//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2023] FCA 1288
Federal Court of Australia
2023-10-26
Mr J, Charlesworth J
Original judgment source is linked above.
AND: NORTHERN TERRITORY OF AUSTRALIA Respondent
order made by: CHARLESWORTH J DATE OF ORDER: 26 OCTOBER 2023
CHARLESWORTH J 1 These class actions (NTD 36 of 2019 and NTD 23 of 2021) raise common issues concerning the adequacy of health and interpreting services provided to the Indigenous residents of Wadeye in the Northern Territory. They will be referred to respectively as the Cumaiyi Action and the Gumbaduck Action. 2 Wadeye is located 400km southwest of Darwin. It has fewer than 3,000 residents, 90% of whom are Indigenous. For many of them, their only language is Murrinh Patha. 3 The lead applicants in the Cumaiyi Action allege that the Northern Territory (named as the first respondent) contravened s 9 of the Racial Discrimination Act 1975 (Cth) (RD Act) by failing to ensure adequate provision of general practitioners in Wadeye and by failing to provide adequate interpreting services in connection with health and other government services. They allege that the second respondent, Top End Health Service (TEHS), contravened s 9 of the RD Act by failing to provide adequate interpreting services in connection with a health clinic it operates in Wadeye. 4 The lead applicant in the Gumbaduck Action alleges that the Territory (named as the only respondent) breached s 9 of the RD Act by failing to provide adequate health services and by failing to provide interpreting services in connection with the health services provided. 5 In these reasons the applicants and respondents in both actions will be referred to collectively except where it is necessary to deal with each action separately. 6 The Court has before it interlocutory applications by which the applicants seek leave to amend their originating applications and pleadings (Amendment Applications) together with interlocutory applications by which the respondents seek to have parts of the applicants' pleadings as presently framed struck out (Strikeout Applications).
Summary and outcome 7 The applicants' interlocutory applications had annexed to them the proposed amended originating applications and proposed amended statements of claim. The respondents did not oppose leave to amend the originating applications, nor did they oppose some of the proposed amendments to the pleadings. Subject to what follows, in due course leave will be granted in relation to those amendments contained in the documents annexed to the interlocutory applications that were not opposed. 8 The respondents initially opposed the grant of leave to file amended pleadings because the proposed amendments did not address complaints they had raised in correspondence about some existing pleas. The respondents later filed the Strikeout Applications, directed in their terms to the pleadings in their existing form. 9 The hearing of the interlocutory applications was fragmented over three days. Between those hearings the applicants filed further written submissions which included a table cross-referencing certain pleaded facts to the elements of s 9 of the RD Act (referred to in submissions as the Elements Table), and a document titled "Applicant's Bundle of Proposed Pleadings". I will refer to the latter document as the Revision Bundle. 10 The Revision Bundle contains further proposed amendments, all of which are opposed by the respondents. A purpose of that bundle is to propose further amendments so as to address arguments raised on the Strikeout Applications. As explained later in these reasons I have not considered it appropriate to express an opinion about the further proposed amendments contained in that bundle.
Outcome 11 In the result, I have concluded that the applicants should not have leave to make the amendments sought on their interlocutory applications, other than those amendments that are not opposed by the respondents. I have also concluded that specified paragraphs of the existing pleadings should be struck out. The applicants should have an opportunity to replead, on the condition that the repleading accords with these reasons for judgment. To that end, I will fix a deadline by which any newly proposed pleadings are to be provided to the respondents with a view to any remaining issues being resolved by consent.
The Racial Discrimination Act 12 Part II of the RD Act is titled "Prohibition of Racial Discrimination etc". Section 9 is contained in Pt II. It relevantly provides: Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. 13 The reference in s 9 to the doing of an act is deemed to include a refusal or failure to do an act: RD Act, s 3(3). 14 Section 10 of the RD Act provides: Rights to equality before the law (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. (3) Where a law contains a provision that: (a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or (b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person. 15 The act of the legislature the Commonwealth or of a State or Territory in passing or failing to pass a law is not an act to which s 9 of the RD Act may apply: Gerhardy v Brown (1985) 159 CLR 70, Gibbs CJ (at 81), Mason J (at 92 - 93) and Brennan J (at 120 - 121); Mabo v Queensland (1988) 166 CLR 186, Mason CJ (at 197), Wilson J (at 203) and Brennan, Toohey and Gaudron JJ (at 216). The discriminatory operation of laws is the subject matter of s 10. 16 Nor can s 9 apply to an act done in the exercise of a power conferred by a law that allows for no discretion in its exercise. Discriminatory treatment arising from the operation of such a law may of course be the subject of an application under s 10, but the exercise of the non-discretionary power is not an "act" to which s 9 can apply: Gerhardy, Mason J (at [93]). 17 Part IIB of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) contains mechanisms to redress allegations of "unlawful discrimination", an expression that includes acts, omissions or practices that contravene s 9 of the RD Act. A person aggrieved by the alleged acts, omissions or practices may lodge a complaint with the Australian Human Rights Commission (AHRC). Relevantly, the President of the AHRC must terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation: AHRC Act, s 46PH(1B)(b). 18 If a complaint has been terminated by the President of the AHRC under s 46PH of the AHRC Act, an application may be made to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint: AHRC Act, s 46PO(1). The unlawful discrimination alleged in the application must be the same as (or substantially the same as) the unlawful discrimination that was the subject of the terminated complaint, or must otherwise arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
AHRC Complaints 19 The lead applicants in each case lodged representative complaints with the AHRC. The complaints were terminated under s 46PH(1B)(b) of the AHRC Act on 29 August 2019 and 7 September 2021 respectively. The Cumaiyi Action and the Gumbaduck Action were respectively commenced on 28 October 2019 and 4 November 2021. The statements of claim in the actions will be respectively referred to as the C-SOC and the G-SOC.
