Kamasaee v Commonwealth of Australia (No 8)
[2017] VSC 167
•5 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06770
| MAJID KARAMI KAMASAEE | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA & ORS (in accordance with the attached schedule) | Defendants & Third Parties |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2017 |
DATE OF JUDGMENT: | 5 April 2017 |
CASE MAY BE CITED AS: | Kamasaee v Commonwealth of Australia & Ors (No 8) (Class closure ruling) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 167 |
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PRACTICE AND PROCEDURE – Group proceeding – Manus Island – Class closure – Power to order class closure – Requiring group members to opt in to participate in mediation and further proceedings – Risk of prejudice to group members – Class closure not necessary or appropriate to ensure that justice is done in the proceeding – Civil Procedure Act 2010 ss 8, 9, 49 – Supreme Court Act 1986 ss 33ZF, 33ZG.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Curtain QC with Ms F Forsyth, Mr A Pound and Ms M Szydzik | Slater & Gordon |
| For the First Defendant | Mr C Blanden QC with Ms J Swanwick and Mr R Kumar | Australian Government Solicitor |
| For the Second Defendant | Mr G Harris QC with Mr T Warner | Foster Nicholson Jones |
| For the Third Defendant | Mr J Delany QC with Ms L M Nichols | Corrs Chambers Westgarth |
| For the First Third Party | Mr D Bongiorno | Barry Nilsson Lawyers |
| For the Second Third Party | Mr K Loxley | Herbert Smith Freehills |
HIS HONOUR:
This proceeding was issued on 19 December 2014 pursuant to the class act provisions of the Supreme Court Act1986. The trial is scheduled to commence in early May 2017. The parties have agreed that the estimated duration of the trial is six months. Save for an application by the defendants to amend their defences to plead a defence based on the doctrine of act of state and act of foreign state, all interlocutory steps have been completed. No party has suggested that there is any impediment to the trial proceeding in early May 2017.
The class represented by Mr Kamasaee comprises a Negligence Group and a False Imprisonment Group.
Paragraphs 5 and 5A of the third amended statement of claim plead:
5.The Plaintiff brings this proceeding on his own behalf and on behalf of all persons who at any time during the period 21 November 2012 until 19 December 2014 (the Negligence Claim Period):
(a)were detained by or on behalf of the Commonwealth pursuant to the Migration Act; and
(b)as detainees, were taken by officers of, or on behalf of, the Commonwealth from Australia to PNG; and
(c)were detained at the detention facility known to the parties as the “Manus Island Regional Processing Centre” (the Centre) on Los Negros Island in Manus Island Province in PNG; and
(d)suffered personal injury (including but not limited to psychological or psychiatric injury) as a result of the conduct of the Commonwealth, G4S and/or Transfield, described in this Statement of Claim;
(together and severally Negligence Group Members).
5A.The Plaintiff also brings this proceeding on his own behalf and on behalf of all persons who at any time during the period 21 November 2012 until 12 May 2016 (the False Imprisonment Claim Period) were confined at the Centre by or on behalf of:
(a) the Commonwealth;
(b) Transfield; and/or
(c) G4S
(together and severally False Imprisonment Group Members).[1]
[1]Third Amended Statement of Claim dated 1 August 2016, [5]–[5A].
The class comprises 1,905 individuals. The total number of individuals who satisfied the description of either Negligence and/or False Imprisonment Group members is 1,948. 43 group members filed opt out notices prior to the court imposed deadline of 11 November 2016.
Although the plaintiff’s claim covers events alleged to have occurred at the Manus Island Regional Processing Centre (‘Centre’), the majority of group members are no longer resident at that location. As at September 2016:
(i) 856 group members resided at the Centre;
(ii) 103 group members resided elsewhere in PNG;
(iii) six group members resided in Nauru;
(iv) 54 group members were in immigration detention in Australia;
(v) 11 group members were in community detention in Australia;
(vi) one group member was in criminal detention in Australia;
(vii) 373 group members were residing in Australia pursuant to a residence determination or the granting of a bridging visa; and
(viii) 542 group members had been in the care of, or contact with, International Organisation for Migration (’IOM’) since leaving the Centre to return to their country of origin or a third country.[2]
[2]See Affidavit of Laura Winkler affirmed 3 November 2016, [18]–[32].
