BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2)
[2024] FCA 16
•17 January 2024
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 the Rules.
C.The parties have exchanged deeds of settlement and release (Deed) which note that the settlement is subject to approval of the Court (proposed settlement).
D.The Applicant’s litigation representative applies for approval of the proposed settlement outlined in the Deed, under rule 9.70 of the Rules. In respect of the application the Court has read:
(a)the affidavit in support of Karl Roland Shami affirmed 13 July 2023, which includes the confidential opinion of Tom Brennan SC and Jim Hartley of counsel regarding the proposed settlement dated 12 July 2023 (Counsel’s Opinion), being Annexure “KS-3”; and
(b)the affidavit in support of Sister Marie Theresa Arthur sworn 13 July 2023.
AND THE COURT ORDERS THAT:
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.
REASONS FOR JUDGMENT
MURPHY J:
INTRODUCTION
Before the Court is an interlocutory application dated 13 July 2023 in which the applicant seeks Court approval of an agreement to settle the proceeding pursuant to r 9.70 of the Federal Court Rules 2011 (the Rules). The applicant is a minor and brings the proceeding through a litigation representative, Sister Marie Theresa Arthur.
The respondents, the Minister for Home Affairs and the Commonwealth of Australia, seek confidentiality orders under ss 37AF(1) and 37AG(1)(a) of the Federal Court of Australia Act 1975 (Cth) (the FCA) in relation to some of the material and evidence filed in support of the application, including as to the Deed of Settlement (Deed) and the settlement amount. The applicant does not oppose the making of confidentiality orders but seeks different orders to those proposed by the respondents.
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.
The medical records and reports also indicate that in March 2018, some seven months after the assault, the applicant took a significant overdose of medication, which required overnight hospitalisation and transfer to the Restricted Accommodation Area within a closed area in the RPC. In the following weeks whilst still under observation within the RPC, the applicant again self-harmed on two occasions.
On 5 April 2018, the applicant was seen by Dr Vernon Reynolds, a child and adolescent general psychiatrist, working for the International Health and Medical Service (IHMS), the primary medical service engaged to provide healthcare services to refugees on Nauru. Dr Reynold diagnosed the applicant with a major depressive order and post-traumatic stress disorder and recommended that she and her family be “immediately transferred” to:
… an appropriate Child and Adolescent Inpatient unit that has the skills and resources to support her and her family in their recovery. We are unable to effectively manage this situation and in particular to manage the serious and imminent risk concerns. Any delay in this process of transfer increases the potential for further harm and suicidal behaviour.
Commencement of the proceeding
On 13 April 2018 the applicant commenced this proceeding, through her then litigation representative, by way of originating application and statement of claim seeking damages for personal injury alleged to have been suffered as a result of the respondents' negligence. The application was accompanied by an interlocutory application seeking inter alia an urgent injunction requiring the Minister to transfer the applicant, together with her father and brother, consistently with the recommendations of Dr Reynolds. Before the application was heard, the respondents agreed to transfer the applicant to Australia for medical treatment, together with her father and brother, and they were so transferred on 15 April 2018.
Separate questions to the Full Court
This proceeding is a part of a cohort of similar proceedings in which the respondents’ pleaded that s 494AB of the Act is a bar to the proceedings being brought or continued in this Court. This case, along with three others, were referred to the Full Court for determination of relevant separate questions. On 28 August 2019, the Full Court held in each of the cases that s 494AB of the Act did not preclude the proceedings being instituted or continued in the Court: FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 245 (Kenny, Robertson and Griffiths JJ).
Appeal to the High Court
The respondents appealed that decision to the High Court. On 2 December 2020, the High Court held that s 494AB of the Act is not a bar to bringing and continuing a proceeding by a “transitory person” such as the applicant. In Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43; 270 CLR 372 at [4] (Kiefel, Bell, Gageler, Keane and Gordon JJ) the High Court explained that s 494AB “creates a defence which the Commonwealth may, but need not, plead to specific claims in all courts, except the High Court. If no practical benefit is to be gained by raising s 494AB, the Commonwealth acting as a model litigant need not and, it may be expected, would not raise it.”
