FEDERAL COURT OF AUSTRALIA

Roe (Administrator) v State of Western Australia [2026] FCA 1364

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the applicants to amend their application and statement of claim substantially in the terms annexed to the interlocutory application dated 25 June 2026 save that the amendments as to the common questions shall reflect the terms of these orders.

2.    On or before 25 September 2026, the applicants file and serve a notice specifying the names of four of the group members listed in the interlocutory application who will be the group members for the purposes of these orders.

3.    The notice will confirm that the each of the group members have consented to their claims being determined at the initial trial to be conducted in these proceedings.

4.    The claims of the four group members will be determined at the initial trial to be conducted in these representative proceedings and will be so determined on the basis that their determination will form part of the conduct of these representative proceedings by the applicants as representative applicants and on the basis that the resolution of those claims will relate to the claims of group members.

5.    Subject to further order, the common questions for determination at the initial trial as ordered on 7 March 2025 be amended to add the following additional questions (and common question N be amended in the following terms):

MA    Was the power purportedly conferred on the Registrar to issue a warrant or commitment under ss 53 and 55D(1)(c) and (f) of the FPINE Act without complying with the rules of natural justice or with any duty of procedural fairness:

(a)    repugnant to or incompatible with the exercise by the Magistrates Court of Western Australia of federal judicial power under Ch III of the Constitution; and/or

(b)    a power that substantially impairs the institutional integrity, and/or one or more of the essential characteristics, of a Ch III Court,

with the consequence that the purported conferral of that power on the Registrar contravened Ch III of the Constitution?

MB    If the answer to any part of the question MA is 'yes', was the arrest, detention and/or imprisonment of Ms Dhu, Ms Dickie and the group members (including the female group members) false imprisonment at common law by reason of the consequential invalidity at all material times of ss 53 and 55D(1)(c) and (f) of the FPINE Act?

N    If the issue of warrants of commitment under s 53 or s 55D(1)(c) and (f) of the FPINE Act was unlawful:

(a)    under or by operation of the Racial Discrimination Act, is the State vicariously liable pursuant to s 18A of the Racial Discrimination Act or pursuant to the common law or both for the issue of the warrants?

(b)    by reason of the Kable principle (as defined by the applicants in their statement of claim), is the State vicariously liable pursuant to the common law or otherwise for the purported issue of the warrants and the consequential arrest, detention and/or false imprisonment of Ms Dhu, Ms Dickie and the group members (including the female group members)?

P    Was the commencement of these representative proceedings the commencement of an action on a cause of action for the purposes of s 13, s 16, s 38 and s 44 the Limitation Act 2005 (WA)?

Q    Insofar as s 13 or s 16(d) of the Limitation Act are operative or applicable in this matter, having regard to the answers to questions A to H, MA, MB and N, was the issue of warrants of commitment in respect of Ms Dhu and the group members (including the female group members) improper conduct within the meaning of s 38(2) of the Limitation Act:

(a)    of either, and if so, which respondent; or

(b)    of a person for whom either respondent was vicariously liable?

6.    On or before 25 September 2026, the respondents file and serve particulars specifying relevant circumstances that it is alleged may apply to some but not all group members or may apply in materially different terms as between group members and that are alleged by the respondents to bear upon a determination for the purposes of s 38(2) of the Limitation Act 2005 (WA) as to when an action by a group member on a cause of action of the kind alleged in these proceedings ought reasonably have been commenced (on the assumption that the issue of warrants of commitment by the second respondent was improper conduct within the meaning of s 38(2) of the Limitation Act).

7.    On or before 2 October 2026, the parties confer as to their available dates for the initial trial in these proceedings to be conducted in June, July or September 2027 and communicate to the associate to the case managing judge their joint available dates and their estimates as to the length of the initial trial.

8.    Within 14 days of the parties being informed by the associate to the case managing judge of the dates for the initial trial in these proceedings, the parties do confer as to further orders for the conduct of the initial trial and provide to the associate to the case managing judge an agreed minute of orders or competing minutes of order for the conduct of the initial trial. If orders are not to be made in terms of an agreed minute, a further case management hearing will be listed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Between 2014 and 2020, the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act) provided for the issue of warrants of commitment by the Registrar of the Western Australian Fines Enforcement Registry where there had been default in paying court-imposed fines. It is alleged that thousands of people were arrested and held in custody based on warrants issued by the Registrar under the FPINE Act. Two representative applicants challenge the lawfulness of the warrants. They have brought proceedings in this Court against the State and the Registrar on behalf of a group of persons being (a) those Indigenous persons arrested and detained pursuant to warrants issued by the Registrar; alternatively (b) those Indigenous women so arrested and detained.

