FEDERAL COURT OF AUSTRALIA

Wotton v State of Queensland (No 10) [2018] FCA 915

File number:

QUD 535 of 2013

Judge:

MURPHY J

Date of judgment:

15 June 2018

Catchwords:

REPRESENTATIVE PROCEEDINGS – approval of settlement – where liability for breaches of Racial Discrimination Act already established – where proposed settlement in upper range of likely recovery – where apology by respondent of substantial benefit to applicants - settlement approved

Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Racial Discrimination Act 1975 (Cth)

Cases cited:

Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527

Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323

Lopez v Star World Enterprises Pty Ltd [1999] FCA 104

P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029

Wotton v State of Queensland (No 5) [2016] FCA 1457; 352 ALR 146

Wotton v State of Queensland (No 8) [2017] FCA 639

Date of hearing:

15 June 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

54

Counsel for the Applicants:

Dr K Hanscombe QC and Mr D G Guidolin

Solicitor for the Applicants:

Levitt Robinson

Counsel for the Respondents:

Mr C Murdoch QC and Mr S McLeod

Solicitor for the Respondents:

Crown Law

ORDERS

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

Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

15 june 2018

THE COURT ORDERS THAT:

1.    Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (“the Act”) and rule 2.32(3)(a) of the Federal Court Rules 2011 (“the Rules”), that:

(a)    the affidavit of Stewart Alan Levitt sworn 12 June 2018;

(b)    the supplementary affidavit of Stewart Alan Levitt sworn 14 June 2018; and

(c)    the document behind Tab 36 of the Application Book filed in this proceeding on 12 June 2018 identified as the Confidential Opinion of Dr Kristine Hanscombe QC and Dean Guidolin;

be kept confidential and, until further or other order of the Court, be sealed in an envelope and marked “Not to be opened without leave of the Court or a Judge” and placed on the Court file.

2.    Pursuant to s 33ZF of the Act, the Court authorises:

(a)    the applicants on behalf of the group members;

(b)    Delphine Dawn Clay as the Sub-group Representative of the Travel Restriction Sub-group claim, on behalf of the Travel Restriction Sub-group members; and

(c)    Yvette Gail Wotton as the Sub-group Representative of the General Damages Sub-group claim, on behalf of the General Damages Sub-group members;

nunc pro tunc to enter into the Deed of Settlement dated 16 April 2018 between the applicants, Delphine Dawn Clay and Yvette Gail Wotton and the respondents (“the Deed”) and to give effect to the transactions contemplated by it for and on behalf of the group members, the Travel Restriction Sub-group members and the General Damages Sub-group members, respectively.

3.    Pursuant to s 33V and s 33ZF of the Act settlement of the proceeding be and is approved by the Court upon the terms set out in:

(a)    the Deed exhibited at pages 1 to 22 of exhibit “BRI-1” to the affidavit of Brett Richard Imlay sworn 16 April 2018; and

(b)    the Palm Island Class Action Settlement Scheme (“the Scheme”) which is attached as Schedule 1 to these orders.

4.    Pursuant to s 33ZF of the Act, Stewart Alan Levitt be appointed Administrator of the Scheme and be authorized to execute the provisions of the Scheme.

5.    Pursuant to s 33ZF and s 33ZG of the Act, for the purposes of the Scheme

(a)    the sum of $ 2,415,912.14 be fixed as the amount for “outstanding costs” as defined in the Scheme and be paid in accordance with the Scheme;

(b)    the sum of $120,000 be fixed as the amount of “approval costs” as defined in the Scheme and be paid in accordance with the Scheme;

(c)    the sum of $1,550,750 be fixed as the amount of “administration costs” as defined in the Scheme and be paid in accordance with the Scheme;

(d)    the sum of $2,000 be fixed as the amount of the “sub-group representative payment” as defined in the Scheme and be paid in accordance with the Scheme.

6.    Pursuant to s 33ZF, alternatively s 33ZG, of the Act, the Administrator of the Scheme may apply to the Court for approval of further costs associated with the administration of the Scheme in so far as they may exceed the amount fixed as “administration costs” in paragraph 5(c) of these orders.

7.    Pursuant to s 33ZF of the Act, the applicants, the registered group-members (as identified in Schedule 1 to these orders) and the Administrator of the Scheme have liberty to apply to the Court by not less than 5 business days’ notice to each other party for orders in respect of any issue that arises in the administration of the Scheme.

