Wotton v State of Queensland [2015] FCA 910


Wotton v State of Queensland [2015] FCA 910



File number:

QUD 535 of 2013



Date of judgment:

21 August 2015


PRACTICE AND PROCEDURE application for leave to amend originating application and statement of claim substantially application filed less than one month away from final hearing – consideration of relevant factors including proximity to trial, explanation for delay, effect of grant of leave on trial timetable and the interests of the administration of justice – alleged delay in discovery process – whether amendments assist precise resolution of issues in dispute – representative nature of proceeding weighs in favour of grant of leave – application granted in part

HUMAN RIGHTS – discrimination – jurisdiction of the Federal Court under Australian Human Rights Commission Act 1986 (Cth) 46PO(3)


Australian Human Rights Commission Act 1986 (Cth) s 46PO(3)

Federal Court of Australia Act 1976 (Cth) ss 37M(1), 37M(2); Pt IVA

Racial Discrimination Act 1975 (Cth) s 9

Federal Court Rules 2011 (Cth) rr 8.21, 16.53, 16.55(4), 20.12(1), 20.13(3)

Police Service Administration Act 1990 (Qld)

International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 660 UNTS 171, Art 27 (entered into force 23 March 1976).

International Convention on the Elimination of All Forms of Racial Discrimination. Opened for signature 21 December 1965. 660 UNTS 165, Art 5(b) (entered into force 4 January 1969).

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

King v GIO Australia Holdings Ltd [2001] FCA 1487

King v Jetstar Airways Pty Limited (No 2) [2012] FCA 8; 286 ALR 149

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26

Research in Motion Ltd v Samsung Electronics Australia Ltd [2009] FCA 320; 176 FCR 66

Date of hearing:

19 August 2015


Melbourne (via video-link to Brisbane and Sydney)





Number of paragraphs:


Counsel for the applicants:

Ms C Ronalds SC with Ms S Pointing

Solicitor for the applicants:

Levitt Robinson Solicitors

Counsel for the respondents:

Mr M Hinson QC with Mr S Forrest

Solicitor for the respondents:

Crown Law Queensland




QUD 535 of 2013



First Applicant


Second Applicant


Third Applicant



First Respondent


Second Respondent




21 August 2015


Melbourne (via video-link to Brisbane and Sydney)


1.    Subject to paragraph 2 of these orders, leave is granted to the applicants to amend their originating application in the form attached to the applicants’ application dated 11 August 2015.

2.    Leave is not granted in respect of the amendments under the heading “Questions common to claims of group members” as set out in paragraphs 1 to 54 of the proposed originating application.

3.    Subject to paragraph 4 of these orders, leave is granted to the applicants to amend their statement of claim in the form attached to the applicants’ application dated 11 August 2015.

4.    Leave is not granted in respect of the amendments contained in proposed paragraphs 14, 16, 17, 18, 19, 20 and 167 to 185 inclusive.

5.    The applicants pay the respondents costs of and incidental to the interlocutory application and the amendments, including costs thrown away by reason of the amendments and the costs of conferring and preparing the minutes referred to in paragraphs 6 and 7 of these orders.

6.    The parties are to confer and prepare proposed minutes of orders amending existing trial preparation orders, and adding any supplementary orders necessary by reason of the outcome of the interlocutory application, such minutes to be submitted on or before 4 pm on Tuesday 25 August 2015.

7.    If the parties fail to agree on any aspect of the proposed minutes referred to in paragraph 6, each party is to file and serve their proposed minutes together with short submissions justifying the form of those minutes, on or before 4 pm on Tuesday 25 August 2015.

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




QUD 535 of 2013



First Applicant


Second Applicant


Third Applicant



First Respondent


Second Respondent




21 august 2015


Melbourne (via video-link to Brisbane and Sydney)



1    I have decided to grant leave to the applicants to make some, but not all, of the amendments to the application and statement of claim in this proceeding which have been sought through an interlocutory application made on 11 August 2015, less than a month before the scheduled four-week trial in this proceeding was to commence. These are my reasons for the orders I have made. At the hearing of the interlocutory application, both parties accepted that, given the urgency of this matter, the Court’s reasons might be less fulsome than would otherwise be the case.

2    This proceeding is a representative action brought by the applicants under Pt IVA of the Federal Court of Australia Act 1976 (Cth) alleging unlawful racial discrimination by the respondents, the State of Queensland and the Commissioner of the Police Service, in respect of events arising out of an Aboriginal death in custody on Palm Island in November 2004. The complaint to the Australian Human Rights Commission, the termination of which gives this Court jurisdiction, was lodged by the applicants on 25 March 2010. Broadly, the action is brought by the applicants as representatives of Aboriginal residents of Palm Island at the time of the death in custody on 19 November 2004 of one of the members of the Palm Island Aboriginal community. The applicants use the name Mulrunji in their court documents to describe the person who died, and I shall do the same in these reasons.

3    Both parties’ evidence and submissions on this application have acknowledged the significant breadth and complexity of this proceeding.

4    This proceeding has been on foot since mid-2013 and since November 2014 has been fixed for a four-week trial in September and October 2015. As I have noted, on 11 August 2015 the applicants filed an interlocutory application to amend their amended originating application and second further amended statement of claim pursuant to rr 8.21 and 16.53 respectively of the Federal Court Rules 2011 (Cth).

5    The application was heard as soon as reasonably practicable, on 19 August 2015.

procedural history to date

6    The applicants instituted this proceeding on 9 August 2013 and filed a statement of claim on 22 October 2013.

7    Since then, there have been three more iterations of the statement of claim: an amended statement of claim filed 28 January 2014; a further amended statement of claim filed 29 May 2014 (together with an amended originating application); and a second further amended statement of claim filed 1 August 2014 (which I shall call the current pleading). The respondents filed a defence on 3 October 2014 and the applicants a reply on 24 October 2014.

8    The respondents have sought to place some weight, in resisting this application, on orders made by Dowsett J on 20 September 2013 that the parties “may make an application for discovery by 7 April 2014”. The applicants’ submission that any application by that date would necessarily have been premature given no defence was filed until October 2014 (see r 20.13(3) of the Federal Court Rules) is correct, but the fact remains that the applicants’ own pleading always relied on the three critical documents provision of which they now say explains the lateness of these amendments. I see no reason why the applicants could not have pursued discovery of at least those documents in reliance on Dowsett J’s orders. In any event, although that order was never vacated, it appears to have been overtaken by subsequent events concerning discovery.

9    On 20 November 2014, Dowsett J fixed the matter for trial for four weeks, to take place in two tranches from 31 August to 11 September and from 21 September to 2 October 2015. On 22 December 2014, the parties filed a detailed agreed statement of facts on the basis of the current pleading.

10    This matter was re-docketed to me in April 2015 and parties appeared before me for directions on 28 April 2015. In consultation with the parties, I made orders on 28 April 2015 varying the trial dates to 7 September 2015 to 2 October 2015. Except for that minor variation to enable the trial to proceed in a single tranche, the position is that the trial dates have been fixed for a period of four weeks in September and October 2015 since November 2014.

