the powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre, the Youth Justice Act recognises the reality that the exercise of those powers and functions is subject to practical constraints;

(4)    accordingly, as a superintendent has no powers in respect of (for example) a hospital, s 179(2) requires the superintendent to make the necessary arrangements with the person in charge of the hospital to ensure the security and good order of the detainee while the detainee is in hospital; and

(5)    equally, the Youth Justice Act assumes both that the superintendent has no powers in respect of a prison and that the Director does have such powers, with the result that there is no requirement for a provision equivalent to s 179(2) for a detainee while they have been transferred to a prison under s 154. However, there is a requirement for an order of a court to authorise the transfer from the detention centre to a prison to ensure that the holding of the detainee in the prison by the Director it itself lawful.

41    Given these matters, the text of the Youth Justice Act supports the conclusion that s 153(5) applies only to an exercise of power by the superintendent to isolate a detainee from other detainees at the detention centre. Consistently with this, reg 72(1) of the Youth Justice Regulations also regulates an exercise of power by the superintendent to isolate a detainee from other detainees at the detention centre.

42    The context and objects of the Youth Justice Act reinforce this conclusion. The Youth Justice Act assumes the existence of the Prisons (Correctional Services) Act and the functions of the Director and a prison officer under that Act in respect of a prison. Nothing in the Youth Justice Act gives a superintendent or member of staff of a detention centre any functions in respect of a place which is a prison. Sections 152(3) and 153(5) are to be construed in that context.

43    As noted, by s 6(2) of the Prisons (Correctional Services) Act the Director has the control of all prisons and police prisons, and the custody of all prisoners, in the Territory. A prison is a place, premises or institution declared to be a prison under s 10(1). By s 10(2) prisons are to be used for the reception and safe keeping of prisoners or other persons who are otherwise detained in lawful custody. It follows that whether or not a detainee under the Youth Justice Act becomes a prisoner under the Prisons (Correctional Services) Act on transfer to a prison under s 154(1), the Director is responsible for the reception and safe keeping of the detainee under s 10(2).

44    The fact that the detainee remains a detainee during the period of transfer may be accepted. What must also be accepted, however, is that on a magistrate’s approval of a transfer to a prison s 154(3) operates so that the superintendent may arrange for the detainee to be transferred from the detention centre to a prison. By this means, a detainee becomes a person detained in lawful custody in a prison under the Prisons (Correctional Services) Act and subject to the control of the Director under s 6(2).

45    In any event, and contrary to the submissions for the appellant, we consider that a detainee also becomes a “prisoner” within the meaning of the Prisons (Correctional Services) Act on transfer to a prison under s 154(3) of the Youth Justice Act. This is because the definition of “prisoner” under s 5 of the Prisons (Correctional Services) Act means either a person committed or remanded by a court and in lawful custody or a person under a sentence of imprisonment. A youth sentenced to detention under s 83(1)(i), (k) or (l) of the Youth Justice Act is not “under a sentence of imprisonment” but, while detained in a detention centre, has been committed and is in lawful custody under the Youth Justice Act. On approval by a magistrate of transfer under s 154(3), the detainee also has been “committed and is in lawful custody” under the Prisons (Correctional Services) Act.

46    The word “committed” in the definition of “prisoner” in s 5 of the Prisons (Correctional Services) Act is not defined. While it may be accepted that the phrases “committed by a court … and in lawful custody” and “remanded by a court and in lawful custody” in that definition mean committed to and in lawful custody in a prison (as opposed to in a youth detention centre), it is clear from the alternative operation of the definition (or under a sentence of imprisonment) that “committed by a court…and in lawful custody” is not confined to a commitment by a court to a sentence of imprisonment. In context, to be “committed by a court…and in lawful custody” as referred to in the definition of “prisoner” in s 5 of the Prisons (Correctional Services) Act means only to be the subject of an order of the court authorising or requiring the detention in lawful custody of the person in a prison. In the present case, a magistrate ordered that the appellant be “confined separately at the Darwin Correction Centre” under s 154(3) of the Youth Justice Act.

47    This construction of the definition of “prisoner” in s 5 of the Prisons (Correctional Services) Act also accords with the operation of s 65(2) of the Youth Justice Act, which provides that a youth remanded in custody under s 65(1) may be detained in a detention centre or, if the youth has turned 15 years of age, in a prison. Such a youth, on entering lawful custody under the Prisons (Correctional Services) Act (a definition extended by s 11 of that Act), becomes a “prisoner” within the meaning of s 5 of that Act as a person “remanded by a court and in lawful custody”.

48    As discussed, it may be accepted that the detainee remains a detainee while a prisoner, but that is not the point. Legally and practically, for the duration of the transfer to a prison, the detainee is a prisoner and the responsibility of the Director.