2    The case for the applicants relies, in part, upon the alleged disproportionate application of the legislation to Indigenous people (alternatively Indigenous women) contrary to the Racial Discrimination Act 1975 (Cth). It also includes claims of alleged failure to comply with the requirements of the FPINE Act which raise issues as to the proper construction of the terms of the FPINE Act. Part of the case alleges a failure to comply with requirements of natural justice and procedural fairness as to the exercise by the Registrar of powers conferred by the FPINE Act, including the power to issue warrants of commitment. The whole claim depends upon allegations as to the usual practice followed in relation to the exercise of the relevant powers conferred upon the Registrar by the FPINE Act.

3    There are provisions in the FPINE Act to the effect that the Registrar is an officer of the Magistrates Court of Western Australia and that any warrant issued by the Registrar under the FPINE Act is to be taken to be a warrant issued by the Magistrates Court. The applicants now propose to amend their case to include a further alternative claim to the effect that the FPINE Act purported to confer upon a State court exercising federal judicial power the decision-making power to authorise the imprisonment of fine defaulters without complying with the rules of natural justice or procedural fairness. They seek to invoke the constitutional limitation identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (and subsequent cases) as a further basis for the claim that the warrants issued by the Registrar were void, invalid and of no effect.

4    Ultimately, the various claims as to invalidity of the warrants are advanced as the foundation for a common law claim of false imprisonment.

5    The applicants seek declaratory relief, damages at common law and damages pursuant to the provisions of the Australian Human Rights Commission Act 1986 (Cth), noting that the personal claim of one of the representative applicants, being the administrators of the estate of the late Ms Julieka Dhu, is confined to declaratory relief.

6    Orders have been made for the determination of common questions at an initial trial.

7    The applicants now apply for interlocutory orders to the following effect:

(1)    Leave to amend their originating application;

(2)    Leave to amend their statement of claim;

(3)    An order that the time in which an action for the relief sought can be commenced be extended pursuant to s 38 of the Limitation Act 2005 (WA);

(4)    An order amending the common questions to be determined at the initial trial;

(5)    An order providing for the claims of eight identified group members to be determined at the initial trial.

8    The applicants also seek to have dates allocated for the initial trial based upon their estimate of 5 days.

9    As to (1) and (2), the respondents do not oppose the leave sought (save to the extent of certain aspects of the proposed amendments to the common questions).

10    As to (3), the respondents propose that the interlocutory application for an extension of time be heard at the initial trial, a course that is accepted by the applicants as being appropriate. However, the respondents also submit that the question whether there should be an extension of time as to each member of the group is not able to be determined as a common question. They maintain that individual circumstances will bear upon whether there should be an extension of time in respect of the causes of action advanced in the representative proceedings. If that is accepted to be so, then at the initial trial the application for an extension of time will only be able to be determined in respect of the applicants. Issues as to whether group members in general could obtain an extension of time will remain unresolved.

11    As to (4), the respondents do not oppose those aspects of the amendments that raise questions as to the constitutional limitations based on the reasoning in Kable (and subsequent authorities). However, they do oppose the proposed addition of common questions that purport to determine as to all group members whether there can and should be an extension of time pursuant to s 38 of the Limitation Act as to the time in which proceedings can be commenced.

12    As to (5), the respondents oppose the proposed inclusion of the claims of the eight group members in the initial trial.

13    As to listing, the respondents contend that any consideration of dates for the initial trial should take place after the Court has determined (4) and (5) and the respondents have been afforded an opportunity to consider the consequences for steps to be taken before the initial trial.

The disputed proposed common questions

14    In the present case, the applicants advance a claim that there is no limitation period that applies to the claims based upon the provisions of the Racial Discrimination Act. Otherwise, it is accepted that, for many of the group members, the limitation period for their claims expired before the representative proceedings were commenced and each of those group members needs to obtain an extension of time in circumstances where the respondents plead limitation defences.