Relevant Period 20 The group members in the Cumaiyi Action are described as Indigenous persons who were residents of Wadeye as at 9 and 10 November 2016 and who required health services or interpreting services there on one or more occasions in the "Relevant Period": C-SOC, [1]. In an amended statement of claim filed on 5 June 2020, the "Relevant Period" was defined as the period between 1 July 2014 and 29 August 2019 (the date of the termination of the complaint in the AHRC). White J struck out that plea because the complaint before the AHRC had not alleged any act of unlawful discrimination prior to 9 November 2016: Cumaiyi v Northern Territory of Australia [2020] FCA 1299. The Cumaiyi applicants then repleaded the definition to confine the period to between 9 November 2016 and 29 August 2019. 21 The Cumaiyi applicants now apply for leave to amend [1(c)] of the C-SOC to expand the Relevant Period to "between 9 November 2016 and THE DATE OF FILING", being the future date on which the amended pleading will be filed, should the Court grant leave. 22 Similar pleas are contained in the G-SOC. The Relevant Period in that case is defined as between 9 November 2016 and 23 November 2020. As in the Cumaiyi Action, leave is sought to amend the defined period to commence on 9 November 2016 and end on the date on which the amended pleading is filed. The effect of the amendment in each case would be to extend the period in which unlawful discrimination is alleged to have occurred. 23 Leave to make those amendments will be refused for two reasons. 24 First, the applicants acknowledge that the proposed amendments are contrary to single judge decisions of this Court with respect to the proper construction of s 46PO(3) of the AHRC Act. The cases are to the effect that the Court cannot entertain claims that post date (at least) the date of the termination of the complaint: see for example, Crvenkovic v La Trobe University [2009] FCA 374, Tracey J (at [3], [8] and [11]); Chen v Monash University [2015] FCA 130, Tracey J (at [4] - [8]). It is the applicants' position that those judgments are wrong. However, they do not submit that they are plainly wrong and so acknowledge that I would be bound to follow them: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181. It follows, the applicants submit, that I am bound to dismiss their application for leave to amend the pleading in a way that would extend the Relevant Period. Whether that proposition follows is unnecessary to decide. Leave may be refused on the common ground that the single judge cases justify the refusal of leave to amend with the result that the question of law will not be substantively determined at the trial of either action. 25 Second, the Court's discretion to permit an amendment under r 16.53 of the Federal Court Rules 2011 (Cth) is to be exercised in a manner that best promotes the overarching purpose of the Court's practice and procedure provisions: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M. Parties to litigation in this Court have an obligation to conduct their cases in a way that is consistent with that purpose: FCA Act, s 37N. 26 These two actions have been on foot for some years. Their progress to trial has been beset by delay, a large part of which is the applicants' responsibility. Deadlines for the filing of the applicants' evidence have been extended over and again. The Court has previously expressed its frustration with the applicants' non-compliance with the Court's orders including their failure to draw anticipated non-compliance to the Court's attention before the deadlines pass. 27 The applicants have been afforded several opportunities to replead their case. Most recently, they were ordered to propose amendments by 18 March 2022. The applicants failed to comply with that order. Nor did they comply with further revised deadlines of 8 August 2022 and 7 October 2022. In addition, the Cumaiyi applicants defended a previous strikeout application concerning the Relevant Period. That was an obvious occasion to refine and revise their case as to the period in which the alleged acts of unlawful discrimination occurred. If that had happened, the issue would have been resolved at the same hearing before White J and any rights of appeal in connection with the outcome would by now have been exercised. 28 The applicants have provided the Court with no explanation as to why the Relevant Period was not pleaded in the manner now foreshadowed from the outset of their claims or at least from a much earlier time. The Court has made orders for the filing of evidence, and that evidence has been prepared on the basis of the case as presently pleaded. If allowed, the pleading would give rise to a possibility that the applicants would seek to put on additional lay evidence, so undermining all of the previous deadlines for the preparation of their case and the Court's attempts to progress the matter to trial as efficiently as possible. The additional evidence would relate to a minimum 44 month period with respect to the Cumaiyi Action and a minimum 29 month period with respect to the Gumbaduck Action, expanding the factual subject matter and length of the trial. In addition, the applicants maintain that an extant order for discovery would apply, so requiring the respondents to make another tranche of disclosure. 29 Given those circumstances, it is reasonable to expect that the applicants would provide the Court with a frank explanation as to when the amendment now proposed was first considered and as to why it is only now put forward. But no explanation is forthcoming. That is unsatisfactory in the context of a class action having potential cost implications for class group members whose interests are affected by the outcome of the actions and delay in its final resolution. 30 In the circumstances I have described, I am not satisfied that the grant of leave is an outcome that best promotes the overarching purpose. To allow the amendment at this stage would be to significantly undermine the overarching purpose and the requirement in s 37N of the FCA Act. Accordingly, I would refuse to grant leave irrespective of any real or apparent legal obstacles to the proposed amendment in each case. 31 Before concluding on this topic, I should add that the applicants resisted the Court dismissing the amendment application in the exercise of its discretion by reference to any case management principle. It is difficult to understand why they should oppose the Court having regard to alternate and sufficient bases for refusing the grant of leave. The applicants have simultaneously made an application for leave and invited the Court to dismiss the application. It appears that the purpose for such an approach would be to facilitate the exercise of rights of appeal or a right to seek leave to appeal from the order dismissing that part of their interlocutory applications, presumably to preserve for later the substantive point decided in Chen and Crvenkovic. The approach itself is not criticised. However, on such an appeal (or application for leave to appeal) it is appropriate that the appellate court have the benefit of the conclusions of the case managing judge with respect to other sufficient bases for refusing leave to amend. It is not efficient for those issues to be considered for the first time on a notice of contention or upon any future remittal.