Following the High Court’s decision, the respondents elected not to plead s 494AB. It appears that respondents saw no practical benefit in raising s 494AB as a defence because the likely outcome would be that a fresh proceeding would be instituted in the High Court and then remitted to this Court, and that such an approach would be inconsistent with its obligations as a model litigant.
Transfer to Justice Wheelahan
Following the High Court decision, the cohort of similar proceedings, including this proceeding, were docketed to Justice Wheelahan for case management and hearing.
On 9 February 2023, the applicant filed an interlocutory application seeking orders for oral deposition of a witness. The application was made on the basis that the witness, a former employee of service providers contracted to provide welfare services to transferees including children on Nauru, may have information relevant to welfare systems on Nauru generally and about the applicant’s case in particular, but was likely to be bound by confidentiality obligations under her contracts of employment. In BXD18 No. 1 at [38]-[43] Justice Wheelahan made orders for the oral deposition of the witness, and the witness was subsequently deposed before a judicial registrar.
THE CLAIMS AND DEFENCES SUMMARISED
The claims
The applicant claims that shortly after being taken to Nauru, her father began to struggle with being the single parent of two children and required extensive support from the welfare services available on Nauru. Her claims include that upon his being released into the community in Nauru, her father began drinking heavily and exhibiting aggressive behaviours, and that she and her brother were removed from his care on more than one occasion after he told service providers that he could no longer care for his children and that he would kill them and then himself if they were not so removed. The children were then returned to his care, and the applicant claims that she continued to experience a high level of neglect, harmful parental behaviour and abandonment, including by her father leaving her unaccompanied at home, including on the night she was sexually assaulted by one of her father’s drinking acquaintances.
In her Further Amended Statement of Claim, the applicant alleges that:
(a)the Commonwealth had sufficient control and assumed responsibility for a range of matters relating to the applicant’s welfare and living conditions whilst on Nauru;
(b)the Commonwealth knew or ought to have known that the applicant would have been at risk of physical, emotional and child abuse and suffering from psychiatric injury whilst on Nauru;
(c)the applicant was dependent on the respondents for medical treatment, psychological and psychiatric treatment and welfare and support services whilst she was on Nauru;
(d)the respondents owed the applicant a duty of care to prevent her from suffering psychiatric injury and from physical and/or emotional child abuse while the applicant whilst on Nauru;
(e)the respondents owed the applicant a non-delegable duty of care to ensure that reasonable care was taken to prevent her from suffering physical and/or emotional child abuse whilst on Nauru;
(f)the Commonwealth breached its duty of care owed to the applicant by failing to take a number of measures in relation to the monitoring and welfare of the applicant, to reduce the risk of harm, and by failing to remove the applicant from Nauru if those measures could not be taken; and
(g)as a result of the Commonwealth’s breach of duty of care, the applicant suffered injury, loss and damage.
The applicant’s claims were summarised by Justice Wheelahan in BXD18 No.1 at [5], as follows:
The applicant claims to have suffered injuries including major depressive disorder, escalating suicidality, post-traumatic stress disorder, anxiety and some physical injuries as a result of the negligence of the Commonwealth. The claims of negligence include the failure to have systems in place directed to the welfare of the applicant that would have prevented the occurrence of the sexual assault. Further, the applicant alleges that the Commonwealth failed to have reasonable levels of support and child psychiatric care available to her on Nauru following the assault, and failed to take steps to arrange for the care and treatment of the applicant by following the recommendations in a report that it received which was prepared by a forensic psychiatrist.