11    At the directions hearing on 28 April 2015, the applicants foreshadowed they would likely call at least 11 and likely more Aboriginal witnesses residing on Palm Island to give evidence. The parties agreed with the Court’s suggestion that it was important to facilitate members of the Palm Island community attending that part of the trial where those witnesses would be called, and where opening statements would be given. The respondents indicated that the witnesses they would likely call resided variously in North Queensland and Brisbane. Accordingly, the parties were agreed in principle and the Court proceeded on the basis that over the course of the four-week hearing the Court would sit as follows: on Palm Island from 7 to 11 September 2015; in Townsville from 14 to 18 September 2015; and in Brisbane for the remaining two weeks of trial from 21 September to 2 October 2015. With the assistance of all parties those arrangements were confirmed shortly after, including through enquiries and arrangements about convening the Court on Palm Island and using the Supreme Court in Townsville. By the time the present application was brought, significant logistical arrangements had been made in order to facilitate the trial commencing on Palm Island and then moving to Townsville and Brisbane.

The present application

12    The interlocutory application was accompanied by a supporting affidavit made by the applicants’ solicitor. The amendments proposed to be made to the current pleading are significant, to say the least. Their nature and extent could be calculated in various ways. The pleading has expanded from the current 192 paragraphs (which were mostly single paragraphs) to a proposed 349 paragraphs (excluding the two annexures), with a very large number of subparagraphs attending many of those 349 paragraphs, and two annexures to the pleading. The pleading had increased from 32 pages to 150 pages, although as the applicants correctly pointed out the difference between those two sets of page numbers incorporates considerable strike-outs, and different formatting and font size. Even so, I note a “clean” version of the proposed pleading exhibited to the supporting affidavit numbered 136 pages, more than four times the size of the current pleading.

13    The respondents submit there are at least 168 new allegations, which they have set out in a table annexed to their submissions in opposition to the amendments. The applicants dispute the characterisation of all those allegations as “new”, but did not in their submissions shy away from the very extensive nature of the amendments.

14    The originating application has also significantly increased in size, mostly because of the inclusion of 57 common questions of law and fact that are alleged to arise, in contrast to the seven questions set out in the current originating application.

The evidence on this application

15    In support of their application the applicants relied on two affidavits sworn by Mr Daniel Meyerowitz-Katz, a solicitor for the applicants, on 11 and 19 August 2015 and annexing correspondence between the parties’ legal representatives. Essentially, the explanation of the timing of the proposed amendments given by Mr Meyerowitz-Katz on behalf of the applicants is delay in the discovery process, most of the responsibility for which the applicants seek to lay at the feet of the respondents.

16    I do not accept that explanation, nor do I accept that the respondents’ conduct is in large part responsible for the timing of the receipt by the applicants of the discovered documents they say have prompted the amendments.

Mr Meyerowitz-Katz’s affidavit of 11 August 2015

17    At [59] of his affidavit dated 11 August 2015, Mr Meyerowitz-Katz stated that:

In preparing the 3FASC, the Applicants have not attempted to broaden their claim on the basis of facts previously known. As explained above, the allegations of fact introduced in the proposed 3FASC are mostly derived from documents obtained by the Applicants through discovery, and their purpose is predominantly to expand on facts already alleged in the 2FASC by providing a much greater degree of particularity, or by introducing matters which were pleaded in the Applicants' Reply into the Statement of Claim. Where facts previously known have been raised for the first time, this has only occurred because the Applicants became aware of the relevance of those facts as a result of other matters uncovered during the discovery process.

18    Mr Meyerowitz-Katz deposed (at [9]) that, as at 23 April 2015 when the applicants had filed an application for discovery, the applicants “had no access or only partial access to many documents which were crucial to the Applicants’ pleaded case.” In particular, Mr Meyerowitz-Katz stated that despite requests made to the respondents, the applicants had faced significant delays in obtaining copies of the following Queensland Police Service (QPS) documents:

(1)    the QPS Operational Procedures Manual as at November 2004;

(2)    the QPS Human Resource Management Manual as at November 2004; and

(3)    the QPS Palm Island Review dated 24 November 2008.

19    It is fair to say, in my opinion, that the thrust of both Mr Meyerowitz-Katz’s evidence and submissions made on the interlocutory application on behalf of the applicants was on the unavailability of these three documents until relatively recently.

20    These three documents were among the documents the subject of an interlocutory application for discovery filed by the applicants on 23 April 2015 and I made orders on 28 April 2015 that the respondents give discovery of those three documents, among others. Mr Meyerowitz-Katz stated (at [10]) that he believed soft copies of those documents were delivered to the applicants’ counsel on 5 May 2015, and (at [11]) that those documents were voluminous:

After they were produced, we discovered that the 2004 version of the OPM is a document of some 1770 pages, the 2004 HRM is 1570 pages, and the Palm Island Review is 1003 pages. A total of 17 documents were produced on 5 May 2015, including other versions of the OPM and HRM.

21    The balance of the applicants’ interlocutory application for discovery was adjourned to 13 May 2015 on the basis that aspects may remain contested. Ultimately, the parties resolved their differences cooperatively and on 20 May 2015 I made orders by consent for further discovery. Paragraphs 1 and 3 of those orders provided:

1.    The Respondents are to provide discovery to the Applicants of all documents in the possession or control of the Respondents falling into:

a.    categories B1, B3, B4, C1, C2 (excluding from the words “or any” and including the words “including other records to the extent that they are contemporaneous electronic records of police activity in relation to Palm Island police station for the period from 19 to 22 November 2004”)), C8, D3, D4, D6, D8, and E1 in Schedule 2 to the Applicants’ Application of 23 April 2015, within 14 days of this order being made; and

b.    categories C5 (excluding from the words “including but not limited to”), E2, E6, F1, F3, F4, F5, F6, F7 (excluding any CMC reports not in the public domain), F8(d) and F10 in Schedule 3 to Applicants’ Application of 23 April 2015, within 28 days of this order being made; and

c.    category F2 within 35 days of this order being made.

3.    After discovery has been provided pursuant to these orders:

a.    within 7 days of a written request being served by the Applicants, the Respondents are to provide to the Applicants, by way of production for inspection, an electronic copy or image of any document discovered; and

b.    within 7 days of a written request being served by the Applicants, originals of any document discovered are to be made available to the Applicants by the Respondents at a location in Brisbane.

22    Mr Meyerowitz-Katz deposed that:

Pursuant to those Orders, the Respondents relevantly filed Lists of Documents dated:

(a)    27 May 2015, containing 316 documents;

(b)    11 June 2015, containing 38 documents; and

(c)    18 June 2015, containing 136 documents (counting each of the documents produced under number 398 individually).

23    Mr Meyerowitz-Katz deposes that the applicants requested production of most of the documents discovered on 27 May 2015, all of the documents discovered on 11 June 2015 and most of the documents discovered on 18 June 2015. Save for what I consider to be relatively minor delays of roughly six and five days, the respondents produced documents in substantial compliance with the Court’s orders dated 20 May 2015.

24    Mr Meyerowitz-Katz stated (at [18]-[19]) that:

The lawyers for the Applicants have been progressively reviewing the discovered documents since they were produced to us. A number of the documents contained information which we consider necessary to include in the Applicants’ pleading, being information that has only become known to the Applicants through the discovery process.

