BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2)

Case [2024] FCA 16

FEDERAL COURT OF AUSTRALIA

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

File number(s): VID 412 of 2018
Judgment of: MURPHY J
Date of judgment: 17 January 2024
Catchwords: NEGLIGENCE – claim alleging breach of duty of care in relation to sexual assault of a child detained on Nauru – application by litigation representative for approval of an infant’s compromise under r 9.70 of the Federal Court Rules 2011 – whether settlement is in the best interests of the infant – whether suppression and non-publication orders are necessary to prevent prejudice to the proper administration of justice – settlement approved.
Legislation:

Federal Court of Australia Act 1975 (Cth) ss 37AF and 37AG

Migration Act 1958 (Cth)

Federal Court Rules 2011 r 9.70
Cases cited:

Baltic Shipping Co v Dillon [1991] NSWCA 19; 22 NSWLR 1

Bannister v State of Victoria [2012] FCA 1341

Bushby (by his litigation representative Webling) v Victoria (Department of Education and Training) (No 2) [2023] FCA 340

BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs [2023] FCA 123

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

Elliot v State of Victoria [2018] FCA 1029

Fisher v Marin [2008] NSWSC 1357

Freeman v State of Victoria [2018] FCA 797

FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 245

Gillespie v Alperstein [1964] VR 749

James v WorkPower Inc [2019] FCA 1239

Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43; 270 CLR 372

Modra v State of Victoria (Department of Education and Early Childhood Development [2013] FCA 1041

Oldham v Capgemini Australia Pty Ltd(No 2) [2016] FCA 1101

Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525
Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 52
Date of last submission/s: 20 September 2023
Date of hearing: Determined on the papers
Counsel for the Applicant: Mr T J Brennan SC and Mr J E Hartley
Solicitor for the Applicant: Maurice Blackburn Lawyers
Counsel for the Respondents: Mr M D Rush KC, Mr B Jellis and Mr T Katz
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 412 of 2018
BETWEEN:

BXD18 (BY HER LITIGATION REPRESENTATIVE MARIE THERESA ARTHUR)

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

17 JANUARY 2024

THE COURT NOTES THAT:

A.The Applicant was born in 2007 and is a minor. She is therefore a person under a legal incapacity within the meaning of Schedule 1 of the Federal Court Rules 2011 (the Rules).

B.The Applicant commenced the proceeding by her then litigation representative, BXG18, on 13 April 2018. By orders of the Court made on 22 June 2018 BXG18 was removed as the litigation representative and Sister Marie Theresa Arthur was appointed under r 9.62(1) of…

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Details
AGLC
BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2) [2024] FCA 16
Case
[2024] FCA 16
Decision Date

CaseChat Overview and Summary

In the Federal Court, BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2) involved a claim for negligence regarding the sexual assault of a child detained on Nauru. The court was required to decide whether the settlement reached was in the best interests of the infant and whether suppression and non-publication orders were necessary to prevent prejudice to the proper administration of justice. The court found that the settlement was indeed in the best interests of the infant and that the orders were necessary. The settlement was approved, and confidentiality orders were made to protect the infant's identity and sensitive information, while balancing the public's right to know.

The court examined the application for approval of the settlement under rule 9.70 of the Federal Court Rules 2011. It considered the applicant's agreement to the settlement, the significant psychiatric injury she suffered, and the opinion of experienced counsel. The court concluded that the settlement would alleviate stress, bring finality to the claim, and aid the applicant's recovery. Additionally, the court found that the suppression and non-publication orders were necessary to protect the applicant's privacy and prevent potential prejudice to the administration of justice. The court balanced these considerations with the public's right to access court documents, ultimately deciding that certain information should remain confidential.

Orders

Orders of the court

Settlement approval

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

2. Within two (2) days after these orders are made, the Applicant shall send these orders, and (subject to Order 6 below) the affidavits filed in support of the Applicant’s application, to the Senior Master of the Supreme Court of Victoria (SCV).

3. If the Senior Master makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that the Settlement Sum (as defined in the Deed) be held in Court for the benefit of the Applicant, the Respondent shall pay the Settlement Sum to the trust account of the Applicant’s solicitors for the benefit of the Applicant.

4. If the Senior Master does not make the order described in Order 3 above, within 28 days of this order, the matter be listed for case management hearing on a date to be fixed.

5. Within five (5) business days of payment of the Settlement Sum, the parties are to file consent orders with the Court, providing that:

(a) the proceeding be dismissed; and

(b) the Respondents pay the Applicant’s costs as agreed or taxed in default of agreement.

Confidentiality

6. The suppression and non-publication orders made by Justice Kenny on 10 May 2019 be vacated and in lieu thereof the following orders apply.

7. Until three years from the date of these orders or until further order, pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Act), on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Deed of Settlement, being “Annexure KS-6” to the affidavit of Mr Shami affirmed 13 July 2023, and paragraph 15 of the applicant’s submissions dated 13 September 2023 be marked as confidential on the Court’s file, and not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

8. Until further order, pursuant to ss 37AF and 37AG of the Act, on the ground that it is necessary to prevent prejudice to the proper administration of justice, the following documents be marked as confidential on the Court’s file, and not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript:

(a) documents which tends to reveal the applicant’s name, the name of any of the applicant’s family members and the identification number of the boat on which she first arrived in Australia;

(b) any medical records and medical reports pertaining to the Applicant filed in the proceeding; and

(c) the confidential Counsel’s Opinion being “Annexure KS-3” to the affidavit of Mr Shami, which shall also not be available for inspection by the Respondents.