As regards those individuals who have left the Centre, it is not contentious that they have returned to a number of different countries. The third defendant’s amended defence and counterclaim pleads:
As at 3 November 2014 a total of 425 Transferees had completed the AVR [Assisted Voluntary Return] process with the assistance of IOM, travelling to the following countries:
Iran (322), Vietnam (15), Iraq (40), Lebanon (26), India (5), Bangladesh (4), Pakistan (3), Sri Lanka (2), Sudan (3), Egypt (2), Albania (1) and Jordan (1).[3]
[3]Third Defendant’s Second Amended Defence and Counterclaim dated 31 March 2017, [185A].
In addition, the cohort who have returned to their country of origin or a third country includes persons who have travelled to countries to which the IOM does not provide assistance. Although I have not yet received evidence on this matter, the pleadings and discovered documents indicate that IOM has not been able to provide assistance to group members returning to Somalia and Syria.[4]
[4]Ibid.
A court ordered mediation was scheduled to take place on 15–17 March 2017. Prior to the scheduled mediation the following events occurred:
(a) on 20 February 2017 legal representatives of all the parties attended a pre-mediation conference convened by Efthim AsJ;
(b) on 3 March 2017 the plaintiff provided other parties with a ‘without prejudice’ position paper;
(c) on 8 March 2017 Efthim AsJ held a further conference with representatives of all defendants and the third parties;
(d) on 9 March 2017 Efthim AsJ advised all parties that the mediation scheduled for mid-March was to be vacated.[5]
[5]Affidavit of Anna Ross affirmed 21 March 2017, [28].
By summons dated 1 March 2017, the first defendant seeks a class closure order. The application is supported by the second and third defendants, albeit that the second defendant proposed orders which would operate differently in the event that the proceeding does not resolve at mediation.
The orders sought by the Commonwealth would close the class of group members eligible to share in the benefits of any settlement achieved at mediation by requiring group members to ‘opt in’ to the class. In the event that the proceeding did not resolve at mediation, those members would be excluded from further participation in the proceedings. However, they would not be precluded from bringing a proceeding against the defendants in an individual capacity. The second defendant’s proposed variation would have the effect that any group member who does not opt in would not be precluded from ongoing participation in the proceeding in the event that no settlement is achieved at mediation.
The opt in notice proposed by the Commonwealth includes a ‘personal and medical information release authority’. This document would authorise the release to Slater and Gordon of the group members’:
·Detention records held by the Department of Immigration and Border Protection.
·Medical records, including psychological, psychiatric and counselling records.
·All other information relating to the group member held in Australia or PNG.[6]
[6]See First Defendant’s Summons dated 1 March 2017, Annexures A–B.
The first defendant seeks orders that opt in notices for group members resident at the Centre, in Australia, or East Lorengau PNG, be filed by 12 April 2017.[7] For those group members residing at any other location, they seek orders that the opt in notice be filed by 21 April 2017.[8] The first defendant also seeks an order that by 18 April 2017, Slater and Gordon provide to the Australian Government Solicitor (‘AGS’) the names and authorisation of group members for the release of medical records held by International Health and Medical Services, the first third party.[9]
[7]Ibid [1](a).
[8]Ibid [1](b).
[9]See Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T35 LL18–27.
During the hearing on 22 March 2017, Mr Blanden QC, who appeared with Ms Swanwick and Mr Kumar for the Commonwealth, stated that the Commonwealth did not press paragraph 14 of the summons.[10] That paragraph had sought the production of documents and information particularising the claims of the damages of individual group members.
Relevant provisions of the Supreme Court Act1986 and Civil Procedure Act2010
[10]Ibid T33 LL8–16.
The orders sought by the defendants are strongly opposed by the plaintiff. I shall consider the grounds of opposition in due course. However, the plaintiff does not contend that the Court does not have power, in appropriate circumstances, to make a class closure order of the type sought by the defendants. It is clear that the power exists pursuant to ss 33ZF and 33ZG of the Supreme Court Act1986. Section 33ZF provides:
In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make an order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.
Section 33ZG provides:
Without limiting the operation of section 33ZF, an order made under that section may—
(a)set out a step that group members or a specified class of group members must take to be entitled to—
(i) any relief under section 33Z; or
(ii) any payment out of a fund constituted under section 33ZA; or
(iii) obtain any other benefit arising out of the proceeding—
irrespective of whether the Court has made a decision on liability or there has been an admission by the defendant on liability;
(b)specify a date after which, if the step referred to in paragraph (a) has not been taken by a group member to whom the order applies, the group member is not entitled to any relief or payment or to obtain any other benefit referred to in that paragraph.
