Federal Court of Australia

FBV18 v Commonwealth of Australia [2024] FCA 947

ORDERS

THE COURT NOTES THAT:

A.    The Second Applicant is a minor and therefore a person under a legal incapacity within the meaning of Sch 1 of the Federal Court Rules 2011 (Cth) (the Rules). The First and Third Applicants are not persons under a legal incapacity.

B.    The parties have executed a deed of settlement and release (the Deed), which acknowledges that the settlement of the claim brought by the Second Applicant (proposed settlement) is subject to the approval of the Court.

C.    The Second Applicant’s litigation representative applies for approval of the proposed settlement under r 9.70 of the Rules.

THE COURT ORDERS THAT:

Settlement approval

1.    The settlement set out in the Deed be approved.

2.    Within two (2) business days of these orders being made, the Second Applicant is to send these orders, and subject to paragraphs 5 to 7 below, the affidavits filed in support of the Second Applicant’s application to the Senior Master of the Supreme Court of Victoria (SCV).

3.    If the Senior Master of the SCV makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure Rules) 2015 (Vic) that the Settlement Sum be held in Court for the benefit of the Second Applicant:

(a)    the Respondent shall, within 28 days after service of an authenticated copy of the order of the Senior Master on the Respondent’s solicitors, pay the Settlement Sum to the SCV; and

(b)    the Second Applicant has leave to file a notice of discontinuance of this proceeding with costs to be dealt with as set out in the Deed. This constitutes as an order otherwise for the purposes of r 26.12(7) of the Rules.

4.    If the Senior Master of the SCV does not make an order described in paragraph 3 above within 28 days of this order, the matter be listed for case management hearing forthwith.

Confidentiality

5.    Until further order, pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Act), and on the grounds set out at s 37AG(1)(a) and (c) of the Act:

(a)    publication is prohibited of the following information (being information that would tend to reveal the identity of the Applicants):

(i)    the name of the Applicants or any member of their family;

(ii)    the identification number of the boat on which the Applicants first arrived in Australia;

(iii)    the ages of the First, Second and (previously) Fifth Applicants (other than that they are (or were during the course of these proceedings) minors);

(iv)    the Applicants’ country of origin;

(v)    any medical conditions of any of the applicants; and

(b)    the following documents be treated as confidential to the parties to this proceeding, be marked as confidential to the parties on the Court’s file, and not be made available for public inspection, disclosed in open court or disclosed in the open part of the transcript of any court proceeding:

(i)    the medical report filed and served on behalf of the Second Applicant being “Annexure EH-3” to the affidavit of Emma Hearne affirmed 22 December 2023; and

(ii)    all other medical reports filed by the parties in the proceeding.

6.    Until further order, pursuant to ss 37AF and 37AG of the Act and on the ground that it is necessary to prevent prejudice to the proper administration of justice, counsel’s Confidential Opinion being “Annexure EH-2” to the affidavit of Emma Hearne dated 22 December 2023, be marked as confidential on the Court’s file, and not be made available for inspection by the Respondent or the public, disclosed in open court or disclosed in the open part of the transcript of any court proceeding. The publication or disclosure of counsel’s Confidential Opinion or its terms is prohibited.

7.    Until three years from the date of these orders or until further order, under s 37AF(1) of the Act, on the ground in s 37AG(1)(a) of the Act, the agreed terms of settlement of this proceeding between the parties, including the settlement amounts, be prohibited from disclosure by publication or otherwise.

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

REASONS FOR JUDGMENT

BUTTON J:

INTRODUCTION

1    There are two interlocutory applications before the Court:

(a)    an interlocutory application dated 3 January 2024 filed by the Second Applicant seeking an order approving an agreement to settle the Second Applicant’s claim, and certain confidentiality orders; and

(b)    an interlocutory application dated 12 January 2024 filed by the Respondent seeking a confidentiality order in respect of the terms of the settlement agreed between the parties, including the settlement amounts.

2    A number of affidavits have been filed since the interlocutory applications were made, and submissions were filed by the Second Applicant and the Respondent on 26 July 2024 and 29 July 2024 respectively.

3    For the reasons which follow, I have determined that it is appropriate to approve the settlement agreement and to make the confidentiality orders sought by the parties.

