Federal Court of Australia

FZR24 v Commonwealth of Australia (No 1) [2025] FCA 450

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed 19 February 2025 for leave to join additional parties is refused.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    This matter is proceeding as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth).

2    The applicant applies by an application filed on 19 February 2025 to join four additional parties, two parents and their two children, to these representative proceedings. The application is opposed by the respondent, the Commonwealth of Australia.

The application

3    The applicant reads a number of affidavits on the application, one of which is an affidavit of Rebecca Joy Geyer sworn and filed on 19 February 2025.

4    In short, Ms Geyer deposes that the four additional parties were detained at the Woomera Detention Centre during the period the subject of the allegations in an Amended Statement of Claim filed by the applicant on 7 January 2025. One of the proposed four parties, Abdul Ghaffar Turkey, was also detained at the Baxter Detention Centre.

5    The basis for the application advanced by the applicant is that having the claims of the additional parties resolved in the present proceedings will avoid a multiplicity of proceedings.

The group members

6    The group members are identified at [1(a)] of the ASoC as the applicant and:

… all other persons who had proceedings concerning their detention at the Woomera and/or Baxter Detention Centres transferred to this Court from the Supreme Court of South Australia by that Court’s orders made on 6 February 2024, 12 April 2024 and 4 July 2024, pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting Act) 1987 (SA) and s 5 of the Jurisdiction of Courts (Cross-Vesting Act) 1987 (Cth).

7    The ASoC alleges a breach of duty of care by the Commonwealth in six separate categories, as well as four intentional torts against the applicant and the group members as a result of which it is alleged the applicant and group members suffered loss. Within the four intentional torts alleged are specific intentional torts resulting in alleged injury to the applicant.

8    The applicant and group members allege loss arising from the intentional torts.

9    Currently the group members comprise the applicant and 37 individuals whose extant individual proceedings in the District Court of South Australia were transferred to this Court (transferred proceedings) by orders of the Supreme Court of South Australia made on 30 January 2024 (signed 6 February 2024), 12 April 2024, 30 April 2024 and 4 July 2024.

10    There is no dispute that the additional parties do not come within the definition of the group members as it currently stands. Ms Geyer deposes that the applicant does not seek to expand the definition of group members beyond the additional parties.

11    The Commonwealth submits that when the requirements of s 33H of the Act are considered, the existing group is defined by identifying those applicants who have:

(a)    Proceedings concerning their detention at Woomera and/or Baxter Detention Centres; and

(b)    Those proceedings have been transferred from the District Court to this Court, by order of the Supreme Court.

12    The Commonwealth submits that in contrast to the existing group members, any amendment to the definition of the group members by adding the additional parties is by reference only to detention at Woomera and/or Baxter Detention Centres, without specifying any detail.

13    The Commonwealth submits that on the application by the applicant for the matter to proceed as a representative proceeding, the applicant confirmed that the class was a closed class with the group members being limited to the transferred proceedings. It submits further that it has proceeded on the basis that any reconstitution of the transferred matters into a representative proceeding would be of a closed class and would remain as such and it was only under those circumstances that the Commonwealth agreed to the transfer of the 38 matters to this Court. I accept those submissions.

14    The applicant submits that the common factor is claims arising out of detention at Woomera and/or Baxter. The applicant submits further that the procedural issues which led to the transfer of the group members proceedings to this Court, are not relevant.

15    It is important to keep in mind that major factor in the decision to transfer the 38 proceedings to this Court from the District Court, and the defining feature of those proceedings, is that they have been on foot in the District Court for periods, with a few exceptions, in excess of 10 years. It was the amount of time for which these proceedings have been extant and the fact that these proceedings could not be taken to trial for some years that were significant factors in the transfer orders being made. Those matters were also major considerations in the parties agreeing, and after consideration, this Court ordering, that the matter proceed as a representative action.

16    The Commonwealth observes, correctly, that if leave is granted for the joinder of the additional parties, the definition of the group members will need to be amended but that no proposed group description has been advanced by the applicant.

17    The Commonwealth submits that certainty as to class composition is fundamental to the operation of Pt IVA and in particular s 33H(1)(a), which provides in part that an application commencing a representative proceeding must describe or otherwise identify the group members to whom the proceedings relates: Impiombato v BHP Group Limited [2025] FCAFC 9 at [52]-[53] (Beach and O’Bryan JJ). It submits that at a fundamental level, there is an absence of clear identity of the additional parties, other than they were detainees at Woomera and/or Baxter Detention Centres. It submits that the mere fact of detention is insufficient for the purposes of ss 33C and 33H of the Act.

18    So much so may be accepted and whereas it may be the case that the additional parties, on one view, may come within a group defined as being detainees at Woomera and/or Baxter Detention Centres, that does not mean that their claims, and the claims of other detainees at those centres, are necessarily appropriate or well-suited to representative proceedings.

19    Faced with 38 proceedings, realistically, the only viable manner of dealing with them in a timely and efficient manner, given the length of time each of the transferred proceedings had been on foot and the prospect that the transferred proceedings would otherwise not be heard for some years, was to reconstitute them as a representative proceeding in order to determine common questions of law and/or fact and law to the greatest extent possible.

20    The Commonwealth submits that the question of whether the representative proceeding will provide an efficient and effective means of dealing with the claims of group members is finely balanced.

21    It submits that there are issues of claims being out of time which are peculiar to each applicant, as well as questions of causation and damage, which are not common across the claimants. It submits further that it is only because of the unique circumstances of these matters, including the known class, the existing filed claims of the current group members and in most cases, expert medical evidence, where the efficiency of a representative action lent itself to the reconstitution of the transferred proceedings as a representative action. I accept those submissions.