15    It has been held that a limitation provision applies on the basis that a representative proceeding is the commencement of an action for the purposes of the statutory limitation: Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd [2017] FCA 14 at [50]-[63] (Griffiths J) and Fakhouri v The Secretary for the NSW Ministry of Health [2022] NSWSC 233 at [31]-[34] (Beech-Jones CJ at CL) and cases there cited, see also Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143 at [34], [53] (Allsop CJ), at [61]-[63] (Middleton J) and [71]-[72] (Beach J). It also appears to have been accepted that the representative applicant can seek an available extension of time where an action is said to have been commenced outside an applicable limitation period. However, as these matters depend upon the language used in the relevant limitation statute, there is some uncertainty as to their application in the present case because these matters have not been definitively determined in respect of the Limitation Act (WA).

16    However, the present case raises an additional issue. It concerns the appropriate procedure to be adopted where the respondents maintain that the resolution of the question whether an extension of time should be ordered requires a consideration of the individual circumstances of each group member. As to that issue, the applicants claim that the extension of time application can be determined as a common question because the circumstances relied upon will, in substance, be the same for all group members.

17    As has been mentioned, the representative applicants seek an extension of time pursuant to s 38 of the Limitation Act (WA). It provides:

(1) A plaintiff may apply to a court for leave to commence an action on a cause of action even though the limitation period provided for under this Act has expired.

(2) On an application a court may extend the time in which the action can be commenced up to 3 years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable.

(3) Nothing in section 39, 41 or 42 prevents a court from extending, under this section, the time in which a plaintiff can commence an action.

(4)     This section does not apply to an action relating to the publication of defamatory matter.

18    The parties agree that there should be a common question (Question P) added in the following terms:

In so far as s 13 and/or s 16(d) of the Limitation Act 2005 (WA) (Limitation Act) are operative or applicable in this matter, having regard to the answers to questions A to H, MA, MB and N, was the issue of warrants of commitment in respect of Ms Dhu and the group members (including the female group members) improper conduct within the meaning of s 38(2) of the Limitation Act:

(a)    of either, and if so, which Respondent; or

(b)    of a person for whom either Respondent was vicariously liable?

19    The language used to formulate Question P reflects the terms of s 38 of the Limitation Act. It poses the issue whether there has been improper conduct for the purposes of s 38.

20    There is an anterior common question that may be thought to arise. It concerns whether the commencement of the representative proceeding is the commencement of an action on a cause of action for the purposes of the Limitation Act. In the result, both the applicants and the respondents accepted that it may be appropriate to include a common question that exposed that issue.

21    Otherwise, at the hearing of their interlocutory application, the applicants proposed the following further questions:

Q    Having regard to the answer to question P, from when ought a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) in respect of the causes of action pleaded in this proceeding reasonably to have been commenced?

R    Having regard to the answers to questions P and Q, was the failure (if any) to commence this proceeding (or any part thereof) within the applicable limitation period attributable to the improper conduct described in question P?

S    Having regard to the answers to questions P, Q and R, should the Court exercise its power under s 38(2) of the Limitation Act to extend the time in which this proceeding can be commenced?

22    I note that these questions were posed on the basis that the relevant issue concerns when a representative proceeding ought to have been commenced. Section 38 concerns the time within which 'the action' should be commenced (that is, an action by a plaintiff on a cause of action). It appears to apply to each cause of action. Even allowing for the provision to be read as applying to an action by way of representative proceeding, it appears to require consideration of the position in relation to each plaintiff with a cause of action (that is, each group member). It may be that the relevant time is to be determined on the basis that a representative proceeding was the only real means by which each group member might be expected to commence an action. On that basis it might be said that the proceedings could not reasonably be commenced before representative proceedings might have been commenced in all the circumstances. However, those are matters for consideration in determining the appropriate application of s 38. They should not be assumed in the question.

23    Further, it appears that the language used in s 38 is likely to require a determination of the issue when the proceedings reasonably ought to have been commenced to be made having regard to the circumstances of each group member. For the applicants, it was submitted, in effect, that the circumstances that might be relevant will apply to all group members. It was suggested that their characteristics that might bear upon whether there should be an extension were likely to be consistent. There are some indications from the nature of the claim that there will be relevant similarities. However, as matters presently stand, there is no real basis upon which to conclude that is likely to be so. No detailed submission was advanced for the applicants as to why the circumstances of group members might be said to be substantially the same for the purposes of applying s 38. The submissions for the applicants tended to be premised on a view that the question whether time may be extended for the purposes of s 38 may be determined on a group basis. Equally, the respondents gave no real example of a likely possible circumstance that would bear upon whether an extension of time should be ordered that might differ materially between group members.