Particulars of facts predating the Relevant Period 32 I will resolve the next issue by reference to the C-SOC. 33 Part D of the C-SOC is titled "INADEQUACY OF INTERPRETING SERVICES". My summary of that part may include some amendments that are not opposed by the respondents. 34 At [21] there is a confirmation that each allegation in that part of the pleading is "an allegation throughout the Relevant Period" unless stated otherwise. 35 There follow allegations about the relevant demography, including that Murrinh Partha was spoken by around 65% of Wadaye's population and that only 7.7% of its population spoke English at home. The paragraphs that follow allege that: (1) the Aboriginal Interpreter Service (AIS) was the only organisation in the Territory providing interpreting services for Indigenous languages; (2) the AIS was jointly funded by the Commonwealth and the Territory; and (3) Commonwealth funding to the AIS was permitted to be used by the AIS in providing interpreting services in connection with certain services defined as Commonwealth funded services, including legal services and interactions with Centrelink. 36 It is alleged that the applicants relied on the provision of the Commonwealth funded services, and that the degree to which the applicants were able to effectively receive the services was related to whether or not they were able to access Murrinh Patha interpreters. 37 Part D.1.4 of the C-SOC is titled "Decrease in overall funding". 38 Paragraph 30 alleges that "over the financial years FY15 to FY20 the Commonwealth had significantly reduced funding to the AIS". There follow particulars of Commonwealth revenue received by the AIS in the financial years 2015 to 2020. Paragraph 30A alleges that in the same financial years, the number of requests to the AIS for Murrinh Patha interpreting services increased. The number of job requests in each financial year are particularised, together with a percentage of the increase. 39 Paragraph 31 alleges that during the Relevant Period the Territory funded the AIS at levels insufficient to cause total funding to the AIS (including funding from the Commonwealth) to be proportionate to the increase in requests to the AIS for Murrinh Patha interpreting services. Particulars are given of Commonwealth and non-Commonwealth revenue in each of the financial years 2015 to 2020, followed by a plea that "Accordingly, over the same period that job requests increased by 62 per cent, AIS's revenue as a product of Commonwealth and non-Commonwealth sources decreased by 44 per cent. 40 Paragraph 32 reads: Over the financial years FY15 to FY20: (a) the number of interpreters employed and engaged by AIS decreased; (ab) the number of Wadeye-based staff responsible for managing and liaising with interpreters decreased; (b) the quantity of training provided to AIS Murrinh Patha interpreters diminished; and (c) access by the Applicants and Group Members to Murrinh Patha interpreters in connection with the Services, as and when required by them, was nullified or impaired. 41 The applicants seek to include the following new particulars in support of that plea: PARTICULARS As to [32(a)]: (a) the number of interpreters who completed one or more Murrinh Patha jobs over the period FY11-FY20 is as set out in the below table: FY Number of interpreters 2011 17 2012 15 2013 13 2014 16 2015 18 2016 19 2017 16 2018 15 2019 16 2020 15
(b) The AIS employed a Community Development Liaison Officer (CDLO) based in Wadeye between 2010 and 2013, but after the resignation of the relevant employee in September 2013, the AIS did not employ or engage any replacement CDLO. As to [32(b)], the number of Murrinh Patha interpreters who attended training each calendar year over the period 2011-2020 is set out in the below table. Year Interpreters 2011 17 2012 6 2013 20 2014 30 2015 15 2016 1 2017 10 2018 9 2019 9 2020 0
As to [32(c)], the below table shows, for each financial year over the period FY11-FY20: (a) the number of Murrinh Patha interpretation jobs requested of the AIS in regard to Aboriginal rights (land and human), children services, health, health and children's services, legal, and policing, which were not cancelled by the client and which were not duplicate bookings; (b) of that number of jobs, the number of jobs in respect of which an interpreter was not provided both as a figure and as a percentage. FY Requests Requests not completed (#) Requests not completed (%) 2011 304 107 35% 2012 344 96 28% 2013 521 138 26% 2014 821 300 37% 2015 877 293 33% 2016 742 280 38% 2017 683 248 36% 2018 654 202 31% 2019 892 275 31% 2020 894 360 40% (to April 2020)
And, the Applicant relies on the evidence referred to in Schedule 1. Further particulars may be provided after discovery. 42 The Territory opposes the amendment to introduce the allegation relating to the Community Development Liaison Officer. It also opposes leave to include all figures in the tables relating to the financial years 2011 to 2015. Adopting a practical approach, the opposition is to the introduction of allegations predating 1 January 2016 "or alternatively 1 July 2015, being the commencement of FY16". I will consider the respondents' arguments by reference to their earliest proposed date of 1 July 2015. 43 The applicants' central allegation is that during the Relevant Period, Murrinh Patha speakers suffered disadvantage in terms of their participation in certain government services because there were insufficient interpreting services. There is no dispute that facts concerning the demand for, and funding of, interpreting services in the Murrinh Patha language during the Relevant Period may be relevant (depending on their relation with other pleaded facts). The applicants submit that comparison of the Relevant Period with earlier periods would assist in showing the causal connection between the decrease in funding and poorer outcomes. They say that the figures relating to prior years form a base from which the Court may draw an inference that there exists a causal connection between the alleged shortfall in the provision of interpreters on the one hand and the reduction in funding, recruitment or training of interpreters on the other. The asserted relevance was summed up in their written submissions as follows: (1) the number of interpreters remained approximately static to deal with a significantly higher number of jobs; (2) training of those interpreters markedly decreased; (3) a higher proportion of job requests went unmet; and (4) the natural finding based on an increased disconnection between funding and demand is that it was this disconnection that led to the outcomes in the previous three sub-paragraphs. 