Wotton v Queensland

Case [2009] FCA 758

FEDERAL COURT OF AUSTRALIA

Wotton v State of Queensland
[2009] FCA 758

FEDERAL COURT AND HIGH COURT –– REPRESENTATIVE PROCEEDINGS –– Federal Court of Australia Act 1976 (Cth) Pt IVA –– criteria for representative proceedings –– s 33C –– application for extension of time to bring proceedings as a representative party –– whether such application is itself representative proceeding –– need for substantial common issue of fact or law –– the application for extension of time not a representative proceeding –– no substantial common issue of fact or shared by applicants and proposed group members on issue of extension of time –– Pt IVA not engaged

HUMAN RIGHTS –– s 46PO Human Rights and Equal Opportunities Commission Act 1986 (Cth) –– extension of time under s 46PO(2) –– purported representative proceeding under Pt IVA Federal Court of Australia Act 1976 (Cth) –– application made out of time –––– no substantial common issue of fact or law for the application for extension of time –– no representative proceeding commenced until Court extends time under s 46PO(2)

COSTS –– proceedings discontinued by leave under O 22 r 2(1)(d) –– purported representative proceedings –– whether proceedings commenced for improper purpose –– no reasonable prospect of obtaining relief sought –– proceedings incompetently presented –– party and party costs ordered

Held:  Applicants granted leave to discontinue proceedings against first respondent; proceedings dismissed against other respondents. Applicants pay respondents’ costs up to and including 9 April 2009.

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 22, 23, 33C, 33H, 33V, 33W, 33Z, 33ZF

Human Rights and Equal Opportunity Act 1986 (Cth) ss 46PH, 46PO, 46PP

Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 cited
Cameron v Goldtek Australia Pty Ltd (1997) 72 FCR 274 cited
Clark v ING Life Ltd [2007] FCA 1960 followed
Collins v The Queen (1975) 133 CLR 120 cited
Commissioner of Police v Tanos (1958) 98 CLR 383 cited
Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 discussed
Courtney v Medtel Pty Ltd (2002) 122 FCR 168 cited
DJL v The Central Authority (2000) 201 CLR 226 followed
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 cited
Jackamarra v Krakouer (1998) 195 CLR 516 cited
McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 applied
Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 applied
Probiotec Ltd v University of Melbourne (2008) 166 FCR 30 cited
Re Tieken:  Reg v Tieken [1995] FCA 896 followed

Re Wakim;  Ex parte McNally (1998) 198 CLR 511 applied

Taylor v Taylor (1978) 143 CLR 1 cited
United Mexican States v Cabal (2001) 209 CLR 165 discussed
Williams v Spautz (1992) 174 CLR 509 cited
Wong v Silkfield Pty Ltd (1999) 199 CLR 255 cited

Wotton v State of Queensland [2007] FCA 280 cited

LEX PATRICK WOTTON and CECILIA ANNE WOTTON…

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AGLC
Wotton v Queensland [2009] FCA 758
Case
[2009] FCA 758
Decision Date

CaseChat Overview and Summary

Lex Wotton and his wife, Cecilia, had initiated proceedings seeking to be recognised as representative parties under Pt IVA of the Federal Court of Australia Act 1976 (Cth), but they required an extension of time to do so under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). They subsequently sought to discontinue the proceedings. The essential questions that arose were whether the Wottons needed and, if so, should be granted leave under s 33V of the Federal Court of Australia Act to discontinue and should they pay the respondents’ costs. The Wottons' case related to the unrest that occurred on Palm Island in November 2004, following the death of a resident in police custody. Lex Wotton was arrested and charged with offences related to the unrest and was convicted and sentenced to imprisonment. He lodged a complaint with the Australian Human Rights Commission, alleging racial discrimination. The Commission accepted the complaint as a representative complaint on behalf of certain class members.

The legal issues before the court involved the applicability of s 33V of the Federal Court of Australia Act, which allows for the discontinuance of proceedings, and whether the Wottons should be granted leave to discontinue. The court also had to consider whether the Wottons should be ordered to pay the respondents’ costs. The court considered that the Wottons had not demonstrated any exceptional circumstances warranting leave to discontinue. The Wottons had not shown that there would be any prejudice to them if the application were not granted, and there had been no showing of any prejudice to the respondents if the application were granted. The court found that the Wottons had not discharged the onus of establishing that it was just to grant the leave. The court further held that the Wottons should pay the respondents’ costs up to and including 9 April 2009 on a party and party basis.