We have, at all times, been cognisant of the short timeline and the proximity to the trial, and the amendments to the pleading have been prepared as quickly as we have been able. Owing to the sheer volume of the discovered documents and the information contained therein, as well as the length and complexity of the OPM and HRM, it took until 3 August 2015 for those amendments to be completed.

25    At [60] of his affidavit, Mr Meyerowitz-Katz explained one of the rationales for the proposed amendments:

Whilst the CMC reviewed the Palm Island Review, and made a number of comments and criticisms of the conduct of the investigation into the death of Mulrunji, that review was not concerned with the circumstances of the arrest and treatment of Mulrunji. It was concerned with the investigation of the death of Mulrunji, and matters arising from the investigation and subsequent failure to appropriately discipline officers. The CMC Review did not touch upon QPS Policing on Palm Island following the death in the lead up to the riot, nor did it examine the conduct of officers during the riot or the aftermath (other than the failures of the IRT). The CMC review does not consider whether any acts or failures to act by QPS members was discriminatory. The CMC review did not set out all the relevant provisions of the OPM, HRM and Code of Conduct that have now been identified by the Applicants as relevant to the discrimination claim. The Applicants were, prior to discovery, only aware of the provisions of those documents as they were summarised by the CMC in their report and, in the case of the OPM, as they were expressed in a subsequent version of the document.

(Emphasis added.)

26    Mr Meyerowitz-Katz contended in his affidavit (and senior counsel contended in oral submissions) that the amended application and pleading would substantially narrow the issues at trial, by removing the claim made by the applicants at paras 160 to 180 of the current pleading. He also contended that the amendments were necessary to permit the applicants to raise issues which were otherwise not known to the applicants because the QPS Operational Procedures Manual, Human Resource Management Manual and Code of Conduct (as they applied in November 2004) were not publicly available, nor otherwise available to the applicants until discovered.

27    As to the late timing of the application, less than a month before trial, at [64] of his affidavit Mr Meyerowitz-Katz attributed that to delays in the discovery process caused by the respondents. In summary he contended the respondents had not provided the QPS Operational Procedures Manual, Human Resource Management Manual and Code of Conduct when first requested, had initially opposed the discovery orders and had not produced the documents on time. He then contended the documents were so voluminous that the applicants needed three months to review them and finalise the new pleading. He described this process, together with the preparation of outlines of evidence in accordance with the Court’s directions, as a “significant burden on the resources of the Applicants’ legal team”.

The respondents’ evidence

28    The respondents relied on an affidavit sworn by their solicitor Ms Jacqueline Hamilton on 18 August 2015. Ms Hamilton responded in particular to the statements made by Mr Meyerowitz-Katz at [64] of his 11 August affidavit attributing the applicants’ delay in filing the present application to delays caused by the respondents in the discovery process.

29    As to the statement at [64(a)] implying the respondents could or should have provided documents already in their possession to the applicants (such as the QPS Operational Procedures Manual, Human Resource Management Manual and Code of Conduct) when first requested, rather than requiring the applicants to make a formal application for discovery, Ms Hamilton referred to the requirement under r 20.12(1) of the Federal Court Rules that “[a] party must not give discovery unless the Court has made an order for discovery.”

30    Further, Ms Hamilton noted (at [7]):

(1)    the proceeding had been on foot for some 20 months before the respondents were served in April 2015 with the applicants’ application for discovery;

(2)    the events the subject of this proceeding had been litigated by the same firm of solicitors on behalf of the applicants for many years, including through the complaint lodged before the Australian Human Rights Commission on 25 March 2010 as well as a prior complaint lodged on 1 March 2007. That prior complaint is not before this Court, though I note the respondents’ submissions on this application subsequently indicated that prior complaint had been brought by the first and third applicants only;

(3)    at no stage prior to drafting the different versions of their statement of claim up to the current form of pleading filed in August 2014 had the applicants sought discovery or made any informal requests for documents from the respondents.

31    Ms Hamilton noted the applicants emailed the respondents on 6 November 2014 enclosing draft orders for discovery, and annexed that correspondence. Each of the QPS Operational Procedures Manual, Human Resource Management Manual, Code of Conduct and Palm Island Review was identified in the schedule of discovery categories annexed to the draft orders. However, the applicants’ covering email stated:

The Orders still need to be settled by counsel, however we are not expecting any substantive changes in what we are requesting.

32    Ms Hamilton deposed the respondents did not receive any further communication from the applicants about that request. Rather, the issue of discovery was not raised again until 17 February 2015, when the applicants suggested in a telephone call with Ms Hamilton that a discovery application may be brought in respect of the documents listed in the applicants’ proposed agreed list of documents forwarded to the respondents on or around 10 February 2015 (a list which differed from the schedule to the draft orders sent in November 2014).

33    Three weeks later on 10 March 2015, the respondents wrote to the applicants in response to that request, and a copy of that letter was annexed to Ms Hamilton’s affidavit. Relevantly, the letter stated:

The Respondents will provide their consent to an application for disclosure brought by the Applicants to the extent it concerns the following items from the Applicants’ Proposed List of Documents …

34    The list which followed included a large number of documents including the QPS Operational Procedures Manual, Human Resource Management Manual and Code of Conduct.

35    The applicants wrote to the respondents requesting those documents on 26 March 2015, and a copy of that letter was annexed to Ms Hamilton’s affidavit. The request was as follows:

Your letter of 10 March 2015 indicated that the Respondents had consented to disclosing a number of documents to our clients, being the documents falling into the categories of documents requested in the following paragraphs of our letter to you dated 10 February 2015: A, B1-6, C1-4, D2-5, D6-7, E3 and various transcripts of interviews and/or witness statements referred to in C8.

We would appreciate being provided with those documents as soon as possible. As before, we would be content to receive the documents in electronic format.

36    On 2 April 2015, the respondents indicated they would not disclose any of those documents unless required to do so by an order of this Court. A copy of that letter was also annexed. In it, Ms Hamilton stated:

I confirm that in my letter dated 10 March 2015, I advised that my clients would consent to any application for disclosure that your clients may bring, to the extent that the application included the documents that were listed in the Agreed List of Documents and were otherwise specified in my letter (the subject documents).

Therefore, whilst my clients are amenable, in principle, to disclosing the subject documents in electronic format, they will not do so until the Federal Court has made an order (on application by your clients) for disclosure of these documents.

37    Ms Hamilton deposes that on 17 April 2015, the respondents were served with a Notice to Produce which sought production of documents including the QPS Operational Procedures Manual, Human Resource Management Manual, Code of Conduct and Palm Island Review. On 23 April 2015, the respondents wrote to the applicants as follows:

The Respondents agree to produce the following documents mentioned in the Notice to Produce within 7 days of the date of this letter:


2.    Operational Procedural Manual, version current as at 19-24 November 2004;






8.    Code of Conduct dated August 2003;


10.    IRT Review Report entitled ‘Palm Island Review’; and

11.    Human Resources Management Manual applicable as at 29 August 2003.

The Federal Court Rules 2011 provide for a system of production by inspection. However, in light of your anticipated difficulties in attending our offices for inspection, please advise of the means by which you would like the Respondents to produce the documents identified above.

I look forward to hearing from you about this matter.

38    That notice and response were also annexed to Ms Hamilton’s affidavit. Ms Hamilton deposed that the applicants did not respond and took no further action in response to that notice.

