Majid Karami Kamasaee v The Commonwealth of Australia (No 1)
[2015] VSC 148
•22 April 2015
| 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 | |
| THE COMMONWEALTH OF AUSTRALIA and others (in accordance with the attached Schedule) | Defendants |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2015 |
DATE OF JUDGMENT: | 22 April 2015 |
CASE MAY BE CITED AS: | Majid Karami Kamasaee v The Commonwealth of Australia (No 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 148 |
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PRACTICE AND PROCEDURE — Group proceedings — Commencement and opt-out notice — Whether notice to group members should be confined to informing them of commencement of proceedings — Whether court should fix date by which group members can opt-out of proceeding — Supreme Court Act 1986 ss 33J(1), 33X(1)(a), 33(X)(5), 33Y(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Armstrong QC with Ms S Keating | Slater & Gordon |
| For the First Defendant | Mr R Stanley QC | Australian Government Solicitor |
| For the Second Defendant | Mr J Doherty | Foster Nicholson Jones Lawyers |
| For the Third Defendant | Mr S Donaghue QC with Ms L Nichols | Corrs Chambers Westgarth |
HIS HONOUR:
By a writ dated 17 December 2014, amended 3 March 2015, the plaintiff commenced a group proceeding alleging negligence against the Commonwealth of Australia (‘Commonwealth’), G4S Australia Pty Ltd and Transfield Services (Australia) Pty Ltd. Paragraph 5 of the amended statement of claim identifies the group members on whose behalf the proceeding is brought as all persons who at any time during the period 21 November 2012 until 19 December 2014:
(a)were detained by or on behalf of the Commonwealth pursuant to the Migration Act 1958 (Cth); and
(b)as detainees, were taken by officers of, or on behalf of, the Commonwealth from Australia to Papua New Guinea (‘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.
On 20 March 2015, the plaintiff filed a summons seeking orders pursuant to ss 33X(5) and 33Y(1) of the Supreme Court Act 1986 (‘the Act’) approving a notice in the terms annexed to the summons advising group members of the commencement and existence of the proceedings. The plaintiff’s summons also sought orders relating to the translation of the notice into 11 languages, other than English, and for the publication of the notice at the Centre. The plaintiff’s summons did not seek an order pursuant to s 33J(1) fixing an opt-out date. Rather, the plaintiff’s proposed notice advises group members that they will in the future be provided with an opt-out notice.
There are three issues which fall for determination. First, whether the court should refrain from making any orders against the Commonwealth because of doubts raised by it regarding its capacity to publish and/or distribute any notice at the Centre, irrespective of the contents of the notice. On the evidence before me I am not satisfied that the matters raised constitute a legitimate basis for the court to refrain from making orders directed to the Commonwealth. Second, whether, as contended by the third defendant, the notice which advises group members of the commencement of this proceeding should also advise group members of their right to opt-out of the proceeding before a specified date, being a date fixed under s 33J(1) of the Act. I accept this contention and have decided that group members should be advised of their right to opt-out of the proceeding by 15 January 2016. Third, whether a notice, regardless of its form, should not be given to any group members until after the close of pleadings. I have decided that the notice should be provided forthwith.
Mr Stanley QC, who appeared with Mr Livermore for the Commonwealth, submitted that there may be no utility in any order being made by the court, irrespective of its terms, because of uncertainty as to whether the Commonwealth could comply with any order directed to it. Mr Stanley submitted that the Centre is under the control of the government of PNG. As such, if an order is made requiring the Commonwealth to publish and/or distribute a notice at the Centre, compliance with such order might be contingent upon the Commonwealth securing the cooperation of the government of PNG.
The plaintiff’s summons was filed on 20 March 2015. The affidavit in support of Mr Baker was filed on 2 April 2015. Prior to the filing of the summons discussions took place between the solicitors for the plaintiff and the defendants’ solicitors, including the Australian Government Solicitor acting on behalf of the Commonwealth, regarding the form of the plaintiff’s proposed notice.