8.    Pursuant to s 33ZB and s 33ZF of the Act the persons affected and bound by paragraphs 1 to 6 of these orders are:

(a)    the applicants;

(b)    Delphine Dawn Clay Delphine Dawn Clay as the Sub-group Representative of the Travel Restriction Sub-group;

(c)    Yvette Gail Wotton as the Sub-group Representative of the General Damages Sub-group;

(d)    the respondents; and

(e)    the registered group members identified in the document entitled “Amended List of all Persons who have registered as Group members and who Intend to Bring a Claim for Compensation or Other Redress” dated 9 April 2018 and filed in the proceeding, a copy of which is attached as Schedule 2 to these orders.

9.    Within two business days of the completion of the administration of the Scheme, the Administrator is to apply to the Court for an order that the proceeding be dismissed with no order as to costs.

10.    Elizabeth Clay Senior have liberty to apply within six months for an amendment to the Scheme to provide for any residue settlement monies, after distribution, to be provided to a different charity to that provided in the Scheme.

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

SCHEDULE 1

SCHEDULE 2

REASONS FOR JUDGMENT

MURPHY J:

1    In this matter the applicants, Lex Wotton, Agnes Wotton and Cecilia Wotton seek Court approval of a settlement of a class action pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FC Act). The applicants bring the class action on their own behalf and on behalf of all Aboriginal and Torres Strait Islander people who were ordinarily resident on Palm Island as at 19 November 2004 and who remained ordinarily resident there as at 25 March 2010, against the respondents the State of Queensland and the Commissioner of the Police Service of Queensland, alleging various breaches of s 9(1) of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) by reason of the conduct of members of the Queensland Police Service (QPS) in November 2004.

2    For the reasons I explain, I am well satisfied that the settlement should be approved and I have made orders accordingly.

3    The Court thanks counsel for the applicants and class members, Dr K P Hanscombe QC and Dean Guidolin, for the quality of their detailed written submissions and for their comprehensive confidential opinion in support of settlement approval. I have directly drawn upon the submissions at some points. I join with Justice Mortimer in thanking the respondents and their legal representatives for the manner in which they conducted the litigation, which was entirely consistent with their obligations as model litigants.

The factual and procedural background

4    The events that gave rise to the class action were triggered by the death on 19 November 2004 of a 36-year-old Aboriginal man, Cameron Doomadgee, known posthumously as Mulrunji, while he was in police custody on Palm Island. Mulrunji was arrested on a suburban street on Palm Island by Senior Sergeant Christopher Hurley of the QPS on the morning of 19 November 2004 for, as SS Hurley said, yelling abuse directed at him and at an Aboriginal police liaison officer who was on duty with him. SS Hurley took Mulrunji, who was affected by alcohol and was protesting and struggling, to the Palm Island Police Station. On the way into the police station, Mulrunji and SS Hurley fell through the rear door of the police station as they were entering it. The trial judge found that Mulrunji ended up on the floor of the police station, and was dragged, limp and unresponsive, into a police cell. Within the hour he had died.

5    The class action broadly concerns the role that race played in the investigation by QPS officers into Mulrunji’s death in custody, and the QPS’s management of community concerns and protests, tensions and anger in the weeks after Mulrunji’s death and in the police responses to the protests and fires that occurred on Palm Island on 26 November 2004.

6    The proposed settlement follows judicial determination of the applicants’ personal claims and of the common questions of fact and law, in favour of the applicants and class members. On 5 December 2016 following a trial that ran over 22 sitting days, in an important judgment for the Palm Island community, the QPS and the State of Queensland, the Court found that QPS officers had breached the Racial Discrimination Act in some of the ways alleged, through:

(a)    the inappropriate and partial treatment of SS Hurley;

(b)    the treatment of Aboriginal witnesses;

(c)    the conduct of Detective Senior Sergeant Kitching in relation to the autopsy report on Mulrunji;

(d)    the failure to suspend SS Hurley;

(e)    the failure to communicate with Palm Islanders and defuse tensions in the intervening week between Mulrunji’s death and the protests and fires;

(f)    the continuation of the declaration of an emergency situation on Palm Island (emergency declaration) after the evening of 26 November 2004; and

(g)    the arrests, entries and searches of the houses of the applicants and a number of other class members.