49    This is not to say that s 152(3) of the Youth Justice Act (the powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre) necessarily ceases operation altogether on transfer of a detainee to a prison under s 154(1). But functions which, properly construed, are exercisable only while the detainee is at the detention centre, such as s 153(5), are not transformed by s 152(3) into functions exercisable other than at the detention centre.

50    The appellant’s arguments to the contrary are not sound. In particular:

(1)    s 24(1) of the Youth Justice Act concerns only the position of a youth charged with an offence who is not bailed. The relevant provisions for an order of the Court are ss 65(1)(d) and (2) (remand in custody) and ss 83(1)(i)-(l) (orders for detention which involve the youth being committed to detention);

(2)    the relevant point in Binsaris v Northern Territory [2020] HCA 22; (2020) 94 ALJR 664 for present purposes is that a detainee in a detention centre is not a “prisoner”: see [53], [87], [93], [95]. This follows as such a detainee is not a person subject to a sentence of imprisonment and is not held in lawful custody under the Prisons (Correctional Services) Act. However, the High Court was not called upon in Binsaris to consider the position of a detainee who has been transferred to a prison under s 154(1) of the Youth Justice Act and who, by operation of s 154(3), has been committed to a prison and is in lawful custody in the prison for the period of the transfer;

(3)    the fact that the appellant never ceased to be a detainee is immaterial. The appellant ceased to be a detainee in a detention centre and the functions of the superintendent under s 153(5), accordingly, were not available for so long as the appellant was in prison. As a result, reg 72(1) of the Youth Justice Regulations also had no application;

(4)    the function in s 153(5) of the Youth Justice Act is vested only in the superintendent of a detention centre. It follows that reg 72 of the Youth Justice Regulations concerns that function of the superintendent. For the reasons discussed, s 152(3) does not transform that function, exercisable only at the detention centre on the proper construction of s 153(5), into a function exercisable outside of the detention centre. It follows that reg 72 also does not apply outside of the detention centre;

(5)    the notion that this construction would permit the superintendent to isolate a detainee outside of a detention centre in contravention of reg 72 is misconceived. As Binsaris exposes, specific statutory power is required to do to a detainee what would otherwise be tortious conduct (see, in particular, Binsaris at [25] citing Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436). In other words, the construction we prefer does not permit evasion of the limits on the superintendent’s power; and

(6)    as noted, the appellant did not run any case to the effect that the isolation of the appellant at the Darwin Correctional Centre was not authorised by the Prisons (Correctional Services) Act and cannot (and did not seek to) do so on appeal.

51    For these reasons the first ground of appeal must be rejected.

The limitation issue

52    Given our conclusions above, the second ground of appeal, the limitation issue, does not arise in respect of the appellant’s isolation in the Darwin Correctional Centre between 28 December 2011 and 2 January 2012. The limitation issue only arises in respect of the appellant’s detention at Don Dale between 2 and 4 January 2012, which the primary judge held was unlawful at [471] but also held at [885] was statute barred by s 215B of the Youth Justice Act.

53    The competing arguments of the parties about the limitation issue, including whether s 215B is a procedural or substantive law and operates retrospectively or prospectively only, are unnecessarily complex.

54    The appellant commenced the proceeding on 26 May 2017. At that time s 215B(1) of the Youth Justice Act provided that civil proceedings “in relation to an act done or omitted to be done by a person under this Act must be started within 6 months after the act was done or omitted to be done”. Section 215B(2) provided that s 215B(1) does not prevent a court exercising its jurisdiction under s 44 of the Limitation Act 1981 (NT) (authorising a court to grant an extension of time in which to commence proceedings).

55    The acts done, which were the subject of the appellant’s claims had occurred in 2011 and 2012, more than 6 months before 26 May 2017. Accordingly, on the face of it, s 215B(1) applies and the appellant’s claims are statute barred.

56    The contrary position of the appellant, that as the appellant’s causes of action accrued in 2011 and 2012, the version of s 215B at that time (s 215(4)) continued to apply to the appellant’s claims but had not been pleaded, depends on an unsustainable approach to the operation of s 12 of Interpretation Act 1978 (NT). Section 12 provides that:

The repeal of an Act or part of an Act does not:

(a)    revive anything not in force or existing at the time at which the repeal takes effect;

(b)    affect the previous operation of the Act or the part of the Act so repealed, or anything duly done or suffered under the Act or the part of the Act so repealed;

(c)    affect a right, privilege, obligation or liability acquired, accrued or incurred under an Act or the part of the Act so repealed, or an investigation, legal proceeding or remedy in respect of that right, privilege, obligation or liability; or

(d)    affect a penalty, forfeiture or punishment incurred in respect of an offence against the Act or part of the Act so repealed, or an investigation, legal proceeding or remedy in respect of that penalty, forfeiture or punishment,

and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and a penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been made.