44 The applicants further submit that the Territory's opposition to the amendment is inconsistent with a position it has adopted since the commencement of the proceedings concerning data that predates the Relevant Period. They point to [45] of the C-SOC relating to the number of requests made to the AIS for Murrinh Patha interpreters in relation to the provision of services at a health clinic operated by TEHS. From the commencement of the Cumaiyi Action, that plea has contained particulars of the number of requests made in each year from 2010 to 2019. The respondents have not, until now, taken issue with the particulars in [45], notwithstanding that they previously made an application to strike out other parts of the C-SOC defining the Relevant Period. In addition, the applicants submit that the respondents have previously consented to discovery orders encompassing documents dating back to 1 July 2014 and have since disclosed documents that in many instances relate to the period of financial years 2011 to 2015, so conceding their relevance to the applicants' claims. Accordingly, the applicants submit that the respondents are seeking to reverse their position about the relevance of facts or events predating the Relevant Period, without providing them or the Court with an explanation for that reversal. 45 The respondents' principal complaint is that the earlier events are of peripheral relevance (at best) in the sense that they are relied upon to assist the applicants to inferentially prove their claims of unlawful discrimination in the Relevant Period. Alternatively, they submit that the proposed particulars relating to times outside the Relevant Period are not capable of assisting the applicants to prove their claims of discrimination because on their face they cannot support an inference that the causal connection exists in any event. It is convenient to record the respondents' contentions by reference to [48] of their written submissions as follows: (a) As for particular (a): In the financial years FY11 to FY16, there were an average of 16 Murrinh Patha interpreters (precisely 16.33, rounded down to 16) who completed one or more job each year. In the financial years FY17 to FY 20, despite the alleged 'decrease' in funding to the AIS, there were also an average of 16 interpreters (precisely 15.5, rounded up to 16) who completed one or more job each year. Therefore, these factual matters do not assist the applicants in proving their claims. (b) As for particular (b): The fact that the AIS once employed a person in Wadeye in a role known as a 'Community Development Liaison Officer' or 'CLDO' but ceased to do so in September 2013 does not appear to have any relevance at all to any matters which occurred during the Relevant Period. In particular, the applicants do not make any allegation that the absence of a CLDO in Wadeye during the Relevant Period had any affect at all on the applicants' ability to access language interpreting services. (c) As for particular (b): The number of persons who attended training as Murrinh Patha interpreters fluctuated in the financial years FY11 to FY20, from nil in FY20 to 30 in FY14, and averaged 12 per year (precisely 11.7 per year, rounded up to 12) across the period. However, there is no apparent connection between the number of persons who attended training as Murrinh Patha interpreters in a particular year, and the number of persons who completed one or more jobs as a Murrinh Patha interpreter per year (see sub-paragraph (a) above). Therefore, these factual matters cannot assist the applicants to prove their claims. (d) As for particular (c), the table records that during the financial years FY11 to FY20 there was a steady and significant increase in the number of job requests for Murrinh Patha interpreters (from 304 requests in FY11 to 894 requests in FY20), however the percentage of requests 'not completed' remained relatively steady (from 35% in FY11 to 40% in FY20, and averaging 33.5% each year across the period). Indeed, in the period FY11 to FY16 (prior to the commencement of the Relevant Period), the percentage of requests 'not completed' each year averaged 32.8%; and in the period FY17 to FY 20 (during the Relevant Period), despite the alleged 'decrease' in funding to the AIS, the percentage of requests 'not completed' each year averaged 34.5%. That is, these statistics record a minor increase of 1.7% in the percentage of jobs not completed during the Relevant Period, which may be explicable for any number of reasons entirely unrelated to the level of funding provided to the AIS. Therefore, this evidence simply cannot assist the applicants in inferentially proving their claims. 46 Those submissions are accepted, except that the references to evidence are inapt to describe what is essentially a complaint about the sufficiency of a pleading. 47 For the reasons contended for by the respondents, the proposed particulars relating to the earlier period are either irrelevant or otherwise of such peripheral relevance that their inclusion should not be permitted. With respect to the latter point, the pleading introduces a factual enquiry that is not warranted, given the time and costs likely to be expended on the preparation for and conduct of the trial with respect to it, relative to its forensic utility to the applicants' case. 48 I am reinforced in that conclusion by the circumstance that the unlawful discrimination on the applicants' case must be confined to the Relevant Period. It is the causal connection between the "act" relied upon for the purposes of s 9 of the RD Act and the pleaded disadvantage in the Relevant Period that the applicants seek to establish. 49 I add that the parties' submissions with respect to this topic at times resembled arguments about the extent to which evidence of historical facts might tend to prove or disprove a fact in issue. The critical fact in issue is whether, for the purposes of s 9 of the RD Act, the "act" said to have been committed by the Territory involved a distinction (etc) "based on race", which has one of the effects referred to in s 9. The role of particulars is to furnish further detail of facts that support a primary plea. However, the asserted causal connection is not the subject matter of [32] of the C-SOC. To the extent that the impugned particulars are relied upon by the applicants to support an inference about the consequence of an act, they do not belong in [32] of the C-SOC. To the extent the particulars predate financial years 2015 to 2020 (the timeframe referred to at [32]), they do not support the plea. 50 Proposed amendments to [30] of G-SOC are identical to those proposed at [32] of the C-SOC and the same reasoning applies to them. Leave to make the amendments is refused.