FACTUAL AND PROCEDURAL BACKGROUND

4    The following factual background is taken principally from the pleadings. This recitation of the facts should not be understood as making findings on any contested facts. It is intended only to provide a brief factual background.

5    The Second Applicant arrived in Australian waters by boat in July 2013 with his family, comprising his:

(a)    father, being his litigation representative;

(b)    mother, the Third Applicant; and

(c)    sister, the First Applicant.

6    The Second Applicant and his family were subsequently detained at immigration detention centres on Christmas Island until June 2014, when they were transferred to a Regional Processing Centre on Nauru. Between January 2015 and October 2017, the Second Applicant and his family were held in various locations between Australia, Papua New Guinea and Nauru.

7    From October 2017, the Second Applicant and his family began to reside in the community in Nauru, where they remained until October 2018, when they were transferred from Nauru to community detention in Australia.

8    In September 2020, the Second Applicant and his family were granted Bridging Visa Es, and have subsequently been granted further visas allowing them to remain in Australia.

9    The Amended Statement of Claim details the allegations concerning the Second Applicant’s condition and medical treatment. In order not to detail the Second Applicant’s symptoms, medical condition, diagnoses and treatment in unnecessary detail, it suffices here to note that the Second Applicant alleges that he experienced significant diagnosed mental health disorders and that the treatment he received in off-shore detention was inadequate.

10    The First and Second Applicants, by their father as litigation representative, commenced this proceeding on 9 October 2018, seeking orders that the Applicants and their family be transferred to a location where they could receive “specified treatment”. On 10 October 2018, the Court made orders joining the other family members as applicants, and requiring the Minister for Home Affairs to take all reasonable steps to cause the Applicants to be transferred to a location where they could receive the specified treatment.

11    On 15 October 2018, the Second Applicant and his family were transferred from Nauru to Australia. On 16 October 2018, the Second Applicant was admitted to the Women’s and Children’s Hospital in Adelaide for treatment.

Procedural delays in resolution of claims

12    This proceeding is part of a cohort of approximately 50 other similar proceedings which have been delayed by reason of the Commonwealth’s challenge to this Court’s jurisdiction to hear the proceedings by reason of s 494AB of the Migration Act 1958 (Cth) (the Migration Act). The procedural background to that challenge was set out by Murphy J at [24]–[25] of DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 3) [2023] FCA 1350 (DIZ18), and I need not repeat it here. It suffices to say that it was not until December 2020 that the High Court resolved the jurisdictional question, its resolution being that s 494AB did not have the effect of taking away the Court’s jurisdiction to hear and determine proceedings of this kind, but instead creates a defence available to the Commonwealth to plead to specific claims in all courts except the High Court: Minister for Home Affairs v DLZ18 (2020) 270 CLR 372; [2020] HCA 43 at [4] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

Mediation and settlement

13    On 18 April 2023, the parties attended a mediation at the Federal Court in Sydney. The Commonwealth made an offer at the mediation to settle the proceedings. The Second Applicant’s litigation representative received advice from counsel briefed for the Applicants in relation to the offer, and subsequently gave instructions to the Second Applicant’s lawyers to accept the offer. A draft deed of settlement was provided by the Commonwealth some time later, in November 2023. The Second Applicant’s litigation representative signed the deed on 29 November 2023 and the deed was executed by the Commonwealth on 20 December 2023.

The Second Applicant’s pleaded claim

14    The Second Applicant seeks damages, including aggravated and exemplary damages, for negligence. By the Applicants’ Amended Statement of Claim dated 3 September 2021, the Second Applicant alleges that the Commonwealth owed him, and the other Applicants, a non-delegable duty of care to:

(a)    act in a manner to prevent them from suffering psychological harm, or which would prevent a worsening or aggravation of their psychological conditions;

(b)    act carefully and in a way to procure appropriate treatment for them; and

(c)    not engage in actions which it knew or ought to have known could cause avoidable harm to the Applicants’ psychological health.

15    That duty of care is alleged to have been breached by the Commonwealth’s failure to (among other things):

(a)    permit or provide appropriate medical assessment and treatment to alleviate the Applicants’ conditions or, at least, to stem further damage to them;

(b)    provide the Applicants with recommended treatment including where that treatment was not available on Nauru; and

(c)    remove the Applicants to a place for appropriate medical treatment or, at least, to stem further damage to them.