39    Instead, on the same day (23 April 2015) the applicants filed and served an application for discovery. Ms Hamilton did not agree with Mr Meyerowitz-Katz’s characterisation of the respondents’ conduct as “initially oppos[ing] orders for discovery (at the hearing on 28 April 2015) to which they later consented”. She deposed (at [21]-[22]):

the Respondents used their best endeavours to consider their position in relation to each document the Applicants sought to have discovered, but it was not possible to reach a firm position in relation to all documents due to the following:

(a)    the sheer volume of documents listed. The subsequent discovery exercise, in response to the April 2015 Application for Discovery, has resulted in more than 800 documents in 60 lever arch folders being discovered; and

(b)    the documents listed in the April 2015 Application for Discovery differed to the earlier lists of documents that the Applicants had proposed for discovery in the November 2014 Proposed Application for Discovery and the February 2015 Proposed Application for Discovery. It also differed to the list of documents in the Applicants’ Notice to Produce. Therefore, it was not the case that the Respondents were able to simply adopt the position they had taken in relation to the previous applications for discovery that the Applicants had proposed. It was necessary for the documents held in the Respondents’ possession to be reviewed again and for instructions to be taken about the same.

Because, due to time constraints, the Respondents were unable to commit to a firm position at the hearing on 28 April 2015 in relation to all of the documents listed in the April 2015 Application for Discovery, the Respondents agreed to disclose certain documents listed (resulting in 35 lever arch folders of documents being discovered), and reserved their position in relation to the balance of the documents. The Respondents did not, as Mr Meyerowitz-Katz alleges, oppose orders for discovery at the hearing on 28 April 2015.

40    Ms Hamilton also deposed (at [24]) that:

In an attempt to narrow the issues for the hearing of the balance of the April 2015 Application for Discovery that had been listed for 13 May 2015, by letter dated 12 May 2015, Crown Law wrote to Levitt Robinson Solicitors advising of the Respondents’ position in relation to discovering the various categories of documents that had not been discovered earlier. Relevantly, in Crown Law’s letter, I advised that the Respondents consented to discovering a large number of categories of documents.

41    As to the assertion that the late timing of the application could be explained by reference to receiving the respondents’ discovered documents, Ms Hamilton referred to [4(b)] of Mr Meyerowitz-Katz’s previous affidavit of 23 April 2015 in support of the applicants’ discovery application, where he had deposed: “[t]he Applicants do have a copy of the OPM dated October 2007”. Ms Hamilton also noted the current QPS Operational Procedures Manual was publicly available online.

42    Ms Hamilton stated that:

29.    Either the October 2007 OPM or the current OPM would have put the Applicants on notice that they should have sought copies of the OPM as at the relevant times as soon as possible. Instead, the Applicants appear to have chosen to rely solely on the sections of the OPM extracted from the CMC Review.

30.    Further, I have reviewed all sections of the OPM as at November 2004 now pleaded in the 3FASC, and compared those sections to the OPM as at October 2007. All of these sections were substantially similar in all relevant respects between the OPM as at November 2004 and the OPM as at October 2007.

31.    Mr Meyerowitz-Katz says the Applicants were unaware of factual matters on which new allegations are pleaded until receipt of the discovered documents. However, the Applicants have had available to them the public findings of both Acting State Coroner Clements and Coroner Hine, along with the CMC Review, concerning the investigation into the death in custody. Moreover, I understand from my review of the Director of Public Prosecution’s file that witness statements and transcripts of interviews concerning the riot, as well as the running sheet that was prepared by the QPS in relation to the riot, were disclosed to Levitt Robinson Solicitors, as Lex Wotton’s legal representatives, in connection with his trial.

Mr Meyerowitz-Katz’s affidavit of 19 August 2015

43    The applicants filed a further affidavit sworn by Mr Meyerowitz-Katz on 19 August 2015. He deposed that the exchange of correspondence between the parties had given rise to some confusion between the parties, and (at [19]) that:

It in fact only became apparent to the lawyers for the Applicants that the Respondents would not disclose any documents until an application was filed when the letter of 2 April 2015 was sent. Until we received that letter, we had assumed that the Respondents would provide copies of the documents which they had agreed to disclose by consent, particularly the documents in the Agreed List of Documents, which had been signed by both parties.

44    As to the applicants’ failure to further pursue the notice to produce dated 17 April 2015, he deposed (at [20]) that notice and the respondents’ response on 23 April 2015 (consenting to produce most of the documents sought) “became superseded by the Applicant’s application for discovery, filed that same day, and the email received on the following day from the Associate to the Honourable Justice Mortimer … advising that the application had been listed for 28 April 2015.”

45    At [21], Mr Meyerowitz-Katz agreed with Ms Hamilton’s assertion that either the October 2007 or the current version of the QPS Operational Procedures Manual would have put the applicants on notice to seek copies of the manual as at the relevant times as soon as possible. He confirmed that “the Applicants were on notice as she suggests”, but stated:

we did not undertake a detailed examination of the 2007 OPM as it was from a period of three years after the relevant events, and I knew from a document entitled “Queensland Government response to coroner's comments in the inquest into the death of Mulrunji as at 2 November 2006”, a copy of which is annexed and marked “DMK-21”, that the OPM had been amended between November 2004 and October 2007, as a result of the recommendations made by the Acting State Coroner in her findings in relation to the Coronial Inquiry into the death of Mulrunji.

46    Further, he deposed (at [22]):

it would have been irresponsible for the Applicants to base their pleaded case on the later version without having seen a copy of the earlier version.

47    At [23]-[26], Mr Meyerowitz-Katz refuted the assertion that the applicants otherwise had access to relevant material now relied upon prior to receiving the respondents’ discovered documents:

23.    At paragraph 31 of her affidavit, Ms Hamilton deposes that “the Applicants have had available to them the public findings of both Acting State Coroner Clements and Coroner Hine, along with the CMC Review, concerning the investigation into the death in custody.” Whilst I agree with Ms Hamilton’s allegation so far as it goes, the information available in the inquest findings and the CMC Review was second-hand, was, in each case, directed to a different purpose than the Applicants’ claim, and was relatively limited compared with the information available from all of the primary documents.

24.    At paragraph 31 of her affidavit, Ms Hamilton further deposes that:

“witness statements and transcripts of interviews concerning the riot, as well as the running sheet that was prepared by the QPS in relation to the riot, were disclosed to Levitt Robinson Solicitors, as Lex Wotton’s legal representatives, in connection with his trial.”

25.    The material disclosed to our office in connection with Mr Wotton’s trial was the evidence on which the Director of Public Prosecutions relied in prosecuting Mr Wotton. I have reviewed both Levitt Robinson’s file from that prosecution and the materials discovered by the Crown, and accordingly can depose that the materials provided to us in the course of Mr Wotton’s trial were a fraction of the materials disclosed during the course of discovery in these proceedings. For example, all of the witness statements disclosed during Mr Wotton’s prosecution, printed single-sided, are contained in a single manila folder; whereas the witness statements disclosed by the Crown in these proceedings, printed double-sided, are contained in several lever-arch folders.

