FEDERAL COURT OF AUSTRALIA

Jenkings v Northern Territory of Australia (No 2) [2018] FCA 1706

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs [68]-[69], [73]-[74], [77], [90]-[91], [93]-[94], [97], [114]-[117], [123]-[129] and [131]-[136] of the Fifth Statement of Claim (5SC) be struck out.

2.    The Respondent’s application for the striking out of [75]-[76] and [95]-[96] of the 5SC is refused.

3.    The Respondent is, within 14 days, to discover to the Applicants documents pursuant to which the Director, Commissioner of Superintendent was appointed to or in respect of a detention centre in respect of any appointment which was effective during the period from 20 December 2011 to 9 September 2016.

4.    The Applicants’ Interlocutory Application filed on 9 May 2018 be otherwise dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    This is a judgment on a pleading and discovery dispute in a representative action.

2    The Group Members are defined (in substance) as persons who were or who had been detained in a youth detention centre of the Northern Territory at any time between 1 August 2006 and 27 November 2017, who suffered or allege they suffered discrimination in contravention of s 9(1) of the Racial Discrimination Act 1975 (Cth) (the RD Act), and who claim damages in respect of the impairment of their enjoyment of their human rights and fundamental freedoms by reason of the contraventions, and/or who suffered, or allege that they suffered, assault, battery and/or false imprisonment by the acts or omissions of officers or employees in a detention centre.

3    On 27 October 2017, the Court refused applications by the Territory seeking the striking out pursuant to r 16.21 of the Federal Court Rules 2011 (the FCR) of the pleading as representative pleadings, for an order pursuant to s 33N(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), and for an order for the cross-vesting of the proceedings to the Supreme Court of the Northern Territory: Jenkings v Northern Territory of Australia [2017] FCA 1263. It did, however, order the striking out of certain of the pleading of the Applicants’ own claims. They were granted leave to file and serve an amended statement of claim.

4    The Applicants exercised that leave. Their current statement of claim is the Fifth Statement of Claim (5SC) and was filed on 27 December 2017.

5    The Territory’s application seeking orders striking out particular paragraphs of the 5SC was filed on 8 May 2018.

6    On the next day, the Applicants filed an interlocutory application concerning discovery of documents.

7    It is convenient to address first the strike out application.

Overview of the 5SC

8    The 5SC comprises 13 Parts. Part I identifies the parties. Parts II and III identify particular provisions in the Youth Justice Act (NT) (the YJ Act), in the Youth Justice Regulations (NT) (the YJ Regulations), and in Determinations made by a Commissioner or Superintendent in a detention centre pursuant to reg 30 of the YJ Regulations relied upon by the Applicants in the proceedings.

9    Part IV alleges that each Applicant and Group Member retained a right to “residual liberty” and that particular circumstances constituted a form of wrongful imprisonment. Part V contains allegations that particular circumstances or conduct within a detention centre constituted battery and/or assault.

10    The First Applicant’s individual tort claims are made in Part VI. Part VII contains the tort claims of the Second Applicant. These correspond substantially, but not wholly, with the claims of the First Applicant.

11    Part VIII is concerned with limitation of actions issues and Pt IX with the tort claims of the Group Members. Parts X, XI, XII and XIII concern the claims of contraventions under the RD Act.

12    The present application of the Territory concerns aspects of the pleading of the individual tort claims of the two Applicants and aspects of the pleading of the RD Act contraventions.

13    Given the close correspondence between the pleadings of the two Applicants’ claims, I will address first the Territory’s complaints about the First Applicant’s claims. It was common ground that the fate of the Territory’s critique of the Second Applicant’s claims should follow the determination of its critique of the First Applicant’s claims.

Relevant principles and matters of approach

14    Issues concerning the adequacy of the Applicants’ pleading are occupying an undue amount of the time of the Court and of the parties. It is accordingly appropriate to restate some underlying principles.

15    The fundamental purpose of pleadings is to provide a structural framework for the litigation. Pleadings achieve this purpose by performing two basic functions. First, by defining the issues between the parties, thereby providing the basis for the determination of questions as to discovery before trial and the admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the rules as to res judicata and issue estoppel. Secondly, by providing fair notice to opponents of the case to be made against them at trial, thereby minimising the risk of injustice resulting from surprise: Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216 (King CJ); Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd [1990] HCA 11, (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J). This Court’s Rules are intended to facilitate the achievement of these fundamental purposes.

16    Rule 16.02(1)(d) of the FCR specifies that a pleading must:

[S]tate the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved …

17    The facts which are material to a claim can usually be pleaded at varying levels of generality or abstraction. Rule 16.02(1)(d) indicates the required level of specificity by indicating that a party must plead the material facts which are necessary to give the opposing party fair notice of the case to be made against it. Rule 16.03(1)(b) elaborates this requirement by requiring a party to plead a fact if “failure to plead the fact may take another party by surprise”. See also r 16.08 in relation to pleadings subsequent to a statement of claim.

18    The FCR distinguish between the pleading of material facts, on the one hand, and the provision of particulars, on the other. Often this distinction is blurred. However, given the Territory’s contention that the Applicants have not pleaded sufficient material facts and the Applicants’ position that they can provide further particulars only after discovery and/or interrogatories, it is pertinent to note the distinction between the two. I have already referred to rr 16.02 and 16.03 regarding the required content of the pleading of material facts. Rule 16.41 requires a party to state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party. Lindgren J explained the different purposes of the pleading of material facts and particulars in Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568:

[15]    The requirement that material facts be stated has two purposes: the natural justice purpose of adequately informing the other party of the nature of the case alleged against that party; and the purpose of providing a basis for determining whether that alleged case, so exposed, constitutes a cause of action cognisable at law. Particulars serve only the former purpose. … Particulars have a role to play where all the material facts have been pleaded but leave the other party inadequately informed of the case to be met; …

(Emphasis added)

19    Later, at [17], Lindgren J noted the tendency for a less strict view to be taken of the distinction between material facts and particulars than had been taken previously, but emphasised the requirement, nevertheless, for a statement of claim to contain all the material facts on which an applicant relies:

… According to this view, the particulars contained in a statement of claim may be taken into account for the purpose of determining whether the statement of claim amounts to a statement of all the material facts. But even this more flexible view of pleading does not countenance the omission of material facts from the statement of claim regarded as a whole. Accordingly, if the Pleading, regarded as a whole, does not contain a clear statement of all the material facts on which [the applicant] relies, it is no answer to suggest that [the respondent] can require [the applicant] to supply particulars.