24    There is logic in seeking to determine common questions of the kind proposed that bear upon whether there should be an extension of time. Their resolution is likely to assist the parties to reach agreement should the substantive issues the subject of other common questions be determined in favour of group members.

25    One way to expose whether there are particular individual characteristics that may bear upon a determination as to when a group member ought to have commenced the causes of action in the proceeding would be to require the respondents to identify whether there are alleged to be characteristics of that kind. The possibility of further common questions as to the application for an extension of time could then be informed by the respondents' position.

26    Another alternative would be to include some sample applicants whose applications for an extension of time would be determined at the initial trial along with the common questions.

27    However, for reasons I have given, as matters presently stand, I am not persuaded that there should be further common questions in the terms proposed as Questions Q, R and S. I will return to the question of other procedural steps that may be appropriate once I have addressed the proposal for the claims of the eight group members to be determined at the initial trial.

The proposed inclusion of the claims of eight group members at the initial trial

28    The applicants advance three reasons as to why it would be appropriate for the claims of the eight group members to be determined at the initial trial, namely:

(1)    They will assist in answering common questions that concern the practice adopted by the Registrar in issuing warrants of commitment;

(2)    They will assist in determining the extension of time application;

(3)    They will allow the Court to make appropriate awards of damages that will inform mediation or settlement discussions or will inform the process to be established for resolution of individual claims, if the common questions are determined in a way that is favourable to the group members.

29    For the respondents, it is said that there is no indication of any basis upon which the proposed eight group members have been chosen. That is to say, it is not explained why they might be said to be representative of particular group members whose claims have different legal or factual characteristics to those of the group members as a whole. It was submitted that they amount to no more than a random selection of group members. It was also said that there would be additional procedural steps and possible delay if the additional claims were included as part of the initial trial. Each would have to give evidence and the trial would be lengthened.

30    As to the practice adopted by the Registrar, the submissions advanced for the applicants were to the effect that the case was that there was a consistent practice over the whole of the period the subject of the claim. The circumstances of the applicants at the time individual warrants were executed may be materially different, but the procedure followed in relation to issue was the same for all warrants. Further, it is not suggested that any of the eight applicants are able to give evidence as to the procedure that was followed by the Registrar. Rather, it is submitted in a general way that the evidence of each of the eight applicants will assist in drawing conclusions as to the practice. On the material currently before the Court, it may be expected that the relevant evidence will be to the effect that the applicants did not know about the warrants and were not afforded any opportunity to be heard as to their issue. It is not suggested that these are matters that will be in issue at the initial trial. Accordingly, there is no evident assistance as to the determination of the procedure that was followed by the Registrar that would be provided by including the claims of the eight group members.

31    As to the extension of time applications, the determination of the individual claims would provide eight instances (in addition to those of the two representative applicants) where the particular circumstances of a group member that might bear upon an extension of time would be evaluated. As to the applicants, there are reasons why they may not be appropriate instances for providing guidance as to how the extension of time application might be approached as to group members in general. As has been mentioned, Ms Dhu only seeks declaratory relief and that may place her in a different category to other group members who seek to advance causes of action in damages. Further, her circumstances may not be representative of group members as a whole. The claim of the other applicant, Ms Keennan Dickie, does not require an extension of time.

32    As to damages awards, as has been explained, of the two applicants only Ms Dickie seeks damages. It is possible that the damages to be awarded may depend upon the circumstances in which the warrant was executed and upon the particular consequences for the individual group member. Further, a decision as to the award of damages for one applicant is likely to provide limited guidance as to the different circumstances that may bear upon an award of damages.

33    For the respondents it was submitted that the inclusion of a final trial of eight individual group members was likely to increase the length of trial, although no specific estimate was provided. It was also said that it would require further particularisation of the case to be advanced by each of those group members and the need to obtain discovery. As to these contentions, the applicants said that the material provided in support of the application indicated the scope of the evidence to be adduced and that it was not proposed to open up issues of alleged psychiatric harm or complex factual matters.