On 19 March 2015, Mr Roger O’Shannessy, a senior lawyer with the AGS, sent an email to the plaintiff’s solicitors, as well as to the solicitors for the second and third defendants. That email is in evidence before me.[1] Relevantly, the email states:
My comment in the teleconference was not that the Commonwealth might have difficulty in procuring that notices be posted in the Centre.
I have no knowledge of that, nor instructions on that point.
I did attempt to draw attention to the fact that there was a question as to whether the Court could make the orders sought by the plaintiff, given that the Commonwealth may be unable to ensure compliance, because the Manus RPC is under the control of PNG officials under PNG law. Further, my comment that the regime may need to be directed to another party was followed by a further comment, namely, that the other party may well be a party not currently involved in the proceeding (ie “party” in the broad sense of the word).
These differences may appear slight, however I consider it important to ensure that no one proceeds on the basis of any misunderstanding.
[1]Part of Exhibit AB1 to the affidavit of Andrew Baker, affirmed 2 April 2015.
Plainly, the Commonwealth was alive to the issue raised by Mr Stanley during the hearing before me on 17 April 2015, prior to the filing of a summons on 20 March 2015. No affidavit was filed on behalf of the Commonwealth in support of the contention that it may be unable to comply with an order requiring it to publish and/or distribute a notice at the Centre. The Commonwealth has had ample opportunity to do so. Absent any evidence to the contrary, I proceed on the basis that there is no impediment to the Commonwealth complying with any order directed to it.
The plaintiff’s summons was supported by an affidavit of Andrew Baker affirmed 2 April 2015. This affidavit was tendered without objection.[2] The evidence contained in this affidavit was unchallenged. The evidence includes media releases of the Commonwealth Department of Immigration and Citizenship dated 21 July 2013 and 9 September 2013. These media releases disclose that 15 Vietnamese asylum seekers previously detained at the Centre had voluntarily returned to Vietnam and 28 Iranians had voluntarily returned to Iran. The evidence also includes a media report from the Sydney Morning Herald dated 21 June 2014 to the effect that the Commonwealth government was offering asylum seekers residing at Manus Island and the Nauru Regional Processing Centre up to $10,000 to voluntarily return to their country of origin. The report also refers to a statement from the Commonwealth Minister for Immigration and Citizenship that since September 2013 283 people had voluntarily returned to their country of origin. It is unclear from the media report what percentage of those people had previously been located on Manus Island. An ABC news report of 29 January 2015 reported that at least 50 men on Manus Island had been granted refugee status and six of those refugees had been removed to a transfer facility to wait for permanent resettlement in another province of PNG.
[2]Exhibit P1.
Based on the unchallenged evidence of before me, I conclude that there is a significant likelihood that in the coming months a proportion of the individuals who are group members currently residing at the Centre will leave the Centre. Such individuals will either be relocated to another province in PNG (if their claim for refugee status is upheld); return voluntarily to their country of origin; or (if their application for refugee status is rejected) be repatriated to another country excluding Australia. The prospect of group members located on Manus Island being relocated either within or externally to PNG weighs heavily in favour of the court taking steps promptly to ensure that, as far as possible, group members have notice of the commencement of the current proceedings. I accept Mr Baker’s unchallenged evidence that if group members are dispersed, attempts to communicate with the group will inevitably be less effective and/or much more expensive.[3] Any delay in notifying group members of the commencement of the proceedings has the potential to prejudice the interests of individual group members. Plainly, one of the overriding objects of the notification provisions of Part 4A of the Act is to place group members on notice of the existence of proceedings in which they have an interest.
[3]Ex P1 [21].
The plaintiff is expected to file a further amended statement of claim on or about 22 May 2015. I have given careful consideration to whether the publication of a notice advising of the commencement of the proceedings should be deferred until after that date. I have determined that it should not. The form of the notice can be adapted to advise group members that the extant amended statement of claim will be replaced by a further amended statement of claim which is to be filed on or about 22 May 2015.
Mr Armstrong QC, who appeared with Ms Keating for the plaintiff, submitted that the court should defer fixing an opt-out date under s 33J(1) of the Act until after the close of pleadings. Ms Nichols who appeared with Mr Donaghue QC for the third defendant, submitted that the terms of s 33X(1) make clear that group members should be given notice of their right to opt-out of the proceeding at the same time as being informed of the commencement of the proceeding.
