Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2)
[2020] FCA 215
•26 February 2020
FEDERAL COURT OF AUSTRALIA
Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215
File number: NTD 34 of 2018 Judge: MURPHY J Date of judgment: 26 February 2020 Catchwords: REPRESENTATIVE PROCEEDINGS – approval of settlement under s 33V of the Federal Court of Australia Act 1976 (Cth) – where settlement approval also required to be approved under each of Division 9.2 and Rule 9.70 of the Act – whether it is appropriate to dispense with the requirement for the Court to fix a date for opt out – whether dismissal is better characterised as a settlement or a discontinuance – settlement approved Legislation: Evidence Act 2011 (Cth)
Federal Court of Australia Act 1976 (Cth)
Racial Discrimination Act 1975 (Cth)
Civil Procedure Act 2005 (NSW)
Crown Proceeding Act 1993 (NT)
Youth Justice Act 2005 (NT)
Youth Justice Legislation Amendment Act 2018 (NT)
Youth Justice Regulations 2005 (NT)
Cases cited:
Adams v Navra Group Pty Ltd [2019] FCA 1157
Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) (No 6) [2010] FCA 1092
Australian Securities and Investments Commission v Richards [2013] FCAFC 89
BMW Australia Ltd v Brewster [2019] HCA 45
Carnie v Esanda Finance Corporation Ltd [1995] HCA 9; (1995) 182 CLR 398
Femcare Ltd v Bright [2000] FCA 512; (2000) 100 FCR 331
Handford v Storie (1825) 2 Sim & St 196; (1825) 57 ER 320
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323; (2016) 335 ALR 439
McMullin v ICI Australia Operations Pty Ltd [1998] FCA 658; (1998) 84 FCR 1
Mercedes Holdings Pty Limited v Waters(No 1) [2010] FCA 124; (2010) 77 ACSR 265
Pererav GetSwift Ltd [2018] FCA 732; (2018) 357 ALR 586
Re Calgary & Medicine Hat Land Co [1908] 2 Ch 652
Scandolera v State of Victoria [2015] FCA 1451
Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia [2019] FCA 859
TW McConnell Pty Ltd v SurfStitch Group Ltd (No 3) [2018] NSWSC 1749; (2018) 133 ACSR 98
Vernon v Village Life Ltd [2009] FCA 516
Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; (2000) 180 ALR 459
ZMB Australia Pty Ltd v Warne [2011] FCA 311; (2011) 194 FCR 125
ZMB Australia Pty Ltd v Warne [2011] FCAFC 65
Date of hearing: 25 September 2019 Registry: Northern Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 98 Counsel for the Applicant: Mr D Star QC, Mr T Godwin and Ms M Szydzik Solicitor for the Applicant: Northern Territory Legal Aid Commission Counsel for the Respondents: Mr D Habashy Solicitor for the Respondents: Solicitor for the Northern Territory ORDERS
NTD 34 of 2018 BETWEEN: SISTER MARIE BRIGID ARTHUR AS LITIGATION REPRESENTATIVE FOR THE PERSONS NAMED IN THE FIRST SCHEDULE
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
SUPERINTENDENT OF THE DON DALE YOUTH DETENTION CENTRE
Second Respondent
SUPERINTENDENT OF ALICE SPRINGS YOUTH DETENTION CENTRE (and another named in the Schedule)
Third Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
26 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.Pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) the settlement of this proceeding be approved on the terms set out in the Heads of Agreement forming Annexure AEH-1 (Heads of Agreement) to the Affidavit of Alison Emily Hanna (nee Hanley) affirmed 15 August 2019 (Hanley Affidavit) (Group Proceeding Settlement Approval).
2.Pursuant to section 33ZF of the FCA Act, the Court authorises the Applicant nunc pro tunc on behalf of Group Members (as defined in paragraph 2(a) of the Amended Statement of Claim filed 21 November 2018 (Amended Statement of Claim)) to enter into and give effect to the Heads of Agreement.
3.Pursuant to section 33ZB of the FCA Act, the Court declares that persons affected by the Group Proceeding Settlement Approval are the Group Members.
4.Pursuant to rule 9.70 of the Federal Court Rules 2011 (the Rules), the settlement of this proceeding in relation to ECR18 and ECU18 be approved on the terms set out in the Heads of Agreement.
5.Pursuant to rule 9.70 of the Rules and the inherent jurisdiction of the Court, the settlement of this proceeding in relation to Represented Persons (as defined in paragraph 2(b) of the Amended Statement of Claim) be approved on the terms set out in the Heads of Agreement.
6.The proceeding be dismissed.
7.The parties bear their own costs of the proceeding.
8.Until further order the unredacted Hanley Affidavit and the unredacted affidavit of Alison Emily Hanna (nee Hanley) affirmed 5 September 2019 (Unredacted Supplementary Hanley Affidavit) and the annexures thereto:
(a)remain confidential and not be disclosed to any person other than the Applicant to the proceeding; and
(b)be sealed in an envelope marked “Confidential Material – Fully Unredacted Version – Not to be opened without leave of a Judge of this Court”; or
(c)alternatively, in relation to Group Member or Represented Person, be dealt with in accordance with Order 11 below.
9.Until further order, upon the Applicant filing and serving on the Respondents a version of the Hanley Affidavit which is marked “Redacted Version A – for the Respondents”, that affidavit and the annexures thereto:
(a)remain confidential and not be disclosed to any person other than the parties to the proceeding; and
(b)be sealed in an envelope marked “Confidential Material – Redacted Version A – for the Respondents – Not to be opened without leave of a Judge of this Court”.
10.The Applicant will file with the Court a version of the Hanley Affidavit which is marked “Redacted Version B – for Group Members and Represented Persons” which only contains redactions of any personal information of individual Group Members and Represented Persons.
11.Upon receipt of a confidentiality undertaking signed by a Group Member or Represented Person, the form of which undertaking to be agreed between the solicitors for the Applicant and the solicitors for the Respondents or as determined by the Court in default of agreement:
(a)the solicitors for the Applicant may disclose and provide to that Group Member or Represented Person the Hanley Affidavit marked “Redacted Version B – for Group Members and Represented Persons” and the Unredacted Supplementary Hanley Affidavit; and
(b)at least 7 days prior to disclosure to a Group Member or Represented Person in accordance with (a) above, the solicitors for the Applicant are to provide to the solicitors for the Respondents written notice of the proposed disclosure and a copy of the confidentiality undertaking signed by the relevant Group Member or Represented Person.