: see Wotton v State of Queensland (No 5) [2016] FCA 1457; 352 ALR 146 (Liability Judgment) at [1540].

7    In Wotton v State of Queensland (No 8) [2017] FCA 639 (Common Questions Judgment) the Court decided the issues of law and fact common to the claims of the applicants, the class members and the members of the SERT Subgroup, the sole subgroup which had been established at the time of that judgment. That subgroup comprises persons who allege they suffered loss and damage through arrests, home entries and searches by members of the QPS, including officers of the Special Emergency Response Team (SERT).

8    In the Common Questions Judgment Mortimer J held, in relation to the applicants and the class members, that:

(a)    the investigation by members of the QPS into the death of Mulrunji lacked independence and impartiality in the ways the Court found in the Liability Judgment at [1028]-[1032];

(b)    the emergency declaration had a lawful basis at the time was made until (as an outer limit) the early morning of 27 November 2004. Its continuation until the morning of Sunday, 28 November 2004 had no lawful basis, as there was nothing which could be characterised as an “emergency situation after, at the latest, early in the morning of 27 November 2004;

(c)    the conduct of QPS officers set out in the Liability Judgment at [1028]-[1032], [1096]-[1100], [1196]-[1200] and [1458]-[1462] contravened s 9(1) of the Racial Discrimination Act and constituted unlawful discrimination for the purposes of the Australian Human Rights Commission Act 1986 (Cth), and that the State of Queensland was liable for the officers’ conduct;

(d)    the applicants and group members are entitled to the declaratory relief sought, set out in the Liability Judgment at [1545]. The declarations of specific contraventions by named officers included unlawful discrimination:

(i)    by failure to treat SS Hurley as a suspect in the death of Mulrunji and allowing him to continue to perform policing duties;

(ii)    in their treatment of Aboriginal witnesses interviewed, and in treatment of information supplied by those witnesses, for the purposes of the investigation;

(iii)    by submitting inaccurate information to the coroner and failing to supply relevant information to the coroner; and

(iv)    by failure to communicate effectively with the Palm Island community and to defuse tensions.

9    In relation to SERT Subgroup members her Honour held that:

(a)    the use of SERT officers to effect the arrests of the first applicant and SERT Subgroup members and to enter and search the houses of the applicants and subgroup members was disproportionate and unnecessary;

(b)    the arrests of the first applicant and those subgroup members who were arrested were unlawful, except for in relation to two named persons;

(c)    given that there was no lawful basis for the arrest of the first applicant and the subgroup members who were arrested, and that no independent source of lawful authority was otherwise identified, the entry and searches of the houses of the subgroup members was also unlawful;

(d)    having found that QPS officers contravened s 9(1) of the Racial Discrimination Act in the ways set out in the Liability Judgment at [1028]-[1032], [1096]-[1100], [1196]-[1200] and [1458]-[1462] in relation to the applicants, the subgroup members and the class members, the subgroup members may be entitled to damages under s 46PO of the Racial Discrimination Act, to be assessed in accordance with the Liability Judgment;

(e)    the evidence demonstrates that SERT officers had the same appearance and adopted the same methods and the same tactical response, as set out at [351] of the Liability Judgment, at each of the houses of subgroup members they attended as they used at the applicants’ houses;

(f)    aside from the arrests of two named persons all of the arrests of subgroup members were unlawful;

(g)    all of the entries and searches of the houses were unlawful;

(h)    given the appearance, methods and tactics of SERT officers with the same at each house they attended, the use of SERT to effect arrests of subgroup members and the entries and searches of the identified houses was an arbitrary and unlawful interference with the rights of the subgroup members to family, privacy and home under Art 17 of the International Covenant on Civil and Political Rights;

(i)    the entries and searches of the homes of subgroup members were acts involving distinctions and restrictions based on race, as set out in the Liability Judgment at [1366]-[1462]; and

(j)    the arrests of subgroup members in the course of the entries and searches of the homes of subgroup members were acts involving distinctions and restrictions based on race, as set out in the Liability Judgment at [1366]-[1462].

10    On 20 April 2017 the Court made orders for a class member registration process so as to close the class (the class closure orders). Those orders required every class member who intended to advance an individual claim in the proceeding to register his or her intention to do so by no later than 1 July 2017. Order 2 of the class closure orders provided that “subject to further order, no person is entitled to seek compensation from the respondents in respect of the matters alleged in the Third Further Amended Statement of Claim otherwise than in accordance with these Orders.”