22    The mere agreement of the Commonwealth to the transferred proceedings, while important and of significant weight, was not determinative. Ultimately, the Court had to be satisfied that it was appropriate for the transferred matters to proceed as a representative proceeding and it was because of unique circumstances surrounding the transferred proceedings, that the order was made that the transferred proceedings be reconstituted as a representative action.

A multiplicity of proceedings

23    The applicant’s submission that the joinder of the additional parties will avoid a multiplicity of proceedings is informed by the contention that if leave is not granted, Shine Lawyers may receive instructions to issue individual proceedings. The applicant contends that will be productive of delay in certain circumstances where the same facts and causes of action would be relied upon and much of the evidence and submissions would be repeated. It is also contended that there is a risk of inconsistent findings.

24    Annexure RG-11 to Ms Geyer’s affidavit is a table setting out how the additional parties’ cases come within pleaded breaches of alleged duties of care in the ASoC and that the alleged breaches of duty pleaded in the ASoC had consequences for the additional parties.

25    How it is that the additional parties’ claims came within the pleaded breaches is only for the purpose of this argument. The applicant submits, correctly with respect, that details of individual group members’ claims are typically exposed only in the “secondary” or “tertiary” stages of a class action, after an initial trial such that the Pt IVA regime is productive of both interlocutory and trial efficiencies for the parties and the Court: See e.g. Gill v Ethicon Sarl (No 3) [2019] FCA 587 at [13] (Lee J).

26    In Ethicon Sarl (No 3) at [3]-[13] Lee J set out a helpful summary of the philosophy underlying and operation of proceedings brought under Pt IVA of Act.

27    His Honour identified the legislative policy underlying Pt IVA of the Act as providing a means by which a multiplicity of actions may be avoided by dealing with multiple claims together: Mobil Oil Australia Pty Limited v Victoria [2002] HCA 27; (2002) 211 CLR 1 at 24 [12] (Gleeson CJ).

28    His Honour continued by identifying s 33ZB of the Act as the pivotal provision in Pt IVA: Femcare Ltd v Bright [2000] FCA 512; (2000) 100 FCR 331 at 338 [25] (Black CJ, Sackville and Emmett JJ), in the sense that a judgment given in a representative proceeding both identifies the group members subject to it and save for those persons who have opted out of the proceedings under s 33J, binds them to the determination of the claims giving rise to the common questions: Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212, [52]-[53].

29    As to the issue of common questions, that is directed to the identification of one or more common questions of fact or law for persons within the group. The common questions are usually identified in a schedule to a “Merck order” which identifies that at an initial trial the whole of the claim of the applicant or some other group representatives are determined, with the objective of avoiding any argument as to what has been determined: Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26 at [8].

30    Nonetheless, the individuality of claims continues to exist.

31    In this matter, the common questions are matters which are still in the hands of the parties, recognising that, in the circumstances of this matter, as the pleadings evolve and finalise, it is an iterative process. The nature of these proceedings is such that the common questions are likely to be questions of law or perhaps mixed law and fact.

32    Whereas one might expect the answers to questions to allow the resolution of the claims of the group members, or at least allow a process by which the individual circumstances of the claims of the group members may be resolved, as I have noted, in this matter the common questions, although still being considered by the parties, will, in broad terms, be directed to questions of law and perhaps mixed questions of fact and law giving rise to the existence of, scope, and breach of the alleged duties of care.

33    At the least, following the determination of the common questions at trial, there will be issues of entitlement to an extension of time for a number of the group members which are quintessentially individual matters. Further, if some or all of the duties are found to exist and some or all of the alleged breaches established, it will be necessary for each of the group members to have their claims determined by reference to causation and loss. Absent an agreed resolution between each of the group members and the Commonwealth, further hearings will be required.

34    The advantage of the representative proceeding in this matter is that armed with the answers to the common questions, any hearings directed to causation and loss can be addressed in an efficient and timely manner, unrestrained by questions of existence of duties of care and breach.

35    Nonetheless, in any event, for the reasons I have explained, a multiplicity of proceedings dealing with the claims of the individual claimants, albeit of a reduced scope, is a possibility that cannot be excluded.

36    The potential for a multiplicity of proceedings in the particular circumstances of this case is simply a recognition of the type of matter being considered. That potential is not reduced in any way by the joinder of the additional parties.

37    Further, if the additional parties commence their own proceedings, they do so in the knowledge that there is a proceeding on foot, and to be determined next year, which may provide the answers to at least some of the issues in their individual proceedings.

38    Accordingly, the prospect of multiplicity of proceedings is not one that provides a basis upon which to join the additional parties. As to inconsistent findings, the existence of a duty of care is one that is capable of being determined as a common question. The scope of that duty is also capable of being addressed as a common question, however it may be accepted that the scope may vary depending on an individual’s particular circumstance. In those circumstances, the prospect of inconsistent findings is remote.

Futility

39    The applicant submits that although the additional parties’ proceedings are out of time, to join them to the representative action as group members is not futile because they are entitled to apply for an extension of time within which to commence their individual proceedings. Any application to extend time is to be determined at trial and not at an interlocutory stage: Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 3) [2017] FCA 1272 at [41] (Yates J) citing Wright v Donatelli (1995) 65 SASR 307, 310 (Cox J).

40    Indeed, much of the applicant’s written submissions is directed to the futility question and the requirement for an extension of time. Now is neither the time nor the place to determine that issue substantively.

41    To be clear, I do not consider that the prospect of having to apply for an extension of time is a reason to refuse leave to the applicant to joint the additional parties to the proceedings.

Conclusion

42    It is for these reasons that the application for leave to join additional parties is refused and there will be orders accordingly.

43    I will hear the parties on the question of costs.

Associate:

Dated:    6 May 2025

SCHEDULE OF PARTIES