12.The confidentiality orders contained in Orders 8 to 11 are made pursuant to ss 37AF and 37AG of the FCA Act on the ground that they are necessary to prevent prejudice to the proper administration of justice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NTD 34 of 2018 BETWEEN: SISTER MARIE BRIGID ARTHUR AS LITIGATION REPRESENTATIVE FOR THE PERSONS NAMED IN THE FIRST SCHEDULE
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
SUPERINTENDENT OF THE DON DALE YOUTH DETENTION CENTRE
Second Respondent
SUPERINTENDENT OF ALICE SPRINGS YOUTH DETENTION CENTRE (and another named in the Schedule)
Third Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
26 FEBRUARY 2020
THE COURT ORDERS THAT:
1.Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the requirement for the Court to fix a date before which a group member may opt out of the proceeding under s 33J(1) of the Act be dispensed with.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
Introduction
This is an application for Court approval of an in-principle settlement of a representative proceeding. The applicant, Sister Marie Brigid Arthur, a Sister of the Brigidine Order of Victoria, brought the proceeding in a representative capacity, acting as litigation representative for two persons who were minors at the time it was commenced, who have been given the pseudonyms ECR18 and ECU18 for the purpose of the litigation. I made orders approving the settlement on the day the application was heard and I now provide reasons for doing so.
The representative proceeding has two parts, namely:
(a)a class action under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA) brought by the applicant on behalf of ECR18 and ECU18 and all persons who were detained in Don Dale Youth Detention Centre (Don Dale YDC) or in Alice Springs Youth Detention Centre (Alice Springs YDC) (together, the Youth Detention Centres) in the Northern Territory (NT) between 9 August 2018 and 24 October 2018 (the Part IVA Proceeding); coupled with
(b)an ‘old-style’ representative proceeding under Division 9.2 of the Federal Court Rules 2011 (Cth) (the Rules) brought by the applicant on behalf of ECR18 and ECU18 and all persons who were not detained in the Youth Detention Centres between 9 August 2018 and 24 October 2018 but who were charged with a criminal offence on or prior to 24 October 2018 which could result in them being detained at the Youth Detention Centres on sentence or remand after 24 October 2018 (the Division 9.2 Proceeding);
(together, the proceeding). For convenience, I usually describe both the ‘group members’ in the Part IVA Proceeding and the ‘represented persons’ in the Division 9.2 Proceeding as “class members”.
The stated objective of the proceeding is the improvement of conditions in youth detention in the NT. The proceeding seeks: (a) declarations; (b) injunctive relief; (c) a writ of mandamus; and (d) an order requiring the Minister revoke or rescind the approval of the Youth Detention Centres as youth detention centres under the Youth Justice Act 2005 (NT) (the YJ Act). The relief claimed does not include a claim for damages or compensation.
The originating application alleges: (i) breaches of statutory duties owed to group members under the YJ Act, the Youth Justice Regulations 2005 (NT) (the YJ regulations) and the policy determinations made under reg 30 of those regulations; (ii) negligence in the discharge of those statutory duties; and (iii) racial discrimination under the Racial Discrimination Act 1975 (Cth) (the RDA) by the following parties:
(a)the first respondent, the Northern Territory government (NT government), which it is alleged has responsibility under the YJ Act for the establishment, maintenance and day-to-day operation of the Youth Detention Centres and has the care and custody of all children in detention at the Youth Detention Centres;
(b)the second and third respondents, the Superintendents of Don Dale YDC and Alice Springs YDC, respectively. The Superintendents are public sector employees appointed under s 151 of the YJ Act who are alleged to be responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees at the Youth Detention Centres under s 151(2) of the YJ Act; and
(c)the fourth respondent, the Minister for Territory Families (the Minister), who is alleged to be responsible for administering the relevant provisions of the YJ Act,
(collectively, the respondents).
The in-principle settlement was reached by the parties entering into a Heads of Agreement on 13 April 2019. The Heads of Agreement is not intended to create legally binding obligations between the parties except that the applicant agreed to file an application seeking the proceeding be dismissed with the parties bearing their own costs, within seven days of the NT government publicly announcing a Statement of Commitments. The Statement of Commitments is annexed to the Heads of Agreement and it set out a series of government initiatives to address shortcomings in the system of youth detention in the NT.
Senior counsel for the applicant submitted that in return for the NT government publicly announcing the Statement of Commitments in the form negotiated between the parties the applicant agreed to dismiss the proceeding, which resolution is properly characterised as a settlement. Counsel for the respondents submitted that the NT government independently decided to make the Statement of Commitments, which were expressed to be non-binding, and the applicant then decided to seek approval for the proceeding to be dismissed, which resolution is properly described as a discontinuance rather than a settlement.
Having regard to the evidence of the settlement negotiations between the parties, I am satisfied that it is appropriate to describe the resolution of the proceeding as a settlement rather than a discontinuance. The terms of the Statement of Commitments were negotiated between the parties and the applicant sought and obtained improvements in the proposed government initiatives. The respondents consented to orders to approve the in-principle settlement rather than orders to discontinue the proceeding.
The evidence
The applicant relied upon confidential affidavits of Alison Emily Hanna (nee Hanley), the Managing Solicitor in the Civil Law Service of the Northern Territory Legal Aid Commission (NTLAC) the solicitor for the applicant, affirmed 15 August 2019 and 5 September 2019, in addition to a non-confidential affidavit of Ms Hanna made 24 September 2019 (respectively, the first, second and third Hanley affidavits). The first and second Hanley affidavits annexed, amongst other things, a Confidential Opinion and a Confidential Supplementary Opinion by Mr Daniel Star QC and Mr Timothy Goodwin, counsel for the applicant (the Confidential Counsels’ Opinion).
The confidentiality claims
The applicant initially made a blanket claim of confidentiality over the entirety of the first and second Hanley affidavits. The breadth of the claimed confidentiality was inappropriate when, as Senior Counsel for the applicant accepted, large parts of the affidavits were not confidential. A confidentiality order under s 37AG of the FCA could only be made in the circumstances of the present case if it could be established that such an order is necessary to prevent prejudice to the proper administration of justice. Before making such an order the Court would be required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE. ‘Necessary’ is a strong word which can be distinguished from less demanding standards such as whether an order would be “convenient, reasonable or sensible”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]-[31].
The blanket confidentiality sought was also inappropriate because different parties have different rights to view the materials. For example, I have no difficulty in accepting that material setting out the confidential views of counsel or solicitors for the applicant as to the strengths and weaknesses of the applicant’s case, or the range of reasonableness of the proposed settlement in light of the attendant risks of the litigation, should be confidential from the respondent, but whether or not class members should be able to view such materials involves different considerations. It may be appropriate to allow class members to see such material, subject to appropriate confidentiality arrangements, so that they can be properly informed in relation to the proposed settlement.
Another problem with the blanket confidentiality sought was that the first Hanley affidavit went in some detail to without prejudice settlement communications between the parties. Section 131(1) of the Evidence Act 2011 (Cth) provides that evidence must not be presented of communications between parties in dispute in connection with an attempt to negotiate a settlement of the dispute unless, pursuant to subs (2), the parties in dispute consent to such evidence being adduced. Because of the blanket claim of confidentiality the respondents were unaware that such material was advanced in support of settlement approval, and had not consented to it being presented.