34    For reasons I have already given, I am persuaded that a trial which focuses on the claims of the applicants will not adequately cover the field of possible differences between group members that may bear upon the question of an extension of time under the Limitation Act (WA). The same pertains to the heads of damage that may be awarded if any of the alternative bases for claim are established and the approach to the assessment of the quantum of any damages. I am also persuaded that the inclusion of additional claims of some appropriate group members will ameliorate that concern without substantially increasing the duration of the hearing or resulting in delay in the conduct of the proceedings. The inclusion of the resolution of the claims of such sample members will be an effective way of addressing questions of commonality as between subsets of group members. Their resolution is also likely to assist in formulating terms of settlement or procedures to be followed in determining the claims of group members if any of those individual claims are successful.

35    The making of orders for the resolution of claims of sample group members is well-established and relies upon the breadth of the power conferred by s 33Q of the Federal Court of Australia Act 1976 (Cth): see Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355 (Gleeson J). The inclusion of some additional group member claims as part of the initial trial will have the requisite utility which founds the basis for such orders: as to which, see Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 328; (2015) 230 FCR 469 at [53]-[64] (Beach J) and Strand Fitness Pty Ltd v QBE Insurance (Australia) Ltd [2026] FCAFC 101 at [13]-[16] (Perram, Halley and Button JJ). However, I am not persuaded that there is sufficient variation across the circumstances of the eight group members to justify the inclusion of all of them.

36    I would propose that four group members be identified by the applicants from amongst the eight and orders be made for the conduct of the initial trial on the basis that the claims of those four group members will be finally determined at the initial trial in addition to those of the applicants.

Listing of the initial trial

37    These proceedings have been on foot for a number of years. I am persuaded that it is appropriate for trial dates for the initial trial to be set and for orders to be made programming the initial trial. Before that can occur, it will be necessary for the four group members whose claims will be determined at the initial trial to be identified. There will also need to be consideration by the parties as to the further steps to be taken as to points of claim and any further disclosure. For those reasons, it is appropriate to allow time for further consideration of those steps before the trial dates are set down.

Orders

38    Having reached the conclusion that there should be orders as to the trial of the claims of four group members as a sample of the kinds of circumstances that are likely to pertain across many of the group members, I am satisfied that the determination of those four cases will provide effective further guidance as to matters that may bear upon the outcome of the extension of time applications for individual group members. Therefore, it is not necessary at this stage to contemplate further common questions beyond those to which I have already referred as being appropriate.

39    In reaching that conclusion, I have had regard to the terms of revised common questions provided by the applicant following the interlocutory hearing (at the request of the Court). Those revised common questions propose an additional question as to the identity of the person who can bring an application for an extension of time, particularly when it can be a representative applicant.

40    I did not understand the respondents to dispute the entitlement of the representative applicants to bring an application for an extension of time as part of the representative proceedings. Rather, the respondents' point was that there was no common question that could be stated that dealt with the ultimate issue as to whether an extension of time should be granted for all group members and there was an insufficient basis demonstrated for the inclusion of the claims of sample group members in the initial trial for the purpose of determining whether there should be an extension of time as to their claims. That is not to claim that a representative applicant cannot not seek an extension of time for all group members. Rather, on the respondents' approach, determining whether there should be an extension of time requires a consideration of the individual circumstances of each group member. Consequently, there is at least the theoretical possibility that ultimately the question of an extension of time is so dependent upon the individual circumstances of each group member that it is an issue that would require some form of individual assessment. Further, if that were the case, there is the further possibility that the assessment could not be effectively and efficiently disposed of by orders made in the representative proceedings (and could only be determined after some form of de-classification). However, it was not suggested, in terms, that the only party who could apply for the extension under s 38 of the Limitation Act was the individual group member. If I am wrong in that understanding, then the applicants could propose a further common question to resolve any issue as to the authority of the representative applicants to seek an extension of time. Otherwise, I do not propose to make orders as to common questions beyond those I have indicated.

41    However, I do propose to make orders that would require the respondents to identify the kinds of circumstances which they allege may be particular to individual group members that would bear upon the outcome of extension of time applications to such a degree that they may warrant a refusal of an extension of time even though an extension may be appropriate for other group members. This will inform the future case management of the representative proceedings. It will assist in exposing the extent to which there are individual circumstances that may be relevant.

42    I will also make orders as to the listing of the initial trial and the making of case management orders as to the conduct of the initial trial.

Associate:

Dated:    15 September 2026