Particulars of facts post-dating the Relevant Period 51 Schedules 1, 2 and 3 of the C-SOC contain particulars of alleged instances in which certain Indigenous persons were not able to access a Murrinh Patha interpreter in connection with the provision of medical care. The schedules respectively support broader allegations made at [32], [46] and [65]. Their introduction is opposed to the extent that they particularise events occurring after the Relevant Period. 52 The applicants submit that events occurring outside of that time may be relevant to their claim for prospective relief, including because they tend to show that the alleged unlawful discrimination is continuing or at least threatened to continue. But that is not the plea put forward in [32], [46] and [65] to which the schedules relate. Those paragraphs are not concerned with threatened future contravention, but with facts alleged in proof of unlawful discrimination in the Relevant Period. Leave to include particulars of post dating events in each of the schedules will therefore be refused, given the pleaded purpose of the schedules. 53 To the extent that there is a claim for prospective relief, the factual case in respect of it should be clearly and distinctly pleaded. It should not be advanced by reference to facts alleged within lengthy schedules cross-referenced to that serve a different purpose.
Strikeout applications 54 The Strikeout Applications began their life as an expression of opposition by the respondents to the applicants having leave to file amended pleadings that contained existing paragraphs that the respondents say are objectionable. They include [33] - [36] and [45] of the C-SOC and [31] - [33] of the G-SOC. It is again convenient to resolve the arguments by reference the Cumaiyi Action. The impugned pleas are as follows: 33. By reason of the matters alleged in [31]-[32], during the Relevant Period, the First Respondent failed to provide sufficient or adequate interpreting services as and when required for the provision of the Services to the Applicants and Group Members (the Failures in the Provision of Interpreting Services). PARTICULARS Save that the Applicants refer to the matters alleged in Part F below further particulars will be provided including after discovery. 34 [Deleted] D.1.5 Section 9(1) of the Racial Discrimination Act 1975 (Cth) 35. In the premises alleged, the effect of the Failures in the Provision of Interpreting Services was that the Applicants' and Group Members' access to and/or participation in the Services as and when required by them was nullified or impaired in comparison with non-Indigenous persons in the Northern Territory. PARTICULARS The matters pleaded in Parts F.1-F.3 below, and in particular [71], [79], and [84]-[90] are an example of the effect of the Failures in the Provision of Interpreting Services. 36. In the premises alleged, the Failures in the Provision of Interpreting Services were acts that involved a distinction, exclusion or restriction based on the race, colour, descent, or ethnic origin of the Applicants and Group Members within the meaning of s 9(1) of the Racial Discrimination Act 1975 (Cth) (RDA). 55 The respondents did not seek to have those paragraphs struck out at the time that their first strikeout application was brought in the Cumaiyi Action in late 2020. In each action the respondents have responded to the impugned paragraphs in their defences. They first complained about them in February 2022. 56 The applicants correctly submit that the delay in communicating any complaint about the pleas is unacceptable. They submit that the respondents should not now be permitted to raise objections to pleadings that they could and should have raised some time ago. 57 Whilst unacceptable, in the circumstances of the present case, I do not consider the respondents' delay in complaining about the sufficiency of the plea is enough, of itself, to warrant the dismissal of the Strikeout Applications. That is because the Court itself has perceived some ambiguity in the pleadings as they presently stand (other than [45] of the C-SOC). That ambiguity may frustrate the task of the trial judge if not resolved at the interlocutory stage. In addition, these matters are constituted as class actions under Pt IVA of the FCA Act and their resolution potentially affects the rights and interests of group members. Group members in both actions will be afforded the opportunity to opt out of the proceedings in accordance with procedures contained in Pt IVA of the FCA Act. The exercise of the right to opt out may be frustrated if there is a lack of clarity in the case that is to go to trial, whether on the facts or the law. 58 Further, the respondents' arguments raise a real question as to the "act" that the Territory is said to have committed and how it is said that the act involves a "distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin" within the meaning of s 9 of the RD Act. 59 Finally, I consider that the issue belatedly raised by the respondents is not one that would expand the subject matter of either action or otherwise frustrate the progress of either action to trial should their contentions be upheld. To the contrary, the resolution of the respondents' arguments at this stage could only serve to narrow the issues, or at least to define them with the degree of precision appropriate for a claim of some complexity. 60 As to [45] of the C-SOC, that amendment raises similar issues to the complaints made about the proposed new particulars to [32]. The case that goes to trial should be confined in accordance with the same principles, notwithstanding that the complaint about that paragraph is one that could and should have been made at a much earlier time. I will deal with that paragraph first.
The complaint about C-SOC, [45] 61 Paragraph 45 is contained in that part of the C-SOC alleging contravention of s 9 of the RD Act by TEHS. It alleges that "prior to and during the Relevant Period" requests were made to AIS for Murrinh Patha interpreters in relation to the provision of services to patients at a clinic operated by TEHS and that, despite those requests, interpreters were not provided on many occasions. Particulars to [45] set out the number of requests made in successive calendar years together with allegations as to how many of the requests were cancelled because no interpreter was available or no interpreter presented at the clinic. 62 For context, by [46] it is alleged that the TEHS had a "Practice" having two aspects. First, it is alleged that TEHS relied on Murrinh Patha interpreters in only a small number of cases and otherwise relied on bilingual staff or other persons to "interpret as required" in the provision of the health services to the applicants and group members. Second, it is alleged that TEHS made requests for Murrinh Patha interpreters from AIS in the provision of health services to the applicants in only a small number of cases. The implementation of the Practice is then specified (at [49]) as the act or acts involving a distinction, exclusion or restriction based on the race, colour, descent or ethnic origin of the applicants and group members within the meaning of s 9(1) of the RD Act. 63 The respondents seek to have the particulars to [45] struck out to the extent that they encompass any calendar year predating the Relevant Period. They submit that the number of requests made, cancelled, or responded to in the calendar years from 2010 to 2015 are not relevant to the allegation of unlawful discrimination or are of such peripheral relevance that they should not be introduced. 64 The applicants submit that events occurring before the Relevant Period may be of some forensic assistance to them in establishing that the alleged Practice existed within the Relevant Period. I do not accept that submission. Whether there existed a Practice in the Relevant Period having the features described at [49] depends on what occurred in the Relevant Period, not before. 65 If I am wrong in concluding that the particularised facts are irrelevant to establish the alleged Practice, I consider the subject matter of the pleas to be of such marginal forensic utility that the trial should not include an inquiry into them. The more distant in time the alleged facts, the more questionable their relevance. I am not satisfied that a factual enquiry dating back to 2010 may relevantly inform the question of whether TEHS contravened s 9 of the RD Act in the Relevant Period. The particulars referring to the calendar years 2010 to 2014 ought not be permitted to stand, as they expand the subject matter of the trial beyond what is justified. In accordance with the pragmatic approach taken in relation to the proposed particulars to [32] of the C-SOC the particulars should commence at calendar year 2015, being the earliest date having potential relevance without unduly expanding the factual subject matter to be tried. The earlier particulars should be struck out.