The applicant claims damages for her pain and suffering as well as special damages for her future and like medical expenses, attendances at therapy for her alone and with her family, gratuitous attendant care provided to her by her father from the date of her injury up to 30 September 2022, and loss of earning capacity, plus interest. She also claims aggravated and exemplary damages by reason of the respondents’ alleged failure to act upon the therapeutic medical recommendations made by Dr Leo Turnbull, a specialist forensic and occupational psychiatrist, on 1 February 2018, and not taking such steps until the report of Dr Reynolds made on 5 April 2018. The applicant alleges by failing to do so the Commonwealth acted with contumelious disregard of the applicant’s health and exacerbated the applicant’s suffering as a result of the sexual assault.
The defences
The respondents deny the applicant’s claims. In their Further Amended Defence, the respondents deny that:
(a)the Commonwealth assumed responsibility for the day-to-day operations of regional processing activities on Nauru and for the health and welfare of the applicant and her family from the time of their arrival on Nauru. They say that was the obligation of the Nauruan government;
(b)any servant, agent or officer had knowledge that was attributable to the Commonwealth that the applicant would have been at risk of physical, emotional and child abuse and suffering from psychiatric injury whilst on Nauru;
(c)the applicant was dependent on the respondents for medical treatment, psychological and psychiatric treatment and welfare and support services whilst she was on Nauru;
(d)the respondents owed the applicant the alleged duty of care to ensure that reasonable care was taken to prevent her from suffering psychiatric injury and from physical and/or emotional child abuse whilst she was on Nauru;
(e)the Commonwealth breached its alleged duty of care causing the applicant injury; and
(f)the applicant is entitled to the relief she seeks because applicant’s transfer to Nauru was lawful and pursuant to s 198AD of the Act, and say that the imposition of a duty of care in relation to her lawful transfer would be incompatible with the statutory duty (the duty to take an unauthorised maritime arrival to a Regional Processing Country) contained in s 198AD(2), and the purpose of Subdiv B and Div 8 of Part 2 of the Act.
The respondents also say that the applicant invites the Court to apply a standard of care of negligence to decisions of high level government policy in respect of which the Court should not impose a duty of care.
THE SETTLEMENT APPROVAL APPLICATION
Materials relied upon
The applicant, through her litigation representative, seek orders for approval of the proposed settlement contained in the Deed of Settlement dated 3 May 2023 (Deed). The applicant relies upon:
(a)the affidavit of Mr Shami affirmed 13 July 2023 and its annexures, including:
(i)medical records and reports in respect of the applicant;
(ii)a copy of the Deed; and
(iii)the confidential Counsel’s Opinion in support of settlement approval; and
(b)the affidavit of Sister Arthur sworn 13 July 2023 in which she deposes that she accepts the advice of the applicant’s legal representatives that the proposed settlement is in the applicant’s best interests and instructed them to accept the proposed settlement.
Applicable principles
I recently set out the relevant principles in DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 3) [2023] FCA 1350 at [35]-[39] and reiterate them as follows.
Rule 9.70 of the Rules requires that a litigation representative who agrees to settle a matter in dispute in the proceeding on behalf of a party who is under a legal incapacity must apply to the Court for approval of the agreement. The agreement is not binding on the person under a legal incapacity until such time as the Court approves it.
The Court’s task pursuant to r 9.70 is to decide whether it is satisfied that the agreement is in the best interests of the party under a legal incapacity: Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525 at [27] (Mortimer J). In making that determination, the Court is only to be concerned with the benefit of the person under a legal incapacity: Modra v State of Victoria (Department of Education and Early Childhood Development [2013] FCA 1041 at [12] (Tracey J); Gillespie v Alperstein [1964] VR 749 (Gillard J).
This task is not prescribed by the Rules, rather it is implied by the protective nature of the jurisdiction where the relevant party is under a legal incapacity and thus cannot conduct the litigation themselves: Elliot v State of Victoria [2018] FCA 1029 at [17] (Mortimer J).
