Federal Court of Australia

Gunning v State of Queensland (Transfer Application) [2024] FCA 889

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory applications to transfer the proceedings dated 3 April 2024 be dismissed.

2.    The Statement of Claim in Gunning v State of Queensland, provided to the court on 25 July 2024 and with redactions proposed by the applicants, be made available on the online file for these proceedings.

3.    A note be placed on the online file for these proceedings in the following terms:

Those accessing this online file should be aware of section 189 of the Child Protection Act 1999 (Qld) which provides:

(1) A person must not, without the chief executive’s written approval, publish information that identifies, or is likely to lead to the identification of, a child as—

(a) a child who is or has been the subject of an investigation under this Act of an allegation of harm or risk of harm; or

(b) a child in the chief executive’s custody or guardianship under this Act; or

(c) a child for whom an order is in force.

Penalty—

Maximum penalty—

(a) for an individual—100 penalty units or 2 years imprisonment; or

(b) for a corporation—1,000 penalty units.

(2) A person must not, without the chief executive’s written approval, publish information that identifies, or is likely to lead to the identification of, a child living in Queensland as a child who—

(a) has been harmed or allegedly harmed by a parent or step-parent of the child or another member of the child’s family; or

(b) is, or allegedly is, at risk of harm being caused by a parent or step-parent of the child or another member of the child’s family.

Penalty—

Maximum penalty—

(a) for an individual—100 penalty units or 2 years imprisonment; or

(b) for a corporation—1,000 penalty units.

4.    Costs reserved.

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

REASONS FOR JUDGMENT

DOWLING J

Introduction

1    Before the Court are two proceedings that concern the consequences of the removal of First Nations children from their parents by the State of Queensland, pursuant to the Child Protection Act 1999 (Qld) (CPA), in the period between March 1992 and November 2023.

2    In the first proceeding, Burns v State of Queensland (VID944/2024), Ms Burns alleges that following her removal by the State she was separated from members of her family, placed with non-indigenous carers, and that there was no, or no adequate, attempt to facilitate the restoration, resumption or formation of family relationships. Ms Burns also alleges that she suffered a loss of cultural connection. She alleges those things occurred wholly or partly because of her race, and consequently were in breach of the Racial Discrimination Act 1975 (Cth) (RDA). Ms Burns further alleges that the State breached its statutory duty under the CPA by failing to inquire, when investigating if there was a parent able and willing to protect her, whether there was a person, defined under s 11(3) of the CPA, as “a person who under Aboriginal tradition is regarded as a parent”. Ms Burns brings the proceeding on her own behalf and on behalf of other First Nations children who claim they have suffered the same discrimination or breach of statutory duty as alleged by Ms Burns.

3    In the second proceeding, Gunning v State of Queensland (VID944/2024), Mr Gunning, a First Nations man, alleges that his children were removed from him and that the State imposed conditions or requirements on him before it would facilitate the restoration, resumption or formation of relationships with his children. Mr Gunning also alleges that he complied with those conditions or requirements imposed by the State, but that the State did not facilitate the restoration, resumption or formation of relationships with his children. He alleges those things occurred wholly or partly because of his race, and were consequently in breach of the RDA. Mr Gunning further alleges that the State breached its statutory duty under the CPA by failing to inquire, when investigating if there was a parent able and willing to protect his children, whether there was “a person who under Aboriginal tradition is regarded as a parent”. Mr Gunning brings the proceeding on his own behalf and on behalf of other First Nations parents who claim they have suffered the same discrimination or breach of statutory duty as alleged by Mr Gunning.

4    Ms Burns and Mr Gunning are referred to in these reasons as the applicants. The State of Queensland is referred to as the respondent.

5    On 3 April 2024, the respondent filed two interlocutory applications in each proceeding. In the first applications, the respondent applied to strike out parts of both Statements of Claim (the Pleadings Applications). In the second, the respondent applied to have the proceedings transferred from the Victorian registry to the Queensland registry of this Court pursuant to s 48 of the Federal Court Act 1976 (Cth) and r 2.02 of the Federal Court Rules 2011 (the Transfer Applications).

6    The hearing to determine both the Pleadings Applications and the Transfer Applications was held on 25 July 2024.

7    During the hearing on 25 July, the parties agreed to adjourn the Pleadings Applications to allow the applicants to amend their statements of claim to address the complaints made by the respondent and matters that arose during the hearing that day. I made orders adjourning the Pleadings Applications and timetabling the provision of amended pleadings.