Alleged unlawful discrimination by the Territory 66 This aspect of the Strikeout Applications concerns allegations directed solely to the Territory. Again, they will be considered by reference to the Cumaiyi Action. 67 At [4] of the C-SOC it is alleged that the Territory "is, and was at all material times, able to be sued pursuant to s 5 of the Crown Proceedings Act 1993 (NT). 68 Section 5 of the Crown Proceedings Act provides that (subject to qualifications) proceedings may be brought by or against the Crown in the same way as proceedings between subjects. Section 5(2)(a) provides that in the case of the Territory Crown, proceedings may be brought under the name "Northern Territory of Australia". A reference to the "Crown" includes a "Minister, an instrumentality or agency of the Crown and a prescribed person": Crown Proceedings Act, s 4. These provisions refer to suits against instrumentalities that form a part of the executive branch of the government, and the pleading should be similarly understood. 69 However, the pleading does not otherwise specify any Minister, instrumentality or agency of the Crown that is said to have engaged in the conduct alleged to contravene s 9 of the RD Act. To the extent the act was done in the exercise of a power, the nature and source of that power is not specified. 70 The circumstance that proceedings may be brought against the Crown under the name "Northern Territory of Australia" does not mean that a pleading need not identify the instrumentality or agency of the executive that has engaged in the act forming the subject of the suit and, if the act be the exercise of a power, a description of its source and nature. Whether that degree of articulation is necessary must depend on the facts and circumstances of each case. I have concluded that in the present case the absence of clarity on those matters has given rise to genuine concerns about whether there is a cause of action to try. 71 In the course of argument, the Court requested that the applicants prepare the Elements Table. It is in the nature of a submission explaining which pleaded facts are relied upon to establish each respondent's alleged contravention of s 9 of the RD Act. It was produced under some protest, the applicants submitting that the articulation of their case by reference to "elements" is contrary to the caution given by Allsop J (as his Honour then was) in Baird v Queensland (2006) 156 FCR 451. His Honour said at [37] (Spender and Edmonds JJ agreeing): … one must be careful to recognise that s 9(1) is one whole section and not a sum of finite elements. The provision is to be interpreted in a holistic way rather than by reference to disembodied individual elements. 72 Justice Mortimer (as her Honour then was) endorsed that approach in Wotton v Queensland (No 5) (2016) 157 ALD 14. 73 In addition to that caution, the Court must proceed on the basis that proceedings under the AHRC Act, the Court is not bound by technicalities and legal forms: AHRC Act, s 46PR. 74 The rules of procedural fairness nonetheless apply, as do the rules of evidence. 75 In cases where they are utilised, pleadings play an important role in the performance of the Court's function, both in ensuring that the respondent to an allegation is given adequate notice of the case to be met, and in making rulings as to the relevance (and hence admissibility) of the evidence relied upon. 76 The statements of Allsop J in Baird concern an approach to statutory construction. They do not mean that a person alleging a contravention of s 9 of the RD Act should be excused from clearly articulating their case, at least with respect to the two broad limbs of the statutory provision. 77 Those limbs were identified by Mortimer J in Wotton. The first of them is concerned with what happened, and its connection with race. The second is concerned with the outcome or consequences (actual or intended) of what happened. As her Honour said (at [530]): … First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if 'effect' is the focus; or on what was intended, in a purposive sense, to be the outcome, if 'purpose' is the focus. (original emphasis) 78 For the purpose of the first limb, the words "based on" do not require proof of a subjective motivation to discriminate, nor do they involve a causal connection between race and the relevant distinction or exclusion: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, Weinberg J (at 36 - 37). The second limb may however require proof of a causal connection between the act identified in the first limb and the nullification and impairment, at least in cases where there is an allegation that the "effect" of the act was the nullification or impairment of (for example) the exercise on an equal footing of a human right. 79 Given the emphasis all parties place on Baird it is necessary at this juncture to identify the other issues that arose before the Full Court in that case. The appellants (applicants at first instance) were Indigenous employees of the Lutheran Church. The State of Queensland made grants to the Church for the payment of their wages in amounts below the applicable award. The workers brought proceedings alleging that the State contravened s 9 of the RD Act. The trial judge concluded that the State's act of making the grants did not involve any requisite discriminatory element because it was under no obligation to make payments to the Church and because it had not been established that other grants were made at higher rates to facilitate the payment of higher wages to non-Indigenous workers. 80 As Allsop J identified (at [27]) a central issue at trial related to how the grants were calculated and the relationship between the calculation and payment of the grants by the State and the payment of below award wages by the Church. 81 His Honour also identified that there was a degree of imprecision and confusion in the pleadings in relation to the identification of the distinction, exclusion, restriction or preference for the purposes of s 9(1) of the RD Act and the relationship between any such distinction (etc) and the appellants' race. His Honour said (at [29]) that some of that confusion could be explained by the "almost elusive simplicity" of s 9(1), the content of which was described by Gibbs J in Gerhardy as "vague and elastic". 82 A good proportion of the Full Court's judgment is concerned with the lack of specificity in the appellants' case at trial and its implications for the resolution of issues arising at the trial and on the appeal. The trial judge had correctly identified that the pleaded case confused two separate requirements arising under s 9, the requirement that the act involve a discriminatory element and that it have a discriminatory purpose or effect. The Full Court accepted that the pleading lacked specificity in that regard, but the ambiguity did not ultimately prevent a proper understanding of the substance of the appellants' case as it was ultimately presented at the trial. That is a conclusion drawn in retrospect after the conclusion of a trial. It does not detract from the fact that the pleading lacked clarity. 