Wotton v State of Queensland (No 9)
[2017] FCA 1315
•1 November 2017
FEDERAL COURT OF AUSTRALIA
Wotton v State of Queensland (No 9) [2017] FCA 1315
File number: QUD 535 of 2013 Judge: MORTIMER J Date of judgment: 1 November 2017 Date of hearing: 1 November 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 17 Counsel for the Applicants: Dr K P Hanscombe QC with Mr D G Guidolin Solicitor for the Applicants: Levitt Robinson Counsel for the Respondents: Mr A Crowe QC with Mr S McLeod Solicitor for the Respondents: Crown Law ORDERS
QUD 535 of 2013 BETWEEN: LEX WOTTON
First Applicant
AGNES WOTTON
Second Applicant
CECILIA ANN WOTTON
Third Applicant
AND: STATE OF QUEENSLAND
First Respondent
COMMISSIONER OF THE POLICE SERVICE
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
1 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The trial listed for 29 November 2017 to 8 December 2017 in Townsville be vacated.
2.The parties are to attend mediation before The Honourable Michael McHugh AC QC on 6, 7 and 8 December 2017 at a venue and in accordance with a process agreed between the parties and Mr McHugh, such mediation to be completed by 11 December 2017.
3.The proceeding be listed for a further case management hearing on 12 December 2017 at 11 am AEDT.
4.Roy Leonard Bramwell have leave to amend his Statement of Individual Group Member Claim in the form annexed to his application filed 31 October 2017 and marked “A” (Bramwell’s Amended Claim).
5.Mr Bramwell’s Amended Claim be filed and served by 4 pm on 2 November 2017.
6.Paragraphs 9 and 10 of the Orders made 28 August 2017 so far as they refer to Mr Bramwell’s claim be vacated.
7.The respondents file and serve their defences to Mr Bramwell’s Amended Claim by 4 pm on 22 November 2017.
8.Mr Bramwell file and serve any reply by 4 pm on 27 November 2017.
9.The respondents file any evidence in relation to the claims of Delphine Dawn Clay, Yvette Gail Wotton and Roy Leonard Bramwell, including Mr Bramwell’s Amended Claim, by 4 pm on 22 November 2017.
10.The claimants in the pending claims file and serve any evidence in reply by 4 pm on 27 November 2017.
11.The parties exchange lists of any documents not yet admitted into evidence in these proceedings on which they propose to rely in the hearing of the pending claims by 4 pm on 27 November 2017.
12.Costs of and incidental to the case management hearing are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 535 of 2013 BETWEEN: LEX WOTTON
First Applicant
AGNES WOTTON
Second Applicant
CECILIA ANN WOTTON
Third Applicant
AND: STATE OF QUEENSLAND
First Respondent
COMMISSIONER OF THE POLICE SERVICE
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
10 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The proceeding be listed for trial commencing at 10.15 am on 4 June 2018, with an estimate of four weeks, in Townsville.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)MORTIMER J:
BACKGROUND
By way of introduction to this ruling, reference should be made to the Court’s Orders and reasons for judgment in the first aspect of this proceeding, which dealt with the claims of the three named applicants and a large number of common questions of law and fact arising in the proceeding: see Wotton v State of Queensland (No 5) [2016] FCA 1457 (Liability Reasons).
The Court is now proceeding to deal with the claims of the group members. The applicants have identified additional subgroups (additional to the SERT Subgroup referred to in the Liability Reasons), and representative members for each subgroup. There has been no objection to this course from the State. Those subgroups are, in summary:
(1)The Travel Restriction Subgroup, consisting of those group members who were restricted from entering or leaving Palm Island between 26 November 2004 and 28 November 2004 due to the suspension of commercial flights and commercial ferry services to and from the island.
(2)The General Damages Subgroup, consisting of those group members who do not fall into the SERT Subgroup or the Travel Restriction Subgroup, but who have suffered loss or damage by reason of the conduct of the Queensland Police Service.
In addition to these subgroups, there is also an individual group member claim by Roy Leonard Bramwell. A description of the role of Mr Bramwell can be found at [959]-[987] of the Liability Reasons. Mr Bramwell’s individual claim concerns claims for loss and damage arising out of the findings I made in the Liability Reasons, and incidents that he refers to in his amended statement of claim as the Hurley Threat and the Robinson Threat. It is not necessary to detail the allegations concerning the Hurley Threat and the Robinson Threat in these reasons.