These concerns were addressed in the following ways. First, the respondents agreed to the applicant adducing evidence of the confidential settlement communications negotiations and I have had regard to that evidence. Second, the applicant agreed to substantially reduce the scope of the confidentiality claimed and to make different confidentiality claims as between the respondents, class members and members of the public. Orders 8-12 of the orders made on 26 September 2019 provide that:
(a)until further order, the unredacted first and second Hanley affidavits be treated as confidential and not be disclosed to any person other than the applicant;
(b)until further order, upon the applicant filing and serving upon the respondents a redacted version of the first Hanley affidavit and annexures to be marked “Redacted Version A - for the Respondents”, that redacted version remain confidential as between the parties to the proceeding. This version allowed the respondents to see the non-controversial background information set out by Ms Hanley and the material regarding without prejudice settlement communications between the parties that the applicant relied on. It did not include the Confidential Counsels’ Opinion and those parts of Ms Hanley’s affidavit which expressed opinions as to the strengths and weaknesses of the applicant’s case; and
(c)upon request and receipt of a confidentiality undertaking signed by a class member, the solicitors for the applicant may disclose to the class member a redacted version of the first and second Hanley affidavits and annexures to be marked “Redacted Version B - for Group Members and Represented Persons”, redacted only for the personal information of individual class members.
The factual and procedural Background
I have drawn the following account from the Hanley affidavits and the applicant’s submissions.
The Youth Detention Royal Commission
On 1 August 2016 following the airing of an ABC Four Corners program regarding the detention conditions of children in the NT, a Royal Commission was established to examine the youth detention and child protection systems in the NT (the Royal Commission).
In March 2017 the Royal Commission delivered an interim report which expressed “serious concerns about inappropriate and unlawful practices, unacceptable standards of conduct and inappropriate methods of dealing with detainees within the youth detention centres” and noted that “a causal factor may have been the quantity and the quality of the training received by staff working in the youth detention centres along with the staffing levels at the centres”.
In November 2017 the Royal Commission delivered its final report in relation to the protection and detention of children in the Northern Territory. The final report included a series of findings and 227 recommendations, including the immediate closure of the High Security Unit at Don Dale YDC in Darwin and the eventual closure of Don Dale YDC and its replacement by a new, purpose-built facility. Immediately upon the delivery of the final report the NT government announced a commitment to the immediate closure of the High Security Unit at Don Dale YDC and the eventual closure of both Youth Detention Centres.
On 1 March 2018 the NT government delivered its formal response to the findings of the Royal Commission and it supported all recommendations related to it, either in full or in principle.
On 24 May 2018 the NT government introduced amendments to the YJ Act and the YJ Regulations as part of its response to the recommendations of the Royal Commission.
The role of the Northern Territory Legal Aid Commission
After the delivery of the final report of the Royal Commission, NTLAC received an increasing number of requests from children detained in the Youth Detention Centres, or their legal representatives, seeking that steps be taken to improve the conditions of their detention.
NTLAC made a number of complaints about the conditions at the Youth Detention Centres to the relevant NT government department, Territories Families (the Department). Its efforts to have its concerns addressed included: an email on 15 May 2018 to the Superintendent of Don Dale YDC raising urgent concerns about some of the conditions; a tour of Don Dale YDC on 21 May 2018 by the Director of NTLAC; a letter from the director of NTLAC on 23 May 2018 raising concerns about some of the conditions; meetings with the Superintendent of Don Dale YDC on 13 June 2018 raising concerns about some of the conditions at that centre; a meeting with the Minister and senior officials of the Department on 18 June 2018 raising concerns about conditions at the Youth Detention Centres; a letter to the Department on 20 June 2018 requesting detailed information about the detention conditions for each of NTLAC’s clients; another meeting with the Minister on 29 June 2018; and a letter to the Minister on 4 July 2018 outlining a series of “key asks” in relation to the conditions of children in detention.
On 13 July 2018 NTLAC wrote to the Minister stating that the current conditions of detention were in breach of provisions of the YJ Act and the YJ regulations, as well as the duty of care owed by the NT government and its representatives to the children who were detained in the Youth Detention Centres, and were also likely to constitute racial discrimination under ss 9 and/or 10 of the RDA.
On 18 July 2018 the Department sent a response on behalf of the Minister addressing the “key asks” outlined in NTLAC’s letter. On 31 July 2018 NTLAC sent a final letter to the Minister stating that it considered the Department’s response to be inadequate and advising that a proceeding would be commenced forthwith.
On 1 August 2018 NTLAC wrote to the Minister proposing a further and final opportunity to seek to resolve the matter prior to the commencement of legal proceedings, attaching detailed settlement terms directed at improving the conditions of detention. On 3 August 2018, a without prejudice meeting between NTLAC representatives, Departmental representatives and senior lawyers for both sides was held in Darwin but the parties were not able to reach an agreement as to the resolution of the concerns which NTLAC had raised.
The commencement of the proceeding
Sister Arthur then instructed NTLAC to commence a representative proceeding on behalf of ECR18, who was at the time detained in Alice Springs YDC, and ECU18, who was at the time detained in Don Dale YDC, with Sister Arthur as the litigation representative. On 9 August 2018 the proceeding was commenced by way of originating application with supporting affidavits.
The claims in the proceeding
Broadly, the Amended Statement of Claim alleged three causes of action, being: (i) breach of statutory duties; (ii) negligence; and (iii) unlawful racial discrimination in contravention of the RDA.
In relation to the claims of breach of statutory duties and negligence, the proceeding alleged that the Superintendents owed certain duties to class members under the YJ Act, the YJ regulations and the policy determinations, and that the Superintendents were: (a) in breach of their statutory duties; and (b) in breach of their duty to exercise reasonable skill and care in discharging or purporting to discharge their statutory duties. It alleged that the NT government is vicariously liable for the Superintendents’ alleged breaches of statutory duties and duty of care.
The key duties alleged to arise under the YJ Act include:
(a)to provide as far as practicable for the physical, psychological and emotional welfare of detainees;
(b)to promote programs to assist and organise activities of detainees to enhance their well-being;
(c)to encourage the social development and improvement of the welfare of detainees; and
(d)specific obligations regarding the separation of detainees from other children, including in relation to authorisation of the separation, the length of time allowable, and the access rights of detainees who are separated.
The key duties alleged to arise under the YJ regulations include:
(a)to ensure a comprehensive medical and health assessment is carried out on each detainee within 24-hours after the detainee’s admission to the detention centre;
(b)to maintain a comprehensive case management system to assess each detainee’s needs in relation to education, vocational training and rehabilitation;
(c)to ensure that an appropriate program of productive activities that address the identified needs of each detainee is available;
(d)to perform certain actions in relation to detainees separated under the YJ Act; and
(e)to perform certain actions in relation to detainees who are at risk of self-harm.