I accept Ms Nichol’s submission that the terms of the plaintiff’s proposed notice is not in conformity with s 33X(1)(a) of the Act. That section refers to notice of ‘the commencement of the proceeding and the right of group members to opt-out of the proceeding before a specified date, being the date fixed under s 33J(1)’. As a matter of plain English, ‘the date fixed under s 33J(1)’ is a date which has in fact been fixed. The plaintiff’s proposed notice is premised on a date being fixed under s 33J(1) at a later time. This does not constitute notice required by s 33X(1)(a).
Mr Armstrong submitted that s 33X(5) of the Act is a source of power for the court to order the publication of a notice of commencement which foreshadows the provision of an opt-out notice at a future date. None of the defendants sought to challenge this proposition. It is unnecessary for me to express any concluded view as to whether the proposition is sound.[4] Accepting that s 33X(5) is a source of power for the court to order a notice as proposed by the plaintiff, in the exercise of discretion I decline to do so. I accept Ms Nichol’s submission that s 33X(1)(a) expressly contemplates that simultaneously with the notification of commencement of proceedings, group members are to be given notice of an opportunity to opt-out immediately if he/she wishes to do so. This requires an opt-out date to be fixed pursuant to s 33J(1). There is a significant prospect that group members will disperse from the Centre in the coming months. In these circumstances, I consider it appropriate that a notice of commencement of proceedings should also inform group members of the right to opt-out of the proceeding immediately if they wish to do so.
[4]Cf Anthony Horden & Sons Ltd v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1, 7; R v Wallis; ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, 530; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 586-592.
Mr Armstrong submitted that it would be preferable if group members had access to the defences to the further amended statement of claim when making a decision as to whether or not to opt-out of the proceeding. I propose to fix an opt-out date of 15 January 2016. I do so in the reasonable expectation that pleadings will have closed well in advance of that date. Group members will therefore have an opportunity, if they are minded to do so, of waiting until after the pleadings have closed before making a decision as to whether or not to opt-out of the proceeding. There may of course be other group members who do not wish to wait until the pleadings are closed before making an opt-out decision.
Conclusion
I have accepted the plaintiff’s contention that in circumstances where there is a real prospect that a proportion of the group members currently residing at the Centre may be dispersed, there should be no delay in advising group members of the commencement of the current proceedings. Further, I have accepted the third defendant’s contention that group members should be advised of their right to opt-out of the proceeding at the same time that they are advised of the commencement of the proceeding. In this regard, I will make an order fixing 15 January 2016 as the date by which group members can exercise the right to opt-out of the proceedings.
I annex to these Reasons a proposed commencement and opt-out notice. The parties are directed to file written submissions regarding the form of the notice 4.00pm on 24 April 2015. The submissions are not to exceed five pages. The court shall finalise the form of the notice once those submissions have been considered. I propose to make orders in the terms of paragraph 2 of the plaintiff’s summons regarding the translation of the notice into languages other than English. As to the publication of the notice, I propose to order that the Commonwealth cause an English language version of the notice be clearly displayed in the locations referred to in paragraph 3a of the plaintiff’s summons by no later than Wednesday 13 May 2015. In addition, I shall order that by the same date the Commonwealth cause a notice to be published in each of those locations advising Manus detainees that non-English translations of the notice are available from the Manager of the Centre. I also propose to make an order in the terms of 3b, c and d. I shall also order that by 4:00pm on 20 May 2015 the solicitors for the plaintiff and the first defendant shall file and serve an affidavit deposing to their compliance with the orders.
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SCHEDULE OF PARTIES
| No. S CI 2014 6770 | |
| BETWEEN: | |
| MAJID KARAMI KAMASAEE | Plaintiff |
| - and - | |
| THE COMMONWEALTH OF AUSTRALIA | Firstnamed Defendant |
| G4S AUSTRALIA PTY LTD ABN 64 100 104 658 | Secondnamed Defendant |
| TRANSFIELD SERVICES (AUSTRALIA) PTY LTD ABN 11 093 114 553 | Thirdnamed Defendant |
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Proposed Commencement and Opt Out Notice
SUPREME COURT OF VICTORIA, AUSTRALIA
MANUS ISLAND “CLASS ACTION”
Why is this notice important?