11    Later the Court made orders that permitted the registration of a number of class members with late or defective registrations. There was also an issue as to some small differences in the way the class definition was described in various orders and a difficulty in deciding whether some persons were or were not “ordinarily resident” on Palm Island in the relevant period. That concern was addressed by defining the class members bound by the settlement by reference to a list of registered class members filed with the Court.

12    Three subgroups of class members have been established, one of which has four sub-categories. They are:

(a)    the SERT Subgroup, which comprises persons who have been identified as being affected by the arrests, entries and searches conducted by members of the QPS, including SERT officers at 18 homes on Palm Island during the period between 27 and 28 November 2014. There are four different sub-categories of this subgroup, as follows:

(i)    the SERT-assault sub-category, which comprises persons who are a SERT-witness and who were assaulted by a SERT officer;

(ii)    the SERT-present sub-category, which comprises persons who were present when the SERT raided the individuals home or place they were living, staying in or visiting on Palm Island;

(iii)    the SERT-witness sub-category, which comprises persons who were present when the SERT raided someone’s home or arrested someone, but the individual was not present in the house at the time the house was raided nor was the individual assaulted by a SERT officer or their house raided; and

(iv)    the SERT-property sub-category, which comprises persons whose house was raided by the SERT but who were not present when the raid occurred;

(b)    the Travel Restriction Subgroup, which comprises persons who as a result of the making of the emergency declaration at about 1:45 pm on 26 November 2004, and the conduct of QPS officers incidental to or arising from that declaration until its revocation at 8:10 am on 28 November 2014, were the subject of one or more distinctions, exclusions, restrictions or preferences based on race which nullified or impaired the recognition, enjoyment or exercise on an equal footing of the rights of those subgroup members:

(i)    as persons lawfully within the territory of the Commonwealth of Australia, to the liberty of movement within that territory, under Article 12(1) of the International Covenant on Civil and Political Rights; and/or

(ii)    to freedom of movement and residence within the border of the Commonwealth of Australia, under Article 5(d)(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); and/or

(iii)    of access to any service intended for use by the general public, under Article 5(f) of the ICERD.

(c)    the General Damages Subgroup, which comprises persons who do not fall within the SERT Subgroup or the Travel Restriction Subgroup and who have suffered loss or damage by reason of the conduct of QPS officers acting in contravention of s 9(1) of the Racial Discrimination Act as found.

The proposed settlement

13    Against the backdrop of the Court’s findings the parties have agreed to settle the action subject to Court approval. Under the proposed settlement the State of Queensland has agreed to pay $30 million (settlement sum) in settlement of the class members’ claims, interest and costs, as well as to provide a public apology. It is proposed that the settlement sum be distributed as follows:

(a)    to pay outstanding legal costs and disbursements including the costs of obtaining settlement approval;

(b)    to pay an agreed sum to Roy Bramwell in respect of his individual claim against the respondents, which claims are different to the claims of other class members; and

(c)    the balance to be distributed to class members through the processes set out in a Court-approved settlement scheme (Scheme).

14    There are 447 class members who have registered and are listed on the “Amended List of All Persons who have Registered as Group Members and who Intend to Bring a Claim for Compensation or Other Redress” filed in the proceeding. However it appears that only 441 class members will be eligible to receive payments under the Scheme. Two class members have already received compensation from private actions, Mr Bramwell is to receive a separate amount by deduction from the settlement sum, and three persons are considered not to be class members. All class members including those who have not registered are bound by the settlement as can be seen in:

(a)    Order 2 of the class closure orders which provide that only class members that register are entitled to seek compensation in respect of the matters alleged in the proceeding;

(b)    the releases and bars against suit in cll 7.1-7.3 of the Deed of Settlement (Deed) in which the “Group Members” provide broad releases in relation to any loss or damage sustained “as a result of or arising out of or in connection with, whether directly or indirectly, the allegations in and the facts, matters and/or circumstances giving rise to the proceeding.” The term “Group Members” is defined in cl 2.1.9 to include all unregistered class members.

The Settlement Scheme

15    Under the proposed Scheme the solicitor for the applicants, Mr Stewart Levitt, is to be the scheme administrator, acting as trustee.