57    Section 12(c) is inapplicable because the appellant’s rights were not accrued under s 215(4) of the Youth Justice Act. The potentially relevant provision is s 12(b). The point of the appellant which is arguable is that the repeal of s 215(4) did not affect the “previous operation” of that provision, which was to bar the appellant’s claims from being brought more than six months after the acts the subject of the claims were done. The respondents, accordingly, had to plead s 215(4) and not s 215B, but had not done so (and the primary judge refused the respondents leave to do so).

58    A straightforward answer to this argument, however, is that s 215(4) had no “previous operation” as provided for in s 12(b). This is because s 215(4) said that “[n]o proceedings may be commenced in relation to an act done or omitted to be done by the person under this Act more than 6 months after the act was done or the omission occurred”. There was no “previous operation” of this provision before it was omitted from the Youth Justice Act and replaced with s 215B because the appellant did not commence proceedings in respect of any acts while s 215(4) remained in force. For this reason, s 12(b) (like s 12(c)) of the Interpretation Act is inapplicable. On this basis, s 14 of the Interpretation Act operated so that s 215(4) of the Youth Justice Act continued but only until the commencement date of s 215B on 9 September 2014.

59    As a result, s 215B applied to the proceeding when it was commenced. It is also clear that s 215B, on its own terms, applies to “civil proceedings” and not “causes of action accrued”. In the present case, the “civil proceedings” were started in 2017. Section 215B(1) applied to that proceedings as at the date that proceeding was started. It is not to the point that the appellant’s causes of actions may have accrued before the commencement of s 215B. Section 215B is not concerned with the date of the accrual of causes of actions but the date proceedings are started.

60    The only arguable issue about s 215B is whether it operates prospectively (from 9 September 2014 when it commenced) or retrospectively. The problem for the appellant is that the answer to this issue of construction is itself immaterial because if s 215B operates prospectively only the proceeding was commenced more than 6 months after 9 September 2014. The debate between the parties about the prospective or retrospective operation of s 215B is therefore moot on the facts of this case.

61    An alternative answer is that the legislation which omitted s 215(4) and inserted s 215B, the Correctional Services (Related and Consequential Amendments) Act 2014 (NT), did not “repeal” s 215(4). Rather, it operated to “omit” s 215(4) and to “insert” s 215B. On this basis, s 12(b) of the Interpretation Act would be inapplicable and s 215B again would operate according to its terms to any proceeding started after 9 September 2014.

62    For these reasons, the primary judge’s conclusion that the appellant’s claims in respect of his isolation in Don Dale from 2 to 4 January 2012 were barred by s 215B(1) of the Youth Justice Act was correct.

The settlement deed/merger issue

63    The settlement deed issue, as identified in the submissions for the appeal, is that (according to the first respondent) the appellant is bound by the settlement deed made on 28 May 2021 and approved by the Court in Jenkings on 15 December 2021. On 15 December 2021 the settlement deed operated to bind all Group Members (said to include the appellant). Clause 7.1 of the settlement deed provides that:

Subject to clause 7.2, upon any Approval Order becoming final in accordance with clause 2.1:

(a)    each of the Litigation Parties and each of the Group Members releases each other Party (other than the Applicants in the case of the releases given by Group Members) from all NT Youth Justice Class Action Claims and any other cause of action arising out of the facts which were the subject of the NT Youth Justice Class Action Claims;

(b)    the Litigation Parties and each of the Group Members agree that the releases provided for in clause 7.1 (a) may be pleaded as a bar, and a full and complete defence, to any Claims by any person or entity having the benefit of those releases; and

(c)    each of the Litigation Parties and Group Members covenants not to sue, or to otherwise bring or assert or, if applicable, continue to prosecute, any Claim referred to in clause 7.1(a) against a Litigation Party, even if the releases in those clauses and/or bars to action may prove to be ineffective for any reason whatsoever.

64    The first respondent alleges that, by cl 7.1(c), the appellant (as a Group Member) covenanted not to continue to prosecute any Claim referred to in cl 7.1(a) (which includes this appeal) against the first respondent (who is a Litigation Party).

65    The settlement deed issue is not identified in the proposed notice of contention.

66    The first respondent should not be granted leave to raise this issue in the appeal for the following reasons.

67    First, while the issue could not be raised below, it was able to be raised by the first respondent from 28 May 2021 (when the settlement deed was executed by, among others, the first respondent, albeit contingent on the Court approving the settlement) and from 15 December 2021. The issue was not raised in the proposed notice of contention and emerged only in the respondents’ written submissions filed on 14 February 2022. The appeal was heard on 28 February 2022. The issue could (and arguably should) have been raised before the primary judge as a contingent matter which could affect the utility of the hearing before that judge. At the latest it should have been raised by the first respondent immediately after 15 December 2021. It is too late to raise it in submissions on 14 February 2022.