The Civil Procedure Act 2010 (‘CPA’) is also relevant to this application. The overarching purpose of the CPA and the rules of court in relation to civil proceedings is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[11] Section 8 requires a court to give effect to this overarching purpose. Section 9 of the CPA expands the overarching purposes as follows:
[11]Civil Procedure Act 2010 (Vic) s 7.
9 Court's powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a)the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c)the efficient conduct of the business of the court;
(d)the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f)the timely determination of the civil proceeding;
(g)dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
(2)For the purposes of subsection (1), the court may have regard to the following matters—
(a)the extent to which the parties have complied with any mandatory or voluntary pre‑litigation processes;
(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h)the extent to which the parties have had the benefit of legal advice and representation.
The judgment of J Forrest J in Matthews v SPI Electricity Pty Ltd[Ruling No 13],[12] is authority for the proposition that the Court has power pursuant to ss 33ZF and 33ZG to make an order of the type sought by the Commonwealth.[13] I acknowledge the assistance which I have received in preparing this judgment from Forrest J’s comprehensive review of the authorities in both the Supreme Court of Victoria and the Federal Court of Australia relating to class closure orders. Forrest J distilled the following principles which are relevant to the present application:
[12](2013) 39 VR 255 (‘Matthews’).
[13]Ibid [68].
(i) It is within the court’s power to permit a representative plaintiff to amend the group definition so as, in effect, to convert an open class to a closed class proceeding.
(ii) If, in the course of a proceeding an order is to be made converting the nature of the class from open to closed, it should only be made where the group members have adequate notice of the proposed change and a reasonable amount of time in which to determine whether to join the closed class.
(iii) It is within the court’s power to order class closure in the sense that a member of the class must take a positive step such as identifying himself or herself after receiving notice of class closure. It is also within the court’s power to terminate the entitlement to compensation of any group member who does not come forward and indicate a willingness to participate in a distribution (putative or real) pursuant to either a settlement or judgment. One of the fundamental bases for the class action provisions is achieving finality not only for the group members but also for the defendants to the proceeding.
(iv) It may be appropriate to make orders for class closure prior to a settlement or judgment. Such a course may be warranted, notwithstanding that there is no prospective settlement but on the material available it is considered to be in the interests of the class as a whole to require such a step to be taken. Relevant considerations include:
(a) the point at which the case has reached;
(b) the attitude of the parties to such a step; and
(c) the complexity and likely duration of the case.[14]
[14]Ibid [79].
Forrest J observed that whether the court should exercise the power to make a class closure order is ultimately a question of ‘balance and judicial intuition’.[15]
[15]Ibid [76].
The defendants contend that, absent a class closure order, there is no prospect of meaningful settlement discussions taking place. Marianne Peterswald, an AGS lawyer, deposed:
I believe that closing the class will enable the first defendant to reach a more informed assessment of the potential liability of the matter.[16]
[16]Affidavit of Marianne Peterswald sworn 1 March 2017, [41].
In a subsequent affidavit Ms Peterswald deposed:
Accordingly, in the absence of information as to the persons that wish to participate in the proceeding, whether by way of settlement or otherwise, I face real difficulty in advising the first defendant as to its potential liability. The difficulty relates to an inability to gauge:
a.how many group members will ultimately participate in any settlement or award of damages; and
b.whether any of the participating group members are affected by variables that would reduce or extinguish their entitlement to compensation.[17]
[17]Affidavit of Marianne Peterswald sworn 21 March 2017, [6].
Anna Ross, the solicitor for the third defendant deposed:
In these circumstances and without the class being closed, to put parameters around the fundamental question of how many of the 1,905 persons may wish to pursue a claim for personal injuries, whether 41 persons of more, it is not possible for me to in any way meaningfully evaluate the likely quantum of group members’ claims against Broadspectrum.
…
Without class closure and without identification of those persons who wish to participate in any settlement of the false imprisonment claims in this proceeding, I am simply unable to give meaningful advice to Broadspectrum as to its exposure to the claim made by the False Imprisonment Group Members.
…
Broadspectrum and its advisers are committed to making all reasonable endeavours to resolve the dispute. That includes participating meaningfully in a mediation, whether it is held before or after the commencement of trial on 1 May 2017. However, without class closure and the important information that will result from that process, I do not believe that a mediation or negotiated settlement is able to be achieved.[18]
[18]Affidavit of Anna Ross affirmed 21 March 2017, [21], [27], [31].