The key duties alleged to arise under the policy determinations include:
(a)to ensure that certain prescribed minimum living conditions are provided to children in detention;
(b)to ensure the primary factor in considering the transfer of detainees between the Youth Detention Centres was the well-being and interests of the detainee, and that transfers should not occur without appropriate consultation;
(c)to ensure a schedule of daily activities that permits detainees to be out of their rooms/cells for a minimum period of 12 hours per day unless separated;
(d)to ensure there was a range of offence-focused and developmental programs available to detainees tailored to their individual circumstances;
(e)to ensure detainees are provided with education and training programs and services for a minimum of five days a week for a minimum 40 weeks per year, and that they receive schoolwork appropriate to their ability;
(f)to provide for the special needs of girls and young women;
(g)to maintain access to education and other necessities deemed basic human rights;
(h)to ensure an individually developed Young Person Support Plan is prepared for every young person in detention and to monitor progress against those plans; and
(i)to ensure detainees had access to healthcare, services and programs that improve their health and well-being.
In relation to the claim of unlawful racial discrimination, the proceeding alleged that:
(a)Aboriginal children in detention have special needs, as the Royal Commission identified, and the Superintendents failed to provide for those special needs and accordingly engaged in conduct that involves distinctions, exclusions and restrictions based on race (described as the narrow RDA claim); and
(b)the NT government was aware that the majority of children in detention are Aboriginal and that certain systemic problems in the system of youth detention were identified by the Royal Commission, yet it failed to ensure the Superintendents complied with their statutory duties and duty of care and failed to take action to correct the failings of and deficiencies at the Youth Detention Centres as identified by the Royal Commission. The proceeding alleged that those failures would not have occurred if the majority of detainees were not Aboriginal and therefore the NT government and the Superintendents had engaged in conduct that involved distinctions, exclusions and restrictions based on race (described as the broader RDA claim).
The proceeding sought the following relief:
(a)declarations that:
(i)the NT government, by its servants, agents and officers including the Superintendents, has breached, is breaching, and is threatening to continue to breach the statutory duties owed by them to class members under the YJ Act, the YJ regulations and policy determinations made under reg 30 of the YJ regulations; and
(ii)the NT government, by its servants, agents and officers including the Superintendents, has breached, is breaching, and is threatening to continue to breach the duty to exercise reasonable skill and care in discharging or purporting to discharge their duties under the YJ Act, the YJ regulations and the policy determinations;
(iii)the NT government and the Superintendents have engaged in acts that constitute unlawful discrimination under s 9(1) of the RDA; and
(iv)insofar as the conduct constituting unlawful discrimination is authorised by the law of the NT or operate to impede or restrict the power of the Federal Court of Australia to prevent that discrimination, those laws are inconsistent with s 10(1) of the RDA and therefore the detention of the class members is unlawful
(b)injunctions:
(i)to restrain the NT government from continuing to detain class members in detention for so long as it is in breach of its statutory duties, duty of care or engaged in unlawful discrimination; and
(ii)further or alternatively, requiring the NT government to discharge its statutory duties and duty of care in accordance with law and not to engage in conduct that constitutes unlawful discrimination, including to take reasonable steps to comply with certain specific statutory obligations;
(c)a writ of mandamus to require the NT, through the Superintendents, to discharge its statutory duties and duty of care; and
(d)in the alternative to the other forms of relief, an order requiring the Minister to revoke or rescind the approval of the Youth Detention Centres as youth detention centres under the YJ Act.
The state of case preparation
The proceeding was well advanced at the time the proposed settlement was reached. Voluminous discovery had been provided by the respondents, including material concerning SJS, a young girl detained in Don Dale YDC for whom NTLAC sought an urgent interlocutory injunction in relation to the conditions of her detention.
The documents were reviewed by a team of NTLAC solicitors in order to identify matters including:
(a)the amount of time that children in the Youth Detention Centres were locked in their cell/room;
(b)any lack of access to education for children in detention;
(c)any lack of access to programs and activities for children in detention;
(d)any lack of appropriate case management of the children in detention including systems to assess each child’s education, vocational training and rehabilitation needs;
(e)any lack of Young Person Support Plans as required by policy determinations made under the regulations;
(f)any breaches of the YJ Act, the YR regulations or determinations under the YJ Act pertaining to ‘separation’, being the isolation of certain children in detention from other children; and
(g)any lack of appropriate attention to the mental health of children in detention.
The applicant intended to tender a large number of the discovered documents to prove the allegations in the proceeding.
Between 1 February and 21 February 2019 the applicant filed the following evidence:
(a)five affidavits of children who were detained in either or both of the Youth Detention Centres in 2018 or 2019;
(b)three expert reports, namely: (i) an expert on mental health; (ii) an expert on education and youth detention; and (iii) an expert in Aboriginal culture and health services; and
(c)seven affidavits from lawyers with NTLAC comprising the factual background to the proceeding, data on the number of children in detention between May and October 2018 and summaries of some of the respondents’ discovered documents.
On 29 March 2019 the applicant provided the respondents with a proposed Further Amended Statement of Claim (FASOC).
The trial was listed to commence on 20 May 2019 in Darwin on an estimate of 10 to 15 days.
A mediation was then held in Darwin on 2 and 3 April 2019 and continued by telephone on 12 April 2019, with the Honourable Robert French AC as mediator. At the time of the mediation the respondents had not filed their evidence but they indicated that they intended to file up to 20 lay affidavits.
On 13 April 2019 the parties agreed upon terms of the proposed settlement and entered into the Heads of Agreement.
The class members
The class members in the Part IVA Proceeding are all persons who were detained in either of the Youth Detention Centres between 9 August 2018 and 24 October 2018. The class members in the representative proceeding under Division 9.2 are all persons who were not detained in the Youth Detention Centres between 9 August 2018 and 24 October 2018, but who were charged with a criminal offence on or prior to 24 October 2018 which could result in them being detained in the Youth Detention Centres on sentence or remand after 24 October 2018.
At the time the proceeding was commenced in August 2018, NTLAC had instructions to act for 19 children who were or had been in detention in the Youth Detention Centres, and ultimately it received instructions to act for 28 class members. Larger numbers of children were or had been in detention in the Youth Detention Centres during the relevant period, but the exact number is not in the materials.
As at 10 May 2019 there were 88 known class members, 66 of whom were no longer detained in the Youth Detention Centres and the remaining 22 who were in detention at that time. As at 8 August 2019, 10 known class members were detained in Don Dale YDC, six known class members were detained in Alice Springs YDC and 72 known class members had previously been detained but were no longer detained in either Youth Detention Centre.
Opt out
Section 33J(1) of the FCA provides that the Court must fix a date before which a group member may opt out of a representative proceeding. Section 33J(4) provides that, unless the Court grants leave, the hearing of a representative proceeding must not commence before the date upon which a group member may opt out of the proceeding.
Section 33X(1) provides:
Notice must be given to group members of the following matters in relation to a representative proceeding:
(a)the commencement of the proceeding and the right of the group member to opt out of the proceeding before a specified date, being the date fixed under subsection 33J(1);
(b)an application by the respondent in the proceeding for the dismissal of the proceeding on the ground of want of prosecution;
(c)an application by a representative party seeking leave to withdraw under section 33W as representative party.
Section 33X(2) however provides that where the relief sought in a proceeding does not include any claim for damages the Court may dispense with compliance with any or all of the requirements of subsection (1).