26.    Further, the material disclosed in the course of Mr Wotton’s prosecution was confined in its content to matters relevant to allegations against Mr Wotton. The material discovered in these proceedings was far broader in scope.

References to the QPS Operational Procedures Manual and Code of Conduct in the earlier and current pleadings

48    At the hearing of this application on 19 August 2015, counsel for the applicants properly withdrew a submission that there are no references to the QPS Code of Conduct in the current pleading. To the contrary, failures by QPS officers to adhere to the Code of Conduct as well as to the QPS Operational Procedures Manual have been expressly pleaded since the very first iteration of the pleading filed on 22 October 2013. It suffices to extract only a few examples from that pleading:

(1)    Paragraph 27 of the statement of claim filed on 22 October 2013 read as follows: “Section 10.6 of Version 29 of the QPS Code of Conduct dated August 2003, in force in November 2004 (Code of Conduct) required officers to avoid both actual and apparent conflicts of interest and disclose details of any conflict to their supervising executive officer.” This pleading is retained and appears unchanged at para 83 of the current pleading.

(2)    Paragraph 30 of the statement of claim filed on 22 October 2013 read as follows: “Contrary to his obligations under the Code of Conduct, DI Robinson did not declare a conflict of interest.” An allegation that the Queensland Police Service breached section 10.6 of the Code of Conduct through DS Robinson’s failure to declare a conflict of interest appears at para 90(a) of the current pleading.

(3)    Paragraph 33 of the statement of claim filed on 22 October 2013 read: “The Code of Conduct required police officers to maintain and foster public trust and confidence in the operations of the QPS.”

(4)    Paragraph 34 of the statement of claim filed on 22 October 2013 read: “In order to fulfil their obligations under section 1.17 of the OPM and the Code of Conduct, DSS Kitching and DI Webber were obliged to satisfy themselves that DS Robinson was impartial and had no actual or apparent conflict of interest, before including him on or allowing him to continue to be part of, or to assist, the investigation team. DSS Kitching and DI Webber took no steps to do so.”

49    As I observed at the hearing, nowhere in any of the iterations of the pleading do the applicants plead broader reliance on the Code of Conduct, to be particularised upon discovery, which is the course one might have expected to be taken if they wished to rely on other obligations in the Code, but only had the current version available to them (as it is to all members of the public).

50    I note also that specific sections of the QPS Operational Procedures Manual have been expressly pleaded by the applicants since their original statement of claim, including (in the order in which they were pleaded) sections 16.24.3, 1.17, 2.13.8, 2.13.1, 2.14.2, 6.3.6, 8.4.8, 8.4.3(ix), 8.4.3(v)(a), (b) and (d), and 8.4.3(vi). Each of these sections is also expressly pleaded in the current pleading, and is proposed to be expressly pleaded in the proposed third further amended statement of claim.


51    On 13 May 2015 I made the following observations about the amendment of pleadings during an interlocutory hearing shortly after the matter was reallocated to my docket:

HER HONOUR: And I reiterate to both parties my concern about that and make it clear again that this case will be decided on the pleadings. And if the applicant wants to seek leave to amend his pleadings to plead something else, then he better do it, and he better do it quickly, because I won’t be taking a kindly attitude to any applications to amend the pleadings at the start of the trial or later. And the common questions, if they stray outside the pleadings, will not be the subject of any answers by the Court. So if that gives you some reassurance, Mr Hinson, so be it. And, Ms Pointing, if that gives you some pause for thought, so be it too. But I remain a little bit apprehensive about these common questions, if they’re going to -


HER HONOUR: - express things differently from the pleadings.

HER HONOUR: Well, Ms Pointing, I’m not going to stop the parties from consulting or developing common questions but you’ve heard what I’ve said. I’m going to decide the case on the pleadings and so, ultimately, if there are any arguments about this, your clients will be fixed with the way it has been pleaded and the arguments about the way it has been pleaded. So can I urge you, while it’s a cooperative and good thing to do, to try and agree some common questions, to be sure that this case is pleaded on behalf of your clients in the way that you – that it should be pleaded because you heard what I said. If somebody stands up at the start of this trial and wants to amend the pleadings, I will listen to that application but it – you’ve been warned that it won’t be well-received at the moment. This - -

MS POINTING: Yes. I understand, your Honour. I can indicate that there – that, during the course of preparing for this application, there are some minor amendments that I’ve certainly seen need to be made.

HER HONOUR: But this is not a minor matter.

MS POINTING: It – no. No.

HER HONOUR: This is a pretty major matter, Ms Pointing, about whether taking – accepting, as you say, that there are three groups of events that your clients rely on to then found three allegations of racial discrimination, what you say about those events – and as I understand it, the point Mr Hinson is making as well, if within that one group of events one incident is proven, I think, as he says, the applicants can’t say that constitutes racial discrimination on the pleadings at the moment.

MS POINTING: Yes. And I think we’ve conceded that this needs to be reworded. It wasn’t intended to have that effect. …

MS POINTING: Can I just raise, as another matter on that issue, it has only occurred to my instructing solicitors in the last couple of days that there potentially is a subgroup in this case that needs to be considered and that subgroup would be residents on Palm Island whose homes were – who the police came to and either – whose homes were searched or who were affected by the search. If that be the case, Agnes Wotton was not present when her home was searched so she cannot be a lead applicant. If – there are two subgroups: one is all residents whose homes were not searched and the other is those whose homes were searched. Agnes can’t be a lead applicant in respect of the subgroup. So that’s something that we are considering presently also.

HER HONOUR: All right. Well, that might, again, raise all sorts – the need for another set of orders about opting out notices and the like.

MS POINTING: Yes. I hadn’t turned my mind to that.

HER HONOUR: But – pardon me. Well, again, Ms Pointing, that’s a matter for you if the applicants wish to amend their pleadings but I can only repeat what I’ve said: if there are to be any more – any amendments, they better happen sooner rather than later. All right.

MS POINTING: I will do my best.

52    Those observations have effectively been ignored by the applicants. That has resulted in considerable inconvenience to the Court, and its officers who have done their best to prepare for a complicated series of hearing venues, and it has occasioned considerable prejudice to the respondents. As my orders reveal, it will also mean significant delay in the full final hearing of this proceeding, and therefore additional delay for the applicants in having their claims determined.

53    The evidence to which I have referred at [17] to [47] above leads me to make the following findings:

(1)    The applicants did not attend to discovery in this proceeding in a timely fashion. They did not take advantage of Dowsett J’s early orders as to discovery. If they had done so, on their own contentions, this situation would not have occurred.

(2)    From the start of this proceeding, the applicants were able to make allegations based on the three documents they now seek to elevate as the reasons for the lateness of this application. They gave no indication in those earlier allegations that they were constrained by lack of access to what they now assert to be the appropriate versions of those documents.

(3)    Consideration of the amendments proposed discloses that there are a large number of substantive amendments which have nothing to do with these three documents. They are simply a recasting of the applicants’ case, the lateness of which remains unexplained.

(4)    The respondents have reacted responsibly and in a timely fashion to the way the applicants have dealt with discovery issues. I do not accept the applicants’ criticism of the respondents’ conduct.

54    Inexplicably and unhelpfully, the applicants did not file any written submissions on their application. The respondents filed written submissions which I have found balanced and helpful. The respondents took a similar approach in oral submissions.