8    These reasons address the Transfer Applications. Whilst the respondent seeks the transfer of both proceedings from the Victorian Registry to the Queensland Registry, the substance of the respondent’s concern is the location and conduct of future hearings. The respondent accepted that the Court’s preparedness and willingness to hear the matters in Brisbane, and other locations throughout Queensland, could accommodate their concerns. For the reasons set out below, the orders sought in the Transfer Applications are refused.

9    An additional issue arose from the hearing on 25 July 2024 which the parties have asked the Court to determine. On 5 December 2023, Mortimer CJ ordered that an online file be established for the Burns and Gunning matters. Online files are established in high profile cases or in cases where there are expected to be a high number of media requests. An online file contains publicly accessible material such as pleadings, affidavits, submissions, exhibits and orders. In some cases, it may be necessary or appropriate to redact some detail from that publicly accessible material. On 9 April 2024, Mortimer CJ ordered that certain documents be placed on the online file after consultation with the parties. The parties have been able to agree the redacted content of most of the documents to be placed on the online file. However, there remains a dispute between the parties about the extent of redactions needed before the Statement of Claim in Gunning can be placed on the online file. The parties provided the Court with competing forms of redactions. For the reasons set out below, the redactions proposed by the applicant are to be preferred.

TRANSFER APPLICATIONS

Relevant facts for the Transfer Applications

10    The proceedings were filed in the Court’s Victorian Registry on 12 November 2023. They are said to cover a claim period from 5 March 1992 to 12 November 2023. The proceedings almost exclusively relate to events and persons in Queensland. Relevantly:

(a)    The events the subject of the pleadings took place in Queensland;

(b)    Ms Burns lives in Queensland;

(c)    Mr Gunning lives in Queensland;

(d)    43 of 45 people who have registered their interest in the Burns class action reside in Queensland;

(e)    89 of 94 people who have registered their interest in the Gunning class action reside in Queensland;

(f)    It is expected that the majority of the witnesses will be located in Queensland;

(g)    The respondent is the State of Queensland, and their solicitors and counsel are located in Brisbane;

(h)    The solicitors for the applicants are located in Cairns; and

(i)    One of three Counsel for the applicants is located in Cairns.

11    The proceedings’ only present connection to Victoria is that two of the three Counsel for the applicants are located in Melbourne, and two Australian representatives of the applicants’ international litigation funder reside in Melbourne.

12    Whilst it is preferable that proceedings are issued at the Registry at which they have the greater connection, for the reasons set out below, there is no need to transfer the proceedings from the Victorian Registry to the Queensland Registry.

Structure and practice of the Federal Court

13    The Federal Court of Australia is a national Court. Since 2016, the Court has adopted the “National Court Framework” by which the Court organises its work under National Practice Areas. Matters are allocated nationally, focussing on responding to the needs of the case and the parties. Matters commenced in one state may be allocated to the docket of a judge based in a different state: Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616; Oberix Group Ltd v Atkinson [2021] FCA 1259.

14    The Court has a Registry in the principal city of each state and territory. However, the Court is able to sit at any place in Australia. Section 12 of the Federal Court Act states:

Sittings of the Court shall be held from time to time as required at the places at which the registries of the Court are established, but the Court may sit at any place in Australia or in a Territory.

15    Section 46(a) of the Federal Court Act relevantly states:

The Court or a Judge may, for the purposes of any proceeding before it or him or her:

(a) order the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person, at any place within Australia…

16    Together with that geographical flexibility, the Court “views technology as an important tool to assist in achieving the Court’s key objective of quick, inexpensive and efficient resolution of proceedings”: Federal Court of Australia, Technology and the Court Practice Note (GPN-TECH), 25 October 2016, para 2.1. Consistent with that practice note, the parties and the Court have agreed that all hearings in these matters will be livestreamed unless otherwise agreed. That will allow potential group members and other interested persons to view the hearings without the need for travel. It is also now common practice for hearings in this Court to be conducted by videoconference: see Mahmood v Abdul Wahid and Sons Pty Ltd, in the matter of Abdul Wahid and Sons Pty Ltd [2020] FCA 1689. The parties in these proceedings have already appeared at case management hearings remotely.

17    The Transfer Applications are to be assessed against that Court structure and practice.

The principles relevant to transfer

18    As identified above, the respondent seeks to transfer the proceedings from the Victorian Registry to the Queensland Registry of the Court pursuant to s 48 of the Federal Court Act and r 2.02 of the Rules.

19    Section 48 of the Federal Court Act provides:

The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

20    Rule 2.02 of the Rules provides that a party may apply to the Court to transfer a proceeding from the place where the proceeding was started to another place.

21    In National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155; [1988] FCA 133 the Full Court stated at 162:

The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases.