By an interlocutory application dated 23 April 2019 the applicant applied for orders including:
(a)that a date be fixed by which class members must opt out of the proceeding, pursuant to s 33J of the FCA;
(b)under s 33X(2) of the FCA, to dispense with the requirements under s 33X(1)(a) for the applicant to give notice to class members of:
(i)the commencement of the proceeding; and
(ii)the right of class members to opt out of the proceeding, and
(c)pursuant to s 33X(4) of the FCA dispensing with the requirement for the applicant to give notice to group members of the application for settlement approval.
The application was by consent. On 30 May 2019 White J made orders to dispense with compliance with the requirement for the applicant to give notice to class members of their right to opt out before a specified date. His Honour considered that the only question for the Court at that stage was whether the applicant should be relieved from the obligation to give class members notice of the commencement of the proceeding, their right to opt out and of the application for settlement approval: see Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia [2019] FCA 859 (Arthur) at [5]-[8]. His Honour noted that s 33X(2) gave the Court power to dispense with the requirement for the applicant to give notice of the right to opt out before a specified date and said (at [33]):
Having regard to all these matters, in particular the unusual nature of the proceedings, the fact that there are unlikely to be issues inter se between group members, the considerable practical difficulties which would be experienced by the applicant in giving the notices required by s 33X, and the absence of any apparent prejudice to group members, I am satisfied that it is appropriate to make the dispensation orders.
The application for settlement approval was subsequently allocated to my docket. On 18 June 2019 the parties came before me at a case management hearing and sought orders by consent, including to fix the date for opt out two weeks before the hearing of the settlement approval application.
As White J had made orders to dispense with the requirement for class members to be given notice of their right to opt out, the effect of the order sought would suggest that group members were given the opportunity to opt out and decided not to do so, notwithstanding that they had not been made aware of their right to opt out. Senior Counsel for the applicant submitted that this was the unfortunate result of an anomaly in Part IVA, in that in cases in which no damages claim is made, s 33X(2) allows dispensation with the requirement to give class members notice of their right to opt out but there is no provision allowing dispensation of the opt out process itself.
As White J recognised in Arthur (at [7]), there are conflicting authorities as to whether the Court has power to dispense with the opt out process, as distinct from power to dispense with notice to class members of their right to opt out which is expressly provided for by s 33X(2).
In Vernon v Village Life Ltd [2009] FCA 516 (Vernon) at [57]-[76], Jacobson J held that the Court had power to dispense with compliance with the opt-out requirement stated in s 33J(1) of the Act and made an order to dispense with the requirements to fix a date for opt out and to give notice to group members of their right to opt out. His Honour relied on s 33ZF as the source of power for such dispensation (at [64]-[70]). His Honour cited with approval the decision of Wilcox J in McMullin v ICI Australia Operations Pty Ltd[1998] FCA 658; (1998) 84 FCR 1 at 4, that s 33ZF was “intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding”. The circumstances of the case included that class members had previously been informed of their right to opt out.
In TW McConnell Pty Ltd v SurfStitch Group Ltd (No 3) [2018] NSWSC 1749; (2018) 133 ACSR 98 (SurfStitch) Stevenson J took a different view. His Honour held (at [53]) that s 183 of the Civil Procedure Act 2005 (NSW) (CPA) (which is analogous to s 33ZF of the FCA) does not provide power to dispense with the requirement to fix an opt out date under s 162(1) of the CPA (which corresponds to s 33J of the FCA) and to give notice to group members of their right to opt out under 175(1)(a) (which corresponds to 33X(1)(a) of the FCA). His Honour noted that those provisions contain mandatory language and that specific dispensatory power is conferred with respect to s 175(1)(a) by the operation of s 175(2), but no such express dispensatory power is granted with respect to the obligation in s 162(1).
His Honour concluded (at [42]) that an order under s 183 to dispense with the requirements to fix the date for opt out and to give notice of the right to opt out before a specified date on the basis that the Court considered it appropriate or necessary to ensure that justice is done in the proceeding would amount to “judicial rewriting of the express requirements in the legislation”. His Honour further said (at [45]) that to construe s 183 in the manner sought would render s 175(2) surplusage as it would have no work to do if its dispensatory power was able to be appropriated by s 183. His Honour concluded (at [52]) that “[t]he more recent Federal Court authority persuades me that Vernon is plainly wrong and that I should not follow it”.
Neither Vernon nor SurfStitch are on all fours with the present case as, unlike the present case, both concerned class actions in which a claim for damages was made. It is unnecessary for me to seek to resolve the conflict in those authorities.
Whether or not s 33ZF empowers the Court to dispense with fixing an opt out date in a case like the present, where damages are not claimed and the requirement for an opt out notice has been dispensed with, is a question of statutory construction which involves construing the relevant provisions by reference to their text, context and purpose.
Section 33J(1) provides that the Court must fix a date for opt out. Section 33X(1) provides that notice must be given to group members of their right to opt out before a specified date, but pursuant to s 33X(2), the requirement for notice may be dispensed with in a proceeding that does not include any claim for damages. Part IVA does not include an express power which permits the Court to dispense with the requirement under s 33J(1) for the Court to fix a date for opt out. Section 33ZF however provides that the Court may make such orders as it thinks “appropriate or necessary to ensure that justice is done in the proceeding.”
By reference only to text, ss 33J(1) and 33X(2) mean that in cases where no damages claim is made the requirement to provide an opt out notice to class members may be dispensed with but the requirement to set an opt out date may not. By reference to the text alone, there is no express power to dispense with the opt out process under s 33J, but construing the provisions that way would permit the anomalous result that a date can be fixed for opt out, but class members not be informed of that date or of their right to opt out. Further, having regard to contextual considerations, ss 33J and 33X are the provisions which expressly deal with the requirements for opt out and notice. The fact that the legislature did not make specific provision for dispensation with the requirement to fix an opt out date is a contextual indication that the power to dispense with opt out is not to be discerned in a “gap filling” provision such as s 33ZF.
However, considering the purpose of the provisions, Part IVA permits an applicant to commence a claim for and on behalf of class members who can be defined by description. As a result persons may be class members without their consent being obtained (see: s 33E) and without even knowing about the case. The evident purpose of s 33J is to provide a mechanism for class members to extract themselves from the proceeding by a specified date if they do not want to be bound by any settlement or judgment. The purpose of an opt out notice under s 33X(1)(a) is to ensure that group members can make an informed decision concerning their right to opt out and are informed of the opt out date that is fixed: see Law Reform Commission, Grouped Proceedings in the Federal Court (Report No 46, 1988), pars 188, 190; Femcare Ltd v Bright [2000] FCA 512; (2000) 100 FCR 331 at [15], [67]-[68].
Where no claim for damages is made the requirement for notice to class members of their right to opt out can be dispensed with by operation of s 33X(2). That this provision permits the Court to dispense with the requirement to give class members notice of important matters such as: (a) the commencement of the proceeding and the right to opt out before a specified date; (b) an application by the respondent to dismiss the case for want of prosecution; and (c) an application by the representative applicant to withdraw; in my view shows a legislative intention to lessen the requirements for notice to class members in cases where no claim for damages is made. Reading ss 33J and 33X(1) and (2) together, their relevant purpose is to ensure that class members are informed of their important right to opt out of a class action if they do not wish to be bound by the result in the proceeding unless, in a case that does not include a claim for damages, the Court dispenses with that requirement under s 33X(2).
In my view, in cases where no damages claim is made I consider s 33ZF provides a source of power to dispense with the requirement to fix an opt out date.
Recently, in BMW Australia Ltd v Brewster [2019] HCA 45 (Brewster) the plurality (Kiefel CJ, Bell and Keane JJ) said at [45]-[47] in relation to the power under s 33ZF:
In Johnstone v HIH Ltd, Tamberlin J rightly said that the power conferred on the court by s 33ZF is not limited to the actual determination of the matter in question in the proceeding, “but extends to encompass all procedures necessary to bring the matter to a fair hearing on a just basis”. Section 33ZF has been invoked to support a wide range of procedural orders such as reinstating group members after they exercised the right to opt out under s 33J, requiring discovery from group members, regulating multiple class actions, and making a “funding equalisation order” (“FEO”) to redistribute settlement funds from unfunded group members to all group members.
The power conferred by s 33ZF is broad, but it is essentially supplementary. And the words of limitation should not be ignored. In McMullin v ICI Australia Operations Pty Ltd, Wilcox J said:
“In enacting Pt IVA of the [FCA], Parliament was introducing into Australian law an entirely novel procedure. It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make the orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure ‘that justice is done in the proceeding’.
... The criterion ‘justice is done’, involves consideration of the position of all parties. An order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding.”
While it has rightly been acknowledged that the power conferred by each of s 33ZF and s 183 is broad, it is one thing for a court to make an order to ensure that the proceeding is brought fairly and effectively to a just outcome; it is another thing for a court to make an order in favour of a third party with a view to encouraging it to support the pursuit of the proceeding, especially where the merits of the claims in the proceeding are to be decided by that court. Whether an action can proceed at all is a radically different question from how it should proceed in order to achieve a just result.
(Emphasis added and citations omitted.)
In Pererav GetSwift Ltd [2018] FCA 732; (2018) 357 ALR 586 at [142] Lee J described s 33ZF as a “deliberately general power which operates as a ‘gap-filler’ where specific powers in Part IVA are not apt to resolve the relevant issue which is presented”. The plurality in Brewster also recognised that s 33ZF operates as a ‘gap filler’ (at [69]) and accepted that it extends to encompass all procedures appropriate or necessary to ensure justice is done in the proceeding.
In circumstances where no claim for damages is made and the Court has dispensed with the requirement that class members be informed of their right to opt out, and they cannot therefore be expected to exercise that right, the right becomes illusory. In such circumstances I consider it appropriate to ensure that justice is done in the proceeding to dispense with the requirement to fix a date for opt out. To fix an opt out date would mean that class members are taken to have decided not to opt out when in fact they were not informed of the right, nor given a date by which they must exercise the right.
I informed the parties during the hearing that I would not make an order to fix an opt out date and I have now made an order under s 33ZF to dispense with that requirement.
The terms of settlement
The preamble to the Heads of Agreement notes:
(a)the mediation on 2 and 3 April 2019 before The Honourable Robert French AC;
(b)the NT government’s intention to make a public announcement of the Statement of Commitments, which was annexed to the Heads of Agreement and is reproduced as Annexure A to these reasons, on 15 April 2019;
(c)that in light of the Statement of Commitments, the applicant will seek Court approval for the proceeding to be dismissed with each party to bear their own costs;
(d)the commitments set out in the Statement of Commitments are not made pursuant to an agreement between the respondents and the applicant and class members; and
(e)the parties agree to take steps to cause the proceeding to be dismissed.
The Statement of Commitments set out ten NT government initiatives or policy revisions regarding the conditions of youth in detention in the Youth Detention Centres, including in the areas of health, case management, education, training of staff, and recreational and therapeutic activities.
The only legally binding obligations in the Heads of Agreement were those providing for:
(a)the applicant to file an application for the proceeding to be dismissed with the parties to bear their own costs, within seven days of the NT government publicly announcing the Statement of Commitments;
(b)the respondents to consent to the application; and
(c)confidentiality over the Heads of Agreement, except insofar as they are referred to in the application to the Court.
Settlement or discontinuance?
The applicant submitted that the proposed settlement is straightforward and that, in return for the NT government making the Statement of Commitments which had been negotiated between the parties, the applicant agreed to file an application seeking dismissal of the proceeding. As I have said, the respondents characterised the resolution of the proceeding as the NT government having independently decided to publicly announce the Statement of Commitments, which were expressly stated to be non-binding, and that in response the applicant decided to discontinue the proceeding.
Having regard to the evidence of the negotiations between the parties the respondents were wrong to characterise the resolution of the proceeding as a discontinuance. It is plain on the evidence that what occurred was a settlement.
Although the respondents consented to the Court being presented with evidence of the confidential settlement negotiations it is undesirable to set out the detail of the negotiations. It suffices to note that:
(a)on 22 March 2019, well in advance of the mediation, the applicant provided the respondents with a detailed offer setting out various mechanisms and policy revisions aimed at addressing problems in the youth detention system in the NT;
(b)in the opening session of the mediation on 2 April 2019 the respondents provided the applicant’s legal team with a document headed Statement of Commitments which addressed some but not all of the applicant’s claims;
(c)the applicant considered that document and marked it up with proposed revisions which sought more favourable improvements to the conditions of youth detention. Three more versions of the Statement of Commitments were exchanged and discussed between the parties on 2 April 2019 as part of the mediation process;
(d)the mediation resumed on 3 April 2019. Senior Counsel for the respondents provided Senior Counsel for the applicant with a further revised version of the Statement of Commitments which was further discussed but remained subject to final agreement;
(e)after further communication between the parties, the mediation resumed on 12 April 2019 and by then the content of the Statement of Commitments and the form of the Heads of Agreement were agreed; and
(f)by 13 April 2019 the parties signed the Statement of Commitments.
The revisions to the Statement of Commitments over the course of the negotiations meant it better addressed the applicant’s concerns regarding youth detention in the NT by providing more specific and more favourable outcomes than the first version. It represents a settlement rather than a discontinuance.
The relevant principles regarding Court Approval
Under Part IVA
Section 33V of the FCA provides that a representative proceeding may not be settled or discontinued without Court approval. The relevant principles in a settlement approval application are well established. In short, before a proposed settlement may be approved the Court must be satisfied that it is fair and reasonable having regard to the interests of the class members as a whole, including as between class members: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 (Richards) at [7] (Jacobson, Middleton, and Gordon JJ); Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; (2000) 180 ALR 459 at [19] (Goldberg J); Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323; (2016) 335 ALR 439 at [62]-[77].
