Federal Court of Australia

Cumaiyi v Northern Territory of Australia [2025] FCA 244

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), Ms Stephanie Berida be removed as the third applicant.

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, for a period of 20 years, the Confidential Affidavit of Mr Stewart Alan Levitt sworn on 8 August 2024 and Annexure ‘A’ to that affidavit are not to be published or disclosed without prior leave of the Court to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the applicants’ legal representatives;

(d)    group members who have provided an appropriate acknowledgment of their obligations under this order; and

(e)    counsel for the applicants and/or group members,

with such permitted disclosures to be on the terms that none of those persons or entities disclose the information or any part of it to any person or entity other than those listed in this order.

3.    Discontinuance of the proceeding be approved pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth).

4.    The applicants have leave to discontinue the proceeding by filing a notice of discontinuance forthwith.

5.    There be no order as to costs of the interlocutory application for approval of the discontinuance.

6.    There be no order as to costs in the proceeding.

7.    Any existing orders as to costs are vacated.

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

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), Ms Stephanie Berida be removed as the third applicant.

8.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, for a period of 20 years, the Confidential Affidavit of Mr Stewart Alan Levitt sworn on 8 August 2024 and Annexure ‘A’ to that affidavit are not to be published or disclosed without prior leave of the Court to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the applicants’ legal representatives;

(d)    group members who have provided an appropriate acknowledgment of their obligations under this order; and

(e)    counsel for the applicants and/or group members,

with such permitted disclosures to be on the terms that none of those persons or entities disclose the information or any part of it to any person or entity other than those listed in this order.

9.    Discontinuance of the proceeding be approved pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth).

10.    The applicants have leave to discontinue the proceeding by filing a notice of discontinuance forthwith.

11.    There be no order as to costs of the interlocutory application for approval of the discontinuance.

12.    There be no order as to costs in the proceeding.

13.    Any existing orders as to costs are vacated.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1    The applicants have each brought a representative proceeding in which they allege unlawful racial discrimination by the respondents in contravention of s 9(1) of the Racial Discrimination Act 1975 (Cth) concerning the provision of healthcare services, including interpreting services, to residents of Wadeye in the Northern Territory.

2    The applicants have now filed interlocutory applications seeking the approval of the Court to discontinue the proceedings pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth). The applications are supported by the respondents.

3    The principles concerning approval to discontinue a representative proceeding were thoroughly canvassed by Murphy J in Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435 at [6] to [31]. I do not propose to repeat the principles identified in that case, other than to note two matters. First, the Court has an onerous role to protect the interests of group members who are not directly represented in the proceedings. Second, in a case where the practical effect of discontinuance will be to return the group members to their previous positions, the preponderance of recent authority suggests that the test is whether discontinuance would be unfair or unreasonable or adverse to the group members.

4    The parties have agreed to resolve the proceedings on the basis that they will be discontinued and each party will bear their own costs. The respondents have also agreed to publish a joint public statement with the applicants as follows:

The applicants have agreed to discontinue these proceedings in response to the Northern Territory Government’s stated commitment to using best endeavours to achieve an interpreter attendance rate of 85% for the Murrinh Patha language, to allocate at least two (2) full-time equivalent (FTE) rural medical practitioners to Wadeye and to establish a local dialysis service there, within three (3) years.

5    The group members have been notified of the interlocutory applications in accordance with orders made on 13 December 2024. There has been no opposition raised to the proposed approval of the discontinuances.

6    The applicants rely upon confidential advice provided by a barrister, Dr Prentice-Davidson. I have had regard to Dr Prentice-Davidson’s opinion.

7    I am satisfied that the practical effect of the proposed discontinuances would be to return the group members to the legal position they occupied prior to the commencement of the proceedings. I am satisfied that the discontinuances would not be unfair or unreasonable or adverse to the interests of the group members.

8    I will make orders substantially in terms of the orders sought in the interlocutory applications.

Associate:    

Dated:    31 March 2025

SCHEDULE OF PARTIES