Allocation to a subgroup

16    The scheme administrator is to determine whether a person should be allocated to the SERT Subgroup, the Travel Restriction Subgroup or the General Damages Subgroup, doing so on the basis of an outline of evidence prepared on behalf of each class member. There are some class members who fall within more than one subgroup.

17    Most of the work in determining the appropriate subgroups into which class members fall has been undertaken, but the applicants’ solicitors do not yet have sufficient information to categorise the claims of 28 registered class members into relevant subgroups. For the purposes of estimating class members’ recovery through the Scheme it is assumed they will fall into the General Damages Subgroup.

Initial payment

18    Following the deduction of various costs with which I will later deal, the Scheme provides that every eligible class member will receive an initial payment of $3,000 (the first payment) as part payment of their eventual compensation. This provision ensures that class members will receive some monetary compensation as soon as possible while those claims which require individual assessment are assessed and perhaps reviewed by independent counsel, which may take up to a year.

19    A second payment of compensation will be made to eligible class members after the assessments and reviews of class members’ claims have been completed

Payments to General Damages and Travel Restriction Subgroup members

20    The Scheme provides that members of the General Damages and Travel Restriction Subgroups will not have their compensation individually assessed. Each will receive a fixed sum, subject to pro rata adjustments depending upon the pool of funds available after the individual assessments of compensation for class members with SERT-assault and SERT-present claims and any claims for “Further Damages”.

21    The Scheme provides that General Damages Subgroup members will receive compensation of up to $10,000 and Travel Restriction Subgroup members will receive compensation of up to $20,000, inclusive of the first payment and interest, subject to any pro rata reductions.

Further Damages

22    The Scheme provides that, where there are aggravating features in the claims of class members in the General Damages and Travel Restriction Subgroups, their claims will be individually assessed and if appropriate they will receive an amount above the fixed sum. The assessments will be made by independent junior counsel, and class members may seek review of that assessment by independent senior counsel. The assessments will be made in accordance with the principles in relation to compensation in the Liability Judgment.

23    It is anticipated that there will not be many such claims and the Scheme includes some non-exclusive examples of such aggravating features, such as:

(a)    Travel Restriction Subgroup members may be entitled to further compensation if what happened to them through the travel restrictions was humiliating, for example, where they were stranded without sufficient funds to buy food, without clean clothing, or where they were separated from young children on Palm Island during the relevant period and were prevented from caring for them; and

(b)    General Damages Subgroup members may be entitled to further compensation where, for example, (a) the person was a close relative of Mulrunji and the failure to adequately investigate his death caused greater distress; (b) the person was threatened or assaulted by police during the emergency situation on 24 November 2004; (c) the person’s house was raided or entered during the relevant period by regular police officers (not SERT); or (d) the person was arrested during the relevant period by the police, but the arrest was without any basis or was unlawful.

Payments to SERT Subgroup members

24    As I have said the Scheme divides the SERT Subgroup into four sub-categories, namely:

(a)    SERT-property claims;

(b)    SERT-witness claims;

(c)    SERT-assault claims; and

(d)    SERT-present claims.

Payments for SERT-property and SERT-witness claims

25    The Scheme provides that class members with SERT-property claims and SERT-witness claims will not have their compensation individually assessed. Each will receive a fixed sum, subject to pro rata adjustments depending upon the pool of funds available after the individual assessments of compensation for class members with SERT-assault and SERT-present claims and any claims for “further damages”.

26    The amounts of the fixed sums were reached by reference to the compensation principles set out in the Liability Judgment. The Court awarded compensation to Agnes Wotton for her SERT-property claim in the amount of $10,000 plus interest. The applicants’ claims did not include an SERT-witness claim but the Liability Judgment includes a number of observations relevant to the assessment of such claims by class members. Under the Scheme class members with SERT-property and SERT-witness claims will receive compensation of up to $20,000, inclusive of the first payment and interest, subject to pro rata reduction.

Payments for SERT-assault and SERT-present claims

27    The Scheme provides that class members with SERT-assault and SERT-present claims will have their claims for compensation individually assessed by independent junior counsel, and they may have that assessment reviewed by independent senior counsel.