9. Within 14 days of these orders, the parties shall file versions of the affidavit material and written submissions filed in support of the settlement approval and confidentiality applications redacted only to the extent permitted by these orders. For the avoidance of doubt, it is not necessary to redact the documents referred to in the continuing confidentiality orders in Order 8(b) and (c).

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 I now turn to explain, it is appropriate to approve the settlement and to make confidentiality orders, but to limit the period for which some of the confidentiality orders will operate. FACTUAL AND PROCEDURAL BACKGROUND The following factual background is drawn from the facts agreed by the parties set out in the Statement of Agreed Facts dated 18 April 2018 (SOAF), the medical records and medical reports annexed to the affidavit of Karl Shami, an associate with Maurice Blackburn Lawyers, the solicitors for the applicant, affirmed 13 July 2023, and the judgment of Wheelahan J in BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs [2023] FCA 123 (BXD18 No. 1). The SOAF omits matters concerning the applicant’s living conditions and welfare on Nauru and I proceed on the basis that those matters are contested. These reasons should not be understood as making findings in relation to any contested factual matters. The applicant is a citizen of Iran who arrived at Christmas Island by boat, without a visa, with her father and brother in November 2013, when she was eight years old. The applicant’s mother remained in Iran. Upon arrival, the applicant, her father and brother were detained in immigration detention by officers of the Commonwealth pursuant to s 189 of the Migration Act 1958 (Cth) (the Act). By operation of the Act they were designated as “unlawful maritime arrivals” and “unlawful non-citizens” and they were subsequently taken to Nauru at the direction of the Minister where they were detained in the Regional Processing Centre (RPC). In March 2015 the applicant, her father and brother were recognised as refugees by the Nauruan Government, and thereafter they lived in the community on Nauru under temporary settlement visas granted by that government until April 2018, when they were removed from Nauru to Australia.The relevant events on Nauru In August 2017, when the applicant was 10 years old and living in the community on Nauru, she was sexually assaulted by an adult male refugee who was a drinking acquaintance of her father. There does not appear to be any real contest that applicant’s mental health seriously deteriorated as a result of the assault. She began to suffer from a major depressive and post-traumatic stress disorder, including serious mood disturbances, behavioural changes, recurrent distressing nightmares, bedwetting, and anxiety when going out in public. Prior to the assault, the medical records and reports tend to show that the applicant had some emerging behavioural issues, but was otherwise coping reasonably well with the difficulties of immigration detention on Nauru, and that she attended school and socialised with friends. After the assault the medical records and reports indicate that she largely ceased to attend school and withdrew from the community, having been subject to teasing about the assault and her bedwetting, and because she felt humiliated and ashamed.

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

The Court is also required to consider how the settlement sum is to be preserved for the applicant’s benefit: Scandolera at [32]; Freeman v State of Victoria [2018] FCA 797 at [12] (Moshinsky J). The Court cannot be satisfied that the applicant will receive the benefit of the settlement sum unless there is some mechanism in place to avoid the possibility of its dissipation, and to ensure that it is used for some beneficial means, such as the applicant’s education, developmental or health interests. Consideration For the following reasons, I am satisfied that the proposed settlement is in the best interests of the applicant and that it is appropriate to approve it. First, the applicant, through her litigation representative, Sister Arthur, has agreed to the proposed settlement having read the Deed and Counsel’s Opinion, and having had the benefit of legal advice from experienced and competent lawyers. Sister Arthur is in a good position to understand what is in the applicant’s best interests. Second, it does not appear to be in contest that the applicant suffered and continues to suffer from a significant psychiatric injury. To avoid causing her any further psychiatric harm the applicant’s lawyers did not propose to call her to give evidence had the matter gone to trial. They did propose to call her father, but said that he too has suffered terribly psychologically and it is likely that he would be adversely affected by being examined and cross-examined on the events on Nauru which may have an adverse impact on the applicant. Approval of the proposed settlement will remove the requirement for her father to give evidence; it will alleviate the ongoing stress and disruption of litigation, and bring some finality to the applicant’s claim which may advance her recovery and assist her with moving on with her life. Third, I have had the benefit of considering the confidential Counsel’s Opinion. Both Mr Brennan SC and Mr Hartley have been briefed in the case for a lengthy period; Mr Hartley from very early on in the case. As I said in Bannister v State of Victoria [2012] FCA 1341 at [12], it is appropriate to give substantial weight to the opinion of counsel as it has been prepared in their capacity as officers of the Court with a view to assisting the Court with its consideration of whether the proposed settlement is in the best interests of the applicant, not as advocates acting upon instructions. While I cannot go into the detail of the Confidential Opinion, I note that counsel have given thorough consideration to the risks attendant upon the applicant’s claim, including the risks attending the necessary factual findings, establishing the existence of a duty of care and its standard, and proving breach of duty by the respondents, as well as the risks in relation to quantum. It must suffice to note that counsel concludes that the proposed settlement is in the applicant’s best interests. Fourth, it is proposed that the funds be paid into the trust account of the applicant’s solicitor, and thereafter be transferred to the Funds in Court division of the Supreme Court of Victoria (SCV) on the applicant’s behalf. It is not uncommon in cases such as these for this Court to make orders referring administration of settlement funds to the SCV given that this Court does not have a scheme equivalent to that of the SCV. I am satisfied that under the arrangement the settlement sum will be preserved for the applicant’s benefit, and orders will be made to give it effect in the form of the SCV’s preferred orders for doing so.