The determination of whether the proposed settlement is in the best interests of, or beneficial to, the interests of the person under a disability, requires the Court to weigh, at least as an important consideration, the prospects of the applicant succeeding if the proceeding continues: Fisher v Marin [2008] NSWSC 1357 at [35]-[36] (Rothman J). Because approval of the settlement will have the effect of binding the applicant to the terms of the settlement and bringing the proceeding to an end, it follows that the Court should consider the advantages and disadvantages of the proceeding continuing by reference not just to whether the applicant may secure a more advantageous outcome if the Court found in her favour, but also the prospects of an appeal, and the costs and pressures imposed on the applicant and her family if the proceeding went to trial, including the emotional and psychological strain of litigation: Scandolera at [29]-[32]; Fisher at [35]-[36].
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.
I have accordingly made orders to approve the proposed settlement.
THE CONFIDENTIALITY APPLICATION
By an interlocutory application dated 26 July 2023, supported by an affidavit of Dejan Lukic, a senior executive lawyer with the Australian Government Solicitor which acts for the respondents, affirmed 26 July 2023, the respondents seeks orders that the terms of the Deed, including the settlement amount, parts of Mr Lukic’s affidavit and the respondents’ written submissions dated 8 September 2023 be prohibited from disclosure by publication or otherwise under s 37AF(1) of the FCA, except as provided for in the Deed. The respondents rely on s 37AG(1) of the FCA and argue that such orders are necessary to prevent prejudice to the proper administration of justice.
The applicant also seeks suppression or non-publication orders in respect of the material filed by the applicant in the settlement approval application, specifically parts of the applicant’s written submissions dated 13 September 2023 and the confidential Counsel’s Opinion.
The applications are made in the context that there is an extant confidentiality order made by Justice Kenny on 10 May 2019 which operates, until further order, to prohibit the publication of information tending to reveal:
(a)the name of the applicant;
(b)the name of any of the applicant’s family members;
(c)the applicant’s age;
(d)the applicant’s country of origin;
(e)the identification number of the boat on which she first arrived in Australia; and
(f)any reference to the alleged sexual assault of the applicant.
Consideration
Recently, in DIZ18 at [52]- [66], I considered the issue of non-publication and suppression orders in the context of an analogous approval application. For essentially the same reasons as in that case I consider that such orders are appropriate in this case.
First, through her litigation representative, the applicant agreed to confidentiality in respect to the terms of the Deed and the settlement amount. There is a public interest in keeping people to their freely entered bargains: Baltic Shipping Co v Dillon [1991] NSWCA 19; 22 NSWLR 1 at 9 (Gleeson CJ). Sister Arthur’s affidavit shows that she considers the proposed settlement, which includes the confidentiality terms, to be in the applicant’s interests.
Second, it seems likely that the respondents required confidentiality as a term of the offer of settlement, and it may be that the settlement would not have been reached without the prospect of such protection for the respondents. The interests of the administration of justice include facilitating the consensual resolution of proceedings: Elliott at [24]; James v WorkPower Inc [2019] FCA 1239 at [18] (Mortimer J, as her Honour then was); Bushby (by his litigation representative Webling) v Victoria (Department of Education and Training) (No 2) [2023] FCA 340 at [25] (McEvoy J).
Third, the respondents are faced with a large cohort of similar proceedings commenced by a detainee taken by the Commonwealth to Nauru or Papua New Guinea and in which the applicant claims damages alleged to have resulted from the respondents’ negligence. Mr Lukic deposes that the respondents’ position in respect of the pending mediations in those proceedings would be prejudiced if the terms of settlement in the present case were made publicly available. That would not be in the interests of the administration of justice.
Fourth, I consider the administration of justice will be served if parties in future proceedings, including the respondents, can have confidence that the Court may be prepared to facilitate resolution of such proceedings on terms which include confidentiality. There is a public interest in settlement of proceedings before trial (Oldham v Capgemini Australia Pty Ltd(No 2) [2016] FCA 1101 at [24] (Mortimer J)), and the thrust of Mr Lukic’s evidence is that, if confidentiality orders are not made, it will reduce the likelihood of settlement in the cohort of similar cases.
Fifth, were it not for the fact that the applicant is a minor and therefore r 9.70 of the Rules requires Court approval of the proposed settlement, the Deed would have remained confidential between the parties. In such circumstances a court should be slow to allow a stranger the proceeding to potentially have access to the confidential terms of settlement.
