DZQ18 as litigation representative for DZP18 v Minister for Home Affairs

Case [2024] FCA 38

FEDERAL COURT OF AUSTRALIA

DZQ18 as litigation representative for DZP18 v Minister for Home Affairs [2024] FCA 38

File number(s): VID 932 of 2018
Judgment of: MURPHY J
Date of judgment: 30 January 2024
Catchwords: NEGLIGENCE – claim alleging breach of duty of care in relation to the medical treatment of a child detained on Nauru – application by the litigation representative for approval of an infant’s compromise under r 9.70 of the Federal Court Rules 2011 – whether the 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 1976 (Cth) ss 37AF, 37AG

Migration Act 1958 (Cth)

Federal Court Rules 2011 r 9.70
Cases cited:

Bannister v State of Victoria [2012] FCA 1341

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

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

Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43; 270 CLR 372
Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 44
Date of last submission: 16 October 2023
Date of hearing: Determined on the papers
Counsel for the Applicant: Ms S Gold
Solicitor for the Applicant: Maurice Blackburn Lawyers
Counsel for the Respondents: Mr T Katz
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 932 of 2018
BETWEEN:

DZQ18 AS LITIGATION REPRESENTATIVE FOR DZP18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

30 JANUARY 2024

THE COURT NOTES THAT:

A.The Applicant was born on 18 January 2018 and is 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 his litigation representative, DZQ18, by way of Originating Application and Statement of Claim dated 3 August 2018 (the Proceeding).

C.The parties have exchanged deeds of settlement and release (the Deed), noting that settlement is subject to approval of the Court (proposed settlement).

D.The Applicant’s litigation representative applies for approval of the compromise or settlement outlined in the Deed, under r 9.70 of the Rules. In respect of the application the Court has read:

(a)the affidavit in support of Jacinta Lewin affirmed 15 September 2023, which includes the confidential opinion of Stella Gold of counsel regarding the proposed settlement dated 13 September 2023 (Counsel’s Opinion), being Annexure “JL-3”; and

(b)the affidavit in support of DZQ18 sworn 14 September 2023.

AND THE COURT ORDERS THAT:

Settlement Approval

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

2.Within two (2) business days after these orders being made, the Applicant is to send these orders, and subject to Order 5 below) the affidavits filed in support of the Applicant’s application to the Senior Master of…

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AGLC
DZQ18 as litigation representative for DZP18 v Minister for Home Affairs [2024] FCA 38
Case
[2024] FCA 38
Decision Date

CaseChat Overview and Summary

The case before the court involves DZQ18, acting as litigation representative for DZP18, who filed a claim against the Minister for Home Affairs alleging negligence in the medical treatment of a child detained on Nauru. The court was required to decide whether to approve the settlement of the claim under r 9.70 of the Federal Court Rules 2011, whether the settlement is 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 considered the application to approve the settlement, taking into account the necessity of preventing prejudice to the proper administration of justice and the best interests of the infant. The court acknowledged the urgency of the medical treatment required by the child and the potential life-threatening consequences of inadequate treatment. The court found that the settlement was appropriate and in the best interests of the infant, and that confidentiality orders were necessary to protect the interests of the parties and to prevent prejudice to the administration of justice.

The court approved the settlement and made orders for confidentiality, including suppressing and non-publishing the terms of the settlement, certain documents, and the identity of the applicant. The court also ordered that the settlement amount be held in trust for the benefit of the applicant if required by the Senior Master of the Supreme Court of Victoria. The court ordered that the confidentiality orders for the terms of the Deed, including the settlement amount, and certain documents would remain in effect for three years, while other confidentiality orders would remain in place until further order.

In summary, the court approved the settlement, recognising the urgent need for appropriate medical treatment for the infant and the importance of confidentiality to prevent prejudice to the proper administration of justice. The court made orders to ensure the confidentiality of the settlement and certain documents, and to protect the identity of the applicant.

Orders

Orders of the court

Settlement Approval

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

2. Within two (2) business days after these orders being made, the Applicant is to send these orders, and subject to Order 5 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 of the SCV makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure Rules) 2015 (Vic) that the Settlement Sum be held in Court for the benefit of the Applicant:

(a) the Respondents shall, within 28 days after service of an authenticated copy of the order of the Senior Master on the Respondents’ solicitors, pay the Settlement Sum to the trust account of the Applicant’s solicitors for the benefit of the Applicant; and

(b) 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 as an order otherwise for the purposes of r 26.12(7) of the Rules.

4. If the Senior Master of the SCV does not make an order described in Order 3 above within 28 days of this order, the matter be listed for case management hearing forthwith.

Confidentiality

5. The suppression and non-publication orders made by Justice Steward on 3 August 2018 be vacated and in lieu thereof the following orders apply.

6. 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) and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Deed being “Annexure JL-2” to the affidavit of Jacinta Lewin affirmed 15 September 2023, and its terms including the settlement amount 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 available for public inspection, disclosed in open court or disclosed in the open part of any court transcript. The publication or disclosure of the Deed or its terms is prohibited.