On 22 March 2017, the following exchange took place between myself and Mr Delany QC, who appeared for the third defendant with Ms Nichols:
His Honour: No, but just so I’m clear on this, you’re presenting it as a fairly stark choice. There is either class closure or we bounce the ball in early May and the trial proceeds?
Mr Delany: That is right, Your Honour.[19]
[19]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T60 L30 – T61 L3.
The defendants place particular weight upon the provisions of the CPA which I have set out earlier. They contend that the powers conferred by ss 33ZF and 33ZG of the Supreme Court Act 1986 must be exercised in a way which gives effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.[20] The defendants submit that the resolution of the real issues in dispute requires consideration not simply of the plaintiff’s claim against the defendants, but of the defendants’ potential liability in respect of all group members.[21] The defendants submit that class closure orders are necessary to give effect to the overarching purpose. They submit that absent such orders there simply cannot be any meaningful negotiated settlement.
[20]Ibid T63 L12 – T64 L3; First Defendant’s ‘Submissions in Support of Class Closure’ dated 1 March 2017, [11].
[21]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T73 LL14–19.
The defendants point to what they say are similarities between the circumstances in which the current application has been brought and those in which Forrest J made class closure orders in Matthews.[22] In particular, they point to the fact that Forrest J made a class closure order in circumstances that where there had been a failed mediation and his Honour was satisfied the class closure orders would facilitate the sensible resolution of the proceedings.[23] One significant difference between the circumstances prevailing in Matthews and those underlying the present application, is that the plaintiff strongly opposes the orders sought. In Matthews, all parties were ‘agreed that identification of the number of potential claimants’ would ‘assist in settlement negotiations and thus fulfil a primary aim of the Civil Procedure Act 2010’.[24] In Jackson v GP & JM Bruty Pty Ltd [Ruling No 1],[25] J Forrest J declined to make a class closure order in circumstances where the defendants opposed the making of such an order. His Honour stated:
The underlying purpose of class closure is two-fold – to accurately fix the numbers who will participate in any settlement scheme and to provide the defendant(s) with certainty that a settlement will cover the field – with the exception of the identified group members who have opted out.
As class closure is often complex and potentially unfair to some group members, courts have, at times, been reluctant to make such orders. Usually orders giving effect to class closure are made with the intention of encouraging settlement and on the basis of a joint application by the parties to the proceeding.
…
There is nothing that encourages me to take the significant step of requiring class closure. The defendants do not seek such an order. There is no real suggestion that settlement negotiations would be assisted by the making of such an order. At best, Mr Pendergast opines that the prospects of a successful mediation ‘will be increased’. The exercise would be costly and in the context of this case, disproportionate to any benefit.
At the moment, and particularly given the lack of enthusiasm of the defendants for such a step, I decline to make the order sought for class closure. Of course, this does not preclude Ms Jackson seeking to make this application again at an appropriate time.[26]
[22]See First Defendant’s ‘Submissions in Support of Class Closure’ dated 1 March 2017, [16]; Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T21 LL5–7, T36 LL22–25, T37 LL12–19.
[23]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T37 LL12–19; Matthews (2013) 39 VR 255, [80]. See also Regent Holdings Pty Ltd v Victoria (2012) 36 VR 424, [20]–[23].
[24]Matthews (2013) 39 VR 255, [1].
[25][2016] VSC 717.
[26]Ibid [29]–[30], [33]–[34] (citations omitted).
In the present proceeding, the plaintiff in opposing the orders sought by the defendants has put squarely in issue the defendants’ contention that, absent a class closure order, the defendants are not in a position to make a meaningful assessment of the claims of group members. Andrew Baker, a solicitor with the conduct of the plaintiff’s claim deposed:
Quantification of the claim
Before the mediation in this proceeding was vacated, on 3 March 2017 the Plaintiff served on the other parties a position paper directed to the quantification of the claim on behalf of the group. The paper was provided on a ‘without ‘prejudice’ basis on behalf of the Plaintiff in connection with the mediation. Without disclosing the contents of the paper or of its calculations, it contained a detailed methodology proposed by the Plaintiff, by which the quantum of the group’s claims could be assessed in relation to the various causes of action and heads of damage alleged. The material relied upon for this analysis was the material discovered by the defendants and third parties, and which I believe was available to all parties.
The plaintiff’s quantification paper was accompanied by a series of annexures identifying for the parties in detail the specific discovered documents that had been used in performing the calculations included in it, the specific assumptions and extrinsic sources relied upon, and in respect of the calculations performed, native spreadsheet files that contained the data and formulas used to produce total amounts identified.[27]
[27]Affidavit of Andrew Baker affirmed 17 March 2017, [23]–[24].
