Cumaiyi v Northern Territory of Australia

WHITE J: 1 The respondents, the Northern Territory of Australia and Top End Health Service (TEHS), had partial success on their application seeking the striking out of a number of pleas in the applicants' Amended Statement of Claim (the ASC): Cumaiyi v Northern Territory of Australia [2020] FCA 1299. The parties have not been able to agree upon the costs order to follow that judgment. 2 In addition, the parties have not been able to agree on all the categories of documents which should be discovered by the respondents. 3 On 27 October 2020, the Court made orders for the exchange of written submissions concerning both these disputes and said that it would determine the outstanding issues on the basis of those submissions. 4 For the reasons which follow, the applicants are to pay 50% of the respondents' costs of and incidental to the respondents' strike out application of 28 May 2020 and the respondents are to make discovery of documents in the categories specified in the orders accompanying these reasons.

Costs 5 Each of the eight applicants is an indigenous person ordinarily resident in the remote community of Wadeye in the Northern Territory. By the ASC filed on 5 June 2020, they alleged that: (a) the respondents had discriminated against them and group members in contravention of s 9 of the Racial Discrimination Act 1975 (Cth) (the RD Act) in the provision of health services in Wadeye and in their imposition of a requirement for Wadeye residents to travel to other locations in order to obtain access to health services; (b) the respondents had discriminated against them and group members in contravention of s 9 of the RD Act in the interpreting services which they provided in Wadeye in relation to the provision of police services, health services and access to justice; and (c) TEHS had discriminated against the first applicant, Mr Patrick Cumaiyi, in the provision of health services to him on 9 and 10 November 2016 and/or in providing health services to him on those days without the assistance of an interpreter. 6 The Amended Originating Application of 8 April 2020 indicated that the applicants sought by way of relief: (a) declarations that the impugned conduct constituted unlawful discrimination; (b) an order that the respondents provide an apology; (c) orders under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) including: (i) damages; (ii) orders directed to the prevention of the continuation of the unlawful discrimination; (d) costs. 7 By their interlocutory application of 28 May 2020 made pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the FCR), the respondents sought the striking out of several paragraphs in the ASC. This was not because of inadequacy in their form or by reason of other non-compliance with the pleading rules. The applicants asserted instead that several of their pleas were beyond the Court's jurisdiction. That was because the effect of s 46PO(3) on the AHRC Act is to confine the claims which may be brought in this Court by a disappointed complainant to the Australian Human Rights Commission (the AHRC) to the same, or substantially the same, unlawful discrimination as was the subject of the complaint terminated by the AHRC and to unlawful discrimination which arises out of the same, or substantially the same, acts, omissions or practices which were the subject of the terminated complaint. 8 The respondents contended that four of the pleaded applicants' allegations of unlawful discrimination were beyond the scope permitted by s 46PO(3), being the allegations: (a) relating to interpreting services, to the extent to which they related to contexts other than health services, interactions with police, and criminal court proceedings; (b) that TEHS had adopted a practice of relying on bilingual staff or others to interpret in relation to health services and had made requests for Murrinh Patha interpreters from the Aboriginal Interpreting Service (AIS) in only a small minority of cases; (c) concerning the provision of health services in Wadeye to the extent that they went beyond a complaint about a lack of general practitioners; and (d) that residents of Wadeye are required to travel to other locations to obtain health services. 9 In relation to the first of these contentions, the respondents had partial success in that they succeeded in having struck out eight of the 14 particulars which they impugned. They failed on their second contention and succeeded on the third and fourth. 10 The next substantive complaint of the respondents was that the ASC pleaded that acts of unlawful racial discrimination had occurred in a period which was much more extensive than had been asserted in the complaint lodged with the AHRC. That complaint was upheld, and the applicants were given leave to re-plead in accordance with the Court's reasons. 11 The respondents accepted that the usual rule that costs should follow the event should be applied; that for this purpose each issue decided by the Court in the judgment of 9 September 2020 could be regarded as an "event"; and that because they had been wholly successful in relation to three issues, partly successful in relation to the fourth and unsuccessful in relation to only one issue, an appropriate order (after netting off in favour of the applicants the costs to which they are entitled on the issue on which they succeeded) is an award of 50% in their favour. 12 The applicants submitted that an appropriate order would be that each party bear its own costs. 13 With the exception of some issues going, in a minor way, to the extent upon which the respondents had been successful, the principal matter upon which the applicants rely was their contention that this was public interest litigation which warranted a different approach by the Court in making a costs order. 