I can see no good reason to continue the suppression and non-publication order made by Justice Kenny on 10 May 2019 which, amongst other things, operates to prohibit, until further order, the publication of information tending to reveal the applicant’s age, the applicant’s country of origin or making any reference to the alleged sexual assault of the applicant. Some of those matters have already been revealed in BXD18 No.1 and again in these reasons.
I am also not persuaded that a confidentiality order is necessary to prevent prejudice to the proper administration of justice in respect of:
(a)Mr Lukic’s affidavit or the respondents’ submissions dated 8 September 2023. Mr Lukic’s affidavit sets out some uncontentious matters, and then at [9]-[11] he opines that the Commonwealth’s position in the cohort of other similar cases would be prejudiced if the terms of settlement of this proceeding were published. I found it necessary to refer to that opinion to explain my reasons for approval, and I cannot see how revealing that opinion might tend to prejudice the proper administration of justice. Then, at [12] he deposes that the terms of settlement are agreed to be confidential. I accept that and these reasons do not set out the terms of settlement or the settlement amount. I found it necessary to refer to fact that the terms of settlement are confidential in these reasons, and I cannot see how revealing that fact might tend to prejudice the proper administration of justice. The affidavit and submissions do not reveal anything else which could sensibly be said must be suppressed on the basis that it is necessary to prevent prejudice to the proper administration of justice; and
(b)for similar reasons the applicants’ written submissions dated 13 September 2023, except for [15] which recites certain terms of the Deed, including the settlement sum which are confidential.
I must also decide how long any confidentiality order should operate for. Section 37AJ of the FCA provides that in deciding the period for which a confidentiality order is to operate, the Court must “ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.” The parties did not, however, propose any time limit for the confidentiality orders sought.
Here, the reasons why I have concluded that a confidentiality order is necessary to prevent prejudice to the proper administration of justice is that, if confidentiality is not allowed, Mr Lukic’s deposes that the respondents’ interests in the cohort of similar cases would be prejudiced, and the thrust of his evidence is that the likelihood of the parties being able to reach a settlement in that cohort of cases will be reduced. The resolution of those cases by mediation or determination will remove one of the main justifications for impinging on the public interest in open justice. Accordingly, in relation to some of the information in respect to which confidentiality orders are sought, essentially the terms of settlement and the settlement amount, I consider it appropriate to limit the term of the confidentiality orders to three years from today’s date. If by that time some of the cohort of cases are still pending one or other of the parties can apply to extend the orders. Such an order will mean that confidentiality operates for no longer than is reasonably necessary.
I take a different view in relation to:
(a)information 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, as referred to in Justice Kenny’s confidentiality order. The applicant was subjected to a serious sexual assault which has caused and is suffering embarrassment, humiliation and psychiatric injury. She presently has the benefit of an order which allows her to bring this proceeding under a pseudonym and it would be contrary to the proper administration of justice to allow information into the public domain which tends to reveal her identity, that of her family or that may permit her identification by reference to the boat upon which she arrived. Such information should remain confidential unless and until a judge orders otherwise;
(b)the medical records and medical reports regarding the applicant filed in the proceeding. They tend to reveal the identity of the applicant and they also go to highly personal and private matters for her. It is not in the interests of the administration of justice for those records and reports to be made publicly available and they should remain confidential unless or until a judge otherwise orders; and
(c)the confidential Counsel’s Opinion. In providing the opinion counsel were obliged to candidly set out their views as to the strengths and weaknesses of the applicant’s case, doing so to assist the Court in its protective role rather than as an advocate for the applicant. If at some later point that opinion was to become available to the Commonwealth for use in other proceedings, or publicly available, there is a real risk that in the future counsel will be less frank when setting out their views in relation to any weaknesses in their client’s case. It follows that the Counsel’s Opinion should remain confidential unless and until a judge orders otherwise.
I have made confidentiality orders accordingly.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 17 January 2024
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