The relevant considerations in dealing with an application for discontinuance of a representative proceeding under Part IVA may, depending upon the circumstances, be different to those which apply to an application for settlement approval but the underlying principles are the same. Before discontinuance may be approved, the Court must be satisfied that doing so is fair and reasonable having regard to the interests of affected class members, and not just the interests of the applicant and the respondent: see Mercedes Holdings Pty Limited v Waters(No 1) [2010] FCA 124; (2010) 77 ACSR 265 at [9]-[10] (Perram J); Adams v Navra Group Pty Ltd [2019] FCA 1157 at [19]. In the circumstances of the present case the relevant considerations under a discontinuance or a settlement are essentially the same.
Under Division 9.2
The question as to whether leave of the Court is required before a representative plaintiff can settle a proceeding that affects the rights and interests of represented persons is not expressly dealt with by rules 9.21 or 9.22. Strictly speaking the question does not arise because the applicant accepted that it was appropriate for the Court to proceed on the basis that approval is required.
Rule 9.21 relevantly provides:
Representative party - general
(1)A proceeding may be started and continued by or against one or more persons who have the same interest in the proceeding, as representing all or some of the persons who have the same interest and could have been parties to the proceeding.
(2)The applicant may apply to the Court for an order appointing one or more of the respondents or other persons to represent all or some of the persons against whom the proceeding is brought.
Unlike Part IVA this rule contemplates representative proceedings by either an applicant or a respondent.
Rule 9.22 relevantly provides:
(1)An order made in a proceeding for or against a representative party is binding on each person represented by the representative party.
(2)However, the order can be enforced against a person who is not a party only if the Court gives leave.
In relation to this rule the Annotated Federal Court Legislation and Rules (Lexis Nexis) (the Annotated Rules) at [9.21.15] provides:
Position of representative party
A person who is a representative party is in charge of the litigation until judgment and may compromise, discontinue or submit to judgment as he or she pleases. Where there is more than one representative they must act together: Leathley v McAndrew [1876] WN 38. A dismissal by consent of the representative will not prevent fresh proceedings by one of the “representees”: Handford v Storie (1825) 2 Sim & St 196; 57 ER 320. After judgment the representative party loses this power: Re Alpha Co [1903] 1 Ch 203; Re Calgary & Medicine Hat Land Co [1908] 2 Ch 652, 659.
By stating that a representative party, whether a representative applicant or respondent, is “in charge of the litigation” and may compromise the proceeding “as he or she pleases”, the commentary indicates that a representative party (whether applicant or respondent) may settle the proceeding so as to affect the rights or interests of represented persons without obtaining leave of the Court.
As Finkelstein J noted in Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) (No 6) [2010] FCA 1092 (GDK) at [23], the analysis in the Annotated Rules does not entirely accord with the cases cited. His Honour said (at [21]):
I have now looked at some of the old cases. They suggest that a representative plaintiff has little or no power to compromise a claim. In Handford v Storie (1825) 2 Sim & St 196; (1825) 57 ER 320, 321 it was stated that: “A plaintiff who sues on behalf of himself and all other persons of the same class, as he acts upon his own mere motion and at his own expense, retains the absolute dominion of the suit until the decree, and may dismiss the bill at his pleasure”. I read this decision as permitting the plaintiff to withdraw his action but not to compromise it in a way that binds the represented class. In Re Calgary and Medicine Hat Land Company Ltd [1908] 2 Ch 652, 662, Farwell LJ stated that: “[A] plaintiff is entitled to enforce the rights which all enjoy in common for the common benefit of all, but not to give up or alter any such rights, at any rate without the leave of the Court”. This confers only a limited power to settle an action and then only in a limited type of case.
(Emphasis added.)
ZMB Australia Pty Ltd v Warne [2011] FCA 311; (2011) 194 FCR 125 concerned the capacity of a representative respondent to settle a proceeding so as to affect the rights or interests of represented persons, but Ryan J said the following about the capacity of a representative applicant (at [15]):
I agree with Finkelstein J that Handford v Storie (1825) 2 Sim & St 196; (1825) 57 ER 320, 321, supports the proposition that a representative plaintiff could not, before a decree, compromise the action so as to affect the interests of members of the represented class who would, presumably, be bound by a decree made by consent in furtherance of a compromise.
Ryan J also cited with approval Re Calgary where Lord Justice Farwell observed, at 662:
… The judgment of the Court declared that this trust ought to be carried into execution by the Court. No other declaration could have been made except by the consent of all the debenture-holders, and such consent could not be given by a representative plaintiff suing on behalf of himself and others. Such a plaintiff is entitled to enforce the rights which all enjoy in common for the common benefit of all, but not to give up or alter any such rights, at any rate without the leave of the Court under Order xvi., r. 9a.
(Emphasis added.)
In ZMB Australia Pty Ltd v Warne [2011] FCAFC 65 at [27], again in the context of the capacity of a representative respondent to settle a proceeding so as to affect the rights or interests of represented persons, the Full Court said that “there is no rule of Court which requires the Court’s approval” of a settlement of the rights of represented persons but accepted the appropriateness of the orders made by Ryan J, which did require Court approval of any settlement reached.
In Carnie v Esanda Finance Corporation Ltd [1995] HCA 9; (1995) 182 CLR 398 (Carnie) at 422 Toohey and Gaudron JJ said that Part 8, r 13(1) of the New South Wales Supreme Court Rules, which was in similar terms to rule 9.21 of the Rules of this Court, was to be treated as “a flexible rule of convenience in the administration of justice and applied to the exigencies of modern life as occasion requires” and said that the Court “retains the power to reshape proceedings at a later stage”. Having regard to Carnie, and the decisions in GDK and ZMB, at first instance and on appeal, I consider it would be contrary to the interests of justice in the present case to permit the applicant to settle the Division 9.2 Proceeding without Court approval, particularly when class members have not been given notice of their right to opt out.
It is appropriate to approach settlement of the Division 9.2 Proceeding on the same basis as the Part IVA Proceeding. Before approval is granted in the Division 9.2 Proceeding the Court must be satisfied that the settlement is fair and reasonable in the interests of the represented persons and as between them.
Under Rule 9.70
At the hearing of the application ECU18 was still a minor. Rule 9.70 provides that if a litigation representative agrees to a compromise or settlement of any matter in dispute in a proceeding, he or she must apply to the Court for approval of the agreement. Pursuant to r 9.71 the application for Court approval must be supported by the opinion of an independent lawyer. It is the Court’s responsibility to determine for itself whether the settlement is beneficial to the interests of person under an incapacity: Scandolera v State of Victoria [2015] FCA 1451 (Mortimer J) at [26]-[27]. This requirement is akin to the considerations relevant to settlement approval under s 33V: Richards at [8]; and in the circumstances of this case it adds little to the Court’s obligation.
Is the proposed settlement fair and reasonable?
I consider it appropriate to approve the settlement of the Part IVA Proceeding and the Division 9.2 Proceeding, including under r 9.70.