16    The Second Applicant alleges that as a consequence of the breach of the Commonwealth’s duty of care, he suffers a severe psychological impairment. He claims damages reflecting the full extent of his non-economic and economic loss, aggravated and exemplary damages, interest, and the payment of his legal costs.

The Commonwealth’s Defence

17    In its Defence, dated 29 October 2021, to the Applicants’ Amended Statement of Claim, the Commonwealth denies that:

(a)    the Applicants were detained by the Commonwealth on Nauru, or that the Commonwealth provided, or declined to provide, the Applicants with medical treatment; and

(b)    the Commonwealth owed the Applicants a duty of care (except for the period the Applicants were detained under s 189 of the Migration Act on Christmas Island and in Australia, during which periods it admits that it owed the Applicants a non-delegable duty to ensure that reasonable care was taken of them).

18    The Commonwealth further says that the imposition of a duty of care in relation to the Applicants’ transfer to and period in Nauru would be incompatible with:

(a)    the statutory duty contained in s 198AD(2) (requiring officers to take unauthorised maritime arrivals detained under s 189 to a regional processing country); and

(b)    the purpose of Subdiv B of Div 8 of Pt 2 of the Migration Act (which subdivision deals with regional processing).

19    The Commonwealth also pleads in answer to the Applicants’ claim that the allegations made by the Applicants:

concerning their transfer to and period in Nauru impermissibly invite the Court to apply the standard of negligence to decisions of high level government policy, which involve or are dictated by economic, social and political factors, including the second respondent’s relationships with foreign governments, and in respect of which the Court should not impose a duty of care

20    I take the reference in this paragraph to the “second respondent” to mean the Commonwealth, being the only respondent to this proceeding.

21    The Commonwealth also pleads that “to the extent that the applicants’ claims relate to alleged acts or omissions of the respondent during the period the applicants were in Nauru, and any harm allegedly suffered by reason thereof, the law applicable to the claims is the law of Nauru”.

SETTLEMENT APPROVAL

Introduction and material relied upon

22    The Second Applicant, through his litigation representative, has applied, pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) (the Rules), for an order approving the settlement (proposed settlement) of his claims, as provided for in a deed between the parties dated 20 December 2023 (Deed). While the Deed settles the claims between all parties to the proceeding, only the Second Applicant, who is a minor, requires the Court’s approval to settle his claims. The Deed provides for a separate settlement sum for each of the Applicants.

23    The application, as filed, was made under r 7.11 of the Rules. However, by his written submissions, the Second Applicant invited the Court to treat the application as having been made under r 9.70. The Commonwealth did not oppose this course. I accept that it is appropriate to treat the application as having been made under r 9.70.

24    The Second Applicant relies on two affidavits of his solicitor, Emma Hearne, dated 22 December 2023 and 19 February 2024, and an affidavit of his litigation representative dated 3 January 2024. Ms Hearne’s first affidavit annexed the Deed, a confidential opinion of Geoffrey Watson SC and Diana Tang in relation to the proposed settlement (Confidential Opinion), and a medical report in relation to the Second Applicant.

25    The Second Applicant filed written submissions in support of the settlement application. The Commonwealth did not file submissions in relation to the settlement application.

Applicable principles

26    The principles applicable to settlement approval applications under r 9.70 were conveniently summarised by Murphy J at [35]–[39] of DIZ18. I gratefully adopt his Honour’s summary. As the authorities canvassed by Murphy J make clear, the Court’s task under r 9.70 is to determine whether the proposed settlement is in the best interests of the person under a legal incapacity or beneficial to that person’s interests: DIZ18 at [36] citing Scandolera v State of Victoria (2015) 331 ALR 525; [2015] FCA 1451 at [27]–[29] (Mortimer J, as her Honour then was). See also Snell v State of Victoria (Department of Education and Training (No 3) [2024] FCA 825 (Snell) at [24] (Horan J) and the authorities cited therein.