83 On appeal, the appellants articulated their case in the following way (at [44]): (a) the acts were the determining and paying of grants; (b) the determining and paying of the grants involved a distinction, exclusion or restriction; (c) the distinction, exclusion or restriction was based on race; and (d) the acts, involving the relevant distinctions and which were based on race had the effect of nullifying or at least impairing the relevant economic right by denying them award wages to which they were entitled. 84 The State submitted that the case so identified had not been run below and so should not be entertained on the appeal. Allsop J rejected that submission. However, the rejection was not an endorsement of clarity in the pleadings. Rather, it was based on his Honour's consideration of the pleading in the context of what occurred at the trial, including opening and closing submissions. 85 In respect of the substantive issues, the Full Court determined that the primary judge had erred by basing his rejection of the claim on the incorrect propositions that the State was under no obligation to make payments to the Church such that there was no discriminatory element involved, and that there was no real life comparator or comparison against which to assess the "discriminatory element". As Allsop J explained, there is no indication in s 9(1) of the RD Act that a necessary element for the engagement of the section is the existence of an obligation to do the act, nor does s 9(1) require demonstration of a direct comparator or comparison. The correct approach to assess the State's conduct was (as his Honour explained (at [65]): … to posit the questions thrown up by s 9(1) (recognising the holistic application of the section) to the controversy and presented by the pleadings in their context. These questions are: (1) whether the calculation and payment of the grants involved the setting of a sum for the funding of the Church towards running the reserves for, amongst other things, the payment of wages, based on below-award wages being paid, as distinct from, or, rather than, award wages being paid; (2) whether the distinction just identified involved in the calculation of the grants was based on race; and (3) if so, whether there was the relevant effect referred to by s 9(1). It is important that the first of these questions be understood simply to be whether part of the process of calculation and payment of the grants was the fixing of a sum in the above manner. 86 The pleadings in the present case describe the contravening act as one involving a failure by the Territory to provide sufficient or adequate interpreting services, which failure is said to have occurred "by reason of" the conduct in [31] and the facts alleged in [32] (which does not on its terms include an allegation of any act on the Territory's part): C-SOC [33]. The concepts in [31] - [33] are bundled together into a passive phrase: "Failures in the Provision of Interpreting Services". That phrase is then employed in [35] and [36] as the "act" for the purposes of pleas intended to invoke s 9 of the RD Act. 87 Argument proceeded on the assumption that funding of services within the Territory involves the appropriation of public money and its allocation to instrumentalities of the Crown and that those instrumentalities have some discretion as to how the allocated money is to be utilised among projects within their spheres of responsibility. 88 However, as the respondents correctly submit, the pleading contains no allegation concerning any discretionary power exercised by an identified instrumentality of the Crown. 89 In the absence of such a plea, the respondents submit that the impugned paragraphs must be understood to contain an allegation about an act of the legislature of the Territory, namely a failure to appropriate sufficient public money to fund the activities of the executive government. The respondents then submit that the appropriation of funds by the legislature may only be affected by the Legislative Assembly of the Territory passing a law authorising the expenditure of public money pursuant to s 44 and s 45 of the Northern Territory (Self-Government) Act 1978 (Cth). In accordance with that requirement, the Territory legislature has enacted laws that included the Appropriation (2016-2017) Act 2016 (NT) (Appropriation Act). The respondents submit that the passage of the Appropriation Act, or the failure to pass an alternative law for the appropriation of money sufficient to fund the AIS in the Relevant Period is not an act to which s 9 of the RD Act can apply in accordance with the principles discussed in Gerhardy and Mabo: see [15] above. 90 It follows, they submit, that the pleading in its existing form discloses no cause of action. 91 It is not in dispute that s 9 of the RD Act cannot apply to the passage of the Appropriation Act or any other appropriation made by the Territory legislature in the Relevant Period. That includes an act of the legislature allocating budgeted monies to specific instrumentalities of the Crown. It is common ground that a pleading alleging such a case would be liable to be struck out. 92 The applicants deny that the impugned paragraphs involve any allegation of that kind. They say that the act constituting the unlawful discrimination is an act of the executive of the Territory in its discretionary allocation of funds. For the purposes of s 9 of the RD Act, the "act" was said to be an act of a "Department" in exercising a general discretionary power to allocate a part of its own budget to the AIS. The act is one alleged to involve a discretion, and not the mandatory operation of a law, such that it is an act capable of involving a distinction (etc) based on race. 93 Such a case would not be liable to be struck out. But the case articulated in submissions is not made obvious on the pleadings. It should be. 94 It may be open to an applicant to employ phrases such as "in the premises" or "by reason of the matters pleaded" to support conclusions of the kind pleaded in the present case. However, the phrase "in the premises" and the cross-referenced paragraphs do not resolve the kind of ambiguity with which I am presently concerned. 95 In the course of the hearing, the Court asked Counsel for the applicants to confirm whether, for the purposes of s 9 of the RD Act, the "act" of the Territory was a failure to provide adequate interpreting services, as appears to be intended by [33] of the C-SOC in its present form. Counsel said: No. The act is what is pleaded at paragraph 31 - the funding of AIS at particular levels. And we analogise this in the written submissions in the case of Baird. 