The Confidential Counsels’ Opinion
I have had the benefit of the Confidential Counsels’ Opinion prepared by counsel with close involvement in the proceeding. Mr Goodwin was briefed prior to the commencement of the proceeding and appeared as junior counsel assisting the Royal Commission and Mr Star QC was briefed on 29 November 2018. Both were involved in the mediation and the negotiation of the Heads of Agreement and the Statement of Commitments.
Given the confidentiality of their joint opinion, it would be inappropriate to set out its bases. It must suffice to note that their opinion is comprehensive, careful and considered and counsel recommended approval of the proposed settlement as being fair and reasonable in the interests of class members. Ms Hanley also provided an opinion in favour of settlement approval addressed to particular aspects of the in-principle settlement. Having regard to the matters set out in the Confidential Counsels’ Opinion and Ms Hanley’s affidavits I am satisfied that the settlement is fair and reasonable in the interests of class members.
The benefits of the proposed settlement
The Statement of Commitments set out a series of NT government initiatives or policy revisions regarding the conditions of youth in detention in the Youth Detention Centres, including in the areas of health, case management, education, training of staff, and recreational and therapeutic activities. The applicant submitted and I accept, that the policy changes announced should operate to improve the lives of children in detention in the Youth Detention Centres. While the Statement of Commitments is not legally binding there is plainly a level of the public accountability which attaches to such an announcement.
As at 8 August 2019, 10 known class members remained in detention at Don Dale YDC, six known class members remained in detention at Alice Springs YDC, and 72 known class members who had previously been detained at one of the Youth Detention Centres were no longer in detention. Those class members who remained in detention stood to directly benefit from the improvements in the conditions of their detention. The applicant also pointed to the findings of the Royal Commission that many children who enter youth detention return there, sometimes repeatedly: Commonwealth, Royal Commission into the Protection & Detention of Children in the Northern Territory, Final Report (2017) at Volume 2A, Chapter 9, pp 47-48. Those class members who might be detained at the Youth Detention Centres in the future will also directly benefit from the improvements in the conditions of detention.
This consideration favoured approval of the settlement.
Class members do not provide releases
The Heads of Agreement do not contain releases by the applicant or class members in favour of the respondents. Accordingly, if any class members have rights against one or other of the respondents arising from their detention in one of the Youth Detention Centres, for example a claim for damages for negligence for an act done or omitted to be done by the respondents, the settlement does not affect any such rights.
No issue estoppel
As White J noted in Arthur (at [29]-[32]), the proposed settlement does not give rise to any issue estoppel in relation to the causes of action based on the YJ Act and the YJ Regulations. No issue is foreclosed by reason of an order for the dismissal of the proceeding by consent. Further, s 215B of the YJ Act provides a six month limitation period for the bringing of civil proceedings in relation to an act done or omitted to be done by a person under the YJ Act. The period of detention covered by the proceeding is 9 August 2018 to 24 October 2018 and that limitation period has expired. The parties are unaware of any such action having been commenced.
Likelihood of establishing liability and entitlement to relief
The Confidential Counsels’ Opinion carefully analysed the likelihood of the applicant establishing liability and entitlement to relief and identified various issues of fact and law on which the applicant would need to succeed, including:
(a)whether there is any private cause of action under the YJ Act, the YJ Regulations and policy determinations made thereunder;
(b)relevant to the negligence claim, whether there is a duty of care requiring reasonable care with respect to the welfare or rehabilitation of detainees;
(c)the application of section 9 of the RDA;
(d)the strength of the applicant’s evidence in relation to the above causes of action;
(e)the availability of injunctive relief generally and in relation to the application of s 8 of the Crown Proceeding Act 1993 (NT); and
(f)recent legislative amendments to the YJ Act by the Youth Justice Legislation Amendment Act 2018 (NT) and the potential impact on the alleged cause of action.
Having regard to the Confidential Counsels’ Opinion, I am persuaded that there are various difficulties for the applicant in succeeding in relation to those questions, which pointed in favour of approving the settlement.
Complexity and likely duration of the litigation
I have set out the claims in the proceeding above and I need not reiterate them. The proceeding raised complex legal issues including as to whether the YJ Act gives rise to statutory duties which are owed by the respondents to children in detention. The respondents’ position was that no statutory duty arose which was capable of being sued upon. The complexities included whether such duties could be established, the scope of their content if established, and the appropriate relief if both duty and breach could be made out. The proceeding also gave rise to some complex factual questions. It was likely to involve cross-examination of vulnerable lay witnesses and evidence from experts in the fields of Aboriginal culture and health services, education in youth detention, and child psychiatry. The respondents proposed to call a large number of lay witnesses. Given the nature of the issues, there may very well have been an appeal, regardless of which side lost at trial.
I accept the applicant’s submission that the proposed settlement delivered improvements to detention much more quickly than if the proceeding ran to trial, which is of significant practical benefit to the children currently in detention. This too pointed in favour of settlement approval.
Range of reasonableness of the settlement in light of the best recovery, and in light of all the attendant risks of litigation
Because the proceeding sought declarations, injunctive relief, a writ of mandamus, and an order requiring the Minister revoke or rescind the approval of the Youth Detention Centres as youth detention centres under the YJ Act, it is not straightforward to describe the best possible recovery the applicant might have been able to achieve. Having said that, the likely difficulties in establishing liability and entitlement to relief, coupled with the complexity of the litigation, meant that the proceeding faced a real risk of dismissal without securing any improvement to the conditions of detention. There was also a risk associated with the applicant’s lay witnesses, many of whom are vulnerable children, that they would not perform well under cross-examination and a further risk that they would be re-traumatised through cross examination. This consideration pointed in favour of settlement approval.
Stage of the proceeding
The trial was set to commence in Darwin on 20 May 2019 on an estimate of 10 to 15 days, and the settlement was reached a little more than a month before the trial date.
At the time settlement was reached the applicant had completed discovery and filed its lay and expert evidence. Although the respondents had not yet served their evidence, the proceeding had progressed to a stage where the applicant and her legal team were in a position to make a reasonably informed assessment of the strength of the case and the factors in favour and against the proposed settlement. That was another factor in favour of approving the settlement.
The response of class members to the proposed settlement
While ECR18 and ECU18 were in favour of the proposed settlement, the views of the class members were unknown. This factor is neutral.
The amount of legal costs and litigation funding charges
The proposed settlement is made on the basis that each party bore their own costs. ECR18 and ECU18 and approximately 26 of the known class members are clients of NTLAC and received a grant of legal aid for the proceeding. None of Sister Arthur, ECR18 and ECU18, or any of the class members have paid any legal costs incurred in relation to the proceeding and none are required to do so. In the circumstances it was unnecessary to scrutinise the applicant’s legal costs.
Conclusion
I considered it appropriate to make the attached orders approving the settlement.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 26 February 2020
ANNEXURE A
SCHEDULE OF PARTIES
NTD 34 of 2018 Represented Persons
First Represented Person
ECR18
Second Represented Person
ECU18
Respondents
Fourth Respondent:
MINISTER FOR TERRITORY FAMILIES
10
21
8