55    Leave to amend an originating application is to be considered under r 8.21 and leave to amend a pleading falls to be considered under r 16.53. It was not suggested there is any difference in principle in the approach which should be taken under either rule. Consideration of the grant of leave must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court of Australia Act 1976 (Cth). The factors set out in s 37M(2) – broadly speaking – require the exercise of procedural and practice discretions to take into account the interests of all litigants in this Court in the context of the Court’s finite resources, and to pay attention to the need for proportionality between the costs of a proceeding and its size and complexity.

56    Nevertheless, the focus of the overarching purpose is on the just resolution of disputes. In complex, novel and seriously contested litigation (attributes, it seems to me, of this proceeding) a just resolution invariably involves resolving tension between the competing interests of and prejudices to the parties, and tension with the interests of other litigants in the Court whose proceedings depend to a greater or lesser extent on the current proceeding being heard and determined so as to “make room” for other proceedings.

57    The familiar passage in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [111]-[112] is an important aspect of resolving those tensions:

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend ...

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

(Emphasis in original.)

58    The respondents referred to what was said by the Full Court in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44], about Aon:

In Aon Risk Services Australia Pty Ltd v Australian National University, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).

(Citations omitted.)

59    I accept the respondents’ further submissions that the Court should consider whether the proposed amendments disclose a reasonable cause of action, or whether they have a tendency to cause prejudice, embarrassment or delay in the proceeding: Research in Motion Ltd v Samsung Electronics Australia Ltd [2009] FCA 320; 176 FCR 66 at [21]-[22] per Kenny J.

60    On this interlocutory application, resolving the tensions to which I have referred involves, in my opinion, recognising that the applicants have revised their case by removing as well as adding claims, have particularised their claim to a greater extent which will assist the more precise resolution of the issues between the parties, and have made serious and considered allegations arising out of material they have only relatively recently come to grips with. Those matters favour the grant of leave and, ultimately, I have concluded the just resolution of the applicants’ claims of systemic and unlawful racial discrimination by the Queensland Police Service should be put in the way they submit represents a fulsome and considered catalogue of their contentions.

61    The fact this is a representative proceeding weighs in the balance in favour of leave, in my opinion. Subject to the matters I expressly refer to below, given that the applicants bring this on behalf of Aboriginal people living on Palm Island at the time of Mulrunji’s death and the aftermath, I consider it is important to ensure that claims which are common to group members are able to be heard and determined by this Court in what the applicants now submit is the fullest and most informed basis.

62    The tension to which I have referred also involves the plain fact that the applicants have not conducted this proceeding with the efficiency the Court is entitled to expect; that they have wasted a lot of time especially in the first two years of the proceeding; that they have to some extent ignored the Court’s directions and case management approach, and have conducted themselves according to a timetable reflecting when the applicants’ legal representatives have come to grips with the material on which they wish to rely and how, in detail, they consider their clients’ case is best framed.

63    Taking into account what I consider to be an inadequate explanation for the delay in seeking leave to make such substantial amendments, the proximity to trial, the effect of the grant of leave on the trial timetable and the very large number of witnesses to be called, as well as the much more complicated than usual arrangements for the four-week hearing, I do propose to place some limits around the leave which should be granted. Those limits concern aspects of both the proposed application and the proposed pleading about which I am comfortably satisfied it is appropriate to refuse leave. I set those out below.

64    I now turn to the proposed amendments themselves.

A brief comparison of the pleadings

65    Given the urgency with which these reasons need to be delivered, this comparison is briefer than it otherwise might have been. Nevertheless, I consider it identifies the key differences in the existing application and pleading, and the proposed application and pleading.

The application

66    The relief sought in the existing application and the proposed application is the same, save that the applicants now seek aggravated and/or exemplary damages. I say more about this below. The declaratory relief is the same, and is far too wide, on any view. Reading the applications generously to the applicants, I take it that it may be contemplated the claims made in para 1 of both documents could form the basis of declarations to be made by the Court if the applicants are successful.

67    On that basis, there has been a considerable expansion in what the Court is asked to find (and, it seems, ultimately to declare).

68    More specificity has been introduced to align the applicants’ claims with the terms of s 9 of the Racial Discrimination Act 1975 (Cth) (see, for example, paras 1(b), 1(c), 2(a) and 2(b)).

69    Second, the human rights relied on by the applicants as having been nullified or impaired for the purposes of s 9 have been broadened. Currently, the application relies on the right to equality before the law as it is expressed in two international instruments – the 1966 International Covenant on Civil and Political Rights and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.

70    What the applicants now seek to rely upon are other rights drawn from the International Covenant on Civil and Political Rights (see proposed para 1(d)(iii) – the right to enjoy their own culture in community with other members under Art 27 of the Covenant) and also other rights drawn from International Convention on the Elimination of All Forms of Racial Discrimination (e.g., the right to security of the person under Art 5(b) of the Convention – see proposed para 1(d)(iv)).

71    A common law human right is also claimed – expressed in proposed para 1(e) as the right to “go about their affairs in peace under the protection of the police services”.

72    Third, there has been an expansion in the identification of the holders of the human rights claimed. In the existing application, those holding the human rights relied upon are identified as the applicants, and the group members. The proposed amendments extend this to Mulrunji and PLO Bengaroo.

73    Fourth, a sub-group has been included as part of the representative proceeding claim, consisting of Aboriginal members of the Palm Island community who were most directly affected by the arrests and raids conducted on Palm Island after Mulrunji’s death.

74    Finally, the common questions of law and fact said to arise in the proceeding have expanded from seven to 57.

The statement of claim

75    The proposed pleading begins with a list of definitions (Part A), which is new. There are, as I have already observed, pleadings covering a new sub-group: see Part B.

76    There are then a series of allegations (in Part C) about the effect of the Police Service Administration Act 1990 (Qld) which are intended to lay a foundation for some of the subsequent allegations.

77    In Part D of the new pleading, and again in Part H, are a substantial number of entirely new allegations concerning the arrest and treatment of Mulrunji in police custody prior to his death. In the current pleading, the allegations of fact about Mulrunji are of very small compass, are almost all admitted by the respondents and have become the subject of agreed facts. I do not propose to allow these amendments and I explain why in more detail below.

78    Part E is new. It concerns the Royal Commission into Aboriginal Deaths in Custody, and what are described as the interest of the [Palm Island] community and reasonable expectations of the [Palm Island] community” following the Royal Commission’s recommendations.

79    Part F is new. It consists mostly of extracts from the Operational Procedures Manual, the Code of Conduct, and other statutory or regulatory obligations said to fall on officers of Queensland Police Service.

80    Part G is headed “Events of 19 to 24 November 2004 following death in custody”. There was a similar heading in the current pleading above Part B. The factual allegations in this part are expanded (a good example is the section on the “Form 1” submitted to the Coroner), and officers mentioned who were not previously mentioned. Obviously this has consequences for how the respondents must deal with the pleading, but in itself that is not a reason to refuse leave.

81    Part H I have summarised above.

82    Part I deals with allegations of unlawful discrimination in relation to the “QPS Failures”. This part is almost entirely new, although there is a section of the current pleading with a similar heading. However the scope and content of the allegations is significantly expanded.