22    In Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2014] FCA 1010 at [6] White J set out what he described as settled matters in considering a transfer application under s 48:

(a)     there is no onus of proof in the strict sense to be discharged by the party seeking to have the proceedings continued elsewhere: Sentry at 162;

(b)     the national character of the Court, including its capacity to put in place flexible arrangements for the taking of evidence and the receipt of submissions, is pertinent: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 at [16], [20]; Mortimer v Opes Prime Stockbroking Ltd (Administrators Appointed) (in liq) [2009] FCA 227 at [15]. As French J observed in Lamb v Hogs Breath Company Pty Ltd (No 1) [2007] FCA 49 at [9]:

So far as the interlocutory processes are concerned, unless some unusual circumstance occurs, it matters little whether the proceeding is in the Perth or Brisbane Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that.

(c)     The place of residence of the parties and their witnesses, the expense to the parties, the place where the events giving rise to the applicant’s cause of action, and the convenience of the Court itself are relevant matters: Sentry at 162;

(d)     The balance of convenience is a very relevant, but not decisive, consideration: Sentry at 162.

(e)     Any difference in the rights of the parties under the relevant law of different States or Territories, to the extent that these can be identified and assessed at the time the Court considers the application, may be material: Sentry at 163;

(f)     Ultimately, the discretion is to be exercised “having regard to considerations of sound case management, the national character of the court and practical considerations including the convenience of the parties”: Virgin Mobile at [16].

23    Noting the wholly unfettered nature of the power conferred by s 48 of the Federal Court Act, I adopt that summary of relevant matters. Save for the matter at (e), each of those matters is relevant to the consideration of the Transfer Applications.

Consideration and concerns of the respondent

24    The national character of the Court, including, as discussed above, its capacity to put in place flexible arrangements for the taking of evidence and the receipt of submissions, is a matter that weighs against the need for the transfer of the proceedings between registries.

25    The place of residence of the parties and their witnesses, the expense to the parties and the place where the events giving rise to the applicants’ causes of action arose, are matters that weigh in favour of the transfer. On the material before the Court I accept that: (a) the parties, most potential group members, and most potential witnesses reside in Brisbane or in Queensland; (b) if the hearings were held in Melbourne, and those representing the respondent chose to attend in person they would incur additional costs; (c) the events the subject of the pleadings took place in Queensland. However, all of those matters are accommodated if the hearings take place in Queensland, where necessary.

26    The respondent says further that there are ancillary benefits to in-person hearings such as enabling productive in-person exchanges. They also submit that remote video hearings may be appropriate for case management hearings and uncomplicated interlocutory applications, however, for complex or significant interlocutory hearings and final hearings it is preferable to conduct the hearings in person. I also recognise, as the respondent submits, that the proceedings are class actions and often involve a greater number of case management and interlocutory hearings. Again, all of those matters are accommodated if the hearings take place in Queensland where appropriate.

27    Further, as identified above, it is also clear that a number of witnesses will be located in remote locations throughout Queensland and will be First Nations people requiring, as all parties agreed, culturally appropriate witness examination. In that respect, the parties have all indicated a preparedness to hear evidence on country in remote locations throughout Queensland and to cooperate in the methods of hearing.

28    In order to deal with the matters raised by the respondent, and taking account of the acknowledgements and cooperation of the applicants, the Court will accommodate hearings:

(a)    by video link for case management hearings, uncomplicated interlocutory hearings or when otherwise convenient;

(b)    in person in Brisbane;

(c)    on country in Cairns, Mackay, Rockhampton or other remote locations; and

(d)    will livestream all hearings unless otherwise agreed.

29    Those matters accommodate the respondent’s concerns and enable the Court to have regard to considerations of sound case management, the national character of the court and practical considerations including the balance of convenience of the parties.

30    In all of those circumstances, there is no need or utility to transfer the matters from the Victorian Registry to the Queensland Registry. The applications to transfer the proceedings will be dismissed.

ONLINE FILE

31    As set out above, in high profile cases or cases where there are expected to be a high number of media requests for file access, the Court has adopted a practice of establishing online files where publicly accessible material is to be placed.

32    At the hearing on 25 July 2024, the parties explained that they have not been able to agree on the form of redactions to the Gunning statement of claim to be placed on the online file. The applicants seek to redact the names, ages and pronouns of the children named in the pleading. The respondent seeks more extensive redactions which redact all information that refers to the individual circumstances of the children and some of Mr Gunning’s circumstances. The respondent submits that their more extensive redactions are necessary because of s 189 of the CPA.

33    The parties agree that there is a need to de-identify the details of the children referred to in the Gunning statement of claim. It is the extent of that redaction that is in dispute. The respondent accepts that placing either redacted version of the Gunning statement of claim on the Court’s online file would not result in a contravention of s 189 of the CPA by the Court. The parties agree that the contents of the online file is a matter for the Court’s discretion.