28    The assessments are to be made applying the principles and approach in relation to compensation in the Liability Judgment. In that judgment the Court awarded $65,000 plus interest to Lex Wotton in respect of his loss or damage, namely the physical shock and temporary pain he suffered by being tasered, the humiliation he suffered in front of his family and partner, the fear and anxiety he experienced listening to the terrorised screams of his partner and children and his fear his family might be shot during the home entry and search. The Court awarded $85,000 to Cecilia Wotton, on the basis that although she did not suffer the same physical trauma as Lex Wotton, she experienced deeper feelings of terror during the search and entry, the effects of which were material and continuing. In respect of the violation to their privacy and home by the entry and search by SERT officers, the Court awarded Lex and Cecilia Wotton compensation of $30,000 each, plus interest.

29    It appears from the Liability Judgment that the appropriate range of compensation for SERT-assault and SERT-present class members will be around $65,000 and $85,000 but some class members are likely to receive compensation that is substantially less than this range and some may receive more. The assessment is individual and it will include consideration of the particular circumstances of that class member, any aggravating circumstances, the medical evidence and any special damages. Some class members may also be entitled to compensation for violation to their privacy and home which is likely to be in the same broad range as that awarded to Lex and Cecilia Wotton.

30    The amounts payable for these claims will also be subject to pro rata deductions depending upon the pool of funds available after all individual assessments and any claims for “further damage” have been assessed.

Review under the Scheme

31    The initial assessments will be undertaken by independent barristers of at least seven years standing. The Scheme provides a right to review in relation to:

(a)    allocation to a particular subgroup or sub-category within the SERT Subgroup;

(b)    the assessment of compensation made by the scheme administrator of SERT-assault, SERT-present and Further Damages claims.

The reviews will be undertaken by independent senior counsel. To discourage unmeritorious review applications the Scheme provides a cost penalty for an unsuccessful review

The Public Apology

32    It is a term of the settlement that the respondents will issue an agreed public apology in respect of the events which are the subject of the proceedings. The apology is fulsome, it is an important part of the settlement and it is appropriate to set out most of its detail. It provides:

The Queensland Government expresses its sincere and profound apology to all the present and former residents of Palm Island who suffered as a result of the actions of any of its employees, servants or agents during the events, which occurred between 19 and 29 November 2004, following the death of Mulrunji in police custody.

The Queensland Government acknowledges that men, women and children who were assaulted, or otherwise treated illegally during this time suffered distress, humiliation and violence, and were discriminated against on the basis of their race by persons who represented the Queensland Government. We offer our deep regret and sorrow for those actions.

There has been much suffering and pain wrought on the people of Palm Island, both during and since those events. It is the role and responsibility of the Queensland Government to act on behalf of all its citizens, equally, without fear or favour, and for there to have been conduct that fell short of this very basic standard does, and should, sadden all Queenslanders on whose behalf those actions were taken. We are sorry for the pain you have endured.

As a Government, we acknowledge that this experience (between 19 and 29 November 2004) has impacted significantly on your lives. As a Government, we have learned from your significant pain and suffering, and have taken significant steps to ensure that none of our citizens will again suffer discrimination at the hands of their government.

All Queenslanders, irrespective of which community they live in, are entitled to expect equal treatment under the law. The people of Palm Island were entitled to expect that; they were entitled to expect equal respect and to be treated with the same dignity as any other Queenslander. We acknowledge that the government of the day failed to ensure this equality.

We acknowledge that rebuilding trust between Indigenous people right across Queensland, but particularly on Palm Island, and their Government, will take time and a concerted effort. We are committed to that endeavour.

Settlement Approval

33    I set out the relevant principles in a settlement approval application under s 33V of the FCA in Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323 at [62]-[77] and recently summarised them in Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527 (Caason) at [12]-[13]. They are well-established and it is unnecessary to repeat them. It is appropriate to address the reasonableness of the settlement by reference to the factors set out in Class Actions Practice Note (GPN-CA)but many of those considerations provide little assistance in the present case because settlement was reached after judicial determination of the common issues of fact and law and the appropriate principles regarding compensation.

34    The applicants having accepted some amendments to the Scheme suggested by the Court, I am well satisfied that the settlement is fair and reasonable in the interests of the class members and I have made orders to approve the settlement. I am so satisfied for various reasons.

35    First, the settlement sum of $30 million is sizable. There are 441 class members who are eligible to recover compensation through the settlement and their estimated recovery after costs through the settlement represents approximately 100% of their assessed losses.