83    Part J is headed “Events from 22 November 2004”. Some parts are new, some parts have sets of particulars which are new. There have been some deletions.

84    Part K is headed “Unlawfulness of events from 22 November 2004”. It is a combination of sections which are in the current pleading and some new sections, based on the Code of Conduct and on what might be called by shorthand reference the Royal Commission arguments.

85    Part L deals with allegations of unlawful discrimination which appear to be separate from the ones contained in Part I, and indeed in some paragraphs proceeds on the basis that the allegations in Part I are not successful.

86    Part M is new and makes allegations relating to aggravated or exemplary damages.

87    Parts N (Vicarious liability of respondents”) and O (AHRC complaint) are not substantially changed.

Conclusions of this comparison

The application

88    Late though they are, the amendments which introduce more specificity to the applicants’ claims and align them more specifically with the terms of s 9 of the Racial Discrimination Act contribute to a clarification of the way the applicants put their claims. It is in the interests of the administration of justice that those amendments be permitted. Those amendments include paragraphs such as paras 1(a), 1(b), 2(a) and 2(b).

89    Although there is a series of new human rights relied upon, whether or not the applicants succeed in establishing a contravention of s 9 by reason of their reliance on this new suite of rights involves predominantly questions of law, and characterisation of facts as found. It is in the interests of the administration of justice that the applicants be able to put their case under s 9 in the way they seek to do, so that all issues between the parties can be fully and finally resolved. Having been given this opportunity to recharacterise their claims under s 9, this grant of leave should not be seen as a licence to the applicants to attempt to do so again at some later stage.

90    For reasons I set out more fully below in relation to the pleading, I do not propose to allow the extension of the applicants’ claims in this proceeding to include what they allege occurred to Mulrunji, in the sense of being claims upon which they seek to found entitlements to declaratory relief and to compensation. However, the amendments to refer in both the proposed application and pleading to Mulrunji’s race as one of the true reasons for the treatment of the applicants and the group members will be allowed, although I harbour some doubts about how the arguments can be made.

91    I have no evidence before me to suggest that PLO Bengaroo is a group member. If he is, the terms of the application and the pleading already cover his rights and interests in the conduct alleged against the respondents. If he is not, then as with the allegations about Mulrunji, I have some doubt as to how the applicants can bring a claim relying on his race as the true reason for the respondents’ conduct. However, the proper construction of s 9 in this regard is a matter best left for determination at trial after full argument and I see no particular prejudice to the respondents in now having to meet this argument. It involves a characterisation of their conduct, rather than new factual allegations.

92    The new sub-group is reasonably clearly identified in the proposed application, and the common questions of law and fact which are said to arise are set out. I consider leave should be granted in respect of the claims concerning the sub-group.

93    I will not grant leave to add all the proposed common questions of law and fact. The purpose of identifying common questions was set out by the Full Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26 at [6] and [8]:

In our opinion it is desirable, if not necessary, to identify precisely what issues will be determined in the “trial” (and those that will not be determined) on the assumption, which the parties did not gainsay, that at the end of the “trial”, orders will be made which reflect the determination made by the trial judge on both questions of fact and law or mixed questions of fact and law. That the “trial” will result in a determination of Mr Peterson’s claim (personal to him), is a given. As Sackville J did in Courtney v Medtel Pty Ltd (2003) 126 FCR 219 (by making orders on 16 August 2002 posing a number of questions which were partly answered on 3 March 2003 [2003] FCA 129), an order can be made identifying Mr Peterson’s claim as a matter (in the sense of subject matter entailing questions of fact and law) to which the trial will be directed.

It seems to us that given that there is controversy about what are the common issues, it would be desirable to structure the “trial” by identifying what might be the common issues for determination, though on the footing that if it became apparent from the evidence and the submissions that they were not common, they would not then be determined lest they be “an issue that relates only to the claims of [one particular] member”. If the issues are framed as questions, orders can be made answering them. At that point a party disaffected by the determination would be in a position to challenge those answers by way of appeal as contemplated by s 33ZC(1). Broadly described, one outcome could be that Mr Peterson failed in his own personal case and such issues as were found to be common either were not answered at all or, in some critical respect, were answered in a way propounded by Merck. Alternatively, another outcome, broadly described, could be that Mr Peterson succeeded in his own personal case and such issues as were found to be common were answered either in whole or in part in a way propounded by Mr Peterson. In the former situation and probably in the latter, it would be desirable that the disaffected party then had the opportunity to challenge the trial judge’s conclusions if so minded. Certainly in the latter case it is probably desirable that such a challenge occur before the circumstances of other individual members of the group were then considered. If there is no judgment, in a technical sense, at the end of the trial then the disaffected party would not be in a position to maintain such a challenge.

(Emphasis added.)

94    Some of the new questions may be consistent with this approach. It is not possible to tell with any certainty. The questions are of such number, and entirely variable as to their specificity, and mixed as to matters of fact and law, as to be unclear and unhelpful. I do not consider them likely to clarify or resolve anything by way of identifying common questions.

95    These matters can be revisited if need be before the conclusion of the proceeding, so as to avoid any unnecessary duplication of proceedings for group members. Until such time the common questions will remain as set out in the current application. The new questions for the sub-group will be allowed.

The statement of claim

96    Part A is intended to aid the understanding of the pleading and should be allowed. The amendments in Part B, including the allegations concerning the new sub-group, should be allowed. They are confined, and they are plainly important to the proceeding in its representative nature.

97    Part C should be largely uncontroversial, and mostly contains allegations of law. Leave is granted in relation to Part C.

98    Leave should be granted in relation to some but not all of the proposed amendments in Parts D and H. There are three principal reasons. First, I do not consider the Court has jurisdiction under s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) to deal with the allegations concerning the treatment of Mulrunji before he died. I do not consider this was the subject of complaint to the Australian Human Rights Commission: see Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]-[48]; King v Jetstar Airways Pty Limited (No 2) [2012] FCA 8; 286 ALR 149 at [25] and [28]. I do not accept the applicants’ submission it is covered by para 4(i) of the Australian Human Rights Commission complaint, which is in the following terms:

4.    Heads of Discrimination by the State of Queensland against the Class:

(i)    failing to provide policing services, including in particular, investigative and law enforcement services to members of the Class, in a manner conformable with the way in which such policing services and in particular, investigative and law enforcement services, are provided to other citizens of Queensland and in particular, to non-indigenous citizens of Queensland (S.9 of the Racial Discrimination Act, 1975, as amended/Article 26 of the International Covenant on Civil and Political Rights ("ICCPR").

