AYX18 (by his litigation representative AYY18) v Minister for Home Affairs

Case [2024] FCA 974

FEDERAL COURT OF AUSTRALIA

AYX18 (by his litigation representative AYY18) v Minister for Home Affairs [2024] FCA 974

File number(s): NSD 279 of 2018
Judgment of: BUTTON J
Date of judgment: 26 August 2024
Catchwords: NEGLIGENCE – claim alleging breach of duty of care in
relation to provision of medical facilities and treatment of a child detained on Nauru – application by litigation representative for approval of a settlement under r 9.70 of the Federal Court Rules 2011 (Cth) – whether settlement is in the best interests of the child – whether suppression and non-publication orders are necessary to prevent prejudice to the administration of justice and to protect the safety of any person – settlement approved – confidentiality orders made
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AJ

Migration Act 1958 (Cth), ss 5AA, 198AD, 494AB

Federal Court Rules 2011 (Cth), rr 9.70, 9.71
Cases cited:

BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2) (2024) 301 FCR 392; [2024] FCA 16

Cannon v Griffiths & Ors (No 2) [2015] NSWSC 1329

DIZ18 (by her litigation representative DJA18) (No 3) v Minister for Home Affairs [2023] FCA 1350

Gray v State of Victoria (Department of Education and Early Childhood Development) [2017] FCA 353

Minister for Home Affairs v DLZ18 (2020) 270 CLR 372; [2020] HCA 43

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 39
Date of last submission/s: 2 August 2024
Date of hearing: Determined on the papers
Counsel for the Applicants: Ms E Hearne
Solicitor for the Applicants: National Justice Project
Counsel for the Respondent: Mr G Johnson SC with Mr P Knowles SC and Mr T Liu
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 279 of 2018
BETWEEN:

AYX18 BY HIS LITIGATION REPRESENTATIVE AYY18
Applicant
AND:

MINISTER FOR HOME AFFAIRS
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Third Respondent

ORDER MADE BY:

BUTTON J

DATE OF ORDER:

26 AUGUST 2024

THE COURT NOTES THAT:

A.The Applicant is a minor and is therefore a person under a legal incapacity within the meaning of Sch 1 of the Federal Court Rules 2011 (Cth) (the Rules).

B.The Applicant commenced this proceeding, through his litigation representative AYY18, by way of originating application dated 1 March 2018.

C.The parties have executed a Deed of Settlement (Deed) which notes that the settlement is subject to the approval of the Court.

D.The Applicant’s litigation representative applies to the Court for approval of the settlement set out in the Deed, pursuant to r 9.70 of the Rules.

THE COURT ORDERS THAT:

Settlement Approval

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

2.The NSW Trustee and Guardian be appointed as the Applicant’s nominated settlement funds administrator, of the Settlement Sum only and to the exclusion of any other assets of the Applicant.

3.Within 28 days of this order being made, the…

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AYX18 (by his litigation representative AYY18) v Minister for Home Affairs [2024] FCA 974
Case
[2024] FCA 974
Decision Date

CaseChat Overview and Summary

The Federal Court has approved a settlement between AYX18, a minor who was detained on Nauru, and the Minister for Home Affairs, who is represented by the Commonwealth of Australia. The proceedings were initiated by the minor's litigation representative, AYY18, on 1 March 2018. The minor alleged that the Minister breached a duty of care owed to him while he was detained on Nauru, resulting in significant psychological harm. The minor sought damages, costs, and orders for his transfer to a specialist in-patient child psychiatric unit.

The court was required to determine whether the proposed settlement was in the best interests of the minor, and whether suppression and non-publication orders were necessary to prevent prejudice to the administration of justice and to protect the safety of any person. The court considered the opinion of the minor's mother, who attended the mediation and supported the settlement, and the confidential opinion of Geoffrey Watson SC, who concluded that the proposed settlement was in the minor's best interests.

The court approved the settlement and made confidentiality orders to protect the identity of the minor and the terms of the settlement. The settlement requires the Minister to pay a settlement sum into a trust account opened by the NSW Trustee and Guardian on behalf of the minor. The minor has leave to file a notice of discontinuance of the proceeding with costs to be dealt with as set out in the Deed. The terms of the settlement and certain information about the minor are prohibited from disclosure by publication or otherwise. The medical reports filed and served on behalf of the Applicant and the Respondents, and counsel's Confidential Opinion, are to 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.

Orders

Orders of the court

Settlement Approval

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

2. The NSW Trustee and Guardian be appointed as the Applicant’s nominated settlement funds administrator, of the Settlement Sum only and to the exclusion of any other assets of the Applicant.

3. Within 28 days of this order being made, the Respondents shall pay the Settlement Sum into the trust account, opened by the NSW Trustee and Guardian on behalf of the Applicant, as directed by the NSW Trustee and Guardian.

4. The 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 an order otherwise for the purposes of r 26.12(7) of the Rules.

Confidentiality

5. Until three years from the date of these orders or until further order, under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), on the ground in s 37AG(1)(a) of the FCA Act, the agreed terms of settlement of this proceeding between the parties, including the settlement amounts, are prohibited from disclosure by publication or otherwise.

6. Until further order, pursuant to ss 37AF and 37AG of the FCA Act and on the grounds set out at s 37AG(1)(a) and (c) of the FCA Act:

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

(i) the name of the Applicant or any member of the Applicant’s family;

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

(iii) the age of the Applicant (other than that he is a minor);

(iv) the Applicant’s country of origin; and

(v) any medical conditions of the Applicant.