Until late October 2017, the parties were working cooperatively towards a trial on damages issues for some representative members of the Travel Restriction Subgroup, General Damages Subgroup and Mr Bramwell’s claims. The SERT Subgroup damages claims present a number of challenges, and were left out of the proposed trial. In tandem, the parties have been working towards a mediation intended to address the resolution of the entire proceeding, including the claims of the SERT Subgroup. The matter has been closely and tightly case managed.
A few weeks ago a number of issues arose. Compliance with subpoenas issued to Townsville Hospital for medical records was delayed. There were difficulties in securing psychiatrists to examine identified individuals from the SERT subgroup, for the purposes of the mediation. A State election was called in Queensland. A three day mediation in mid-November, as the Court’s Directions contemplated, looked in real jeopardy.
Accordingly, the applicants sought an adjournment of the trial fixed for 29 November 2017. Once the State election was announced, they then withdrew this application and pressed for the trial. The State submitted preference should be given to the mediation, but informed the Court it would be ready for trial if need be.
A case management hearing was convened on 1 November 2017 for the purpose of determining whether the trial fixed for 29 November 2017 should proceed, and what should occur about the mediation.
What follows are the reasons I gave, ex tempore, for the orders I determined were appropriate. I have subsequently made a further Order formally listing the matter for trial commencing 4 June 2018, to reflect my ruling.
RULING
The subject matter of this ruling is how best to advance the just resolution of this proceeding in a manner that is as quick, inexpensive and efficient as possible bearing in the mind the complexities of the proceeding, what is at stake for the parties and the parties’ preferred positions as they have been explained to the Court this morning. Those positions relate to whether the trial currently fixed for eight days commencing 29 November 2017 in Townsville should proceed, or should be vacated to allow for a rescheduling of the mediation.
There are several choices open in relation to the timing and maintenance of the mediation process, and the timing and maintenance of the current trial, together with the outstanding issues concerning the SERT Subgroup. Each of the available choices would be defensible. In the end, I am persuaded that the just resolution of this proceeding is best advanced by insisting the parties focus their attention on achieving a successful mediation of all the outstanding issues in this proceeding. I reach that conclusion placing considerable weight on what Mr Crowe QC, on behalf of the State, has put to the Court.
He described the context as one where the State has been unsuccessful in the principal trial, has abandoned its appeal, has committed to a resource intensive mediation process in the course of which it has assumed the burden of significant cost in the production of information necessary for the mediation. He has told the Court, emphatically, that the State wishes to settle this proceeding, in its entirety.
He has informed the Court that this is the case notwithstanding the calling of the State election on 25 November 2017 and the uncertainty that might otherwise have been introduced by the election. Mr Crowe has informed the Court that arrangements have been put in place through the State’s Caretaker Committee which ensure that there will remain, as I understand it, during the caretaker period and beyond the election, authority to settle this proceeding and specific instructions as to quantum.
On that basis, and recognising Senior Counsel for the applicants has also indicated that the applicants wish to continue with a mediation process, I consider the parties should be given an opportunity to focus on that mediation process. I propose to amend the Court’s Orders concerning mediation so as to fix the whole of this proceeding for mediation before The Honourable Mr Michael McHugh AC QC on 6, 7 and 8 December 2017, such mediation to be completed by 11 December 2017.
I propose to vacate the trial of aspects of the proceeding currently listed for 29 November 2017. However, I will make two material, alternative, orders. First, the matter will be brought back for a case management hearing on 12 December 2017. The parties may report the matter has settled, at least in principle. The parties may need further orders for an extension of the mediation process. The parties may otherwise have to face preparation for trial.
Second, preparation for trial will now involve preparation for a trial on all outstanding issues in this proceeding, including the SERT Subgroup claims, which were not scheduled to be part of the 29 November trial. I propose to list that trial on all outstanding issues for a period of four weeks commencing on 4 June 2018.
If this matter does not resolve in December the parties will have to come to the 12 December case management hearing with proposed orders about how to manage the SERT subgroup claim to trial by 4 June 2018. The parties will otherwise still be required, by orders I propose to make this morning, to take all steps contemplated by the applicant’s proposed orders to have the claims of the travel subgroup, the general damages subgroup, and Mr Bramwell, as amended, ready for trial this year.
In other words, the parties will have to complete their trial preparation for those aspects and the timetable will not be relaxed. If, and I hope this does not occur, there is some unexpected dislocation to the parties’ intentions about negotiation, then at least these aspects of the proceeding will be capable of being brought on quickly next year, well before June, even if I have to vacate other trials to do so.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 10 November 2017
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