Further, the plaintiff submits that the following information is presently available to the defendants relevant to their assessment of their potential liability in respect of the claims of group members:
a.The number of group members – the class consists of the persons confined at the Centre during the Relevant Period minus those who have opted out. The negligence group is a sub-set of the False Imprisonment Group. The total number in the class is 1905.
b.Information relating to confinement at the Centre – ‘nominal rolls’ discovered contain information as to precisely for what period of time each group member was detained at the Centre, including whether it is in the G4S or Transfield Period;
c.Location of confinement at the Centre – the nominal rolls also provide a breakdown of the location of each group member within the Centre, which is relevant to both the false imprisonment and negligence claims;
d.Incidence of mental and physical harm – there is extensive data available including IHMS weekly and other medical reports, transfer reports, surveys and complaint reports that facilitate an analysis of the incidence of physical and mental harm at the Centre; and
e.Incidence of exposure to assaults and security incidents – there are security reports and detainee complaint registers recording such incidents.[28]
[28]‘Plaintiff’s Outline of Submissions – Class Closure and Group Member Discovery’ dated 17 March 2017, [25].
The defendants dispute that the position paper forwarded to them on 3 March 2017 allows for a proper assessment of the claims of group members. For example, Ms Ross deposes:
I agree with paragraph 23 of the Baker Affidavit insofar as Mr Baker describes the position paper as being ‘directed to the quantification of the claim on behalf of the group’. I do not agree with the balance of that paragraph. In particular, I do not agree that the methodology proposed by the Plaintiff enables me to assess the quantum of group member’s claims in relation to the various causes of action and heads of damage alleged. That is so both in relation to personal injury claims and in relation to the false imprisonment claims.[29]
[29]Affidavit of Anna Ross affirmed 21 March 2017, [19].
None of Ms Peterswald, Ms Ross or Mr Baker were subject to cross-examination regarding the contents of their affidavits. Thus, the Court is left in the position where the plaintiff contends and the defendants deny that the defendants have in their possession sufficient information to make a meaningful assessment of the claims of group members. I proceed on the basis that the matters deposed reflect the genuinely held beliefs of each of the practitioners. However, the Court is not in a position to make any independent assessment of whether the position paper forwarded to the defendants on 3 March 2017 does or does not allow the defendants to make a meaningful assessment of the claims of group members. Further, it is unproductive for the Court to speculate as to the merits or lack thereof of the competing positions of the parties in any mediation.
Section 33ZF is a source of power for the Court to make a class closure order if the Court thinks it is appropriate to ensure that justice is done in the proceeding, or if the Court thinks that it is necessary to ensure that justice is done in the proceeding.[30] The benchmark of ensuring that justice is done in the proceeding requires consideration of the competing interests of the plaintiff, the defendants and third parties, and all members of the class. It is necessary to determine, whether, as a whole, the class is better off under the course proposed by the defendants.[31]
[30]Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469, [33]–[35].
[31]Matthews (2013) 39 VR 255, [78].
Currently, save for the 43 individuals who have opted out of the proceeding, the remaining 1,905 will continue as group members until a class closure order is made. In Mobil Oil Australia Pty Ltd v Victoria,[32] Gaudron, Gummow and Hayne JJ stated:
The position of the plaintiffs in the proceeding may be contrasted with those whom they represent — the group members. Subject to some exceptions that do not matter for present purposes, the consent of a person to be a group member is not required (s 33E). Group members may neither know of the commencement of the proceeding nor wish that it be brought or prosecuted, although Pt 4A does provide for notice to be given to group members of (among other things) the commencement of the proceeding (s 33X(1)).
The Supreme Court may dispense with the giving of that notice if the relief sought in the proceeding does not include a claim for damages (s 33X(2)) and, if notice is to be given, it may be given by press advertisement, radio or television broadcast or any other means (s 33Y(3)). Unless the Supreme Court is satisfied that it is reasonably practicable, and not unduly expensive, to do so the Court may not order that notice of the proceeding is to be given personally to group members (s 33Y(4)). There is, therefore, a real possibility that some group members would remain ‘perfectly ignorant of the proceedings, and of what is really going on’ (136). That is, some of those who would benefit from success in the proceeding (but thereby lose the opportunity to pursue their individual claim in some way, or to some effect, different from the group proceeding) may have their rights affected without their knowing or consenting to that being done.