(Emphasis added)

20    The adequacy or otherwise of the pleading of the material facts in a particular proceeding is very much dependent on the context and circumstances of the case. For this reason it has been said that a statement of claim must allege a cause of action with sufficient particularity and not simply make out allegations in general terms: Young Investments Group Pty Ltd v Mann [2012] FCAFC 107, (2012) 293 ALR 537 at [7]; Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] FCA 1758, [1996] APTR 41-522 at 42,679. In Young Investments Group, the Full Court elaborated the requirement for sufficient particularity by saying:

[7]    … The adequacy of a statement of claim is to be assessed by reference to whether the cause of action is pleaded at a level of particularity that is sufficient to define the issues and inform the other party of the case that it has to meet, in the context of the particular allegations. A respondent or defendant is entitled to know the factual foundation for the case that is being alleged, so that the respondent or defendant can prepare to meet that case at trial. In order to disclose a reasonable cause of action, a statement of claim must contain an allegation of all of the relevant facts necessary to support any allegation made in it. …

(Emphasis added)

21    This means that a statement of claim should contain a pleading of the material facts which support the causes of action to be pursued by an applicant.

22    The principles which inform the Court’s resolution of disputes under r 16.21 were not in dispute. I referred to those principles recently in Sitzler Pty Ltd v GPT RE Ltd as Responsible Entity of the General Property Trust [2018] FCA 1496, and it is convenient to refer, without repeating, to what I said then. It is also convenient to repeat what I said concerning the Court’s approach to pleading challenges:

[11]    The approach of the Court to the resolution of disputes about the adequacy of a pleading is informed by the overarching purpose contained in s 37M of the Federal Court of Australia Act 1976 (Cth). It is also influenced by the case management and evidence preparation techniques typically applied by the Court. In this respect, I respectfully agree with the views of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82:

[5]    In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. …

[6]    Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.

[7]    In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.

[8]    Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.

[12]    The application of this approach is reflected in a number of decisions of this Court, including Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13]; Wainter Pty Ltd v Freehills (A Firm) [2008] FCA 562 at [3]; Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2015] FCA 1107 at [44]; Granite Transformations Pty Ltd v Apex Distributions Pty Ltd [2018] FCA 725 at [5]; Whittenbury v Vocation Ltd [2017] FCA 1185 at [7]; Oswal v Apache Corporation (No 3) [2014] FCA 835 at [8]; and Christou v Stantons International Pty Ltd (No 3) [2011] FCA 655 at [7].

23    In the present case, it is understandable that the youth of the Applicants throughout their periods of detention presents challenges for their legal advisors in presenting their claims. It seems reasonable to suppose that the circumstances in which they were detained meant that matters such as dates and times were not at the forefront of their consciousness and that different events may have merged in their recollection as part of a continuum. One can also readily accept that their recollections of events may be poor and that their ability to provide instructions to their advisors is limited. That suggests that a technical approach to the pleading of their claims would be inapposite.

24    Nevertheless, the fundamental purpose of pleadings is as important in this litigation as it is in other litigation brought before the Court. The Applicants have commenced substantial litigation capable of requiring the deployment of substantial resources by the Territory in response and by the Court in hearing and determining their proposed claims. By itself, this makes it especially desirable that the pleading of the Applicants’ claims is in a form which achieves its fundamental purpose. It also means that there are limits to the extent to which concessions can be made in their favour by reason of their youth and lack of knowledge.

Overview of paragraphs of the tort claims sought to be struck out

25    As noted, Pt VI of 5SC contains the pleading of the First Applicant’s individual tort claims.

26    Paragraph [60] alleges an incident said to have occurred in about April 2016 in which the First Applicant was threatened with tear gas while in the high security unit (HSU) at the detention centre described in the 5SC as the New Don Dale Detention Centre (New Don Dale) and subjected to other conduct, including being punched and hand cuffed. Paragraphs [61]-[64] allege a sequence of further incidents said to have followed after the incident alleged in [60]. The First Applicant alleges in [65] that members of staff in New Don Dale assaulted and/or battered him in these incidents.

27    Paragraph [66] alleges that, following the incidents alleged in [60]-[64], the First Applicant was isolated in a cell in the HSU for two days. Paragraph [67] then alleges that this isolation of the First Applicant was unlawful. The Territory does not bring any challenge to the pleading of these paragraphs.

28    There then follow a series of paragraphs alleging conduct toward the First Applicant or making allegations about the conditions in which he was detained, and which support his claims for damages. These are the paragraphs which the Territory seeks to have struck out. They have in common that they allege conduct of four kinds said to have occurred “on several occasions”. Paragraphs [68]-[69] concern occasions when the First Applicant alleges that he was kept in isolation; [73]-[74] occasions when he was handcuffed, assaulted and battered; [75]-[76], occasions when he was subjected to strip searching, assaulted and battered; and [77], occasions when he was simply assaulted and battered.

29    The allegations are made with varying degrees of generality. They are accompanied by a plea that, because the Territory had been obliged to keep records of incidents of the kind alleged, details of them are better known to the Territory than they are to the First Applicant. He pleads that he will provide further and better particulars of the dates, the circumstances of the incidents and other necessary particulars “following discovery and/or interrogatories”.

Paragraphs [68]-[69] – kept in isolation

30    Paragraphs [68] and [69] make allegations concerning the First Applicant having been kept in isolation:

[68]    In addition to the occasion referred to in paragraphs 66 and 67, on several other occasions during his periods in a youth detention centre, the first applicant was kept isolated from other detainees, either:

  68.1    Purportedly under s 153(5) of the [YJ] Act;

68.2    Pursuant to Intensive Management Plans or Individual Intensive Management Plans imposed on the first applicant by the superintendent and/or members of staff of New Don Dale pursuant to Directives 2.4.5 and 3.4.2 referred to in paragraphs 52 and 53;

68.3    Lockdowns for management reasons;

  68.4    As punishment;

  68.5    In the course of regimes applied to detainees held in the HSU.

Particulars of matters in paragraph 68

a)    The respondent was obliged to keep records of incidents of isolation of all detainees including the first applicant pursuant to the matters referred to in paragraph 40.

b)    The respondent was obliged to keep records of Intensive Management Plans and Individual Intensive Management Plans of all detainees, including the first applicant, pursuant to the matters referred to in paragraphs 54.4.

c)    The respondent was obliged to keep records of incidents pursuant to the matters referred to in paragraph 54.5 and of significant events for detainees in the HSU pursuant to the matters in paragraph 54.8.

d)    Accordingly, the details of periods and circumstances in which the first applicant was kept isolated from other detainees are better known to the respondent than to the first applicant.

e)    The first applicant will provide further and better particulars of the dates, the personnel involved and other necessary particulars of the isolation of the first applicant following discovery and/or interrogatories.

[69]    The isolation of the first applicant described in paragraph 68 was unlawful.

Particulars

a)    During the periods in which the first applicant was isolated from other detainees, pursuant to an isolation placement in purported reliance on s 153(5) or under an IMP or IIMP:

   i)    He was confined in a cell for periods exceeding 23 hours;

ii)    He was usually only allowed out of the cell once in every 24 hour period to permit him to have a shower and a period of between 15 minutes and 1 hour of recreation in the recreation area of the HSU; and

iii)    The recreation area of the HSU was enclosed and locked apart from the rest of the youth detention centre.

b)    The matters referred in particulars (a)(ii) and (a)(iii) were a continuation of and not a break from isolation

c)    The superintendent did not hold the opinions required by s 153(5) of the Act.

d)    On the occasions on which the first applicant was isolated for periods exceeding 24 hours, the isolation of the first applicant had not been approved by the commissioner contrary to section 153(5) of the Act.

e)    The isolation of the first applicant under IMPs or IIMPs was contrary to the requirements of section 153(5) of the Act.

f)    Periods of confinement in a cell for punishment or management purposes for periods shorter than 24 hours were not authorised by s153(5) of the Act because the superintendent did not hold the opinions required by s 153(5).

g)    The isolation of the first applicant in the circumstances described in particulars 69(a) to 69(f) infringed the residual liberty of the first applicant.

h)    Further particulars will be provided following discovery and/or interrogatories.

31    As is apparent, the “particulars” to [68] are not a particularisation of the matters pleaded in that paragraph. They are instead a plea that the matters pleaded are better known to the Territory than to the First Applicant with the consequence that further particulars will be provided after discovery and/or interrogatories.

32    Ms Palmer, a solicitor at Maurice Blackburn Lawyers who are acting for the Applicants, has deposed to the difficulties which they have experienced in obtaining instructions from the Applicants and says that the pleading in the 5SC is the best pleading of material facts and particulars that can be provided at the present time:

[12]    The matters pleaded in the Statement of Claim are based on the instructions of the Applicants, from their recollection of events during their time in youth detention and with only limited access to documentary records obtained by Maurice Blackburn and taken into [Darwin Correctional Centre] for discussion with the Applicants.

[13]    The records obtained by Maurice Blackburn are not complete records relating to the Applicants and largely consist of the material provided by the Respondent …

[14]    The matters pleaded in the 5SOC and the particulars provided to the Respondent to date are the best pleading of material facts and particulars that can be provided by the Applicants at the present time.

33    The Territory submits that the pleading in [68]-[69] is deficient for a number of reasons:

(a)    it pleads a consequence, namely, that the First Applicant was “kept isolated from other detainees”, without pleading the underlying facts said to constitute the isolation;

(b)    the plea of “on several other occasions” does not inform it of the particular incidents occurring over the period of more than two years during which the First Applicant was detained in a detention centre;

(c)    the pleading does not give it fair notice of the claim it must meet;

(d)    the Court struck out similar pleadings in the decision of 27 October 2017 ([2017] FCA 1263) and the pleading in the 5SC, although different, is not materially so;

(e)    the plea is an abuse of process because it is framed so as to open for discovery all of the Territory’s records with a view to permitting the First Applicant or his advisors to trawl through for additional claims of which the Applicant has no present knowledge; and

(f)    if corresponding claims are made in respect of the approximately 1,300 detainees who may comprise group members, the exercise for the Territory in “turning out” its records will be oppressive.

34    The Territory accepted that there are cases in which the Court can be satisfied that a respondent knows facts which an applicant does not, and in which it is appropriate for the respondent to give discovery before the applicant provides particulars: Millar v Harper (1888) 38 Ch D 110 at 112; Jenkings v Northern Territory at [118]. The Territory submitted, however, that this was not such a case because the First Applicant does not seek discovery in order to provide particulars of allegations of material fact already pleaded, but instead to plead the very material facts upon which his claims depend.

35    In my opinion, some of the Territory’s submissions lack merit or, at least, are insufficient to warrant the striking out of [68]-[69]. I accept that there may be more than one way in which a detainee may be “kept isolated” but do not consider that the Territory needs a pleading of the underlying facts relied upon by the First Applicant for the plea that he had been kept isolated. The isolation of a detainee appears to be a well-understood concept in the context of detention centres. It is specifically contemplated by the YJ Act (s 153(5)). There is nothing in the 5SC to suggest that the term “kept isolated” and its counterparts in [68]-[69] are used with a meaning other than that in which the term is used in s 153(5) and counsel for the Applicants did not make any submissions to the contrary. Paragraph [69] contains some elaboration of the ways in which the First Applicant is said to have been kept isolated and the Territory did not suggest that that form of isolation was different from the sense in which the term is used in s 153(5). In the context of the 5SC, the term also takes its colour from the use of the same term in [66]. I also observe that the Territory’s submissions did not include a claim that it does not know what the term “kept isolated” means. In these circumstances, I consider that this complaint of the Territory is not made out.

36    Further, I do not consider that the Territory needs particulars of the detention centre or detention centres at which the First Applicant says the incidents of isolation occurred. The Territory can infer that these incidents occurred at New Don Dale as the First Applicant’s plea in [5] of 5SC is that, with the exception of two days in May 2014, each of the seven periods in which he was detained as a youth were at New Don Dale.

37    Likewise, the Territory’s submission that similar pleadings were struck out on 27 October 2017 cannot be accepted. The pleadings in the Second Further Amended Statement of Claim which were struck out by the Court in the judgment on 27 October 2017 were in a materially different form.

38    I agree with the Territory that there is imprecision in the First Applicant’s use of the term “on several other occasions” because the actual number of occasions is not specified. Ordinarily, the word “several” means “more than two or three, but not many” (Macquarie Dictionary). However, there are some indications in the 5SC that the word may be used to connote many more occasions than this meaning suggests. See, for example, [75] and [77]. Whether that be correct or not, a pleading that incidents of a specified kind occurred “on several occasions” is not necessarily lacking, if there is elsewhere a plea of material facts or particulars sufficient to indicate the occasions to which reference is made. That being so, if there were no other difficulties with the pleading, I would not regard this imprecision as being sufficient to warrant the striking out of the pleading.

39    However, there are aspects of the pleading of the First Applicant’s claim which are troubling. Counsel for the Applicants said that the periods pleaded in [68] are a subset of the overall number of occasions in which the First Applicant had been kept in isolation. Counsel also said that the Applicants’ solicitors are not able to identify the incidents of isolation about which complaint is, and is not, made “without knowing from the Northern Territory Government which those incidents [are]”.

40    Furthermore, the 5SC does not include any other matter which may identify the particular isolations of the First Applicant which are the subject of the plea.

41    The difficulties with the pleading are thereby apparent. It does not plead sufficient facts to inform the Territory of the claims which are being brought. How is it to know the particular periods of isolation which are within the subset and those which are excluded from it? How, for example, is it to know the particular lockdowns for “management reasons” which are the subject of the Applicants’ claims if the pleaded incidents are within a larger number of lockdowns for that purpose? How, short of discovering the documents it holds with respect to every period in which the First Applicant was kept in isolation, is it to know the extent of its discovery obligations if an order for standard discovery pursuant to r 20.14 is made? How is the Court to frame an appropriate order for discovery, without requiring the Territory to discover all its documents concerning the First Applicant’s isolation?

42    If the number of occasions on which the First Applicant had been kept in isolation had been relatively small, these difficulties may be more apparent than real. However, counsel for the Applicants submitted that the isolation of the First Applicant had been “such a frequent occurrence” that the First Applicant was unable to identify any one occasion (other than that pleaded in [66]) by reference to some identifying occasion, incident or feature. If counsel’s submission be correct (and the latter part of it is supported by the affidavit of Ms Palmer), that highlights the uncertainty in the pleading and its absence of material facts. It also tends to indicate that prejudice to the Territory from the pleading. It has no means of knowing which of the frequent occasions to which counsel referred constitute the “several” occasions which are the subject of the plea in [68].

43    These difficulties do not seem to be mitigated by the pleading in [68.1]-[68.5]. Prima facie, one would expect these subparagraphs to assist in identifying the particular periods of isolation which comprise the “several other occasions”.

44    However, on analysis, they do not seem to have that effect. Paragraphs [68.1] and [68.2] seem to be a plea of the authority (or at least purported authority) pursuant to which the isolation of the First Applicant had occurred. Paragraphs [68.3]-[68.5] seem to be pleas of the cause or purpose of the isolation of the First Applicant. With respect to the former, counsel for the Applicants submitted that isolation pursuant to s 153(5) and/or pursuant to an intensive management plan are the only authorised forms of isolation of a detainee. Counsel also acknowledged in this respect that [68.1] and [68.2] reflect a form of a priori reasoning. That is, because there are only two forms of authorised isolation, the isolation of the First Applicant must have been authorised by one or other form. If that be so, [68.1] and [68.2] will not assist in delimiting the occasions which are the subject of the pleading in [68].

45    There is another respect in which the pleading in [68.1]-[68.5] cannot be regarded as providing some material facts by which periods of isolation which are the subject of the pleading may be identified. That is that it is not easy to identify any purpose or rationale for the First Applicant having been kept insolation other than those pleaded in [68.1]-[68.5]. If that be right, those matters do not constitute a pleading of material facts identifying the periods of isolation which are the subject of the claim.

46    Counsel for the Applicants sought to support the retention of the pleas in [68]-[69] by reference to the plea in [70] that the conduct of the Territory, including that pleaded in [68] and[69], constituted a false imprisonment of the First Applicant. Counsel noted that when an applicant proves that his or her imprisonment was caused by a respondent, it is the respondent who has the onus of showing a lawful justification for his or her actions: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [140] (Kirby J). I understood counsel thereby to invoke r 16.03(2) which provides that a party need not plead a fact if the burden of proving the fact does not lie on that party.

47    I do not consider that [70] in the 5SC assists the First Applicant presently. First, he has the onus of showing his imprisonment in the relevant sense. This means that he must plead the material facts supporting the claimed false imprisonment. Secondly, and perhaps more fundamentally, the First Applicant may face difficulty in showing that the tort of unlawful imprisonment is available in his circumstance. There are several authorities which indicate that the conditions in which persons who are lawfully imprisoned or detained do not give rise to the tort of unlawful imprisonment. These include Prisoners A-XX Inclusive v New South Wales (1995) 38 NSWLR 622 at 627-633; Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352 at [12]; Bennett v Superintendent of Rimutaka Prison [2001] NZCA 286, [2002] 1 NZLR 616. The Court has not yet heard detailed submission on this issue so it is inappropriate to express any concluded view. However, the uncertainty as to whether the tort of unlawful imprisonment is available to the First Applicant makes it inappropriate, in my opinion, to proceed presently on the basis that the Territory has a reverse onus.

48    It is reasonable to proceed on the basis that the Territory has a number of documents concerning the occasions on which the First Applicant was kept in isolation. The submissions of the Territory accepted that that was so. Regulation 72 of the YJ Regulations as in force during the periods in which the First Applicant was detained in a detention centre provided:

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

…

(3)    The Superintendent must keep a journal recording:

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

  (b)    the name of the detainee; and

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

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

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

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

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

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

49    At the least, the Territory should have documents of the kind contemplated by this regulation. It is possible that, if the First Applicant had access to all the journal entries concerning the occasions he was kept in isolation, his memory may be refreshed and a more detailed pleading of the First Applicant’s claims concerning his isolation may be able to be provided. However, that possibility does not, of itself, warrant the retention of [68]-[69] in the 5SC if they do not satisfy the basic requirements for a pleading.

50    This circumstance also tends to confirm the position for which the Territory contended with respect to discovery. That is that, if the pleading stands, it will be requested to make discovery of all of the documents in its possession, custody or power in relation to all periods in which the First Applicant was kept in isolation in the s 153(5) sense and the First Applicant, with the assistance of his solicitor, will then decide the claim with respect to the “several” occasions of isolation which are to be made. Then, and only then, will the First Applicant plead the material facts supporting the claims which he decides to pursue.

51    Whether or not the Territory should be ordered to provide discovery to the extent foreshadowed by the Applicants’ solicitors does not need to be considered presently.

52    When all these matters are considered, I do not consider that [68] and [69] should be permitted to remain in the 5SC. In substance they amount to no more than a generalised plea that on several unspecified occasions during his periods in detention, the First Applicant was kept isolated from other detainees and that that isolation was unlawful for one or more of the reasons pleaded in [69]. A pleading at this level of generality does not satisfy the requirements of the pleading rules. The shortcomings are not a mere absence of particulars, but constitute a failure to plead the necessary material facts.

53    I am not satisfied that this is a case in which it is appropriate to allow an applicant to defer providing a more particular pleading until discovery has been completed. As indicated earlier, that course is commonly appropriate when applicants have pleaded the material facts of their claims but lack some information, such as dates, times or amounts which are known to the respondent or which the applicant will have to seek from some other source. It is not appropriate as a form of “show and tell”, that is, a respondent disclosing the documents which it has and the applicant then deciding what the claim he or she will make.

54    For these reasons, [68]-[69] of the 5SC will be struck out.

Paragraphs [73]-[74] – handcuffing

55    Paragraphs [73] and [74] of the 5SC contain pleas concerning the handcuffing of the First Applicant. The substantive part of the two paragraphs is as follows:

[73]    On several occasions during his periods in a youth detention centre, the first applicant was handcuffed while remaining inside the youth detention centre.

[74]    On each occasion referred to in paragraph 73 the superintendent or members of staff of the youth detention centre assaulted and battered the first applicant.

56    The particulars to [73] state that by reason of the obligation of the Territory to keep records of its use of restraints such as handcuffs, “the details” of the handcuffing of the First Applicant are better known to it than the First Applicant.

57    Paragraph [74] is followed by particulars. The first two of those particulars allege the grounds on which the handcuffing “on each occasion” is said to have been unlawful, with particular (a) referring to the occasions of handcuffing which occurred before 1 August 2016 and particular (b) referring to the occasions of handcuffing after that date. Particulars (c)-(f) contain the allegations of the matters which individually or in combination are said to constitute the assault and battery.

58    Both [73] and [74] indicate that the First Applicant will provide further particulars after discovery and/or interrogatories.

59    Earlier, the 5SC had pleaded the requirements for a superintendent to keep a register containing particulars of the use of approved restraints, which I understand to include handcuffs, at [47.2] and [54.2].

60    As with the pleading in [68]-[69], the pleading in [73]-[74] does not, with two minor qualifications, identify the incidents of handcuffing to which it refers by reference to any occasion, action or feature. The minor qualifications are that the occasions occurred while the First Applicant was inside the detention centre and it is apparent that there were incidents both before and after 1 August 2016.

61    However, in substance, [73]-[74] amount to no more than a generalised plea that there were several occasions (more than two or three but not many) when the First Applicant was handcuffed while in detention and that that handcuffing was unlawful. A pleading at that level of generality does not satisfy the requirements for the pleading of the material facts of the claims.

62    Paragraphs [73]-[74] will be struck out.

Paragraphs [75]-[76] – strip searching

63    Paragraphs [75] and [76] contain pleas concerning the strip searching of the First Applicant. The substantive part of [75] is as follows:

[75]    On several occasions during his periods in a youth detention centre, the first applicant was subjected to search of his clothing and person, including a strip search, including:

  75.1    On admission to the youth detention centre;

  75.2     Before placement in isolation;

  75.3     Before placement in the HSU;

75.4     Before departure from the youth detention centre for a temporary absence, under escort, to attend a medical or dental appointment or to appear in court;

75.5    On return to the youth detention centre from a temporary absence, under escort, to attend a medical or dental appointment or to appear in court;

75.6    On some occasions, when returning to an isolation cell from the recreation area;

75.7    On some occasions, when the first applicant was detained in the HSU, on return to his cell from the recreation area of the HSU;

75.8    On some occasions, when he was in the HSU but not in the isolation cells, for no apparent reason;

75.9    Following visits from a friend or family member at the youth detention centre;

  75.10    On other occasions at random for no apparent reason.

Particulars of matters in paragraph 75

…

Paragraph [75] concludes with a plea that, by reason of the Territory’s obligation to keep records of strip searches, the details of the searches are better known to it than they are to the First Applicant, and that further and better particulars will be provided following discovery and/or interrogatories.

64    Paragraph [76] alleges that on each occasion referred to in [75], the superintendent or members of the youth detention centre assaulted and/or battered the First Applicant. I did not understand the Territory to raise any particular complaint about the form of the pleading in [76].

65    While [75] commences with the phrase “on several occasions”, it does follow a different format from its counterparts in [68] and [73] in that it identifies, albeit by an inclusive plea, the occasions on which the First Applicant was subjected to strip searching. It does so by linking the strip searches to other incidents or events concerning the First Applicant. Some 10 separate types of incidents and events are pleaded.

66    The list in [75] also suggests that the phrase “on several occasions” is used in that paragraph with a meaning different from “more than two or three, but not many”.

67    In my opinion, the identification by the First Applicant of the kinds of occasions on which he was subjected to strip searching constitutes a sufficient pleading of the facts material to this claim. The Territory is apprised of the claim which it has to meet, even though there may remain some uncertainty as to the identification of the incidents forming the subset of the overall number of strip searches to which the pleading refers.

68    I decline to strike out [75] and [76].

Paragraph [77] – assault and battery

69    Paragraph [77] pleads as follows:

[77]    On several occasions during his periods in a youth detention centre, in addition to the incidents referred to in paragraphs 60 to 65 and 71 to 76, the first applicant was assaulted and battered by members of staff of the youth detention centre in the following ways:

  77.1    Being grabbed by the throat and thrown to the floor,

  77.2    Being punched and/or slapped to the upper body;

  77.3    Being punched and/or slapped to the head;

  77.4    Being gripped by the upper arm;

  77.5    Being placed in ankle cuffs for escort outside the detention centre;

  77.6    Being handcuffed with his hands behind his back;

77.7    While the first applicant was handcuffed behind his back, members of staff pushed the first applicant’s hands up behind his back so that the first applicant was forced into a bending position and his shoulders were strained.

77.8    On each occasion of battery of the kind referred to in paragraphs 77.1 to 77.7 members of staff assaulted the first applicant by causing him to apprehend that imminent physical contact would be made with his body.

Particulars of matters in paragraph 77

a)    The first applicant did not consent to physical contact being made with his body by any member of staff when the incidents referred to in this paragraph occurred.

b)    Ankle cuffs are not a similar device to handcuffs and the use of ankle cuffs on the first applicant before 1 August 2016 was unlawful in spite of the purported effect of the directives referred to in paragraphs 50.2, 50.3 and 50.4.

c)    Handcuffing the first applicant behind his back was in breach of the directives referred to in paragraph 50.2, 50.3, 50.4 and 50.5

d)    The respondent was obliged to keep records of incidents of these kinds pursuant to the matters referred to in paragraphs 54.1 and 54.2. Accordingly, the details of the dates and circumstances of incidents of this kind are better known to the respondent than to the first applicant.

e)    The first applicant will provide further and better particulars of the date, the circumstances and other necessary particulars of personal searches of the first applicant following discovery and/or interrogatories.

70    In my opinion, this is an insufficient pleading of material facts. The Territory is told only of the forms of conduct said to constitute the alleged assaults and battery. The other pleaded matters that the assaults occurred while the First Applicant was in detention, that they were committed by members of staff, and the effect which the alleged conduct of the staff members had on the First Applicant, are insufficient to constitute a sufficient pleading of the material facts required.

71    Paragraph [77] will be struck out.

The pleading concerning the Second Applicant

72    The counterpart pleadings of the Second Applicant will be struck out for the same reasons. These are [90]-[91], [93]-[94] and [97]. Paragraphs [95]-[96] will not be struck out.

The Racial Discrimination Act claims

73    The Applicants claim damages, including aggravated damages, pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) in respect of alleged discrimination by the Territory in contravention of s 9(1) of the RD Act.

74    Section 9 of the RD Act provides (relevantly):

9 Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

…

(2)    A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

…

75    In Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; (2014) 221 FCR 86, Kenny J (with whom Greenwood and Logan JJ agreed) identified a contravention of s 9(1) as involving the following elements:

(a)    the respondent did an act;

(b)    the act:

(i)    involved a distinction, exclusion, restriction or preference;

(ii)    based on race, colour, descent or national or ethnic origin; and

(c)        the act:

(i)    had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs;

(ii)    that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

76    In Wotton v Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 at [66], Mortimer J suggested that Kenny J was setting out only the matters to be proved by the appellants in the case then before the Court. It is not necessary presently to consider whether Kenny J’s statement of the s 9(1) elements was, in some way, limited by the circumstances of that case as the Applicants did not contest the Territory’s submission that the statement is appropriate and, as will be seen, have structured their pleading of their RD Act claim in a way which corresponds closely with the elements stated in Iliafi.

77    In accordance with the principles discussed at the commencement of these reasons, the Applicants must plead the materials facts supporting each of the identified elements.

78    The 5SC alleges that the Territory contravened s 9(1) by two forms of conduct: by a course of conduct in relation to Group Members generally, at [114]-[117]; and (in relation to the First Applicant) by conduct of members of staff in the Don Dale Centre directed to him, at [118]-[126]. Paragraphs [127]-[129] contains pleas that the Territory’s breaches of s 9(1) caused loss and damage to the First Applicant as well as his claim for damages in respect of that loss and damage.

79    Paragraphs [130]-[136] contain, in relation to the Second Applicant pleadings which are counterparts to those in [123]-[129].

80    The Territory seeks to have [114]-[117], [123]-[129] and [130]-[136] struck out.

81    Its principal complaint is that the pleadings in [114]-[117] in relation to the Group Members are incorporated into the pleading of the Applicants’ individual claims, with the consequence that it will have to answer the Group Members’ claims in order to answer the individual claims. It contends further that the pleading in [114]-[117] is deficient in several respects.

82    For the reasons which follow, I consider that these submissions are well made, and should be upheld.

83    In addition, the Territory contends that the pleading of the Applicants’ claims in terms which put in issue more than a decade of youth detention in the Northern Territory, including at times when, and at places at which, the Applicants were not themselves detained is oppressive. I have taken account of this submission when addressing the Territory’s critique of the adequacy of the pleading.

Paragraphs [114]-[117]

84    The pleadings in these paragraphs are prolix. Part X of the 5SC, in which they are contained, commences with an unnecessary quotation of s 9(1) and (2) of the RD Act.

85    Paragraph [112] alleges that, “at all relevant times”, approximately 90% of the children detained in youth detention centres in the Territory were Aboriginal. The “all relevant times” must be taken to encompass at the least the period from 1 August 2006 to 27 November 2017. Having regard to the plea of a “course of conduct” to which I will refer shortly, it may even be longer.

86    Paragraph [113] asserts, in effect, that the RD Act applied to the commissioner, the superintendents and/or the members of staff in detention centres.

Paragraph [114]

87    Paragraph [114], which occupies just under 20 pages in the 5SC, commences with a rolled up plea of a course of conduct. Its chapeau is:

[114]    At all material times, in breach of the RDA, the Respondent engaged in the following course of conduct which involved distinctions, exclusions or restrictions based upon the Aboriginality of the majority of the Group Members which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the Group Members’ human rights and fundamental freedoms in public life.

88    As is apparent, this chapeau follows closely the form of s 9(1) itself. It involves a number of distinct elements:

(i)    at all material times,

(ii)    the Territory engaged in a course of conduct,

(iii)    the course of conduct involved distinctions, exclusions or restrictions,

(iv)    the distinctions, exclusions or restrictions were based on the Aboriginality of the majority of the Group Members,

(v)    the distinctions, inclusions or restrictions had:

(a)    the purpose, or

(b)    the effect

of nullifying or impairing the recognition, enjoyment or exercise,

(vi)    on an equal footing, and

(vii)    of the Group Members’ human rights and fundamental freedoms in public life.

89    The introductory phrase “at all material times” indicates that the allegation is that the Territory engaged in the alleged course of conduct at least throughout the period of more than 10 years in which Group Members were detained (1 August 2006 to 27 November 2017). It may encompass a longer period because the Applicants may wish to adduce proof of matters occurring before 1 August 2006 with a view to establishing the existence of the alleged course of conduct from 1 August 2006.

90    It is pertinent that the Applicants allege a “course of conduct”. Paragraph [114] is not to be understood as alleging a series of events of an unconnected kind. Rather, the Applicants’ allegation seems to be that the impugned conduct had a factual inter-relationship such that it can properly be characterised a single course of conduct.

91    The course of conduct alleged is said in the subparagraphs of [114] which follow to consist of 15 elements. The elements, without the supporting particulars for each, are alleged to be:

[114.1]    Acting to intimidate and humiliate the Group Members in breach of the principles in section 4(b) of the [YJ] Act, and in breach of regulation 64 of the [YJ] Regulations;

…

[114.2]    Unlawfully and inappropriately isolating and confining Group Members, in breach of the principles in subsections 4(b), 4(m) and 4(n) and of sections 153(5) and 156 of the [YJ] Act, and/or regulations 64, 70 and 72 of the [YJ] Regulations;

…

[114.3]    Before 1 August 2016, using unlawful, unreasonable, unnecessary and inappropriate force and restraint of Group Members in breach of sections 151(3)(c), 152(1A), 153(3), 153(4), 155 and 161 of the [YJ] Act, and/or regulations 64, 70 and 71 of the [YJ] Regulations;

…

[114.4]    From 1 August 2016 using unlawful, unreasonable, unnecessary and inappropriate force and restraint of Group Members in breach of sections 151AA, 151(3)(c), 152(1A), 153(3), 153(4), 155 of the [YJ] Act, and/or regulations 64, 70 and 71 of the [YJ] Regulations;

…

[114.5]    Ignoring and/or trivialising the needs and rights of Group Members;

…

[114.6]    Subjecting Group Members to sub-standard living conditions;

…

[114.7]    Depriving Group Members of appropriate food, water, toilet and hygiene facilities, clothing and bedding;

…

[114.8]    Depriving Group Members of appropriate education, personal development resources, health assessment and care;

…

[114.9]    Depriving Group Members of family and community support, cultural development opportunities, emotional support and counselling;

…

[114.10]    Depriving Group Members of complaint and grievance processes;

…

[114.11]    Depriving Group Members of protection from batteries, assaults, isolation and intimidation, and security of their person and property in breach of sections 151, 152, 153 of the [YJ] Act;

…

[114.12]    Before 1 August 2016, subjecting Group Members to unlawful, arbitrary and disproportionate punishment in breach of sections 151(3)(c), 152(1A), 153(3), 153(4), 153(5), 155 of the [YJ] Act, and/or regulations 70, 71 and 72 of the [YJ] Regulations;

…

[114.13]    From 1 August 2016, subjecting Group Members to unlawful, arbitrary and disproportionate punishment in breach of sections 151AA, 151(3)(c), 152(1A), 153(3), 153(4), 153(5), 155 of the [YJ] Act, and/or regulations 70, 71 and 72 of the [YJ] Regulations;

…

[114.14]    Arbitrarily and unreasonably isolating Group Members from their families and Country in breach of the principles in sub-sections 4(h), (i) and (j) of the [YJ] Act;

…

[114.15]    Acting in contravention of the human rights of Group Members, as embodied in sections 150 to 153 of the [YJ] Act, regulations 71 to 73 of the [YJ] Regulations, and item 1.4 of the Australasian Juvenile Justice Administrators, Juvenile Justice Standards 2009, including:

…

92    Each of these elements is supported (at least purportedly) by extensive particulars. The matters to which they refer are wide ranging. They appear to encompass many, if not most, of the circumstances of the detention and treatment of Group Members. Some refer to the conduct of staff members, whilst others concern matters which seem to be of a more institutional kind (for example, [114.6], [114.7] and [114.8] concerning the detainees’ living conditions and the provision to them of educational and development opportunities as well as health assessment and care). Paragraph [114.15] is not a particular of conduct at all but instead an allegation that the Territory had in some unspecified way contravened the “human rights” of Group Members. All of the subparagraphs apart from [114.15] conclude with a statement that the Applicants may provide further and better particulars following discovery and/or interrogatories.

93    Despite the apparent extensive particulars, it is apparent that the particulars provided in the subparagraphs to [114] are at a remarkable level of generality. They are far short of the level required if the Territory is to deal with these claims as part of the Applicants’ personal claims. Numerous examples could be given, but the following are sufficient to indicate the position:

[114.2]    …

Particulars

…

e)     Commissioners and superintendents failed to ensure the law was complied with in respect of isolation of Group Members.

f)    Group Members were not given the opportunity to be heard in respect of disciplinary measures taken contrary to section 156 of the [YJ] Act.

g)    Commissioners and superintendents introduced and conducted a regime of behaviour management, including IMPs and IIMPs, that promoted and/or facilitated practices in breach of the [YJ] Act and [YJ] Regulations with respect to isolation

…

[114.3]    …

Particulars

a)    Members of staff used force on Group Members without first attempting graduated non-violent de-escalation techniques.

b)    Members of staff used restraints on Group Members without first attempting graduated non-violent de-escalation techniques.

c)    Members of staff struck Group Members with their hands, fists and feet.

d)    Members of staff restrained Group Members in a manner that:

i)    constricted their breathing; and/or

ii)   injured the Group Member.

…

[114.8]    …

Particulars

...

f)    Commissioners, superintendents and members of staff failed to provide for and facilitate consistent and ongoing case management.

g)    Commissioners, superintendents and members of staff failed to provide timely or adequate medical assessment and treatment.

h)    Commissioners, superintendents and members of staff failed to provide timely or adequate mental health assessment and treatment.

…

These examples could be multiplied.

94    Because of its relevance to a matter to which I will refer shortly, I observe that there are 17 separate particulars supporting the allegation in [114.1] that detention centre staff had acted to intimidate and humiliate Group Members in breach of the principles stated in s 4(b) of the YJ Act. Only two of those particulars allege the use of racist or racially derogatory and abusive terms (subparas (a) and (b)). Two (subparas (o) and (p)) allege that reports to commissioners, superintendents and/or members of staff concerning conduct which included the use of the racist and racially derogatory remarks were not investigated or acted on and that officers were not disciplined for that conduct. The 5SC does not allege in the balance of the particulars that any of the alleged intimidatory or humiliating conduct had any racist basis.

95    The present content of [114] indicates that a trial of the issues which it raises is likely to be extensive. For the reasons given earlier, that adds to the appropriateness of the Court insisting now on a proper pleading of the claims.

Paragraph [115]

96    Paragraph [115] relates to the third element contained in [114]. It alleges that the conduct alleged in [114] involved distinctions, exclusions and restrictions within the meaning of s 9(1) of the RD Act because:

[W]hat was done by commissioners, superintendents and members of staff in the course of conduct described in paragraph 114 was persistently seriously below the standard of conduct required of them, which was to comply with the [YJ] Act, the [YJ] Regulations, lawful determinations, the common law and in conformity with the Australian Juvenile Justice Standards and human rights of Group Members.

Paragraph [116]

97    Paragraph [116] purports to particularise the fourth element of [114], namely, the allegation that the distinctions, exclusions and restrictions were based upon the Aboriginality of the majority of Group Members. The paragraph contains 20 subparagraphs purporting to particularise that allegation. Very few of these subparagraphs provide the particularisation which they purport to give.

98    It is evident that the Applicants use the term “based upon” with the same meaning which it has in s 9(1) of the RD Act. In this Court, that term has been held not to connote a relationship of cause and effect, whether in a “but for” or any other sense. In Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 27, Weinberg J said:

[T]he expression [“based on”] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referrable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics “caused” the impugned conduct.

This reasoning was endorsed on appeal: Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287; (1999) 91 FCR 47 at [8]. It has been followed in numerous authorities, including Wotton v Queensland (No 5) at [88].

99    Paragraph [116.1] alleges that the course of conduct described in [114.2]-[114.4] (the allegations concerning isolation and use of inappropriate force and restraint before and after 1 August 2016) and in [114.11]-[114.13] (the allegations concerning deprivation of protection from batteries, assaults, isolation and intimidation and the allegations concerning unlawful, arbitrary and disproportionate punishment before and after 1 August 2016) involved systemic contraventions of the YJ Act.

100    Paragraph [116.2] alleges that the conduct alleged in [114] was contrary to the objects of the YJ Act and its principles.

101    Of themselves, neither [116.1] nor [116.2] can reasonably be regarded as a particular of the allegation that the alleged distinctions, exclusions and restrictions were “based upon” the Aboriginality of the majority of Group Members in the sense discussed in Macedonian Teachers.

102    Paragraphs [116.3]-[116.11] can be considered together. Paragraph [116.3] alleges the receipt by the Territory of a number of reports concerning youth detention in the Territory. Paragraphs [116.4]-[116.10] allege particular content of those reports. Paragraph [116.11] concludes the series of particulars with an allegation that, despite the matters identified in the listed reports, “the commissioner, the superintendent and members of staff persisted in the conduct described in paragraph 114”.

103    None of [116.3]-[116.11] refer to any matter concerning the Aboriginality of the majority of detainees. Considered by themselves, these subparagraphs cannot be regarded as a plea of material facts supporting the allegation that the alleged distinctions, exclusions and restrictions were “based upon” the Aboriginality of the majority of Group Members. To the extent that the pleaded matters constitute particulars, they could equally be particulars of an allegation that the pleaded conduct was based upon some other distinguishing feature of the majority of detainees, such as their youth, sex or spiritual belief. The “neutrality” of the allegations in that respect means that they cannot be regarded as “fleshing out” the material facts so as to inform the Territory of the case it has to meet.

104    Paragraphs [116.12]-[116.13] and [116.17] are in a different category. They allege in different ways that commissioners, superintendents and/or members of staff made racially derogatory comments. Paragraphs [116.14] and [116.15] allege that commissioners, superintendents and/or members of staff did not investigate or act on reports of the use of racially derogatory language and that officers were not disciplined for the use of such language.

105    Paragraph [116.16] alleges that Indigenous Group Members were instructed by officers and school teachers not to speak their Indigenous language but rather to speak English.

106    Paragraph [116.18] contains an allegation as to the manner in which commissioners, superintendents and members of staff performed their roles. This is a very generalised pleading but for present purposes it is apparent that it does not support the primary allegation that the alleged distinctions were based upon the Aboriginality of the majority of detainees.

107    Nor does [116.19] support that allegation. Instead, it summarises the effect of s 18 of the RD Act, which provides:

18 Acts done for 2 or more reasons

Where:

 (a)    an act is done for 2 or more reasons; and

(b)    one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.

108    Paragraph [116] concludes with the following subparagraph:

[116.20]    The commissioners, superintendents and members of staff would not have engaged in, persisted in and permitted the repeated, systematic and comprehensive breaches of the Act, the Regulations, directives and the human rights of Group Members described in paragraph 114 above, if the detainees had not been predominantly of the Aboriginal race.

109    Paragraph [116.20] cannot be regarded as particularising the allegation in the chapeau to [116] that the distinctions, exclusions and restrictions described in [114] were based upon the Aboriginality of the majority of Group Members. All it does is to make the same allegations but in reverse order.

Paragraph [117]

110    Paragraph [117] alleges that the conduct described in [114] had “the purpose or effect” of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of the Group Members’ human rights and fundamental freedoms in public life, being those alleged in [114.15].

111    Insofar as [117] purports to particularise the “purpose” alleged in [114], it is deficient. A pleading of the purpose with which action is taken is a pleading of a condition of mind to which r 16.43 of the FCR applies. That means that particulars of the facts on which an applicant relies for the existence of the asserted purpose is required. In the present case, those particulars would, in addition to the usual matters, have to identify the person or persons so closely identified with the Territory that their state or states of mind can be attributed to the Territory. Such a pleading is lacking.

The First Applicant’s RD Act claim

112    The First Applicant’s individual RD Act claim is pleaded in [123]-[129]. Paragraphs [130]-[136] contain the counterpart pleadings in the case of the Second Applicant.

113    The First Applicant alleges in [123] that particular conduct involving himself, pleaded earlier in the 5SC, was an instance of conduct described in [114]. Paragraphs [123] and [124] also indicate that, in addition to conduct of the kind pleaded in [114], the First Applicant alleges further conduct said to contravene s 9(1) of the RD Act.

114    In [125], the First Applicant alleges that the matters pleaded in [123] and [124] had the effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of his human rights in public life.

115    Paragraph [126] alleges:

By reason of the matters in paragraphs 112 to 117 and 123 to 125 the Respondent breached s 9(1) of the [RD Act] in relation to the first applicant.

116    As is apparent, by [126], the First Applicant incorporates into the pleading of his own RD Act claims the allegations made with a respect to Group Members of contraventions of the RD Act.

117    As noted earlier, [127]-[129] contain the First Applicant’s claims of loss and damage and his claims for damages, including aggravated damages.

Conclusion on [114]-[117]

118    I consider that there are a number of shortcomings in the pleading of the RD Act claims in [114]-[117]. I have already identified some of those shortcomings. The shortcomings include the following.

119    First, there is the generality with which the course of conduct is pleaded in [114]. As noted earlier, [114.1]-[114.15] seem capable of encompassing a great deal, if not nearly all, of the conditions in which detainees were held in detention and of their treatment while so held. It encompasses matters at both an institutional level and at the level of conduct of individual officers within detention centres. Paragraph [114.15] is capable of encompassing anything at all which might contravene a “human right” of a Group Member including, but not limited to those contained in International Conventions (the International Convention for the Elimination of all forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child as well as the rights recognised in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty). Apart from anything else, the potential diversity of the conduct within the course of conduct is indicated by the plea in [114.15(a)] that it includes (unparticularised) conduct in contravention of the Group Members’ “right to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality”.

120    A pleading which is so indiscriminate does not satisfy the requirements of the pleadings rules.

121    The particulars to each other subparagraph within [114] allege kinds of conduct, but do not contain any identification of the staff member said to have engaged in the conduct, the detainee who was the subject of the conduct nor any other identifying details.

122    It is obvious that the 5SC does not contain a pleading of all the material facts to support the allegations in [114].

123    Secondly, there is the shortcoming in the pleading of the alleged purpose, which was identified earlier.

124    Thirdly, the pleading supporting the allegation that the distinctions, exclusions or restrictions were based upon the Aboriginality of the majority of Group Members is inadequate. As already indicated, the matters pleaded by the Applicants, with the exception of those pleaded in [114.1(a), (b), (o) and (p)] do not provide material facts supporting the allegation that the alleged distinctions, exclusions or restrictions were based upon the Aboriginality of the majority of the detainees. The “neutrality” of the matters pleaded in the balance of [114] is indicated by the fact that they could, with no or limited amendment, be pleaded to support a claim of almost any form of proscribed discrimination based on some feature of the detainees.

125    In a more conventionally pleaded class action, these shortcomings may not matter as one would expect the particularisation to be provided at the time the Group Members’ claims are to be considered.

126    However, the 5SC is structured so that the Applicants rely for their own RD Act claims upon the pleaded course of conduct concerning Group Members generally. Paragraph [126], set out earlier, indicates that this is so.

127    Thus, proof of the matters in [114]-[117] is an element of the First Applicant’s RD Act claim. The effect of this manner of pleading will be that, in order for the First Applicant to make out his claim for damages for a contravention of s 9(1), the Court will have to hear and determine the claims in [114] with respect to the alleged course of conduct involving Group Members generally. This being so, the submission of the Territory that “[t]he pleading of the individual applicants’ claims dependent of the claims of Group Members which are not pleaded is embarrassing” is made good.

128    For these reasons, I consider that [114]-[117] inclusive relating to Group Members generally should be struck out.

129    In relation to the claims of the First Applicant, this has the consequence that [123]-[129] should also be struck out.

130    In relation to the Second Applicant, the corresponding pleas in [130]-[136] should also be struck out.

The application for discovery

131    By their Interlocutory Application filed on 9 May 2018, the Applicants seek discovery from the Territory of a substantial range of documents.

132    The Territory opposes the making of orders for discovery until the pleadings have been finalised. It did, however, indicate that it did not oppose the making of orders for discovery in three categories. Those categories comprise documents relating to, or referring to each Applicant of a kind described in r 20.14(1) and (2) of the FCR.

133    The third category sought by the Applicants with which, with one qualification, the Territory did not dispute is:

Documents effective during the Combined Relevant Periods appointing a Minister, Director, Commissioner, or Superintendent.

134    In my view, it is premature to order the Territory to make the discovery of the kind sought by the Applicants in the first two categories. Consideration of that part of the application should be deferred until the pleadings have been finalised. Amongst other things, effect cannot be given to r 20.14 until that has occurred.

135    With respect to the third category, the Territory submitted that documents concerning the appointment of a Minister are not relevant to any issue on the current pleadings. I did not understand counsel for the Applicants to contend to the contrary.

136    Accordingly, given the Territory’s attitude, I will order it to discover within 14 days any document pursuant to which a Director, Commissioner or Superintendent was appointed to, or in respect of, a detention centre in the Territory. In each case, the documents need be discovered only in respect of the periods in which the First and Second Applicants were detained in a youth detention centre.

137    If the Applicants wish to pursue the application with respect to the appointment of Ministers, they can raise that at a later case management hearing.

Summary

138    In summary, for the reasons given above, [68]-[69], [73]-[74], [77], [90]-[91], [93]-[94], [97], [114]-[117], [123]-[129] and [130]-[136] of the 5SC are struck out.

139    The Territory is, within 14 days, to discover to the Applicants documents pursuant to which a Director, Commissioner or Superintendent was appointed to or in respect of a youth detention centre in the Northern Territory in respect of any appointment which was effective during the period in which the First and Second Applicants were held in youth detention.

140    I will hear from the parties as to consequential matters.

Associate:

Dated:    9 November 2018