27    The considerations relevant to whether a settlement is in the best interests of the person under a legal incapacity were recently summarised by Horan J in Snell at [26] as including:

the advantages and disadvantages of the litigation continuing: see Scandolera at [29]-[32]; Young at [12]; Fisher at [35]-[36]. This encompasses matters such as the benefits conferred under the settlement, whether the applicant might secure a more advantageous outcome if ultimately successful at trial, the time that will be taken to obtain judgment at first instance and the prospect of an appeal, the risks and vicissitudes of litigation, the possible exposure to adverse costs orders, the emotional and psychological strain of continued litigation on the applicant and his family, and the finality and certainty secured in bringing an end to the litigation.

28    In this exercise, significant weight will be given to the opinions of the applicant’s legal advisers: Snell at [25] citing Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041 (Modra) at [12] (Tracey J). Another important consideration is how the settlement sum is to be preserved for the Applicant’s benefit: DIZ18 at [39].

Independent lawyer

29    Rule 9.71(2)(c) of the Rules requires that an application made under r 9.70 be accompanied by “an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity”. There has been discussion in the authorities about what it means to be independent in this context, and whether lawyers who have been, or are, briefed in a matter can provide the requisite opinion.

30    The weight of the authority favours the view that r 9.71(2)(c) does not exclude the opinion of a lawyer with a previous involvement in the case, provided that opinion is given in furtherance of that lawyer’s duty to assist the Court, and not in furtherance of any duty to a party: Wade v State of Victoria (No 2) [2012] FCA 1080 at [7]–[9] (Bromberg J), followed in Modra at [9] (Tracey J); Hickey v Public Advocate (Victoria) [2012] FCA 1203 at [10]–[11] (Gray J); Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 at [3] (Davies J); Biasin v State of Victoria [2017] FCA 161 at [15]–[16] (Kenny J); Turner v Commonwealth of Australia (2019) 367 ALR 724; [2019] FCA 463 at [14] (Logan J); Brindle v The Corporation of the Trustee of the Roman Catholic Archdiocese of Brisbane operating as Brisbane Catholic Education [2019] FCA 609 at [12] (Reeves J); Hartigan-Dunn v State of Victoria (Department of Education and Early Childhood Development) [2019] FCA 1146 at [7] (Davies J); Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as trustee for Barton Family Trust trading as Sealwerx WA) (No 3) [2022] FCA 1240 at [7] (Jackson J); Gaha v Gaha [2024] FCA 531 at [21]–[23] (Collier J); cf Jones v State of Victoria [2014] FCA 1404 at [4]–[5] (North J); Allen v State of Victoria (Department of Education and Training) [2019] FCA 1074 at [8] (Snaden J).

31    However, as Kenny J observed in Lewis v State of Victoria (Department of Education and Training) [2019] FCA 714 at [13], the possibility that a lawyer with a previous association can give an independent opinion for the purposes of r 9.71(2)(c) “does not exclude the possibility that, in the appropriate case, the Court may form the view that the opinion of a lawyer with no previous association with the proceeding is needed, as, for example, happened in Gray v State of Victoria (Department of Education and Early Childhood Development) [2017] FCA 353 (Murphy J)”.

32    Here, the authors of the Confidential Opinion, Geoffrey Watson SC and Diana Tang, have acted for the Second Applicant for some time. Nevertheless, the Confidential Opinion is expressed as being made in furtherance of their duty to assist the Court to determine whether the proposed settlement sum is in the Second Applicant’s best interests.

33    In the circumstances of this case, I consider it appropriate to receive the Confidential Opinion as satisfying the requirements of r 9.71(2)(c), despite counsel’s prior involvement as barristers with carriage of the proceeding. It would be productive of unnecessary and disproportionate expense to require another lawyer to be engaged to prepare an opinion. If it be the case that Mr Watson SC or Ms Tang do not qualify as “independent lawyer[s]” within the meaning of r 9.71(2)(c), it is appropriate to dispense with the requirement under that rule.

Consideration

34    For the following reasons, I consider the proposed settlement to be in the Second Applicant’s best interests.

35    First, the proposed settlement is supported by his father, the Second Applicant’s litigation representative, who has had the benefit of reading the frank and well-reasoned Confidential Opinion. The Second Applicant’s father, properly advised as he is, is in a good position to assess what is in his son’s best interests.

