FEDERAL COURT OF AUSTRALIA

Wotton v State of Queensland [2007] FCA 280

HUMAN RIGHTS – ex parte application for interim injunction under s 46PP of the Human Rights and Equal Opportunity Act 1986 (Cth) – where complaint lodged with Human Rights and Equal Opportunity Commission day before application to Federal Court – where complaint to Commission concerned criminal charges laid against applicant in context of Palm Island "riots" of 2004 – where applicant seeks to restrain respondents from taking further steps in prosecution and trial pending finalisation of complaint by Commission

LEX PATRICK WOTTON v STATE OF QUEENSLAND, POLICE SERVICE OF QUEENSLAND AND DIRECTOR OF PUBLIC PROSECUTIONS

NSD 307 OF 2007

MOORE J

2 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an interim injunction made ex parte be dismissed.

2.                  The matter be transferred to the Queensland Registry of the Federal Court of Australia.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an ex parte application for an interim injunction under s 46PP of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Act").  The application was filed in Court today by Lex Patrick Wotton ("the applicant").  Also filed was a statement in support of the application which states that the application is brought by the applicant as a representative party and that the group members to whom this proceeding relates are "the residents of Palm Island of aboriginal descent who were residents between 18 and 28 November 2004, including the applicant". 

2                     In terms, the application seeks to restrain the respondents from taking any further step in the prosecution or trial of the applicant pending the determination of the applicant's complaint with the Human Rights and Equal Opportunity Commission ("the Commission") lodged on 1 March 2007.  Alternatively, the applicant seeks an injunction in the general jurisdiction of the Court in aid of the proceedings in the Commission.  The trial of the applicant and four co-accused is scheduled to commence on 5 March 2007 in the District Court in Queensland, which is in three days' time.  Counsel for Mr Wotton indicated, orally, that the injunction might appropriately be made to operate only for a few days until the respondents appeared and an application heard for a further interim injunction.

3                     The background, in summary form, is that in November 2004 there was civil unrest on Palm Island arising from the death of a member of the local Aboriginal community while in police custody.  The applicant was arrested on Palm Island on 27 November 2004.  Charges against the applicant were then laid under s 65 of the Queensland Criminal Code 1899 in relation to his alleged involvement in that unrest.  Those charges attract a maximum sentence of life imprisonment.  There have been several applications in the District Court of Queensland incidental to the criminal proceedings.  An application was made to have the matter transferred from Townsville to Brisbane, which was successful.  More recently, there has been an application for a permanent or temporary stay of the indictment which was unsuccessful and in respect of which judgment was given on 28 February 2007.

4                     The complaint lodged yesterday with the Commission alleges, at least principally, that in the circumstances, the arrest, charging, prosecuting and trial of the applicant contravened or would contravene the Racial Discrimination Act 1975 (Cth).  It is against this background that an order is now sought under s 46PP of the Act.  There has been considerable delay in lodging the complaint with the Commission.  The complaint could have been lodged any time after the charges were laid, having regard to at least some of the grounds in the complaint.  As a consequence of the delay, this application is being made on the eve of a trial in circumstances where the application could have been made and considered by the Court much earlier.  It is true that, in form, this application is being made immediately after the complaint was lodged.  It is the lodging of such complaint which enlivens the jurisdiction of this Court under s 46PP of the Act.  However, in substance, the application is being made many months after such a complaint could have been made and the jurisdiction of the Court invoked.

5                     In those circumstances, it is inappropriate to grant an ex parte interim injunction the effect of which would probably be to stop a criminal trial which is scheduled to commence in three days' time.  Whilst there is no direct evidence about this, it is highly likely that witnesses have been marshalled for the trial.  To make the order sought would be disruptive to the ordinary processes and procedures of the criminal justice system in Queensland.

6                     It may ultimately be that the issues raised by the applicant in the complaint to the Commission prove to be of substance.  It may ultimately be that the Court should act under s 46PP of the Act.  However, that is said in circumstances where there has not been a contested hearing and in circumstances where the reach of s 46PP, in the context of the criminal justice system, has not been explored. 

7                     I should note that the application purports to be a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth).  I express no view about whether such a proceeding can be brought in relation to a matter of this type, and if so, whether the proceedings have been regularly instituted having regard to the procedural constraints attending the operation of Pt IVA. 

8                     I propose to dismiss the ex parte application for an interim injunction.  If the applicant is minded to do so the application for an interim injunction can be renewed. 

9                     The facts and circumstances giving rise to this application singularly relate to events in Queensland.  The respondents are Queensland entities and the applicant is a Queensland resident.  I further order that the matter be transferred to the Registry of this Court in Queensland. 

Associate:

Dated:         9 March 2007