So much follows from the fact that Pt 4A provides for what is sometimes called an ‘opt out’, rather than an ‘opt in’, procedure. That is, persons who are group members may opt out of the proceeding and, if they do, they are taken never to have been a group member (unless the Court otherwise orders) (s 33J(5)). Group members, however, need take no positive step in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring.
Provision is made for the Court to fix a date before which a group member may opt out (s 33J(1)) and, except with the leave of the Court, trial of the proceeding may not begin before that date (s 33J(4)). The Court, on the application of a party to the proceeding, or of its own motion, may at any time, before or after judgment, order that a person cease to be, or not become, a group member (s 33KA(1)). The circumstances in which the Court may make such an order are stated in very wide terms. It may do so if it is of the opinion that the person does not have ‘sufficient connection with Australia to justify inclusion as a group member’, or that for any other reason it is ‘just or expedient’ that the person should not be or become a group member (s 33KA(2)). And if a person who is a group member does not opt out, either before or after judgment, a judgment given in the proceeding binds that person along with all other persons who are group members at the time judgment is given (s 33ZB).[33]
[32](2002) 211 CLR 1.
[33]Ibid [38]–[41].
In reference to the passage set out above, the Victorian Court of Appeal stated, in Regent Holdings Pty Ltd v Victoria:[34]
With respect, that statement does not mean that it is of the essence of a Pt 4A proceeding that group members not be required to take any positive step before common questions of liability have been resolved. Read in context, and understood against the background of the case with which the High Court was concerned, it means no more than that there are some Pt 4A actions in which that is likely to be so. This case illustrates that there will be circumstances in which group members may be asked to take some step before common questions of liability are resolved.[35]
[34](2012) 36 VR 424 (‘Regent’).
[35]Ibid [12].
The Court of Appeal judgment in Regent confirms the importance of examining the particular circumstances of the relevant class when considering an application for class closure. The proceedings in Regent were brought on behalf of a closed class of 194 group members. Interlocutory orders were made requiring 14 class members to provide discovery of documents relating to quantum. As the Court of Appeal observed, ‘[e]ach case turns on its own facts and circumstances’.[36]
[36]Ibid [15].
The facts and circumstances of the present proceeding are such that it is one in which group members should not, at the present time, be required to take the positive step of opting into the proceeding. The class closure orders are strongly opposed by the plaintiff. The class of 1,905 is comprised of members who are dispersed in many locations around the globe. For those who comprise in excess of 25 per cent of the class who have returned to their own country or a third country, there is a real risk that the imposition of an opt in regime will have the arbitrary and unintended consequence of excluding individuals who would otherwise wish to remain in the class.
Ms Peterswald has deposed that whilst there are ‘effective and efficient mechanisms’ available to contact 1,370 of the 1,905 group members, the position is ‘more complicated’ for the balance.[37] This cohort comprises those who have returned to their country of origin or a third country.
[37]Affidavit of Marianne Peterswald sworn 1 March 2017, [19], [21].
The orders sought by the first defendant include the following:
Notice to International Claimants
By no later than 24 March 2017, the First Defendant shall cause the International Claimant Registration Form and the Approved International Claimant Notice to be delivered either by email, by mail, or by hand, to each person of whom it is aware was transferred to the Manus RPC pursuant to s 198AD of the Migration Act 1958 (Cth) (the Migration Act) during the claim period, and who:
(a)remains in PNG, other than at the Manus RPC or East Lorengau Transit Centre; or
(b) is currently at Nauru.
By no later than 24 March 2017 the First Defendant shall:
(a)deliver to the International Organisation for Migration (IOM) identifying details of each potential group member who, according to the Commonwealth’s records, was at any time following the potential group member’s departure from the Manus RPC in the care of, or in contact with IOM;
(b)deliver to IOM a copy of:
(i)the International Claimant Registration Form; and
(ii)the Approved International Claimant Notice; and
(iii)the translated notices;
(c)request that IOM deliver to the last known contact details of each person on the list referred to in Order 12(a) copies of the documents described in Order 12(b) (IOM Request);
(d)inform IOM that IOM may invoice the First Defendant for IOM’s reasonable costs of delivering the documents described in Order 12(b);
(e)request that IOM:
(i)provide the First Defendant with a written response to the IOM Request; and
(ii)if the IOM Request is granted, provide to the First Defendant a report as to the success or otherwise of IOM’s attempts to comply with the IOM request.[38]
[38]First Defendant’s Summons dated 1 March 2017, [11]–[12].