68    Second, the issue concerns the proper construction of cl 7.1 of the settlement deed. The applicable principles of construction include that “the language used by the parties [is] to be interpreted objectively by considering what the language adopted by them would mean to a reasonable [person] in the position of the parties. The language used by them is to be considered in the context of the surrounding circumstances known to them at the time of the transaction and the purpose or object of the transaction evident from those matters”: Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2022] FCAFC 16 at [8] citing Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22]; Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35] (French CJ, Hayne, Crennan and Kiefel JJ) ; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46]-[47] (French CJ, Nettle and Gordon JJ); and Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 at [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ).

69    The appellant has not had a reasonable opportunity to file any evidence concerning any surrounding circumstances known to the parties at the time of execution of the settlement deed. Even if the appellant did not wish to do so, there is scant evidence before us of these surrounding circumstances. As a matter of discretion we are unwilling to resolve the construction issue in these unsatisfactory circumstances.

70    Third, and relatedly, the first respondent is necessarily seeking a declaration about the operation of cl 7.1 of the settlement deed, the effect of which would be to prevent the appellant from continuing to prosecute the appeal. It would be orthodox to do so by a separate proceeding or, perhaps, an interlocutory application in the appeal. It is not an issue amenable to resolution via the procedural mechanism of a notice of contention. By seeking to raise the issue via a proposed notice of contention the first respondent by-passed the case management procedures that would have applied including the filing of evidence.

71    Fourth, the construction question is by no means as straightforward as the first respondent’s submissions assume. The covenant in cl 7.1(c) is not to “continue to prosecute, any Claim referred to in clause 7.1(a)”. The Claims referred to in cl 7.1(a) are “all NT Youth Justice Class Action Claims and any other cause of action arising out of the facts which were the subject of the NT Youth Justice Class Action Claims”. An “NT Youth Justice Class Action Claims means any Claim made by the Applicants and Group Members against the Respondent in the Proceeding”. While this may include the appellant’s claims relating to his isolation at Don Dale (given the terms of the seventh amended statement of claim in the Jenkings proceedings), that is not an agreed fact for the purpose of the construction of cl 7.1 of the settlement deed. Nor is it immediately apparent that the extension of the bar to “any other cause of action arising out of the facts which were the subject of the NT Youth Justice Class Action Claims” applies to the appellant’s claims relating to his isolation at the Darwin Correctional Centre given that the seventh amended statement of claim in the Jenkings proceedings is confined to events at Don Dale. While “arising out of” may require only a causal relationship which is non-tenuous (Telstra Corporation Ltd v Bowden [2012] FCA 576; (2012) 206 FCR 207 at [95]), the causal requirement applies to the “facts which were the subject of the NT Youth Justice Class Action Claims”. Those facts in the seventh amended statement of claim in the Jenkings proceedings do not include anything occurring at the Darwin Correctional Centre.

72    The merger issue is that the claims the subject of this appeal, being claims within the scope of the settlement as approved on 15 December 2021, were merged in that settlement and cannot now be litigated to judgment in favour of the appellant. Again, this depends on the proper construction of the settlement deed. The four matters identified above persuade us that the first respondent should not be granted leave to raise the merger issue by the proposed notice of contention.

73    Further, the operation of the doctrine of merger itself is by no means as straightforward as the first respondent appeared to assume. On the first respondent’s case, the appellant had claims until 15 December 2021. But the appellant’s claims were rejected by the primary judge on 9 September 2021. Those claims, accordingly, merged in the judgment and the primary judge’s order on that date dismissing the application. It follows that there was no claim of the appellant left to merge in the settlement approved on 15 December 2021. For there to be any such claim capable of merger, the appellant would have to succeed in this appeal, yet the first respondent maintains that by the settlement deed the appellant is precluded from prosecuting this appeal. This fact may well be relevant to the proper construction of cl 7.1 of the settlement deed but, in any event, the logical consequence is that unless the appellant is able to prosecute and succeed in the appeal, there is no claim of the appellant which may have merged in the settlement approved on 15 December 2021. If, as we propose for other reasons, the appeal must be dismissed, the merger of the appellant’s claims into the order of primary judge dismissing the application on 9 September 2021 remains.

Conclusion

74    For these reasons the appeal should be dismissed with costs, and leave to rely upon the notice of contention should be refused with costs.

Associate:

Dated:    14 March 2022