FEDERAL COURT OF AUSTRALIA
Wotton v State of Queensland (No 2) [2015] FCA 1073
IN THE FEDERAL COURT OF AUSTRALIA | |
First Applicant AGNES WOTTON Second Applicant CECILIA ANNE WOTTON Third Applicant | |
AND: | First Respondent COMMISSIONER OF THE POLICE SERVICE WHO IS SUED AS THE COMMISSIONER OF THE POLICE SERVICE AND AS REPRESENTING THE MEMBERS OF THE QUEENSLAND POLICE SERVICE ENGAGED IN THE IMPUGNED CONDUCT Second Respondent |
DATE OF ORDER: | |
WHERE MADE: | PALM ISLAND |
THE COURT ORDERS THAT:
1. The report of Dr Rosalind Kidd filed on 16 June 2015 be admitted.
2. The report of Professor Jon Altman filed on 8 September 2015 be admitted.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 535 of 2013 |
BETWEEN: | LEX PATRICK WOTTON First Applicant AGNES WOTTON Second Applicant CECILIA ANNE WOTTON Third Applicant |
AND: | STATE OF QUEENSLAND First Respondent COMMISSIONER OF THE POLICE SERVICE WHO IS SUED AS THE COMMISSIONER OF THE POLICE SERVICE AND AS REPRESENTING THE MEMBERS OF THE QUEENSLAND POLICE SERVICE ENGAGED IN THE IMPUGNED CONDUCT Second Respondent |
JUDGE: | MORTIMER J |
DATE: | 23 SEPTEMBER 2015 |
PLACE: | PALM ISLAND |
REASONS FOR RULINGS
1 Objection has been taken by the respondents to the report of Dr Rosalind Kidd filed on 16 June 2015. The objection is one of relevance, and it is submitted on behalf of the respondents that Dr Kidd’s report deals with events up to 1991 but not thereafter. The respondents submit Dr Kidd’s report tells the Court nothing about the prevailing situation on Palm Island in 2004, given that the applicants’ case is based, it is submitted, on actual or constructed knowledge by Queensland Police officers of the characteristics of the community of Palm Island in 2004.
2 In my opinion, Dr Kidd’s report is capable of rationally affecting the probability of facts in issue in this proceeding and is relevant within the terms of ss 55 and 56 of the Evidence Act 1995 (Cth).
3 The applicants have identified a series of pleadings in the third further amended statement of claim to which it is submitted Dr Kidd’s evidence is relevant. I accept in general terms the “characteristics” of the Palm Island community, insofar as that term is used in the statement of claim, includes the way in which the community was formed, how Aboriginal people came to be on Palm Island, where they came from and in what circumstances they lived on Palm Island throughout the community’s history. While the phrase used in the pleadings – the “cultural needs” of the Palm Island community – is perhaps a phrase that does not adequately capture the features of the community as opened in this case on behalf of the applicants, on the argument as to admissibility I accept that the phrase is not to be reduced to culture in the sense of traditional law and custom, but extends more broadly. How much more broadly will be a matter for final submissions.
4 Whether Dr Kidd’s report is relevant to the allegations of systemic discrimination as pleaded in the statement of claim is a matter on which I am less persuaded, but at this early stage I am not disposed to preclude the applicants from relying on it to prosecute that part of their case.
5 More generally, this case is about whether the conduct of Queensland Police in the events and aftermath of mid- to late November 2004 was based on the Aboriginal race of those involved in those events, and the Aboriginal race of the overwhelming majority of the Palm Island community. In my opinion, the nature of that case and its particular reliance on the attributes of the Palm Island community as an Aboriginal community arises in many places in the pleadings. I accept that it is important in that context for the applicants to be able to adduce evidence of how the community on Palm Island came to be constructed.
6 When the Court is tasked with ascertaining why police acted as they did, the applicants should be permitted to expose fully in evidence the basis for their arguments that it was because of, or was referable to, this particular community as an Aboriginal community. Proof of the history of the Palm Island community may rationally affect the identification of the reason for police acting as they did, at least on the applicants’ case.
7 The respondents accurately identify the early 1990s as the point at which Dr Kidd’s sources cease in her report, this also being the point in time at which her history of the island ceases. These are matters which, in my opinion, may ultimately affect the weight that can be placed on her material, although that is a matter that needs to be explored in cross-examination and subject to submissions at the conclusion of this trial.
8 I turn now to the objections to the report of Professor Jon Altman which was filed on 8 September 2015. The objection pressed by the respondents was one of relevance.
9 By reference to the letter of instruction given to Professor Altman and its use, again, of the phrase “cultural needs” of the community, the respondents submitted that the report addresses the socio-economic disadvantages of the Palm Island community, but does not address any cultural needs of the Palm Island community based on Aboriginality. In my opinion, that characterisation of the connection between Professor Altman’s report and the pleadings is too narrow. I will allow the applicants to rely on Professor Altman’s evidence, and I overrule the objection.
10 I was taken to the applicants’ particulars to the third further amended statement of claim concerning the allegation that police conduct failed to take into account the “cultural needs” of the Palm Island community. In answer to a question from me, senior counsel for the applicants confirmed these particulars are intended to relate to both the pleading of the “characteristics” of the Palm Island community and the “cultural needs” of that community, despite the heading to these particulars referring only to the latter phrase.
11 The particulars bear out what I have said earlier in this ruling about the breadth of the matters the applicants intend to be embraced by these phrases. Those particulars expressly rely on the socio-economic characteristics of the Palm Island community as part of the basis on which it is alleged that the Queensland Police failed to conduct themselves during the pleaded events in 2004 in a way that was free from racial discrimination.
12 At this stage of the proceeding I am satisfied that Professor Altman’s opinions about the socio-economic status of the Palm Island community are capable of rationally affecting proof of the incidents of racial discrimination alleged by the applicants, certainly as to what are described in the third further amended statement of claim as the “QPS Failures” and the “Further Failures” and possibly as to the allegations of systemic and institutionalised racial discrimination. Accordingly I overrule the objection to Professor Altman’s report.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice Mortimer. |
Associate:
