Federal Court of Australia

Jenkings v Northern Territory of Australia (No 3) [2021] FCA 621

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 16 March 2021 by Dylan Voller and Jake Roper be dismissed.

2.    In the absence of any proposed orders reflecting agreement on the question of costs, submissions on the costs of the application, limited to 3 pages, be filed and served on or before 15 June 2021.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    Dylan Voller and Jake Roper apply by an interlocutory application filed on 16 March 2021 for an order under s 33ZF of the Federal Court of Australia Act 1976 (Cth) to “reinstate” them as group members in the proceeding, subject to certain specified limitations.

2    The limitations arise by reason of other proceedings which Mr Voller and Mr Roper have brought in relation to their treatment while they were detained in juvenile and adult detention facilities in the Northern Territory. Those proceedings have been settled as between the parties. They were:

(a)    No 16 of 2016, Case Number: 21615113 (Dylan Voller v Northern Territory of Australia); and

(b)    No 24 of 2016, Case Number: 21617890 (Levi Aldenhoven (as Litigation Guardian for Jake Roper) v Northern Territory of Australia)

(collectively, the NTSC proceedings).

3    For the reasons set out below, the interlocutory application of Mr Voller and Mr Roper will be dismissed. If the parties and interlocutory applicants are unable to agree on appropriate orders as to costs, they will be given an opportunity to make brief written submissions as to the costs of the interlocutory application.

Background

4    The affidavit of Peter O’Brien affirmed 4 March 2021 was read in support of the interlocutory application. The Northern Territory read the affidavit of Maria Pikoulos sworn 28 April 2021 in opposition to the application. The facts I find below on the interlocutory application are taken from that affidavit evidence, together with what is on the Court file in this proceeding, and the reported decisions in the proceeding to this point: see Jenkings v Northern Territory of Australia [2017] FCA 1263 and Jenkings v Northern Territory of Australia (No 2) [2018] FCA 1706.

5    Mr Voller and Mr Roper were expressly excluded from the group description in this proceeding in 2017. Shortly after the commencement of this proceeding, during a case management hearing on 8 March 2017, then senior counsel for the applicants raised the need to amend the group description to exclude certain people. Mr O’Brien deposes at [4] of his affidavit:

My office was not given notice of this oral application made by the Applicants seeking leave to amend the group definition: I was not aware of this hearing, and it was not attended by myself or anyone from my office.

6    That evidence was not challenged or contradicted. Mr O’Brien annexed to his affidavit a copy of the transcript of that case management hearing. The then senior counsel for the applicants explained the reason for the proposed order in the following terms:

Now can I just deal with another aspect of constitution this proceedings. It has been made clear to us when we have received various statements of claim through the searches and registry of the Supreme Court of the Northern Territory that there are persons who would otherwise be group members in these proceedings, which technically given the group definition that I took your Honour to at the commencement of my remarks are group members. Now that is not an uncommon occurrence, that there are individuals who maintain individual claims, notwithstanding there is an open class representative proceeding. That happens all the time is in fact contemplated by ..... itself, because 33J entitles people to opt out and do that very thing. But having said that, it can’t be that these people remain group members in these proceedings and also agitate their own claim in the Supreme Court of the Northern Territory.

Now there are two answers to that. One is – my instructing solicitors have been in touch with their solicitors in order for them to opt out by filing a document in the registry, which solves that difficulty. In the event that that doesn’t happen and doesn’t happen properly, then what we will do certainly prior to any 33N application is seek to amend the group definition to specifically exclude those persons from the group. There should be no confusion that they can remain group members while agitating their own claim.

7    These statements plainly applied to Mr Voller and Mr Roper and the NTSC proceedings. There were other amendments foreshadowed to the originating documents by senior counsel, including by reason of the termination of complaints then before the Australian Human Rights Commission and on which at least in part this Court’s jurisdiction to deal with matters in the proceeding was said to depend. Amongst other programming orders made, on 15 March 2017 an amended originating application and statement of claim were filed pursuant to the leave granted. The orders of the Court were relevantly:

The Applicants have leave to amend the originating application and the amended statement of claim so as to confine the claim group by excluding those who have commenced their own proceedings in another court and to remove the allegations of a breach of statutory duty, with that leave to be exercised by 15 March 2017.

8    Also annexed to Mr O’Brien’s affidavit is a letter sent to him by Maurice Blackburn after the March 2017 case management hearing, setting out the issue raised about the group description, the Court’s subsequent order granting leave to amend, and the proposed amendments to the group description, including the express exclusion of Mr O’Brien’s clients. The letter is dated 13 March 2021. Mr O’Brien does not explain in his affidavit or elsewhere whether he brought this correspondence to Mr Voller and Mr Roper’s attention, and whether he responded to Maurice Blackburn, and if not, why not.

9    On 15 March 2017 the applicants filed an amended originating application and statement of claim which included the following paragraph in the group description:

1.3    was not a plaintiff in any of the following proceedings in the Supreme Court of the Northern Territory:

a)    No. 14 of 2015, Case Number: 21508784;

b)    No. 15 of 2015, Case Number: 21508787;

c)    No. 19 of 2015, Case Number: 21510204;

d)    No. 26 of 2015, Case Number: 21513348;

e)    No. 16 of 2016, Case Number: 21615113; and

f)    No. 24 of 2016, Case Number: 21617890.

10    These events occurred well before the opt out notice period closed (or even commenced). It is apparent that four plaintiffs other than Mr Voller and Mr Roper were also excluded as a consequence of the Court’s orders and these amendments.

11    The exclusion of Mr Roper and Mr Voller has been maintained, although the exclusion of the other four plaintiffs has not, as I explain below. The current version of the pleading, the sixth statement of claim, pleads that the Group Members comprise those who, amongst other matters, were

not a plaintiff in any of the following proceedings in the Supreme Court of the Northern Territory:

(a) No. 16 of 2016, Case Number: 21615113; and

(b) No. 24 of 2016, Case Number: 21617890.

12    The present proceeding has continued since 2017 with a series of interlocutory contests and strike out applications. Then in August 2020 Mr Roper contacted the applicants’ solicitors, Maurice Blackburn, after receiving an opt out notice. Quite why he received such a notice, given his exclusion as a group member, is unclear. Mr O’Brien deposes that Mr Roper asked to be reinstated as a group member. Mr O’Brien deposes that Mr Voller expressed a similar wish to Maurice Blackburn in November 2020. It was after Maurice Blackburn contacted Mr O’Brien because of these communications that Mr O’Brien deposes he “re-established contact” with Mr Roper and Mr Voller, and received instructions in February 2021 to make this interlocutory application.

13    The listing and hearing of the present interlocutory application was delayed to accommodate the parties to the proceeding, with the agreement of the solicitors for Mr Voller and Mr Roper. The proceeding as a whole is being prepared for trial commencing September 2021, although at the date of the Court’s orders there also remains an extant mediation referral.

14    The Northern Territory opposes the interlocutory application. The applicants informed the court they “did not oppose” the application. The parties, and Mr Voller and Mr Roper, were content for the matter to be determined on the papers.

The NTSC proceedings

15    The NTSC proceedings concerned allegations of false imprisonment, assault and battery while in detention in several locations. In her affidavit, Ms Pikoulos deposes at [3] that the allegations in the NTSC proceedings included:

(i)    Actual and threatened confinement of the detainees in the Behaviour Management Unit for extended periods of time.

(ii)    The deployment of CS Gas in the Behaviour Management Unit of Don Dale Youth Detention Centre on 21 August 2014.

(iii)    The use of handcuffs, ankle shackles and spit hoods during transfers to and from the Don Dale Youth Detention Centre in August 2014.

(iv)    Physical violence by youth justice officers towards detainees between October 2010 and August 2014 including grabbing a detainee and throwing him into a cell, slapping a detainee, and throwing fruit at and threatening a detainee.

16    On 15 November 2017, Mr Voller and the Territory agreed to resolve his NTSC proceeding. The parties entered into a Deed of settlement and release. That Deed is annexed to Ms Pikoulos’ affidavit.

17    On 21 November 2017, Mr Roper (through his litigation guardian) and the Territory also agreed to resolve his NTSC proceeding. The parties entered into a Deed of settlement and release. That Deed is annexed to Ms Pikoulos’ affidavit.

18    In each Deed there is a release and waiver clause, on which the Territory relies for its opposition to the present interlocutory application. Clause 5.1 in each Deed is identical, and provides:

For the consideration set out in clause 4.1, the Claimant hereby absolutely releases and forever discharges the Territory including its servants, employees, contractors, officers, and agents, past and present, from all actions, suits, claims, demands, causes of action, costs, contributions, accounts, losses and expenses, whether legal, equitable, under statute and otherwise, and all other liabilities of any nature (whether or not the Claimant was or could have been aware of them) which the Claimant:

5.1.1    now has;

5.1.2    at any time had;

5.1.3    may have in the future; or

5.1.4    but for this Deed, could or might have had,

against the Territory, including any of its servants, employees, contractors, officers, and agents, past and present, in any way related directly or indirectly to the Proceedings, the Claimant’s detention in a juvenile correctional facility and adult correctional facility in the Northern Territory or the circumstances recited in this Deed or anything in any way related to them.

19    By cl 4.3 or 4.4 respectively each of Mr Voller and Mr Roper agreed to discontinue the NTSC proceedings within 14 days. Clause 4.4 (which appears at cl 4.5 in Mr Roper’s Deed) should also be set out:

The Claimant agrees to accept the payment referred to in clause 4.1 in full and final satisfaction of the Proceedings and any other claims arising directly or indirectly out of the Claimant's detention in a juvenile correctional facility and/or adult correctional facility in the Northern Territory.

20    The sum paid to each of Mr Voller and Mr Roper was, by cl 4.1 of each Deed, paid without admission of liability and in consideration of the release given in cl 5.

21    By cl 7.1, the parties to each of the Deeds agreed:

this Deed may be pleaded as a full and complete bar and defence by the Territory to any claims, action, suit or proceedings arising from the action and matters contained in this Deed, or any proceedings which may be brought or reinstituted against it in the future in respect of the matters in this Deed, save for breach of this Deed, and that this Deed shall be recognised by any court of competent jurisdiction for this purpose.

22    By cl 8.1 (which was identical in each Deed) all parties agreed they had been given an opportunity to seek independent legal and financial advice prior to executing the Deed.

The application and the submissions in summary

23    The principal order sought by Mr Voller and Mr Roper is:

Leave, pursuant to Rule 9.12 of the Federal Court Rules 2011 (Cth), to intervene in the proceeding for the purpose of seeking the proposed orders set out in Schedule 1 to this Interlocutory Application (Proposed Orders) to:

(a)    amend the definition of the group members to include Applicants To Intervene as group members, and

(b)    amend claims brought in the proceeding to include the claims of the Applicants To Intervene, other than those claims specified in the Proposed Orders; and

(c)    provide for an amended Defence and Reply to be filed consequential to the proposed amendments to the Statement of Claim.

24    Schedule 1 to the interlocutory application sets out the proposed orders to be made in the present proceeding. They are orders requiring the applicants to make specific amendments to their pleadings which, broadly, bring the applicants’ pleadings into alignment with the paragraph in the present pleadings dealing with other individuals who have made individual claims in the jurisdiction of the Northern Territory Supreme Court. The present pleading about those other individuals is set out at [37] below. Mr Voller and Mr Roper propose the following orders:

1.    Pursuant to section 33ZF of the Federal Court Act 1976 (Cth), the Applicants are by 16 April 2021 to file and serve a Seventh Statement of Claim in the form of the Sixth Statement of Claim (6SOC) amended by:

(a)    deleting paragraph 1.5 of the 6SOC; and

(b)    inserting after paragraph 108 of the 6SOC:

108A    For the plaintiffs in the following proceedings in the Supreme Court of the Northern Territory:

(a)    No. 16 of 2016 Case Number 21615113; and

(b)    No. 24 of 2016 Case Number 21617890;

the tort claims in this action do not include:

(c)    any of their individual claims in the proceedings in the Supreme Court of the Northern Territory referred to in sub-paragraphs 108A(a) and (b) above; or

(d)    any of their individual claims in other proceedings in courts of the Northern Territory; or

(e)    any other cause of action arising out of the facts which were the subject of the proceedings referred to in sub-paragraphs 108A(c) and (d) above.

2.    Pursuant to rule 16.55 of the Federal Court Rules 2011 (Cth), the Respondent has leave to, by 7 May 2021, file and serve a Defence to the amended statement of claim filed pursuant to order 1 above.

3.    Pursuant to rule 16.56 of the Federal Court Rules 2011 (Cth), the Applicants have leave to file and serve a Reply to any amended Defence filed pursuant to order 2 above.

25    Mr Voller and Mr Roper contend there is only limited overlap between the subject matter of the NTSC proceedings and the current proceeding. Mr O’Brien also deposes (at [14]):

Additionally I am instructed that during the periods they were detained in youth detention centres in the Northern Territory between 1 August 2006 and 27 November 2017, the NTSC Plaintiffs suffered assault, battery and false imprisonment by an act or omission of the Respondent and/or of a commissioner, a superintendent or a member of staff (as defined in sub-paragraphs 1.4(d) to (f) in the Sixth Statement of Claim), the facts of which were not the subject of the NTSC Proceedings.

26    In other words, although the NTSC proceedings concerned assault, battery and false imprisonment, it is submitted that those allegations concerned only limited periods of time and each of Mr Voller and Mr Roper

served extensive periods in youth detention in the Northern Territory during the claim period for the Class Action, during which time they were each subjected to multiple instances of false imprisonment, assault and/or battery cognate to the claims of the Applicants in the Class Action, in respect of which the Applicants To Intervene have not brought any claims before the Supreme Court of the Northern Territory or any other court.

27    Mr Voller and Mr Roper contend that no submissions were made to the Court at the March 2017 case management hearing about the effect of the exclusion of persons such as themselves. In particular, no party informed the Court about the nature and extent of their claims in the NTSC proceedings, compared to their potential claims in this proceeding.

28    They rely on the observations of Merkel J in Bray v Hoffman-La Roche Ltd [2003] FCA 1505 at [15], about the potential conflict of interest where amendments to the originating process are sought by a Part IVA applicant:

[S]pecial problems arise when an amendment is sought to be made on behalf of an applicant in a representative proceeding under Pt IVA of the Act which will adversely affect the interests of some group members. In the present case the applicant has been placed in a situation of potential conflict between her interest in procuring the amendment and her duty to the group members whose interests may be adversely affected by it. A similar problem arises for the legal representatives of the applicant who have an obligation to conduct the representative proceeding on behalf of the applicant in a way that is consistent with the interests of group members irrespective of whether those persons are clients of the solicitors: see King v AG Australia Holdings Ltd (2002) 121 FCR 480 (“King v GIO”) at 489 [27] per Moore J.

29    They submit granting them leave on the terms proposed addresses the potential conflict of interest in the seeking of the March 2017 orders and their implementation through originating process which excluded them, and also addresses what might be seen as the policy concerns underlying Anshun estoppel, because they will not be permitted to re-litigate the same events and subject matter in issue in the NTSC proceedings.

30    In its brief submissions, which did not engage in substance with the submissions of Mr Voller and Mr Roper, the Territory simply relies on the words of the release and the waiver, noting that neither Mr Voller nor Mr Roper returned to youth detention after the settlement so the operation of each Deed in relation to future events and claims need not be considered. Ms Pikoulos’ affidavit evidence provides a factual foundation for this aspect of the submission in relation to Mr Roper, who remained a minor at the time of executing the Deed. Mr Voller was no longer a minor at the time of executing his Deed, so I infer no future prospect of him returning to youth detention, or detention in an adult facility while still a juvenile, would arise. The Territory does not refer the Court to any authorities.

31    Responsively, Mr Roper and Mr Voller submit that they did not waive any claims which they might have as group members in these proceedings when they entered into the Deeds I have described above. That is because, read with the recitals (especially C) they contend the subject matter of the settlement is confined to the subject matter of the Supreme Court proceedings. They rely on a proposition from Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 at 129-130.

…a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.

32    They also rely on Wichmann v Dormway Pty Ltd [2019] QCA 31; 368 ALR 284, Sofronoff P at [9].

33    As I noted, and somewhat curiously given Mr Voller and Mr Roper were expressly removed as group members on the application of the applicants, the applicants do not oppose the application. They made no submissions.

Resolution

34    I find:

(a)    The NTSC proceedings included claims for damages for breach of “residual liberty”, which is also a cornerstone of the allegations in the current proceeding, and the basis for the claim of false imprisonment;

(b)    The NTSC proceedings each included a single allegation relating to the validity of appointment of Commissioners of Correctional Services in the Northern Territory, allegedly invalidating a series of delegations under the Youth Justice Act 2005 (NT), including the positon of Superintendent at “old Don Dale”, “new Don Dale” and Holtze Youth Detention Centre, whose authorisation was required for the treatment and restraint of juveniles detained in Northern Territory correctional facilities under the Youth Justice Act. The effect of this in the current proceeding, as I understand it, is to allege that much of the treatment of group members which may have been contended to be lawful (and therefore not an assault or battery) was unauthorised by law. It is fair to say those allegations has less prominence in each of the NTSC pleadings.

(c)    The present proceeding includes a range of allegations of battery and assault flowing from alleged contraventions of various aspects of ss 151AA, 153 and 161 of the Youth Justice Act which on the evidence before the Court did not appear to have been included in the NTSC proceedings;

(d)    In the present proceeding there are general claims of assault, battery and false imprisonment made on behalf of group members other than the first and second applicants (see [107] of the sixth amended statement of claim);

(e)    There are also a significant number of claims of assault and battery made specifically by the two named applicants;

(f)    Mr Roper and Mr Voller had made specific claims of assault and battery limited to a number of specific incidents (on 10 dates for Mr Voller and two dates for Mr Roper), and specific periods of false imprisonment (approximately 6 months for Mr Voller and two periods of around 2 weeks and one period of around 3 days for Mr Roper), but much of their detention was not subject to claims such as those which might flow from (b) and (c) above.

35    Thus, it is correct to characterise the claims made in the present proceeding as different in some respects to those made on behalf of Mr Voller and Mr Roper in the NTSC proceedings. However, and this is critical to my conclusions below, both the NTSC proceedings and the present proceedings concern, at base, the same subject matter – namely the detention of individuals in juvenile correctional facilities, and in adult correctional facilities, in the Northern Territory, and their treatment while in detention.

36    The applicants’ sixth amended statement of claim does contemplate that some individuals who have individual claims arising from such detention remain group members. At [108] it is pleaded:

For the plaintiffs in any of the following proceedings in the Supreme Court of the Northern Territory:

 (a)    No. 14 of 2015, Case Number: 21508784;

 (b)    No. 15 of 2015, Case Number: 21508785;

 (c)    No. 19 of 2015, Case Number: 21510204; and

 (d)    No. 26 of 2015, Case Number: 21513348,

the tort claims in this action do not include:

(e)    any of their individual claims determined in those proceedings in the Supreme Court of the Northern Territory; or

(f)    any other cause of action arising out of the facts which were the subject of those proceedings in the Supreme Court of the Northern Territory.

37    None of those proceedings are ones in which Mr Roper and Mr Voller are plaintiffs, and they are not the proceedings covered by the Deeds. However, these four proceeding numbers are the other four proceeding numbers in the pleading filed after the March 2017 case management hearing. A perusal of the Court’s file provides the explanation of what has occurred. In late April 2017, the plaintiffs in these four proceedings filed interlocutory applications, seeking intervention orders in substantively the same form as those now sought by Mr Voller and Mr Roper. The applicants did not oppose these applications. It appears that the Territory did not file any submissions. There do not appear to be any reasons for judgment on the interlocutory applications but the Court made orders on 27 October 2017 allowing the applications, which had the effect of reinstating these four NTSC plaintiffs as group members. Hence the pleading at [108] of the sixth amended statement of claim.

38    As I explain below, the fact that the other four NTSC plaintiffs took this action in 2017, supports my opinion that the present application by Mr Voller and Mr Roper should not be allowed.

39    The only objection raised by the Northern Territory is that Mr Voller and Mr Roper are bound by their release in the Deeds, and this is a complete answer to their application. Although I accept what has occurred in relation to the interaction between the NTSC proceedings and this proceeding has some unsatisfactory aspects, ultimately I accept that each of the Deeds of release prevents Mr Roper and Mr Voller recovering any further damages or compensation in relation to their detention at various juvenile correctional facilities and adult correctional facilities administered by the Northern Territory of Australia. Therefore, it is not in the interests of justice that Mr Voller and Mr Roper be granted leave to intervene in the present proceeding.

40    While the present proceeding was in its infancy when Mr Voller and Mr Roper settled their proceedings, it existed, and was known to their legal representatives. The letter dated 13 March 2017 from Maurice Blackburn to Mr O’Brien is very clear. It offered Mr O’Brien an opportunity to discuss the proposed amendment excluding his clients, and informed him the amendment was (at least in part) at the request of the Northern Territory. The letter was sent before the amended pleadings were filed pursuant to the leave granted. Mr O’Brien gives no evidence that he took advantage of Maurice Blackburn’s invitation to discuss the matter. In contrast, it is clear that representatives of the plaintiffs in the other four NTSC proceedings who were excluded at the same time as Mr Voller and Mr Roper did take action, by filing an interlocutory application seeking leave to intervene, in April 2017, and were granted leave to be reinstated as group members, on qualified terms.

41    It does appear that the opt out process did not occur until mid-2020, but I accept there was other activity in this proceeding before that process, including a series of interlocutory applications filed by the Northern Territory seeking to strike out the claim or parts of the claim and to de-class the claim under s 33N of the Federal Court Act. There is no explanation from Mr O’Brien about why no action was taken throughout 2017 to re-join the proceeding, although it does appear from the timing of the individual settlements in late 2017 that the focus may have been on the resolution of the NTSC proceedings.

42    Broadly, it appears that, several years after receiving their own settlement monies, Mr Voller and Mr Roper reacted when put on notice that this proceeding was very much still alive, even though strictly the opt out process did not apply to them as they were already expressly excluded as group members. I infer they each understood they had been excluded from this proceeding. There is no evidence from them personally about why they seek to re-join the proceeding, or why they did not contact Maurice Blackburn until mid-2020, or whether they were under any misapprehensions about their circumstances.

43    Allowing for some time for the re-engagement process with Mr O’Brien, and noting the existence of the Covid-19 pandemic in 2020, there has not been any unreasonable delay on the part of Mr Voller and Mr Roper between mid-2020 and the interlocutory application. But that is not really the period which called for an explanation on evidence; rather, the critical period was from March 2017 until (at least) the settlements in late 2017. The fact that the plaintiffs in the other four NTSC proceedings did apply in 2017 to be reinstated as group members, and Mr Voller and Mr Roper did not, also called for an explanation by way of evidence. There was none.

44    I accept Mr Voller and Mr Roper’s submission that, in an ordinary case, a Court might be alerted to authorities about the exercise of any discretion to exclude group members, and that the Court might usually consider whether it is “just and convenient” to exclude particular individuals, from the point of view of “fairness and justice to all parties” and on the basis of the then existing group description: see generally Rod Investments (Vic) Pty Ltd v Clark (No 3) [2007] VSC 306, [10], [15] and [17] and Carpenders Park Pty Ltd v Sims Ltd [2020] FCA 1681 at [23]-[29]. I accept that in March 2017 the Court was given no opportunity to compare the claims in the NTSC proceeding and the claims in the present proceeding.

45    I accept the applicants invited the Court to make orders without giving notice to Mr Voller and Mr Roper until after the orders were made. The proposition from Mr O’Brien that Mr Roper and Mr Voller may have instructed him to oppose the exclusion does not sit easily with the absence of any steps being taken after March 2017 to re-join the proceeding.

46    The letter from Maurice Blackburn after the March 2017 case management hearing did provide an opportunity to persons such as Mr Voller and Mr Roper to avoid exclusion, which the other NTSC plaintiffs took up.

47    Taking all these matters into account, it can be accepted that what occurred in March 2017 might be described as unsatisfactory: that is, for the applicants to seek leave to exclude certain group members without prior notice, and to contact them only after leave has been granted. However, no action was taken on behalf of Mr Voller and Mr Roper to attempt to remedy the situation when they were notified by Maurice Blackburn of the Court’s orders, despite action being taken on behalf of other NTSC plaintiffs. Instead, in the same year, Mr Voller agreed, and an agreement was made on Mr Roper’s behalf and properly approved, to settle their claims in what I find below to have been a wholesale fashion.

The Northern Territory’s objection

48    As I have noted, the Territory did not engage with the detail of the submissions of Mr Voller and Mr Roper. Instead, it relied on the release in each Deed, in attenuated submissions and without reference to authority about how the clauses in the Deed should be construed.

49    With respect, the judgment of Sofronoff P in Wichmann is of considerable assistance, and deals with the relevant authorities in relation to the construction of a release such as the one in cl 5.1 of the Deeds. At [5], his Honour says:

As long ago as 1751 it has been settled law that a release would be construed so that it related to the particular matter that was in the contemplation of the parties.

(Footnote omitted.)

50    And at [6]:

In Cloutte v Storey, Farwell LJ summarised the principle as follows:

“It is not in accordance with principle or authority to construe deeds of compromise of ascertained specific questions so as to deprive any party thereto of any right not then in dispute and not in contemplation by any of the parties to such deed.”

(Footnote omitted.)

51    Wichmann concerned the settlement of an employment dispute, where the employee was found to have misappropriated $2,809.42 and her employment was terminated. The dispute over the termination was settled and a deed and release signed. The employer subsequently discovered she had in fact misappropriated $321,593.85. The employer sought to recover that sum and the employee relied on the Deed and the mutual release.

52    Thus, as Sofronoff P pointed out at [9], the real question was whether the release could operate in relation to liabilities unknown to one party. In some cases, depending on the construction of the release, unknown liabilities may be covered if the language is sufficiently clear: see Karam v ANZ Banking Group Limited and Ors [2001] NSWSC 709 at [406] – reversed on appeal on other grounds: ANZ Banking Group Ltd v Karam [2005] NSWCA 344; 64 NSWLR 149. However, cf Grant v John Grant at 125, referred to by Santow J in Karam.

53    The party seeking to rely on the release must prove that the material facts which lead to the conclusion that the subject matter of this class action proceeding existed at the time of the execution of the deed and was within the parties’ contemplation at that time: see Wichmann at [13]. In Wichmann the Court of Appeal held (Gotterson and Morrison JJA agreeing with Sofronoff P) that the employee could not rely on the general terms of the release where the material facts about the amount she had appropriated were not known at the time. The Territory’s position necessarily assumes all material facts existed at the time the releases in the NTSC proceedings were signed. That would appear to be the case, and Mr O’Brien has not submitted otherwise. The detention and treatment of Mr Voller and Mr Roper which was the subject of both the NTSC proceedings and this class action was past detention and treatment.

54    The Territory relies on the breadth of the wording in cl 5.1, read with cl 4.4 (in Mr Voller’s Deed) or cl 4.5 (in Mr Roper’s Deed). That wording seeks to cover “any other claims arising directly or indirectly out of the Claimant’s detention in a juvenile correctional facility and/or adult correctional facility in the Northern Territory”.

55    Unlike the employee in Wichmann, it is not and cannot be suggested that there is anything unconscientious or inequitable in the Northern Territory seeking to rely on the terms of the releases in the NTSC proceedings.

56    The question is: what meaning does cl 5.1 convey, in the context of each Deed read fairly and as a whole, to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time that they signed the Deed?

57    In summary I consider cl 5.1 is directed at a release of the Northern Territory from the kind of allegations made in the present proceeding.

58    Recital A to each Deed sets out the entire period in which each of Mr Voller and Mr Roper were detained. In relation to Mr Voller that period was 13 October 2009 to 6 February 2017, with periods spent at 7 named facilities in the Northern Territory, including Don Dale. In relation to Mr Roper that period was 8 July 2014 to 30 January 2016, at 5 facilities in the Northern Territory including Don Dale.

59    Recital C in each Deed then describes the claims made by each of Mr Roper and Mr Voller in identical terms:

The Proceedings alleged that the Claimant was subjected to assault and battery and false imprisonment by the Territory, its employees, servants and/or agents during his detention in the various juvenile correctional facilities and adult correctional facilities in the Northern Territory.

60    Recital C in each Deed then lists the specific allegations made, by reference to a date, the alleged conduct and the characterisation of the claim in tort. For both plaintiffs, these include a period of conduct described as “Detention in isolation in the Behavioural Management Unit or the High Dependency Unit” at Don Dale, which is expressed to be referable to the false imprisonment claim. On the other hand, Recital A does note the parties’ agreement to a description of the detention of Mr Roper and Mr Voller as “lawful”. There is some lack of clarity and consistency in these parts of the Deed.

61    While on the one hand it can be accepted, as Mr O’Brien submits, that the recitals set out details of particular incidents and do so in a way which purports to be exhaustive of the claims being made, the reader is then confronted, in the binding part of each Deed, with the wider language at cl 4 and cl 5. That wider language is consistent with Recital D, which states:

The Territory denies that it is liable to the Claimant in relation to the Proceedings, and to the extent permitted by law, any other claims arising directly or indirectly out of:

 (1)    the circumstances recited herein or alleged; or

(2)    the detention of the Claimant in the juvenile correctional facilities and adult correctional facilities in the Northern Territory.

(Emphasis added.)

62    It is tolerably clear that (1) in Recital D refers to what is in Recital C. Paragraph (2) is, I find, expressly wider. A reasonable reader would understand that distinction in the context of such proceedings. Recital E is also wider, and extends to the whole of the period of detention of Mr Roper and Mr Voller. It states:

However, without admission of liability the Claimant and the Territory have agreed to the resolution of the issues between them arising from the Proceedings and the detention of the Claimant in the juvenile correctional facilities and adult correctional facilities in the Northern Territory on the terms set out in this Agreement.

(Emphasis added.)

63    It is in this context that the reader reaches the operative part of the Deed.

64    The breadth of the term “claims” should be noted:

“Claims” includes actions, suits, causes of action, debts, dues, costs, claims, liabilities, demands, damages, losses, costs and expenses of any description, decisions, judgments and orders either at law or in equity or arising under any statute.

65    That definition is ample to incorporate the present proceeding, which had been on foot for approximately a year at the time these Deeds were signed. Mr O’Brien’s evidence makes it plain that the legal advisers for Mr Voller and Mr Roper were aware of this proceeding. They had been told in March 2017 that Mr Voller and Mr Roper were expressly excluded from it.

66    Thus, in late 2017, when Mr Roper and Mr Voller, and those advising and representing them (such as Mr Roper’s litigation guardian) were considering entering into these Deeds, I infer they were aware that Mr Voller and Mr Roper were expressly excluded from the present proceeding, and had no likelihood of recovering anything further in the class action. No steps were taken before signing these Deeds to re-join the present proceeding, unlike the other NTSC plaintiffs to whom I have referred earlier.

67    Clause 4.1 of each Deed provides that the settlement sum payable to each of Mr Roper and Mr Voller is:

…in full and final settlement of the Proceedings and any other claims arising directly or indirectly out of the Claimant’s detention in a juvenile correctional facility and adult correctional facility in the Northern Territory…

68    The breadth of the agreement of each of Mr Roper and Mr Voller is then re-emphasised by cl 4.4 (in Mr Voller’s Deed) and cl 4.5 (in Mr Roper’s Deed), which I have extracted above at [19].

69    In this context, in my opinion cl 5.1 conveys to a reasonable person, apprised of the circumstances, the meaning that the parties have agreed to resolve all claims by Mr Voller and Mr Roper arising from their detention (and treatment in detention) by or on behalf of the Territory, not just the specific claims in Recital C.

70    Further, as Ms Pikoulos deposes at [10], Mr Roper’s settlement had to be approved by the Northern Territory Supreme Court, on the application of Mr Roper’s litigation guardian. This approval occurred on 13 December 2017. This is an additional reason, in the case of Mr Roper, to find that the terms of the settlement were carefully drawn and considered.

Conclusion

71    For the reasons I have set out, both Mr Voller and Mr Roper are precluded by the terms of the Deeds, and cl 4.4/4.5 and 5.1 in particular, from making any further claims about their past detention in a juvenile correctional facility and adult correctional facility in the Territory. The agreement reflected in each Deed precludes the orders they seek on the interlocutory application.

72    The interlocutory application must be dismissed. In the circumstances, I am presently inclined to leave the costs where they lie, but if the parties wish to be heard on costs, they will be given 5 working days to file short submissions on appropriate costs orders.

Postscript

73    During the preparation of these reasons, the Court wrote to the parties, and the applicants for intervention, about the fact that the entirety of the two Deeds had been attached to Ms Pikoulos’ affidavit by the Territory, and there were no suppression orders sought over any part of them. This correspondence was sent on 3 June 2021 at 2pm. The applicants and the Territory had been informed on 21 May 2021 that the Court would be handing down its decision on the interlocutory application prior to the case management hearing scheduled for 9 June 2021. The applicants for intervention and the Territory (the two parties with an interest in the issue) were slow in replying.

74    Eventually, the representatives of the applicants to intervene responded seeking suppression orders over two clauses. Late in the afternoon of 7 June 2021, the Territory responded, in the following terms:

The basis in which the orders are sought under section 37AF is that confidentiality was an important factor in encouraging and facilitating the resolution of those proceedings and that settlement may not have been achieved without such protection. The parties included a confidentiality provision within the Deeds in order to ensure that the terms of a settlement deed will remain confidential. Accordingly, the Respondent seeks to preserve the confidentiality of the Deeds of Settlement and Release as annexed to the Affidavit of Maria Pikoulos dated 28 April 2021 at Annexures MP5 and MP6.

75    This was a curious contention by the Territory, to say the least. As these reasons have explained, it was the Territory which objected to the interlocutory application of Mr Voller and Mr Roper. It did so in non-responsive submissions consisting of one page, and six paragraphs, most of which was not submission, with the only substantive submission being two lines:

Leave to intervene would be futile and should be refused since the Applicants to Intervene have waived any claims which they might have as group members.

76    It was the Territory which relied upon, in full, the two Deeds in Ms Pikoulos’ affidavit. It was the Territory which extracted parts of the Deeds in its one page submission. There was no reference to the confidentiality provision in the Deeds. The contention extracted at [74] above is inconsistent with the way the Territory has conducted this aspect of the proceeding.

77    Clause 9.1 of each Deed is a confidentiality clause. However, it has the usual exceptions, including an exception for

the purpose of …. taking legal action to enforce the terms of this settlement.

78    Although the Territory has not “taken” legal action, it is – by its opposition to the interlocutory application – seeking to enforce the terms of settlement. Indeed, that was the only basis for its objection. Having done so, I find it has waived any confidentiality attaching to the Deeds as whole, insofar as they are relevant to its opposition to the interlocutory application, and the resolution of that application.

79    Accordingly I decline to make an order under s 37AF of the Federal Court Act over the whole of the Deeds. Those parts of the Deeds extracted in these reasons are necessary to explain the Court’s reasoning; they reflect what was openly pleaded in the NTSC proceedings; and they are generally in standard form. There is no competing public interest which justifies the suppression of the Deeds as a whole.

80    However, I am satisfied it is in the interests of the administration of justice to suppress cll 4.1.1 and 4.1.2 as the applicants to intervene belatedly submitted. Those are the parts which contain the individually operative terms of the Deeds. I accept there is a public interest in encouraging parties to resolve proceedings by agreement, and that the confidentiality of the operative terms of that agreement can be a core component of encouraging parties to reach agreement. I accept that is likely to have been the case in the NTSC proceedings.

81    Accordingly, orders have been made separately under s 37AF of the Federal Court Act supressing cll 4.1.1 and 4.1.2 of each Deed, and directing the Court Registry to place a version of each Deed on the Court file with the necessary redactions.

Associate:

Dated:    8 June 2021