A group proceeding (henceforth “class action”) has been commenced in the Supreme Court of Victoria by Mr Majid Karami Kamasaee against the Commonwealth of Australia, G4S Australia Pty Ltd (ABN 64 100 104 658) and Transfield Services (Australia) Pty Ltd (ABN 11 093 114 553). The action arises out of the alleged failures to take reasonable care of people held at “Manus Island Regional Processing Centre” (“the Centre”) on Los Negros Island in Manus Island Province in Papua New Gunea and the alleged harm suffered by those people (“the Detainees”) as a result.
The Supreme Court has ordered that this notice be published for the information of persons who might be members of the class on whose behalf the action is brought and may be affected by the action. You might be a class member. You should read this notice carefully. Any questions you have concerning the matters contained in this notice should not be directed to the court.If there is anything in it that you do not understand, you should seek legal advice.
The Australian legal system
Australia’s legal system allows a person (called a plaintiff) to make a claim for financial compensation against another person, company or government (called a defendant) if the plaintiff believes he or she has suffered an injury or loss because of the defendant’s conduct and if there is a proper basis for the claim(s).
All courts in Australia are independent of the government. The courts have clear rules for the procedures they follow. These include rules for preparing evidence, and for applying legal principles to that evidence in order to decide the case according to law.
What is a class action?
A class action is an action that is brought by one person (“the Plaintiff”) on his or her own behalf and on behalf of a group of people (“class members”) against another person (“the Defendant”) where the Plaintiff and the class members have similar claims against the Defendant. In this proceeding there are currently three Defendants.
Class members in a class action are not individually responsible for the legal costs associated with bringing the class action. In a class action, only the Plaintiff is responsible for the costs.
Class members are bound by any judgment or settlement entered into in the class action unless they have opted out of the proceeding. This means that:
(a)if the class action is successful, class members may be eligible for a share of any settlement monies or Court-awarded damages;
(b)if the class action is unsuccessful, class members are bound by that result; and
(c)regardless of the outcome of the class action, class members will not be able to pursue their claims against the Defendants in separate legal proceedings unless they have opted out.
What is Opt Out?
The Plaintiff in a class action does not need to seek the consent of class members to commence a class action on their behalf or to identify a specific class member. However, class members can cease to be class members by opting out of the class action. An explanation of how class members are able to opt out is found below in the section headed “How can you opt out of the class action”.
What is this class action?
This class action, the Manus Island class action, is brought by Mr Majid Karami Kamasaee (“the Plaintiff”) on his own behalf and on behalf of all persons who are “class members” as defined in the proceeding.
The Plaintiff alleges in the latest version of the statement of claim in Supreme Court proceeding Majid Karami Kamasaee v The Commonwealth of Australia & Ors S CI 2014 06770 that from 21 November 2012 until 19 December 2014 the Defendants failed to take reasonable care in relation to:
(a) the food and water provided to the Detainees;
(b) the accommodation provided to the Detainees;
(c) the healthcare services provided to the Detainees; and
(d) the security arrangements inside the Centre, and to protect the Centre from attacks from outside.
The Defendants to the class action are the Commonwealth of Australia, G4S Australia Pty Ltd (ABN 64 100 104 658) and Transfield Services (Australia) Pty Ltd (ABN 11 093 114 553). The Defendants have not filed defences as yet, but may decide to deny or not admit the allegations and to defend the class action. The Plaintiff alleges that the claims in this proceeding are to be determined in accordance with the substantive law of Papua New Gunea.
Are you a class member?
You are a class member if at any time during the period 21 November 2012 until 19 December 2014 you:
(a) were detained by or on behalf of the Commonwealth of Australia pursuant to the Migration Act 1958 (Cth) and transferred to the Centre; and
(b) suffered personal injury (physical and/or mental harm) because of any Defendant’s failure to take reasonable care in providing adequate food and water, accommodation, healthcare, internal security and/or external security.
