FBV18 v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

FBV18 v Commonwealth of Australia [2024] FCA 947

File number(s): NSD 1892 of 2018
Judgment of: BUTTON J
Date of judgment: 23 August 2024
Catchwords: NEGLIGENCE – claim alleging breach of duty of care in relation to medical treatment of 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 in the best interests of the child – whether suppression and non-publication orders necessary to prevent prejudice to the proper 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, 37AI, 37AJ

Migration Act 1958 (Cth) ss 189, 198AD, 494AB

Federal Court Rules 2011 (Cth) rr 7.11, 9.70, 9.71

Cases cited:

Allen v State of Victoria (Department of Education and Training) [2019] FCA 1074

Biasin v State of Victoria [2017] FCA 161

Brindle v The Corporation of the Trustee of the Roman Catholic Archdiocese of Brisbane operating as Brisbane Catholic Education [2019] FCA 609

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

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

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

Gaha v Gaha [2024] FCA 531

Hartigan-Dunn v State of Victoria (Department of Education and Early Childhood Development) [2019] FCA 1146

Hickey v Public Advocate (Victoria) [2012] FCA 1203

Jones v State of Victoria [2014] FCA 1404

Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842

Lewis v State of Victoria (Department of Education and Training) [2019] FCA 714

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

Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041

Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as trustee for Barton Family Trust trading as Sealwerx WA) (No 3) [2022] FCA 1240

Scandolera v State of Victoria (2015) 331 ALR 525; [2015] FCA 1451

Snell v State of Victoria (Department of Education and Training (No 3) [2024] FCA 825

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; [2020] FCAFC 44

Turner v Commonwealth of Australia (2019) 367 ALR 724; [2019] FCA 463

Wade v State of Victoria (No 2) [2012] FCA 1080

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 52
Date of last submission/s: 29 July 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 1892…
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Details
Case
[2024] FCA 947
Decision Date

CaseChat Overview and Summary

In the case of FBV18 v Commonwealth of Australia, the Second Applicant, represented by their father as litigation representative, sought to have a settlement agreement approved by the court. The Second Applicant and their family, who had been detained on Nauru, alleged that they had been inadequately treated for mental health disorders while in offshore detention, resulting in significant psychological harm. The Commonwealth, represented by the Minister for Home Affairs, had offered a settlement to resolve the claim. The court was tasked with determining whether the settlement was in the best interests of the Second Applicant and whether confidentiality orders should be made to protect the parties' identities and sensitive information.

The court considered the best interests of the Second Applicant, noting that the settlement offered by the Commonwealth would provide immediate financial compensation and an end to the litigation. The court was satisfied that the settlement was reasonable and appropriate, considering the Second Applicant's age, the nature of their injuries, and the potential for future psychological harm. Additionally, the court evaluated the necessity of confidentiality orders to protect the identity of the Second Applicant and their family, as well as to prevent prejudice to the proper administration of justice and to protect the safety of any person.

After thorough consideration, the court approved the settlement agreement and made several confidentiality orders. These orders prohibited the publication of the parties' identities and sensitive information, including medical conditions, and required certain documents to be treated as confidential. The court also prohibited the disclosure of the agreed terms of settlement for a period of three years. The court concluded that these measures were necessary to safeguard the Second Applicant's privacy and to maintain the integrity of the judicial process.

The court's final orders included the approval of the settlement, the imposition of confidentiality measures to protect the identities and sensitive information of the parties, and specific instructions for the handling of the settlement funds. These orders aimed to ensure that the settlement was carried out in a manner that was fair and just for the Second Applicant, while also protecting the interests of all parties involved in the proceedings.

Orders

Orders of the court

Settlement approval

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

2. Within two (2) business days of these orders being made, the Second Applicant is to send these orders, and subject to paragraphs 5 to 7 below, the affidavits filed in support of the Second 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 Second Applicant:

(a) the Respondent shall, within 28 days after service of an authenticated copy of the order of the Senior Master on the Respondent’s solicitors, pay the Settlement Sum to the SCV; and

(b) the Second 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 paragraph 3 above within 28 days of this order, the matter be listed for case management hearing forthwith.

Confidentiality

5. Until further order, pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Act), and on the grounds set out at s 37AG(1)(a) and (c) of the Act:

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

(i) the name of the Applicants or any member of their family;

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

(iii) the ages of the First, Second and (previously) Fifth Applicants (other than that they are (or were during the course of these proceedings) minors);

(iv) the Applicants’ country of origin;

(v) any medical conditions of any of the applicants; and

(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 report filed and served on behalf of the Second Applicant being “Annexure EH-3” to the affidavit of Emma Hearne affirmed 22 December 2023; and

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

6. 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, counsel’s Confidential Opinion being “Annexure EH-2” to the affidavit of Emma Hearne dated 22 December 2023, be marked as confidential on the Court’s file, and not be made available for inspection by the Respondent 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.