36    The findings in the Liability Judgment and the Common Questions Judgment would have assisted class members in establishing the respondents’ liability in any individual cases they ran, but there would remain uncertainty for many as to whether they could establish loss and damage which would justify an award of compensation and whether any such compensation would be in the same order as they will receive under the Scheme. Even using conservative assumptions as to class members’ likely recovery under the Scheme, in my view their recoveries under the Scheme are at the high end of what they might realistically recover if they were successful in individual trials of their claims.

37    Second, the settlement was agreed in arm’s length negotiations between parties who were represented by competent lawyers who are experienced in class action litigation. The settlement was reached at a mediation held after the applicants were successful at trial in their individual cases and on the common questions. The solicitors and counsel representing the class members had sufficient information to assess the merits and quantum of the class claims.

38    Third, the Court has the benefit of a careful and comprehensive confidential opinion of Dr Hanscombe QC and Dean Guidolin of counsel who are briefed in the case. They provide their opinion as officers of the Court rather than as advocates for a party. Counsel recommended that the settlement be approved by reference to the factors set out in Class Actions Practice Note (GPN-CA). I place significant reliance on counsel’s opinion, as is appropriate in a settlement approval application: Lopez v Star World Enterprises Pty Ltd [1999] FCA 104 at [16].

39    Fourth, no class member has objected to the substance of the settlement. There was an objection by Elizabeth Clay Senior, framed as a suggestion, seeking that any residue of the settlement sum remaining after distribution to class members be paid to a different charity, focused on Palm Island issues, to the charity proposed in the Scheme. I refused that objection but granted leave to Ms Clay to make submissions within six months in favour of the substitution of her proposed charity. That charity is yet to be incorporated and it will not be known for approximately 12 months whether there are any residue monies after distribution.

40    The absence of substantive objection to the proposed settlement is not determinative, and it is dangerous to assume that silence equals assent when class members may have only a small stake in the action: P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 4) [2010] FCA 1029 at [23]. But in the present case the class members are all members of a small community, the events which gave rise to the proceeding attracted a great deal of concern and protest by community members at the time, and it is likely that class members have a high level of interest in the case. I would expect that if there was any objection to the substance of the proposed settlement at least one class member would have made an objection.

41    Fifth, the Scheme fairly distributes the settlement sum between the registered class members. The Scheme provides that the scheme administrator will determine to which subgroup or subgroups a class member should be allocated, doing so on the basis of an outline of evidence prepared on behalf of each class member. Class members can request a review of that decision.

42    It is appropriate to appoint Mr Levitt as scheme administrator. Mr Levitt is experienced in class action litigation and in relation to settlement administration. In the circumstances of the present case it is preferable that the scheme administrator have a close familiarity with the subject matter of the proceeding and class members’ claims so that the claims can be assessed and finalised as quickly as possible. It is relevant too that the materials indicate that Mr Levitt enjoys the trust of a large number of class members. That will facilitate the efficiency in the administration. The assessments of compensation in some categories involve evaluative judgements upon which reasonable minds may differ, but they are not to be made by Mr Levitt. Those assessments will be made by independent junior counsel and are open to review by independent senior counsel.

43    Palm Islanders who were either unlawfully arrested or assaulted by SERT officers during the searches and home entries on 27 and 28 November 2004 or were present and witnessed the assault and arrest of others, usually family members, are likely to have suffered the most loss or damage through QPS’s unlawful conduct. It is fair and appropriate that their entitlement to compensation is individually assessed by reference to compensation principles set out in the Liability Judgment, while compensation in other categories is more fixed.

44    While the Liability Judgment provides guidance in that assessment, the particular circumstances and individual characteristics of class members with SERT-assault or SERT-witness claims mean they are likely to have suffered substantial but different levels of loss or damage and will have different compensation entitlements. The class members who were assaulted during or present for the arrests, entries and searches conducted by SERT officers were of varying ages and the raids had varying effects on them. Some were children who had assault rifles pointed at them, some were elderly and infirm and less able to deal with what happened to them. Some were heavily pregnant and therefore more vulnerable. Some adolescent and young women were terrified as disguised, armed men entered their rooms at night. Some others were terrified for their own lives and the lives of their family members and others in their vicinity and have suffered long-term psychological damage, and some have not. Each person in the SERT-assault subcategory had their liberty in some way restricted; in the case of most adult men this included physical restraint. As to the persons in the SERT-witness sub-category, those persons may have experienced significant shock and fear through the home entries and searches, and it is appropriate that their compensation entitlement be individually assessed so that it reflects their particular circumstances and individual characteristics.