99    I am not presently satisfied that the Australian Human Rights Commission complaint was intended to, nor did, cover the treatment of Mulrunji himself, leaving to one side the question whether in law it could have. The references to “policing services” are, in my opinion, obviously in context references to what Queensland Police Service did, or did not do, after Mulrunji’s death. So much is clear when para 4(i) is read with paras 4(ii)-(iv):

(ii)    failing to respect the bereavement and righteous indignation of members of the Class over the death in custody of their kinsman, Mulrunji Doomadgee on 19 November, 2004, including with respect to the manner of investigating his death and of observing and enforcing the law, or alternatively, failing to do so, in the period commencing 19 November, 2004 (S.9 of the Racial Discrimination Act, 1975, as amended/Article 26 of ICCPR);

(iii)    deliberately neglecting to set up a trial centre on Palm Island, in Queensland or otherwise, to ensure that the Class Members could and can enjoy the right of other citizens of Queensland to be tried by a jury comprised of their peers (S.9 of the Racial Discrimination Act, 1975, as amended and Articles 14 and 26 of the ICCPR); and

(iv)    between 26 and 28 November, 2004, subjecting members of the Class to arbitrary and unlawful interference with their privacy, family and home (S.9 of the Racial Discrimination Act, 1975 and Article 17 of the ICCPR), pursuant to a declared "State of Emergency", the validity of which has since been impeached by the Queensland Crime and Misconduct Commission ("CMC").

100    Second, the allegations about the treatment of Mulrunji have the capacity, in my opinion, to result in inconsistent findings as between this Court, the Coroner’s Court and, possibly, the acquittal of SS Hurley. I have an imperfect understanding of these other proceedings at this point. The applicants have not assisted me. It is their task to persuade me why it is in the interests of the administration of justice for these amendments to be made. I have made it clear since the start of my involvement in this matter that I would not allow this proceeding to become a re-run, or re-trial, of matters dealt with elsewhere. The allegations about the treatment of Mulrunji have, in my opinion, that capacity. The applicants have not persuaded me they should be permitted to raise any such allegations. It is wholly unclear how they go to the central allegations of unlawful racial discrimination.

101    Third, I accept the respondents’ submissions at [38]-[43] of their written submissions that it is wholly unclear how the applicants, and the group members, have standing to complain about the treatment of Mulrunji. If standing were the only problem, I may have been inclined to allow the amendments and have the issue determined at trial. But I have more significant concerns, as I have outlined above.

102    I set out in my proposed orders the paragraphs I consider are affected by the views I have expressed.

103    Part E is, in the structure of the new pleading, important. It operates, so far as I can see, as an important plank for the late contentions about how and why the applicants and group members were treated less favourably because they were Aboriginal, in the way Mulrunji’s death was investigated, and in the way the tensions on Palm Island were dealt with.

104    I accept the criticism made by senior counsel for the respondents of Part E, in particular para 32. There is no doubt particulars will be required. Subject to something extraordinary occurring that makes any further amendment necessary, the applicants will be held to this pleading and should give particulars quickly and properly.

105    The amendments in Part F should be allowed. They give the respondents notice of the precise obligations, and their source, on which the applicants propose to rely for the allegations of unlawful discrimination. In that way these pleadings should refine and clarify the issues in the case.

106    The amendments in Part G should be allowed. They provide greater clarity in terms of the material facts, and the failures said to arise from them. They should assist in the resolution of the real issues in dispute between the parties. In broad terms, their subject matter is the same as in the current pleading.

107    Part I is critical to the applicants’ case. In its current form it is expressed at a highly generalised level. The proposed Part I has the advantage of giving more particularity and specificity, and being more closely tied to s 9 of the Racial Discrimination Act.

108    Part J also fills in the content of the allegations in a way which should assist the just resolution of the matters in issue between the parties. To the extent there are new allegations of fact, they are not such as to cause prejudice to the respondents of an extent that outweighs the interests of the applicants fully putting their case about the conduct of Queensland Police Service.

109    Part K draws together some of the alleged legal consequences of earlier portions of the pleading for which I have granted leave. These amendments should be allowed.

110    Although many of the allegations in Part L are new, they principally concern the legal characterisation of conduct alleged as facts elsewhere. They are central to the claims of the applicants and group members, and leave should be granted. The loss and damage allegations in this part are not substantively different to those in the current pleading.

111    There is force in the respondents’ submissions about Part M, and the construction of the compensation provisions in the Australian Human Rights Commission Act. With some reluctance, I have decided that the preferable course is to grant leave on these amendments, and to allow the respondents to plead in their defence why these allegations are unsustainable. They are principally pleadings of law.

112    In relation to Parts N and O, leave is granted for the minor amendments sought to be made to those parts.

Future conduct of the proceeding

113    It should be clear that the considerable prejudice which I accept flows to the respondents by reason of these late and very substantial amendments has a number of consequences. Obviously, there are costs consequences, which the applicants accepted in their oral submissions. There are consequences for what part of the four-week trial can be salvaged, without more undue prejudice to the respondents. I am prepared to consider applications by the respondents about how modifications might be made to the evidence to be adduced, especially from their witnesses, in order to respond to the new allegations. It may be, for example, that portions of the respondents case cannot be started during the second week of the two weeks that I propose to utilise, and that the Court must reconvene at a later and convenient date in order to deal with categories of evidence which are responsive to the new allegations.

114    There may be consequences in terms of the notices which have been given to group members, and the parties should consider their positions on whether new notices need to be given: see King v GIO Australia Holdings Ltd [2001] FCA 1487 at [9] per Moore J.

115    I have explained why I do not grant leave to the applicants to make all of the amendments in Parts D and H of the proposed pleading. It may well be that some of the matters in these parts can be agreed as facts between the parties, if further background and context is necessary on these events. It may be that once the parties have opened their cases, and the two weeks of hearing have been conducted, the need for some of these allegations to be included in the pleading becomes obvious, and the reasons I have given for not granting leave on this application are no longer persuasive. The Court’s amendment powers will remain available.

116    No part of my reasons should be taken as precluding the respondents from raising in their defence whatever they consider appropriate by way of response to the allegations in the amended application and pleading. On detailed consideration, it may be that some allegations are embarrassing, unclear, or beyond the Court’s jurisdiction.

117    It seems to me that it is beyond argument that the trial cannot commence on Palm Island on 7 September 2015 as currently scheduled. The respondents must be given a proper opportunity, even if somewhat compressed, to consider and respond to the application and pleading as amended. There must then be time for the parties to prepare their respective cases adapting to the claim as it is now put.

118    That said, given my own court calendar is now full into the middle of 2016, I do not propose to vacate the hearing entirely. Senior counsel for the respondents responsibly conceded some of the four weeks may be utilised. That is what will occur.

119    The Court will sit on Palm Island on the week commencing 21 September 2015, and in Townsville in the week commencing 28 September 2015. The parties will be expected to get through as much of the evidence as possible during this time, subject to any leave granted to the respondents to hold over part of their evidentiary case to adjourned dates by reason of these late amendments.

120    The parties will be directed to confer and submit proposed orders reflecting my reasons and making necessary modifications to orders which are currently in place in relation to trial preparation.

121    I would be inclined to allow the respondents until approximately 11 September 2015 to file their defence. That is still short of the time they would usually be allowed under the Federal Court Rules where amendments are made: see r 16.55(4).

122    The applicants should file any reply no later than 15 September 2015. If that is highly compressed, they only have themselves to blame for that.

123    The proposed orders which the parties draw up in compliance with paragraphs 6 and 7 of the orders I have made today should reflect the views I have expressed in paras [121] and [122]. I have no firm views on the remaining (considerably challenging) timetabling issues and am content to leave them, in the first instance, for the parties to consider.

124    If there are any matters in relation to consequential orders which cannot be agreed, those matters should be identified, and short submissions made by each party. I will deal with those matters on the papers.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.


Dated:    21 August 2015