No evidence has been filed in respect of the current application from the IOM which evidences its capacity to take the steps contemplated by the orders set out above. Assuming that the IOM does have the current address for a significant percentage of those who have returned to their country of origin or a third country, there remains the very real risk that a recipient of an opt in notice would not comprehend the meaning of that notice, or alternatively, would not be able access appropriate legal advice in respect of the notice. There is force in the submissions of Ms Forsyth on behalf of the plaintiff, that when considering this risk it is necessary to have regard to the fact that to date, group members have received notices which have stipulated that, absent the filing of an opt out notice, the individuals continue to be group members.[39] The most recent notice forwarded in accordance with the opt out regime provided for a cut-off date of 11 November 2016 for the filing of an opt out notice. In circumstances where group members have previously been told that they do not have to take any step in order to remain in the class, there is a risk of confusion arising from the receipt by group members of a notice which requires them to take the positive step of opting in in order to remain in the class.
[39]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T110 LL7–13, T112 LL11–23.
As regards those group members who remain at the Centre or who are in detention in Australia, I accept Ms Forsyth’s submission that some group members may be fearful of identifying themselves as positively participating in the proceeding.[40] Some group members have outstanding refugee status determination. Further, there is the well-publicised potential resettlement agreement with the United States of America. There is a risk that group members may harbour apprehensions that in the event that they were to take the positive step of opting in to the proceeding, their prospects of participating in any resettlement may be jeopardised.
[40]‘Plaintiff’s Outline of Submissions – Class Closure and Group Member Discovery’ dated 17 March 2017, [6](b).
I have also weighed in the balance the evidence concerning vulnerability of group members. Mr Baker annexed to his affidavit a copy of a report prepared following an investigation into mental health at the Centre in 2006 under the auspices of the United Nations High Commission for Refugees.[41] No party objected to the admissibility of this report. Mr Baker deposed:
Further to this, in relation to the period after the conclusion of the negligence claim period (about which most of the discovery in the proceeding relates), I have also received a copy of an investigation conducted into mental health at the Centre in 2016 under the auspices of the United Nations High Commissioner for Refugees (UNHCR), in which three medical practitioners (an Australian psychiatrist, a general practitioner and PNG’s Chief Psychiatrist) attended the Centre and the East Lorengau Transit Centre (ELTC) between 11 and 14 April 2016 to interview detainees and assess rates of psychological symptoms. This report was provided to me by UNHR, and a true copy of this document is now produced and shown to me marked ‘AB-1’.
This UNHCR survey assessed the results of interviews with 181 individuals (who by definition would also be false imprisonment group members unless they are amongst the group of 43 people who have opted out of the proceeding in 2016), representing about 20% of the group member population residing in PNG at the time, and includes numerical assessments of the incidence of post-traumatic stress disorder, depressive/anxiety disorder, and other features amongst this cohort. The report concludes that ‘The prevalence and severity of mental disorders presented by the asylum-seeker and refugee population on Manus Island is extreme’. In addition, it notes that, ‘The rates of caseness for depressive or anxiety disorders and/or PTSD in the asylum-seeker and refugee population in the Manus island RPC or ELTC are amongst the highest recorded rates of any surveyed population’.[42]
[41]Affidavit of Andrew Baker affirmed 17 March 2017, “AB–1”.
[42]Ibid [21]–[22] (emphasis altered).
In addition to the matters set out above, it is not contentious that the group members comprise individuals with different language abilities, literacy skills and education. The combined effect of the matters referred to above is that, even for those who remain in the Centre, or are in detention in Australia, there is a risk that those who would otherwise be content to remain in the class would be excluded by reason of a failure to take the positive step of opting in.
As to those who have returned to their country of origin or to a third country, Mr Delany submitted that whatever difficulties may currently exist in making contact with those individuals:
…it must be the case that the prospects of those people actually receiving notice, it being provided to them in the translated form the Commonwealth is proposing, now are much greater than would be the case in another two years’ time, assuming the case is successful for the plaintiff…[43]
[43]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 22 March 2017) T39 LL20–25.
I accept there is a risk that group members who have returned to their country of origin may relocate within the period of the trial. Consequently, any contact details which are currently held by the IOM may become obsolete. It is not possible to form a concluded view about this matter because there is no evidence regarding what steps, if any, IOM might be able to take to maintain contact with group members who have returned to their country of origin or a third country.