45    The same will not be true of the bulk of class members in the General Damages and Travel Restriction Subgroups, and it is fair that they receive fixed sum compensation which may be increased by individual assessment when particular aggravating circumstances can be shown.

46    Although class members will not receive the same amounts through the Scheme, the differential treatment reflects the very different experiences of class members and the different loss or damage they suffered. The Scheme provides for compensation payments which depend on the conduct of the QPS to which particular class members were subjected. That is fair and reasonable and it reflects the approach taken in the Liability Judgment. The Scheme is a fair attempt to reflect the relative seriousness of what befell the various class members resulting from the respondents’ unlawful conduct.

47    Sixth, the terms of the fulsome public apology are significant to my view that settlement should be approved. Many class members have informed the solicitors for the applicants that a willingly given and appropriate apology by the respondents is of real value to them. In the Liability Judgment (at [1594]) Mortimer J said that a genuine apology by the QPS was likely to operate to redress some of the damage done by the way QPS officers conducted themselves on Palm Island, as class members would see it as their having been held accountable for what occurred.

48    Seventh, the proposed deductions from the settlement sum are fair and reasonable. The first proposed deduction is the legal costs and disbursements associated with the proceeding and in relation to settlement administration. I considered that class members’ interests in relation to those costs would be best protected by having a Court-appointed expert review the costs (see Caason at [111]-[124]) and I made orders to appoint Elizabeth Harris as a referee (Referee) under s 54A of the Act to inquire and report in relation to the reasonableness of the applicants costs.

49    The Referee provided a report dated 13 June 2018 in which she concluded that the reasonable costs and disbursements of the proceeding and the settlement administration total $7,095,912. To the uninitiated this may appear to be an excessively large sum. However, for those with experience in large, complex and strenuously defended class action litigation which included a 22 day trial sometimes in a remote location, followed by the assessment through a detailed Scheme of 441 class members’ claims, I have no difficulty in accepting the Referee’s conclusion.

50    The settlement administration costs are substantial but they have been considered by the Referee, who found them reasonable. In the circumstances it is not appropriate that the settlement administration be put to tender. It is plain from the materials that the applicants’ solicitors have a detailed and nuanced understanding of class members’ claims and I accept that they have earned the trust of a great number of class members. The fairness and the efficiency of the settlement administration will be enhanced by their understanding of the claims and it seems likely that there will be fewer review applications as a result of class members’ trust: see Caason at [158].

51    The Referee considered a reduction in the claimed costs and disbursements of just over $317,000 to be appropriate. The solicitors for the applicant did not cavil with the proposed reductions in their fees but disagreed with the Referee’s view in regard to junior counsel fees for conducting assessments under the Scheme. Having given that question some consideration I am persuaded that the counsel’s fees proposed in the Scheme are reasonable. I adopt the Referee’s report except in that small regard.

52    The next proposed deductions from the settlement fund are amounts of $2,000 to be paid to the sub-group representatives. It is settled that that a lead applicant or subgroup representative who has sacrificed time and incurred expenses in prosecuting a proceeding on behalf of the class or a subgroup should be entitled to some reimbursement from the corpus of any settlement or judgment. Such reimbursement is for the time and expense attributable to the representative features of their involvement in the litigation: Caason at [176]. The amounts sought of $2,000 for each subgroup representative are modest and should be approved.

53    Finally, an amount is to be deducted for Mr Bramwell’s separate claim. Although his claim was included in the global settlement it is separate from the class action. To respect his privacy I will not set out the quantum of his settlement, except to note that it is not material in the overall settlement.

54    Eighth, the settlement will provide substantial amounts of compensation to a small remote community. The Scheme provides for an amount to be set aside sufficient to ensure that the members of the Palm Island community are given appropriate financial counselling, advice and assistance in dealing with the compensation amounts they are to receive. The applicants are to file submissions within 14 days as to an appropriate amount to be set aside and I will make an order on the papers in that regard.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate:

Dated:    15 June 2018