96 However, submissions accompanying the Elements Table then described the pleas at [31] and [33] as alleging: Because the Northern Territory failed to adequately fund the Aboriginal Interpreting Services (AIS), the Territory failed to provide sufficient or adequate interpreting services to MP speakers in connection with their access to … health and government services 97 Counsel is not criticised for his original answer to the Court's question. The confusion is a consequence of the pleading. Paragraph 31 of the C-SOC is readily understood as a plea clearly alleging the relevant act for the purposes of s 9 of the RD Act. And yet the applicants apparent intention is that the "act", for the purposes of s 9, is that pleaded at [33] - a failure to provide sufficient or adequate interpreting services (albeit one caused by a failure to provide sufficient funding). 98 The need for clearer articulation arises because the defences that may be erected by the Territory may be different depending on whether the "act" is the exercise of a discretion relating to the allocation of funds from a limited source, rather than the more direct failure to provide adequate interpreting services to the applicants and group members. 99 So much can be illustrated by [35] and [36] of the C-SOC. Those paragraphs respectively deal with the second limb of s 9 (concerning whether the act had a certain purpose or effect) and the first limb (concerning whether the act involved, for example, a distinction based on race). The allegation at [36] that the "Failures in the Provision of Interpreting Services" involved a distinction (etc) is expressed as a conclusion, without any explanation as to how that is so. The phrase "in the premises alleged" could be interpreted to draw on all manner of things contained elsewhere in the pleading, leaving it to the reader to pull the foundational threads together. 100 As to [35], if the impugned "act" of the Territory is a funding decision, then it seems that the intended case is that the funding decision is an "act" that had the effect of impeding AIS's capacities to provide interpreting services, which in turn had the effect that there were inadequate interpreting services provided to the applicants and group members which in turn had the effect referred to in the second limb of s 9 of the RD Act. If that is the intended case, then the causal connections should be pleaded so that each may be the subject of discrete attack in the defence. 101 Given what I have said about the Crown Proceedings Act, the applicants' assertion that the impugned act is one downstream from the legislature's appropriation of public money may be accepted. However, it remains that the pleading lacks a clear articulation as to which agency or instrumentality exercised, or failed to exercise a power, assuming that a case founded on the exercise of a discretionary power is intended to be run. If that be the intended case, the pleading should make it plain how the act (clearly defined) involved a distinction based on race (or any alternative permutation for which s 9 provides). 102 If those matters are resolved it might be that no amendment to [35] is necessary. However, given the interdependence of the pleas, there should be an order striking the whole of them out, with the applicants having an opportunity to replead. 103 I reach the same conclusion with respect to [31] - [33] of the G-SOC. 104 Some further aspects of the respondents' submissions should be mentioned. 105 The respondents submitted that if an act complained of is an act of a Department in exercising a general power to allocate a limited budget to different projects, then it would be necessary for the applicants to plead where the funds should have been diverted from in order to adequately fund the AIS. The respondents submitted that in the absence of such a plea, the relevant act could not on any view of the law involve a distinction, restriction or exclusion based on race. 106 I do not consider it appropriate to resolve that argument by reference to the pleadings as they presently stand. As the Full Court made plain in Baird, the "based on race" element of s 9 of the RD Act may be proven in immeasurable ways, not all of which involve the use of a comparator. In Baird itself the requirement that the act involve a distinction (etc) based on race was fulfilled by reference to the State's facilitation of salary payments to Indigenous workers below award wages, and the choice to fund at that level was proven in fact to be referrable to the workers' race. The applicants in the present actions should be afforded the opportunity to resolve any ambiguity in their intended case as to how any act of the Territory involved a distinction (etc) based on race. There is no utility in resolving the respondents' argument in the abstract without reference to the newly proposed pleading, especially given that acceptance of the argument may result in the striking out of the whole of the claim against the Territory without any opportunity to replead. 107 The respondents also argued that the pleading did not adequately disclose how the lack of interpreters nullified or impaired the applicants' or group members' access to or participation in the pleaded services. There is no substance in that complaint. The pleading in [35] is supported by other parts of the pleading that describe the alleged impact of the insufficiency of interpreting services provided by the AIS.
The revision bundle 108 I do not consider it appropriate to consider whether the applicants should be granted leave to replead their case in terms of the pleadings contained in the Revision Bundle. Those pleadings were prepared at a time before argument on the Strikeout Applications was complete and without the benefit of these reasons. 109 Many of the newly proposed amendments appear to be innocuous and it is difficult to understand why the respondents would oppose them. 110 Nonetheless, the filing of the Revision Bundle will not be treated as a further application to amend. The most I will say is that the revisions put beyond doubt that the applicants do not intend to plead a case that would be liable to be struck out as one impugning the Appropriation Act or the operation of any law.
Orders and next steps 111 There will be orders striking out some paragraphs of the pleadings in their current form, reflecting these reasons for judgment. 112 There will be an opportunity to replead for the purpose of clarifying the applicants' case in accordance with these reasons for judgment. 113 The new proposed pleadings may contain previously proposed amendments to any part of the pleadings that were not the subject of opposition on the Amendment Applications. 114 A separate issue relating to the late filing of affidavits will be resolved in the applicants' favour. The Court will deliver oral reasons with respect to that issue. I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.
SCHEDULE OF PARTIES NTD 36 of 2019 Applicants Fourth Applicant: FREDERICK CUMAIYI Fifth Applicant: CASSIMIR DULLA Sixth Applicant: ASSUMPTA GUMBADUCK Seventh Applicant: ELIZABETH GUMBADUCK Eighth Applicant: GLORIA PARMBUCK
Cumaiyi
Northern Territory of Australia
(2006) 156 FCR 451
(1985) 159 CLR 70
(1988) 166 CLR 186
(1998) 91 FCR 8
(2021) 287 FCR 181