The court ordered that the applicants be granted leave to file a notice of discontinuance of the proceedings as against the first respondent, the proceedings for an order allowing the applicants further time to make the application for relief be dismissed, and that the applicants pay the respondents’ costs up to and including 9 April 2009 on a party and party basis. The orders were not to be entered prior to 24 July 2009, and the court declared that the orders did not affect any person who was not a party to these proceedings.

Orders

Orders of the court

1. The applicants be granted leave to file a notice of discontinuance of the proceedings as against the first respondent.

2. The proceedings for an order allowing the applicants further time pursuant to s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to make the application for relief filed on 11 March 2009 under s 46PO(1) against the second, third, fourth and fifth respondents be dismissed.

3. The applicants pay the respondents’ costs up to and including 9 April 2009 on a party and party basis.

4. These orders not be entered prior to 24 July 2009.

THE COURT DECLARES THAT:

1. Orders 1, 2 and 3 do not affect any person (including any person who would have been a group member had the applicants been allowed further time in these proceedings in which to make an application under s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)) who is not a party to these proceedings.

Note:

Background

Background to the litigation

Lex Wotton and his wife, Cecilia, commenced these proceedings earlier this year. They sought to make them representative proceedings under Pt IVA of the Federal Court of Australia Act 1976 (Cth). But under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) they required an extension of time in which to commence the proceedings. They now seek to discontinue. The essential questions that have arisen are whether Mr and Mrs Wotton need and, if so, should be granted leave under s 33V of the Federal Court of Australia Act to discontinue and should they pay the respondents’ costs?BACKGROUND In November 2004 the community at Palm Island, off the coast of Queensland, experienced a period of considerable unrest. Around 18 November 2004 a resident member of the indigenous community died in the local police station. An internal police investigation was conducted on the island in relation to the death in custody. On 26 November 2004 the police report into the death in custody was read out to a large gathering of the community. The report absolved Senior Sergeant Hurley, the police sergeant involved, of any criminal wrongdoing relating to the death. This led to what has been called the Palm Island “riot” during which a police station and accommodation were destroyed. A state of emergency was declared. On 27 November 2004 Mr Wotton was arrested and charged with offences under s 65 of the Queensland Criminal Code 1899 (Qld) in relation to his alleged involvement in that unrest. Four others were also charged with Mr Wotton. The charges attracted a maximum sentence of life imprisonment. On 1 March 2007, shortly before his trial was to commence Mr Wotton lodged a complaint with the Human Rights and Equal Opportunity Commission (as the Australian Human Rights Commission was then called). The complaint alleged, among other matters, that the arrest, charging and prosecution of Mr Wotton contravened or would contravene the Racial Discrimination Act 1975 (Cth). Mr Wotton sought an ex parte injunction under s 46PP of the Human Rights and Equal Opportunity Commission Act to restrain the holding of his criminal trial: Wotton v State of Queensland [2007] FCA 280. Those proceedings purported to be instituted as representative proceedings under Pt IVA of the Federal Court of Australia Act. In refusing the ex parte relief, Moore J noted that there had been considerable delay in the lodging of the complaint with the Commission: Wotton [2007] FCA 280 at [3]-[5]. His Honour said that he would express no view about whether those proceedings could have been brought as representative proceedings. Subsequently, at his trial Mr Wotton was convicted and sentenced to a term of imprisonment.THE COMPLAINT The complaint had been lodged with the Commission on 1 March 2007 by Mr Wotton’s solicitors, Messrs Levitt Robinson. It purported to have been made on behalf of Mr Wotton, his co-accused and “all the black residents of Palm Island who were residents of the place on and between 18 and 28 November 2004”. The solicitors later supplemented the complaint with further submissions. The Commission accepted the complaint as being a representative complaint made on behalf of class members other than the unnamed co-accused. The complaint was made against the State of Queensland, including the Queensland Police Service, the Office of the Director of Public Prosecutions and the Queensland Court of Appeal. It is not necessary to outline any matter in relation to the Queensland Court of Appeal since nothing was raised in the present proceedings in respect of that court. Some allegations made by Mr Wotton to the Commission were, subsequently, withdrawn by him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

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Ratio Decidendi

Legal Principle Established

Established by: RARES J

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