If the trial is well publicised, this may assist in facilitating ongoing contact with group members. By summons dated 2 December 2016, the plaintiff has sought orders for the live streaming of the proceedings. For reasons which will be published separately from this judgment, I propose to grant the plaintiff’s application. Live streaming of the trial, scheduled to run for six months, will increase the prospect that group members who have returned to their country of origin or a third country will become aware of the proceedings. Further, the Court has broad powers under s 49(1) of the CPA to make any order that it considers appropriate to serve the overarching purpose in relation to the conduct of the hearing in a civil proceeding. This power would extend to making an order requiring the IOM to forward a notice to the last known address, in their possession, of any group member, informing the individual that:
(a) The trial of the proceeding has commenced;
(b) Its estimated duration;
(c) That in the event that the proceeding is settled or proceeds to judgment, the Court will need to make an order closing the class; and
(d) That any group member who relocates following the commencement of the trial should provide his/her contact details to Slater and Gordon and the IOM.
An order of the type set out above would ameliorate the risk that group members’ contact details currently held by the IOM would become obsolete due to the passage of time and the length of the trial.
The Commonwealth’s delay in bringing the current application weighs against making the orders which it seeks. Mr Blanden submitted that the Commonwealth was not in a position to make the current application prior to 6 February 2017.[44] This was the date on which the parties were informed of the number of group members who had filed opt out notices by 11 November 2016, being the cut-off date for group members to opt out of the false imprisonment group.
[44]Ibid T21 LL11–14.
I reject Mr Blanden’s submission. The advice provided to the parties on 6 February 2017 followed a request to my chambers from the solicitors for the third defendant seeking the details of the number of group members who had opted out by 11 November 2016. There is no reason why the current application could not have been brought immediately after 11 November 2016. Indeed, it is surprising that no application was made at that time in light of the affidavits filed by the solicitors for the first and third defendants deposing to their difficulties in advising their clients, absent class closure.
As it is, the practical effect of the timing of the current application is that the class could not be closed prior to the scheduled commencement date of the trial. If, contrary to my reasons set out above, I had been minded to make a class closure order, I would have allowed for a period of at least two months for group members to take the positive step of opting in. Consequently, if the defendants maintained the position that meaningful settlement negotiations were not possible absent class closure, there would not have been a mediation prior to the commencement of the trial.
I have concluded that it is neither necessary nor appropriate in order to ensure that justice is done in this proceeding, to make a class closure order at the present time. Accordingly, there is no proper basis for the exercise of the power conferred by s 33ZF of the Supreme Court Act1986. This conclusion is not altered by the existence of the overarching purpose under the CPA. The Court is required by s 8(1) of the CPA to seek to give effect to the overarching purpose in the exercise of its powers. This includes the exercise of the power under s 33ZF. However, in order for s 8(1) of the CPA to be enlivened, there must, in the first instance be a proper basis for exercising the power under s 33ZF. For the reasons set out above, that proper basis does not currently exist.
The first defendant’s summons dated 1 March 2017 will be dismissed. The plaintiff is entitled to an order that the defendants pay his costs.
It is possible that as a consequence of my decision the trial will commence without a mediation having occurred. The Court made mediation orders on 12 September 2016. At that time no party suggested that the absence of class closure was any impediment to mediation proceeding. The matters deposed to by Ms Peterswald and Ms Ross as constituting an impediment to settlement negotiations are not of recent origin. Any difficulties in making an assessment of potential liability flowing from the absence of class closure should have been equally apparent in mid-September 2016. There has been no meaningful explanation given by the defendants as to why an application for class closure was not made earlier.
I fully endorse the observation of Forrest J in Matthews that, ultimately, whether a class closure order should be made involves balance and judicial intuition. Having weighed the competing contentions of the parties, I have concluded that it is not necessary or appropriate at the present time to order class closure.
Nothing in this judgment should be construed as endorsing the commencement of the trial without mediation taking place. Ultimately it is a matter for the parties to the proceeding as to whether they participate in a mediation prior to (or after) the commencement of the trial. If requested to do so, the Court will assist the parties to convene a mediation prior to the scheduled commencement of the trial.
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SCHEDULE OF PARTIES
| No. S CI 2014 06770 | |
BETWEEN: | |
| MAJID KARAMI KAMASAEE | Plaintiff |
| - and - | |
| THE COMMONWEALTH OF AUSTRALIA | First named Defendant |
| G4S AUSTRALIA PTY LTD | Second named Defendant |
| BROADSPECTRUM (AUSTRALIA) PTY LTD INTERNATIONAL HEALTH AND MEDICAL | Third named Defendant First Third Party |
| WILSON PROTECTIVE SERVICES PNG LTD | Second Third Party |
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