7. Until further order, pursuant to ss 37AF and 37AG of the Act and on the ground that it is necessary to prevent prejudice to the proper administration of justice, 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:

(a) the following annexures to the affidavit of Jacinta Lewin affirmed 15 September 2023:

(i) the bundle of medical reports filed and served on behalf of the applicant being “Annexure JL-1”;

(ii) the bundle of correspondence from Medicare dated 25 May 2023, being “Annexure JL-4”; and

(iii) the correspondence between the Applicants’ solicitors and the Supreme Court of Victoria – Funds in Court, being “Annexure JL-5”; and

(b) anything which tends to reveal the name of the applicant or his father or mother identity.

8. Until further order, pursuant to ss 37AF and 37AG of the Act and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Counsel’s Opinion being “Annexure JL-3” to Ms Lewin’s affidavit be marked as confidential on the Court 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 the Counsel’s Opinion or its terms is prohibited.

9. Within 14 days of these orders, the Applicant shall file a version of the affidavit of DZQ18 redacted to the extent required by Order 7(b). For the avoidance of doubt, it is not necessary to redact the documents referred to in Order 7(a) as a redacted version has already been filed and they shall not be publicly available in any event.

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 of time for which some of the confidentiality orders will operate.FACTUAL AND PROCEDURAL BACKGROUND The following factual background is largely drawn from the affidavit of Jacinta Lewin, a principal lawyer at Maurice Blackburn, the solicitors for the applicant, affirmed on 15 September 2023, including the material annexed thereto. These reasons should not be understood as making findings in relation to any contested factual matter. The applicant’s parents are citizens of Somalia. They arrived on Christmas Island by boat without a visa on or around October 2013 and were designated “unlawful maritime arrivals” and “unlawful non-citizens” upon arrival by operation of the Migration Act 1958 (Cth) (the Act). They were subsequently taken to Nauru by officers of the Commonwealth where they were detained at the Nauruan Regional Processing Centre (RPC). The applicant’s father was determined to be a refugee within the meaning of the Refugee Convention by the Government of Nauru on 8 December 2014, and the applicant’s mother was also so determined on 26 June 2015. Following the refugee determinations, the applicant’s parents were granted Temporary Settlement Visas permitting them to live in the community on Nauru. The applicant was born on Nauru on 18 January 2018. The relevant events on Nauru From around February 2018, and particularly from late June 2018, when the applicant was just an infant, the applicant’s parents repeatedly took the applicant to the Nauruan Regional Health Clinic, operated by the International Heath and Medical Service (IHMS), the medical service contracted by the Commonwealth to provide healthcare to detainees and refugees on Nauru. The clinic was located outside of the RPC and was accessible by those who had received refugee determinations and lived in the community on Nauru. On 19 June 2018, the applicant presented at the clinic with a dry rash over his body. On 4 July 2018, he again presented at the clinic and was diagnosed with atopic dermatitis and a hypersensitive reaction to insect bites and prescribed topical treatments. On 13 July 2018, the applicant returned to the clinic having suffered from vomiting and a fever the preceding night. The doctor recommended blood and urinalysis testing be undertaken, but the blood tests were not performed as it was deemed not possible to collect blood from a child under two years of age. On 23 July 2018, the applicant again presented with a fever and a painful right wrist and X-rays were ordered. The X-rays were not performed until 25 July 2018 and the results were not received by the clinic until 31 July 2018. On 27 July 2018, a senior paediatrician Dr Paul Bauert prepared a report in relation to the applicant’s medical treatment needs at the request of the Asylum Seeker Resource Centre, which was provided to IHMS on 30 July 2018. Dr Bauert opined that the applicant’s differential diagnoses included fracture of the right wrist, fracture with infected haematoma, abscess, septic arthritis, osteomyelitis and bone tumour. In terms of the necessary treatment Dr Bauert said: I cannot emphasise strongly enough the urgency in this situation of appropriate investigation to include, as a minimum, a full blood count, inflammatory markers, blood cultures and sensitivity testing. An intravenous line should be inserted and broad-spectrum antibiotics commenced whilst awaiting results and planning further investigations. These almost certainly would include ultrasound scanning or MRI.The possible consequences of not fully assessing and appropriately treating [the applicant] could be life threatening. The arm lesion has the real potential to suddenly progress to septicaemia and death. Additionally, [the applicant] may well be at risk at any time of aspiration during feeds, with subsequent pneumonia and death, without appropriate inpatient management.

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

In support of the application, the respondents rely upon the affidavit of Dejan Lukic, a senior executive lawyer with the Australian Government Solicitor, the solicitor for the respondents, affirmed 18 September 2023. The parties also filed their respective submissions in support of the application on 6 October 2023.Consideration regarding confidentiality I considered the issue of non-publication or suppression orders in the context of an analogous settlement approval application in BXD18 at [42]-[50], and the appropriate duration of any such orders. For essentially the same reasons, I consider similar orders are appropriate in this proceeding. I have made orders for the terms of the Deed, including the settlement amount to be kept confidential for three years, and orders for the Counsel’s Opinion, various annexures to the affidavit of the applicant’s solicitor and the applicant’s identity to be kept confidential, without time limitation.