36    Secondly, I have had regard to the Confidential Opinion of Geoffrey Watson SC and Diana Tang, both of counsel. Without going into the detail of that opinion, it describes in a clear, well-reasoned, and objective manner, why the proposed settlement is in the best interests of the Second Applicant. The Confidential Opinion elucidates the risks in the litigation and evaluates the proposed settlement having regard to those risks.

37    Thirdly, as described above, this proceeding has already had a long procedural history. The matter would have taken some time to proceed to trial and, even assuming it proceeded expeditiously, the prospect of an appeal looms large in this proceeding, raising as it does novel claims regarding the Commonwealth’s duty of care. The proposed settlement provides certainty and peace of mind to the Second Applicant and his family. It avoids the emotional and psychological strain inherent in all forms of litigation, but particularly in litigation of this nature.

38    Fourthly, consistent with the now common practice in cases of this kind, it is proposed that the settlement sum be managed by the Senior Master of the Supreme Court of Victoria, until the Second Applicant reaches 18 years of age. Ms Hearne’s second affidavit exhibits correspondence with the Funds in Court Division of the Supreme Court of Victoria. The Senior Master is willing to manage the settlement sum and has provided an example of orders effective to ensure the Senior Master can receive the funds on behalf of the Applicant. I will make orders in those terms.

CONFIDENTIALITY

Commonwealth’s application

39    By its interlocutory application dated 12 January 2024, the Commonwealth seeks an order under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) that the agreed terms of settlement of this proceeding between the parties, including the settlement amounts, are prohibited from disclosure by publication or otherwise. In support of its interlocutory application, the Commonwealth relied on an affidavit of Louise Buchanan dated 12 January 2024. Ms Buchanan is the lawyer with the care and conduct of this proceeding on behalf of the Commonwealth. Ms Buchanan also has carriage of a number of similar claims filed in several other registries of this Court. Ms Buchanan’s affidavit and the Commonwealth’s submissions explain that the confidentiality application is being made jointly by the Second Applicant and the Commonwealth.

40    Although the interlocutory application did not identify the particular ground in s 37AG(1) on which the order under s 37AF was sought, it is clear from the Commonwealth’s submissions, and Ms Buchanan’s supporting affidavit, that the claim has been made on the basis that the order is necessary to prevent prejudice to the proper administration of justice (ie s 37AG(1)(a)).

Principles

41    The relevant principles applicable to the making of orders under s 37AF were summarised by the Full Court (Allsop CJ, Wigney and Abraham JJ) in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 at [7]–[9], as follows (citations omitted):

The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the [Federal Court Act] are fairly well settled.

Suppression or non-publication orders should only be made in exceptional circumstances … That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest of open justice … The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle …

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word” … It is nevertheless not to be given an unduly narrow construction … The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it … There is no exercise of discretion or balancing exercise involved …

42    As Murphy J observed in DIZ18 (at [55]), s 37AE of the FCA Act also requires the Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In the same case, his Honour gave five reasons why it was appropriate to make a confidentiality order in respect of the terms of the settlement and the deed: at [57]–[62]. Those reasons were, in summary:

(1)    The applicant had agreed to confidentiality in respect of the terms of the deed and settlement amount, and there is a public interest in keeping people to their freely entered bargains.

(2)    It is likely the respondents in that case (being the Minister for Home Affairs and the Commonwealth) would have required confidentiality as a term of the offer of settlement and it may be that the settlement would not have occurred without that confidentiality.

(3)    The interests of justice will be served if parties in future proceedings of this kind, including the Minister and the Commonwealth, can have confidence that the Court may be prepared to facilitate resolution of such proceedings on terms which include confidentiality as to the settlement amount.

(4)    There is a public interest in settlement of proceedings before trial and there was evidence before his Honour from the respondents that if confidentiality orders were not made, it would reduce the prospect of settlement in other cases.

(5)    Were it not for the fact that the applicant was a minor, and therefore that r 9.70 of the Rules operates to require the Court’s approval of the settlement, the deed would have remained confidential between the parties.

Consideration

43    I accept the Commonwealth’s submission that the reasons outlined by Murphy J in DIZ18 above (and in BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2) (2024) 301 FCR 392; [2024] FCA 16 (BXD18) at [42]–[46]) apply equally here.

44    The Second Applicant has, by his litigation representative’s entry into the Deed, agreed to keep the terms of the Deed (including the settlement amount) confidential. There is, as Murphy J observed, a public interest in keeping the parties to that bargain.