14 The applicants made this submission by reference to the decision of Mortimer J in DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793. That judgment concerned the costs of a class action pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) which had been dismissed for want of jurisdiction. Mortimer J considered it appropriate to make no order as to costs having regard to the following matters: (a) the enforcement of the costs order would be unjust and inconsistent with the purpose of s 494AA(1)(c) of the Migration Act 1958 (Cth), at [20]; (b) the public interest nature of the litigation, at [21]-[24]; and (c) the fact that there had been no disposition of the merits of the applicant's claim, at [25]. 15 In relation to the public interest nature of the litigation, Mortimer J noted that its subject matter concerned the "executive detention" of group members by the Commonwealth, that is to say, their very liberty. Her Honour noted that the legality of the detention of the group members was important not only to them but was also a matter of "considerable public importance" and that the "chilling effect" which awards of costs may have should not be permitted in such cases. Next, Mortimer J noted that the group members were all migrants, from non-English speaking backgrounds, many of whom had come to Australia in dire circumstances and were, as a class, people who had "experienced significant disadvantage". 16 The applicants submitted that, just as in DBE17, the unlawful discrimination which they allege relates to an entire community and affects fundamental human rights; that orders for costs can have a chilling effect on arguable claims concerning the exercises of public power affecting fundamental rights; that while they have included claims for damages in their proceedings, that is not the principal form of relief which they seek; and that they are persons who have "experienced significant disadvantage". 17 Counsel noted that there are a number of authorities which have considered the extent to which account may be taken of the public interest nature of litigation in determining issues of costs. Counsel submitted, however, that the broad nature of the discretion to be exercised and the fact that its exercise is highly dependent upon the circumstances of the particular case means that the assistance to be derived from those authorities is limited, citing Featherstone v Peninsula Health (No 2) [2004] FCA 594; (2004) 137 FCR 262 at [12]. 18 Generally, the courts have not accepted that the public interest nature of the litigation warrants a different approach to the exercise of the cost discretion. The position is summarised in Dal Pont, Law of Costs, LexisNexis, 4th edition, at [9.2]: [The courts] have emphasised that litigants espousing the public interest are not thereby granted indemnity from costs or a "free kick" in litigation. Like other forms of adversarial litigation, the usual costs order in alleged 'public interest litigation' is that costs follow the event. (Citations omitted) 19 Whilst at a very general level there are some similarities between the present litigation and that of the kind considered by Mortimer J in DBE17, I am not persuaded that the Court should in this instance depart from the usual position that costs should follow the event. I am willing to accept that the applicants are in a position of disadvantage and that the present proceedings have a significant public interest element to them. However, at the more particular level, this case is different from the circumstances considered in DBE17. It does not concern executive detention or (other than indirectly) the liberty of the individual. There is no doubt about the entitlement of the applicants to access the Court. This is a case in which it is reasonable to expect that litigants invoking the jurisdiction of the Court will do so in a manner which conforms with the statute granting that jurisdiction and with the Court's own procedural rules. That is especially so given that the applicants are represented by an experienced firm of solicitors who have retained on their behalf experienced senior counsel and junior counsel. The pleadings were not prepared in circumstances of urgency or duress, as can sometimes be the case when the liberty of the individual is at stake. Furthermore, the applicants maintained their position even after the respondents challenged the scope of the case contained in the pleadings. They thereby required the respondents to pursue their interlocutory application and to obtain a judicial determination. 20 On my assessment, there is no indication in the present context that an award of costs is likely to have the "chilling effect" to which Mortimer J adverted. Instead, an awareness that adverse orders for costs may be made in a case of the present kind is likely to promote compliance with the requirements necessary to invoke the Court's jurisdiction as well as with the Court's pleading rules. 21 Accordingly, I consider that the respondents' submission should be upheld. The portion of their costs which they seek is appropriate. The applicants should pay 50% of the respondents' costs of and incidental to the respondents' interlocutory application of 28 May 2020.

Discovery 22 The applicants do not seek, in the first instance, an order that the respondents give standard discovery generally in accordance with r 20.14 of the FCR. Instead, they seek discovery of documents in specific categories, albeit standard discovery in those categories. Subject to one qualification, the applicants seek in effect an order for discovery under r 20.15. 23 At the case management hearing on 27 October 2020, the Court was informed that the parties were discussing discovery of documents by category; that there were some categories of documents sought by the applicants which the respondents accepted they should discover; and that there were other categories, or subcategories, about which it was expected that there would be dispute. 24 The Court then made orders requiring discovery of the non-disputed categories and for an exchange of submissions with respect to the disputed categories. It said that it would determine the dispute of the basis of the written submissions. 25 The parties' submissions indicate that there is agreement about six categories sought by the applicants and partial agreement concerning the remaining four. These reasons concern the matters about which the parties have not reached agreement.