If you are unsure whether or not you are a class member, you should contact Slater and Gordon on 0011 61 3 9602 6807 or email [email protected] or seek your own legal advice without delay.
Will you be liable for legal costs?
You will not become liable for any legal costs simply by remaining as a class member for the determination of the common questions. However:
(a)if the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage Slater and Gordon or other lawyers to do that work for you. A copy of the terms on which Slater and Gordon are acting in the class action may be obtained from them on the number/s shown below;
(b)if any compensation becomes payable to you as a result of any order, judgment or settlement in the class action, the Court may make an order that some of that compensation be used to help pay a share of the costs which are incurred by the Plaintiff in running the class action but which are not able to be recovered from the Defendants; and
(c)class actions are often settled out of court. If this occurs in the class action, you may be able to claim from the settlement amount without retaining a lawyer.
What will happen if you choose to remain a class member?
Unless you opt out, you will be bound by the outcome of the class action. If the class action is successful, you will be entitled to share in the benefit of any order, judgment or settlement in favour of the Plaintiff and group members. (In some cases you may have to satisfy certain conditions before your entitlement arises.) If the action is unsuccessful or is not as successful as you might have wished, you will not be able to sue on the same claim in any other proceedings.
How can you remain a class member?
If you wish to remain a class member there is nothing you need to do at the present time. The Plaintiff will continue to bring the proceeding on your behalf up to the point where the Court determines those questions that are common to the claims of the Plaintiff and the class members. However, you are invited to contact the Plaintiff’s lawyers, Slater and Gordon, on the number below and register as a group member so that future notices about the class action can be sent to your preferred address.
How can you opt out of the class action?
If you do not wish to remain a group member you must opt out of the class action. If you opt out you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the Defendants, provided that you issue Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against the Defendants, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.
If you wish to opt out of the class action you must do so by completing a “Notice of opting out by group member” in the form shown below (Form 18AB of the Court’s approved forms), then returning it to the Prothonotary of the Supreme Court of Victoria at 436 Lonsdale Street, Melbourne, Victoria 3000, Australia. IMPORTANT: the Notice must reach the Prothonotary by no later than 15 January 2016, otherwise it will not be effective.
You should submit the Notice of opting out by class member if:
(a)you qualify as a class member and you wish to opt out of the class action; or
(b)you believe that you have been incorrectly identified as a class member, because you do not meet the criteria set out in the section headed “Are you a class member” above.
Each class member should fill out a separate form.
Where can you obtain copies of relevant documents?
Copies of relevant documents, including the statement of claim and any amended versions, and the defences which may be filed in the future, may be obtained by:
(a) downloading them from
(b) inspecting them between 9am and 5pm at one of the offices of Slater and Gordon, contact details for which are available from or by calling 0011 61 3 9602 6807; or
(c) inspecting them on the Supreme Court website for this proceeding: or by contacting the Class Actions Coordinator by email at [email protected].
The Plaintiff is expected to file and serve a further amended statement of claim by 4:00pm on Friday, 22 May 2015.
Please consider the above matters carefully. If there is anything of which you are unsure, you should contact Slater and Gordon on 0011 61 3 9602 6807 or email [email protected] or seek your own legal advice. You should not delay in making your decision.
FORM 18AB
Rule 18A.04
NOTICE OF OPTING OUT BY GROUP MEMBER
In the Supreme Court of Victoria at Melbourne
Common Law Division
Major Torts List
S CI 2014 06770
BETWEEN:
Majid Karami Kamasaee Plaintiff
and
The Commonwealth of Australia and others Defendants
To: The Prothonotary
The Plaintiff
The Defendants
I, ………………………………………………………, a group member in the above proceeding, give notice under section 33J(2) of the Supreme Court Act 1986 that I am opting out of this proceeding.
Dated: ………………………….
Signature of group member or his or her solicitor: ……………………………………………...
Address of group member: …………………………………………..……………………......... ……………………………………………………………………….
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