34    In the present circumstances there is a need to consider both the protection of the children and the interests of potential group members in being able to understand the claims made on their behalf. For the reasons set out below the Court will place the applicants’ version of the Gunning statement of claim on the online file.

35    Section 189 of the CPA relevantly provides:

(1) A person must not, without the chief executive’s written approval, publish information that identifies, or is likely to lead to the identification of, a child as—

(a) a child who is or has been the subject of an investigation under this Act of an allegation of harm or risk of harm; or

(b) a child in the chief executive’s custody or guardianship under this Act; or

(c) a child for whom an order is in force.

…

(2) A person must not, without the chief executive’s written approval, publish information that identifies, or is likely to lead to the identification of, a child living in Queensland as a child who—

(a) has been harmed or allegedly harmed by a parent or step-parent of the child or another member of the child’s family; or

(b) is, or allegedly is, at risk of harm being caused by a parent or step-parent of the child or another member of the child’s family.

36    The definition of “publish” for the purposes of s 185(1), is defined in the CPA as:

"publish", for information, means to publish it to the public by way of television, newspaper, radio or other form of communication.

37    The applicants support their more limited redactions by two submissions. First, they say that the respondent’s redactions would not enable a potential group member to sensibly determine the nature of the conduct complained of by Mr Gunning, and therefore whether they have suffered similar or related conduct. Second, they say that the protection is directed to the media being prohibited from making a spectacle of any child alleged to have been harmed or at risk of harm, and not the present circumstances.

38    The respondent accepts that the pleadings need to be presented in such a way that a person is able to read them and to ascertain whether or not they are within the group. However, the respondent submits that as the applicant’s proposed redactions contain Mr Gunning’s name and that a removal of children has taken place, the statement of claim would likely to lead to the identification of the children who were removed from their parents. It says that result is inconsistent with the protection contained in s 189 of the CPA.

39    I am satisfied that by placing the Gunning statement of claim on the online file the Court does not contravene s 189 of the CPA. The Court is not a ‘person’ for the purposes of the CPA: Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6; [1952] HCA 32; Miller v Miller (1978) 141 CLR 269 at 277; [1978] HCA 44; Hilton v Wells (1985) 157 CLR 57 at 87; [1985] HCA 16. As set out above, the respondent acknowledges that such conduct by the Court would not be a contravention. However, I recognise that the protection created by s 189 of the CPA is an important and significant protection. I am satisfied that the redaction of the names, ages and pronouns of the children is a sufficient protection.

40    I accept that any document placed on the Court’s online file must be able to be meaningfully understood. The respondent’s redactions make the pleading difficult to understand. In the circumstances of this case, it is important, as the applicants contend, that potential group members reading the statement of claim are able to ascertain whether or not they are members of the group. The group, on the current pleadings, is defined to include those who claim they have suffered the same, similar or related discrimination or breach of statutory duty as alleged by Mr Gunning. Accordingly, they must be able to understand the allegations made by Mr Gunning.

41    Further, in order to provide additional protection to the children in the statement of claim, and other documents on the online file, I will add a note on the online file in the form of s 189 so that anyone who publishes information about the proceedings understands the protection created by s 189 of the CPA.

42    The note will say:

Those accessing this online file should be aware of section 189 of the Child Protection Act 1999 (Qld) which provides:

(1) A person must not, without the chief executive’s written approval, publish information that identifies, or is likely to lead to the identification of, a child as—

(a) a child who is or has been the subject of an investigation under this Act of an allegation of harm or risk of harm; or

(b) a child in the chief executive’s custody or guardianship under this Act; or

(c) a child for whom an order is in force.

Penalty—

Maximum penalty—

(a) for an individual—100 penalty units or 2 years imprisonment; or

(b) for a corporation—1,000 penalty units.

(2) A person must not, without the chief executive’s written approval, publish information that identifies, or is likely to lead to the identification of, a child living in Queensland as a child who—

(a) has been harmed or allegedly harmed by a parent or step-parent of the child or another member of the child’s family; or

(b) is, or allegedly is, at risk of harm being caused by a parent or step-parent of the child or another member of the child’s family.

Penalty—

Maximum penalty—

(a) for an individual—100 penalty units or 2 years imprisonment; or

(b) for a corporation—1,000 penalty units.

43    In all of those circumstances the applicant’s proposed redactions should be preferred, and their version of the Statement of Claim should be uploaded to the online file. I will reserve costs of the Transfer and Pleadings Applications.

Associate:

Dated:    9 August 2024