(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 reports filed and served on behalf of the Applicant being “Annexure EH-3” to the affidavit of Emma Hearne affirmed 13 May 2024;

(ii) the medical reports filed and served on behalf of the Respondents being “Annexure EH-4” to the affidavit of Emma Hearne affirmed 13 May 2024; and

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

7. Until further order, pursuant to ss 37AF and 37AG of the FCA 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 13 May 2024, be marked as confidential on the Court’s 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 counsel’s Confidential Opinion or its terms is prohibited.

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

Background

Background to the litigation

For the reasons outlined below, I am satisfied that it is appropriate to approve the settlement and to make the confidentiality orders sought.FACTUAL AND PROCEDURAL BACKGROUND The following history is drawn from the Applicant’s statement of claim dated 18 June 2018. It should be understood as a brief outline of the Applicant’s claims, not as findings of this Court. The Applicant was born overseas and is a minor. The Applicant and his parents arrived in Australia by boat, without a visa, on or around 23 July 2013. They were therefore “unauthorised maritime arrivals” as defined in s 5AA of the Migration Act 1958 (Cth) (the Act) and were detained on Christmas Island. On or around 24 August 2013, the Applicant and his parents were taken from Christmas Island to Nauru via Cairns, where they were detained in immigration detention. The Applicant and his parents were subsequently recognised by the Nauruan government as refugees. The Applicant lived on Nauru under temporary settlement visas granted by that government until he was brought to Australia pursuant to orders made in this proceeding on 6 March 2018. On 1 March 2018, the Applicant commenced this proceeding through his litigation representative by way of originating application. The application was accompanied by an interlocutory application seeking, amongst other relief, orders requiring the Respondents immediately to transfer the Applicant and his mother to a location where he could be assessed and admitted to a specialist in-patient child psychiatric unit. On 6 March 2018, the Court made orders requiring the Minister for Home Affairs to cause the requested transfer as soon as reasonably practicable. On 18 June 2018, the Applicant filed a statement of claim seeking damages, costs and an order making final the interlocutory orders made on 6 March 2018.Stay of proceeding This proceeding is part of a cohort of similar proceedings in which the Respondents submitted that the Court had no jurisdiction to hear the cases by operation of s 494AB of the Act. On 8 March 2019, this proceeding was stayed pending the hearing and determination of four cases, selected as a representative sample of the cohort, for hearing by the Full Court. On appeal from the Full Court, the High Court held that s 494AB of the Act did not have the effect that the proceedings could not be instituted or continued in this Court: Minister for Home Affairs v DLZ18 (2020) 270 CLR 372; [2020] HCA 43. Rather, the High Court confirmed that s 494AB “creates a defence which the Commonwealth may, but need not, plead to specific claims in all courts, except the High Court” (at [4]). The progress of the test cases accounts for some of the delay in this proceeding being mediated and finalised.THE CLAIMS AND DEFENCES SUMMARISEDThe claims By his statement of claim, the Applicant alleges that, at all material times, the Respondents owed him a duty of care. While the content of this duty was said to change over time, in broad terms it was said to require that reasonable care be taken to: protect the Applicant from unreasonable risks of harm, including psychological harm; monitor the Applicant; and take measures, including the provision of appropriate medical facilities and treatment, in the event that the Applicant manifested adverse effects from the conditions in immigration detention. The Applicant further alleges that, from around January 2018, when the Respondents allegedly became aware or ought to have become aware that the Applicant’s psychological condition had worsened to the extent that appropriate medical facilities and treatment were not available on Nauru, the Respondents came under an additional duty to remove the Applicant from Nauru to a location with appropriate facilities and treatment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I also refer to, without repeating, my summary in FBV18 v Commonwealth of Australia [2024] FCA 947 at [29]–[31] of the case law concerning the requirement set out in r 9.71(2)(c) of the Rules 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”. As set out there, the weight of 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.Consideration For the reasons outlined below, I am satisfied that the proposed settlement is in the Applicant’s best interests and that it is appropriate to approve the settlement. First, the Applicant, through his mother as litigation representative, has agreed to the terms of the proposed settlement. The Applicant’s mother attended the mediation in this proceeding, has received legal advice and has read the Confidential Opinion. I have no reason to doubt the evidence of Ms Hearne in her affidavit affirmed 13 May 2024 that the Applicant’s mother supports and cares deeply for the Applicant, and acts with his best interests in mind. The Applicant’s mother is well placed to evaluate what is in her son’s best interests. Secondly, the Applicant’s claims as to the existence, scope and breach of a duty of care are contestable and have been strenuously defended by the Respondents to date. As the Applicant observed in his submissions: “These proceedings have been lengthy and delayed to date, having already been on foot for over 6 years. It is reasonable to assume that this will likely continue to be the case in the future”. Further, the medical reports annexed to Ms Hearne’s affidavit evidence significant disagreement between the medical experts as to the nature and extent of the Applicant’s psychological injury. Were this proceeding to progress to trial, the Applicant would be exposed to significant legal uncertainty and further emotional and psychological strain. Thirdly, I have reviewed the Confidential Opinion of Geoffrey Watson SC dated 9 May 2024. Mr Watson provided the Confidential Opinion in furtherance of his duty to assist the Court to determine whether the settlement is in the Applicant’s best interests, and not in his capacity as counsel for the Applicant. As such, having regard to the authority referred to above, it is an opinion of an independent lawyer within the meaning of r 9.71(2)(c) of the Rules. If it is not, for any reason, then I would dispense with the requirement set out in r 9.71(2)(c). While it would not be appropriate to disclose the content of the Confidential Opinion in any detail, I am satisfied that Mr Watson gave careful and balanced consideration to the risks faced by the Applicant in relation to liability and quantum. Mr Watson concluded that the proposed settlement was in the Applicant’s best interests.