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

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 which follow, I have determined that it is appropriate to approve the settlement agreement and to make the confidentiality orders sought by the parties.FACTUAL AND PROCEDURAL BACKGROUND The following factual background is taken principally from the pleadings. This recitation of the facts should not be understood as making findings on any contested facts. It is intended only to provide a brief factual background. The Second Applicant arrived in Australian waters by boat in July 2013 with his family, comprising his:(a)father, being his litigation representative;(b)mother, the Third Applicant; and(c)sister, the First Applicant. The Second Applicant and his family were subsequently detained at immigration detention centres on Christmas Island until June 2014, when they were transferred to a Regional Processing Centre on Nauru. Between January 2015 and October 2017, the Second Applicant and his family were held in various locations between Australia, Papua New Guinea and Nauru. From October 2017, the Second Applicant and his family began to reside in the community in Nauru, where they remained until October 2018, when they were transferred from Nauru to community detention in Australia. In September 2020, the Second Applicant and his family were granted Bridging Visa Es, and have subsequently been granted further visas allowing them to remain in Australia. The Amended Statement of Claim details the allegations concerning the Second Applicant’s condition and medical treatment. In order not to detail the Second Applicant’s symptoms, medical condition, diagnoses and treatment in unnecessary detail, it suffices here to note that the Second Applicant alleges that he experienced significant diagnosed mental health disorders and that the treatment he received in off-shore detention was inadequate. The First and Second Applicants, by their father as litigation representative, commenced this proceeding on 9 October 2018, seeking orders that the Applicants and their family be transferred to a location where they could receive “specified treatment”. On 10 October 2018, the Court made orders joining the other family members as applicants, and requiring the Minister for Home Affairs to take all reasonable steps to cause the Applicants to be transferred to a location where they could receive the specified treatment. On 15 October 2018, the Second Applicant and his family were transferred from Nauru to Australia. On 16 October 2018, the Second Applicant was admitted to the Women’s and Children’s Hospital in Adelaide for treatment.Procedural delays in resolution of claims This proceeding is part of a cohort of approximately 50 other similar proceedings which have been delayed by reason of the Commonwealth’s challenge to this Court’s jurisdiction to hear the proceedings by reason of s 494AB of the Migration Act 1958 (Cth) (the Migration Act). The procedural background to that challenge was set out by Murphy J at [24]–[25] of DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 3) [2023] FCA 1350 (DIZ18), and I need not repeat it here. It suffices to say that it was not until December 2020 that the High Court resolved the jurisdictional question, its resolution being that s 494AB did not have the effect of taking away the Court’s jurisdiction to hear and determine proceedings of this kind, but instead creates a defence available to the Commonwealth to plead to specific claims in all courts except the High Court: Minister for Home Affairs v DLZ18 (2020) 270 CLR 372; [2020] HCA 43 at [4] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). Mediation and settlement

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

This proceeding is part of a cohort of approximately 50 other similar proceedings which have been delayed by reason of the Commonwealth’s challenge to this Court’s jurisdiction to hear the proceedings by reason of s 494AB of the Migration Act 1958 (Cth) (the Migration Act). The procedural background to that challenge was set out by Murphy J at [24]–[25] of DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 3) [2023] FCA 1350 (DIZ18), and I need not repeat it here. It suffices to say that it was not until December 2020 that the High Court resolved the jurisdictional question, its resolution being that s 494AB did not have the effect of taking away the Court’s jurisdiction to hear and determine proceedings of this kind, but instead creates a defence available to the Commonwealth to plead to specific claims in all courts except the High Court: Minister for Home Affairs v DLZ18 (2020) 270 CLR 372; [2020] HCA 43 at [4] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). Mediation and settlement On 18 April 2023, the parties attended a mediation at the Federal Court in Sydney. The Commonwealth made an offer at the mediation to settle the proceedings. The Second Applicant’s litigation representative received advice from counsel briefed for the Applicants in relation to the offer, and subsequently gave instructions to the Second Applicant’s lawyers to accept the offer. A draft deed of settlement was provided by the Commonwealth some time later, in November 2023. The Second Applicant’s litigation representative signed the deed on 29 November 2023 and the deed was executed by the Commonwealth on 20 December 2023.The Second Applicant’s pleaded claim The Second Applicant seeks damages, including aggravated and exemplary damages, for negligence. By the Applicants’ Amended Statement of Claim dated 3 September 2021, the Second Applicant alleges that the Commonwealth owed him, and the other Applicants, a non-delegable duty of care to:(a)act in a manner to prevent them from suffering psychological harm, or which would prevent a worsening or aggravation of their psychological conditions;(b)act carefully and in a way to procure appropriate treatment for them; and (c)not engage in actions which it knew or ought to have known could cause avoidable harm to the Applicants’ psychological health. That duty of care is alleged to have been breached by the Commonwealth’s failure to (among other things):(a)permit or provide appropriate medical assessment and treatment to alleviate the Applicants’ conditions or, at least, to stem further damage to them;(b)provide the Applicants with recommended treatment including where that treatment was not available on Nauru; and(c)remove the Applicants to a place for appropriate medical treatment or, at least, to stem further damage to them. The Second Applicant alleges that as a consequence of the breach of the Commonwealth’s duty of care, he suffers a severe psychological impairment. He claims damages reflecting the full extent of his non-economic and economic loss, aggravated and exemplary damages, interest, and the payment of his legal costs. The Commonwealth’s Defence