45    Ms Buchanan also gave evidence, which I accept, that most, if not all, of the proceedings in the cohort referred to above at paragraph will be mediated in the medium to long term, and that those mediations will be prejudiced if the terms of settlement in the present proceeding were published. Any prejudice to those anticipated mediations occasioned by the disclosure of the terms of the Deed would not be in the interests of the administration of justice.

46    For these reasons, I accept that the agreed terms of settlement of this proceeding between the parties, including the settlement amounts, should remain confidential.

47    It is necessary, therefore, to determine how long the confidentiality order is to operate for. Section 37AJ of the FCA Act requires the Court to ensure that the suppression or non-publication order “operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. In DIZ18, Murphy J considered it appropriate to limit the term of the confidentiality orders to three years from the date of his judgment: at [64]. His Honour observed that: “[i]f by that time some of the cohort of cases are still pending one or other of the parties can apply to extend the orders.” His Honour adopted the same approach in DZQ18 as litigation representative for DZP18 v Minister for Home Affairs [2024] FCA 38 (DZQ18) (at [44]) and in BXD18 (at [50]). The Commonwealth submitted, and I accept, that it is similarly appropriate to limit the confidentiality order made in this proceeding.

Orders sought by the Second Applicant

48    By his submissions, the Second Applicant seeks the following confidentiality orders:

5.    Until further order, pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Act), and on the grounds set out at s 37AG(1)(a) and (c) of the Act:

a.     publication is prohibited of the following information (being information that would tend to reveal the identity of the applicants):

i.     the name of the applicants or any member of their family;

ii.     the identification number of the boat on which the applicants first arrived in Australia;

iii.     the ages of the first, second and (previously) fifth applicants (other than that they are (or were during the course of these proceedings) minors);

iv.     the applicants’ country of origin;

v.     any medical conditions of any of the applicants.

b.     the following documents be treated as confidential to the parties to this proceeding, be marked as confidential to the parties on the Court’s file, and not be made available for public inspection, disclosed in open court or disclosed in the open part of the transcript of any court proceeding:

i.     the medical report filed and served on behalf of the applicant being “Annexure EH-3” to the affidavit of Emma Hearne affirmed 22 December 2023; and

ii.     all medical reports filed by the parties in the proceeding.

6.     Until further order, pursuant to ss 37AF and 37AG of the Act and on the ground that it is necessary to prevent prejudice to the proper administration of justice, counsels’ Confidential Opinion being “Annexure EH-2” to the affidavit of Emma Hearne dated 22 December 2023, be marked as confidential on the Court file, and not be made available for inspection by the Respondents or the public, disclosed in open court or disclosed in the open part of the transcript of any court proceeding. The publication or disclosure of counsels’ Confidential Opinion or its terms is prohibited.

49    On 7 June 2024, I made interim non-publication orders pursuant to s 37AI of the FCA Act over essentially the same information in respect of which final confidentiality orders are now sought. In my view, it is appropriate to now make the final orders sought by the Second Applicant.

50    In respect of the order sought by the Second Applicant at paragraph 5(a) (being information which would tend to reveal the identity of the Applicants), the Applicants have had the benefit of bringing these proceedings under pseudonyms, pursuant to the orders of Thawley J made on 10 October 2018. The proceeding contains highly personal and sensitive information relating to the Applicants. Given the nature of the proceeding, the Second Applicant’s age, and the Applicants’ status as refugees, it is appropriate that their identities (and information which would tend to reveal their identities) remain confidential until further order.

51    The Second Applicant’s medical report exhibited to Ms Hearne’s 22 December 2023 affidavit should also remain confidential until further order. It reveals the Second Applicant’s identity and goes to matters which are, and should remain, private to the Second Applicant. The same can be said for all medical reports filed by the parties in the proceeding.

52    The Confidential Opinion should also remain confidential until further order. It has been provided by counsel under r 9.71(2)(c) in furtherance of their duty to the Court and candidly sets out their views on the strengths and weaknesses of the Second Applicant’s case. Disclosure of the Confidential Opinion risks threatening the candour of counsel and may unfairly prejudice the claims of applicants in other proceedings of this kind.

Associate:

Dated:    23 August 2024