Documents relating to general practitioner services 26 The Third Statement of Claim (the 3SC) alleges that the first respondent (the Territory) engaged in discrimination in contravention of s 9(1) or the RD Act by providing fewer services by general practitioners in Wadeye in comparison with the services it provided in Nhulunbuy and Tennant Creek, at [53]-[61]. Each of Nhulunbuy and Tennant Creek is said to have a population which is only slightly larger than that of Wadeye. The population of Nhulunbuy is said to be mostly non-indigenous and the population of Tennant Creek approximately 50% indigenous. 27 In relation to this part of their claim, the applicants seek discovery of the following documents concerning the availability of general practitioner services in Wadeye: All documents referring or relating to the availability of the services of a general practitioner in Wadeye and its region between 9 November 2016 and 29 August 2019, limited to: (a) the number {and the qualifications} of the general practitioners who practiced at the Wadeye Health Clinic, including visiting practitioners, and the terms of their employment; (b) the number of vacant positions for general practitioners at the Wadeye Health Clinic; (c) {deaths relating to chronic disease or illness, or otherwise treatable conditions, in Wadeye and its region;} (d) {the funding for the provision of general practitioner services in Wadeye and its region, whether specific to general practitioners or not}; (e) the Indigenous status of patients at the Wadeye Health Clinic; (f) [documents directly relevant to the pleas in paragraph 53(b)-(d) of the Amended Defence]. (Emphasis in the original and citations omitted)

Documents directly relevant to [53(b)-(d)] of the Amended Defence 28 The underlined matters indicate the matters about which the parties are not agreed. The inclusion of the Category 6(f) is a new proposal by the applicants to which the respondents have agreed in their submissions. Its purpose is to resolve a dispute about the wording in the chapeau. It will be included in the order.

Qualifications of general practitioners 29 The applicants contend that the qualifications of the general practitioners who provide services in Wadeye, Tennant Creek and Nhulunbuy are relevant to the comparison between the need for, and supply of, general practitioner services in those towns. I uphold the respondents' objection to provide the discovery concerning qualifications. The 3SC does not contain any allegation referable to the qualifications of the general practitioners who have provided services in Wadeye. There is not for example any complaint that those general practitioners who did provide services in Wadeye were less qualified than those who provided services in Tennant Creek and Nhulunbuy.

Chronic diseases or otherwise treatable conditions 30 The applicants seek documents referring to, or relating to, "deaths relating to chronic disease or illness, or otherwise treatable conditions, in Wadeye and its region" between 9 November 2016 and 29 August 2019. 31 I uphold the respondents' objection to provide the discovery of documents in this category. 32 In the first place, I am not satisfied that documents of this description are sufficiently connected to the "availability" of the services of a general practitioner in Wadeye in the relevant period, this being the subject of Category 6. 33 Secondly, there is scope for considerable uncertainty as to the content of the expression "chronic disease or illness or otherwise treatable conditions". Related to that is a third matter, namely, that compliance with an obligation to discover documents of this kind has the potential to be oppressive. On its face, it would seem to require the respondents to identify each death which occurred in Wadeye and its region in a period of just under three years; to examine the cause or causes of the death; and to determine whether the death "related to" chronic disease, illness, or a treatable condition. Depending on the numbers involved, that could be an extensive task and would at the least require the respondents to engage in a process of diagnostic or pathological evaluation. As counsel submitted, the respondents may even be required to obtain expert evidence in relation to each individual death. Even without evidence, it can be concluded that a requirement to undertake this kind of task would be oppressive. 34 Finally, there is an issue of relevance. I am not satisfied that this sub-category is sufficiently related to the applicants' pleaded case. The respondents are correct in submitting that there is no pleading that more people die in Wadeye from "chronic disease or illness, or otherwise treatable conditions" than do in Nhulunbuy or Tennant Creek.

Funding of health services generally 35 In subpara (d), the applicants seek discovery of documents concerning the funding for the provision of general practitioner services in Wadeye and its region, "whether specific to general practitioners or not". They justify this by reference to [53(b)] of the Amended Defence which provides: [53] As to paragraph 53 of the ASOC, the Respondents: … (b) say that: (i) for the Relevant Period, a full time medical (general) practitioner position has been allocated and funded to provide health services at the Clinic, funded by the First Respondent: (ii) from 10 November 2014, a second full time medical (general) practitioner position has been allocated and funded to provide health services at the Clinic. funded by the Commonwealth; (iii) from time to time, for short periods, one of the above positions has been vacant: (iv) any vacancy was a consequence of difficulties in recruiting staff suitable and willing to undertake the position, and not a consequence of a lack of funding; 36 The respondents oppose discovery in the terms sought by the applicants, submitting that it would require the discovery of documents relating to the provision of health care services generally when the 3SC is confined to the provision of general practitioner services. They propose instead that they should be required to discover documents recording the funding referred to in [53(b)] of the Amended Defence. I agree. Doing so would better reflect the relevance of documents created by [53(b)] which, as indicated, is the matter upon which the applicants rely. 37 By reason of the parties' agreement that the respondents should discover the documents in Category 6(f), the applicants will have the documents which are directly relevant to the plea in the Amended Defence in [53(b)]. If the respondents can discharge that obligation only by discovering documents concerning funding more generally, then so be it. 38 The respondents also object to providing discovery of documents in this subcategory in relation to Wadeye "and its region" on the basis that this phrase is not pleaded in the Amended Defence or in the Reply. I accept that factual premise. However, it is reasonable to assume that the general practitioner in Wadeye service not only the people living within the confines of the community at Wadeye but also its surrounding region. It is common for there to be some uncertainty as to the extent of a surrounding region but those issues are usually determined by practical considerations. I expect that will be so in relation to the Wadeye region. In this respect it is pertinent, as the applicants noted, that the respondents' Amended Defence refers to the "Nhulunbuy region", "the Tennant Creek region" and the "Tennant Creek Barkly region". There is no reason to understand the term "Wadeye and its region" as being used in any different way from those terms.

Categories 7 and 8 39 The parties' submissions raise the same issues in relation to Categories 7 and 8 (which concern Nhulunbuy and Tennant Creek respectively as did Category 6 in relation to Wadeye). My reasons above indicate the way in which those areas of dispute should be resolved.

Category 10 - standard discovery 40 By Category 10, the applicants seek discovery of "all other documents on which the respondents intend to rely or which adversely affect their case or support the applicants' case". The respondents oppose an order in those terms, contending that the applicants should be entitled to an order for standard discovery (Category 10) or non-standard discovery (Categories 1-9) but not both. 41 It is the case that in Category 10, the applicants seek standard discovery to which rr 20.14(1) and (2) provide. 42 The respondents emphasised that the Court makes orders for discovery only if satisfied that the orders sought will facilitate the just resolution of proceedings "as quickly, inexpensively and efficiently as possible" - see rr 20.11-20.12 of the FCR, s 37M of the FCA Act and Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96 at [35]. They also submitted, relying on Mentink v Minister for Justice [2016] FCA 432 at [59] that, in assessing whether discovery is appropriate, the Court considers both the benefit to be gained from the making of the order and the costs to be incurred if the order is made. 43 The respondents also relied on Finnegan v Washington (No 3) [2020] FCA 1654. In that case, Jackson J, having made an order for standard discovery, considered it premature to be making an order under r 20.15 for non-standard discovery. That was because the necessity for such an order would depend upon the extent of the standard discovery made pursuant to the Court's orders. 44 There is no inflexible rule that the Court may not order standard discovery at the same time as making orders for the discovery of documents in specific categories. In some circumstances, it can be helpful to make such orders, so as to make explicit the obligations of the party making the discovery. 45 In the present case, I see no difficulty in the respondents being required to discover, in addition to the first nine categories, any further documents not within those categories but which are of a kind to which r 20.14(2) refers. I accept the submission of counsel for the applicants that the fact that a party is able to identify, within the rubric of "direct relevance", particular categories of documents which should be discovered, should not, of itself, have the effect of precluding the party from seeking standard discovery. 46 Accordingly, there will be an order in terms of the applicants' proposed Category 10. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.

SCHEDULE OF PARTIES NTD 36 of 2019 Applicants Fourth Applicant: FREDDY CUMAIYI Fifth Applicant: CASSIMIR DULLA Sixth Applicant: ASSUMPTA GUMBADUCK Seventh Applicant: ELIZABETH GUMBADUCK Eighth Applicant: GLORIA PARMBUCK