Jenkings v Northern Territory of Australia

Federal Court of Australia|2017-10-27|Before: Mr P, Dr P, Act J, Regulations J, Agency J, White J

The Application to Intervene 133 By an interlocutory application filed on 1 May 2017, the four individuals whose claim was the subject of the decision in LO v NT, seek leave, pursuant to r 9.12 of the FCR, to intervene in the proceedings for the purpose of seeking: (a) an order amending the definition of the Group Members to include them as Group Members; and (b) an order amending the claims brought in the proceedings to include their claims, other than those claims which were determined by the judgment in LO v NT. 134 The background to the application is this. The four individuals were within the description of the Group Members when the proceedings were first filed on 23 December 2016. On 8 March 2017, I granted the Applicants leave to amend the proceedings so as to exclude the six individuals (including the four prospective intervenors) who had commenced their own proceedings in the Supreme Court of the Northern Territory. The parties to the proceedings now recognise that the claims pursued by the four prospective intervenors in the Supreme Court were more confined than the claims in the present action. That being so, the prospective intervenors seek the orders outlined earlier. 135 Neither the Applicants nor the Territory oppose the application to intervene and, if intervention is granted, the orders sought by the intervenors. Subject to one matter, leave to intervene will therefore be granted, pursuant to r 9.12 of the FCR. The qualification is that the intervenors must be identified properly to the Court. At the moment the Court has been provided with some identifying letters only. These letters may continue to be used provided that the identity of the persons to whom they relate has been otherwise provided. 136 Having granted the intervention, I will also order, on the intervenors' application, that the Further Amended Originating Application and the 2FASC be amended in the way they propose. Those amendments are to be effected by the filing and service by the Applicants of amended documents at the same time as their exercise (if that occurs) of the leave to amend the 2FASC to which I referred earlier.

Summary 137 In summary, for the reasons given above, the applications by the Territory for orders pursuant to ss 33C(1) and 33N(1) of the FCA Act are refused, as is the Territory's application for the transfer of the proceedings to the Supreme Court of the Northern Territory. The application by the Territory for the striking out of paragraphs [49], [63] and [78] to [82] inclusive of the 2FASC is allowed and those paragraphs are struck out. The application by the Territory for the striking out of paragraphs [69] to [72] is refused. The Applicants have leave to file and serve a Third Amended Statement of Claim with that leave to be exercised by 27 November 2017. Subject to the proper identification of the prospective intervenors, the intervention sought by the interlocutory application filed on 1 May 2017 is allowed, and the Further Amended Originating Application and the 2FASC are to be amended in the manner they propose. 138 I will hear the parties as to costs and as to consequential matters, including the question of whether any order should be made pursuant to ss 33N(2) of the FCA Act. I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Pt IVA Jurisdiction of Courts (Cross-Vesting) Act 1987(Cth)s 5(4)

Limitations Act 1981(NT)ss 3, 5, 44

Federal Court Rules 2011(Cth)rr 9.12, 16.21, 16.41

Federal Court of Australia Act 1976(Cth)ss 33C, 33H, 33N, Pt

Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 Wotton v State of Queensland (No 5) [2016] FCA 1457 Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384

The related circumstances requirement 34 The "circumstances" requirement in s 33C(1)(b) is expressed in the alternative, with each alternative requiring a gradually less demanding connection between the circumstances giving rise to the claims of the group members. If the circumstances are not the same, they must be similar and, if not similar, they must be related. 35 Although the submissions of the Territory were directed principally to the common issue requirement, it contended that the range and scope of the allegations foreshadowed to be made by the Group Members in these proceedings are so "prohibitively wide" as to be unable to satisfy even the requirement that the circumstances be "related". This was necessarily so, it submitted, because the circumstances on which the Applicants rely are the kind of torts alleged to have been committed by Commissioners, Superintendents and detention centre staff and not the same conduct or matters giving rise to those torts. That conduct or those matters are capable of almost infinite variety, differing from case to case according to: the time at which the tort or torts were said to occur (in effect, at any time over a period of over 10 years); the diverse places at which they are alleged to have occurred (there is evidence that the Northern Territory had five separate youth detention centres in the period from 1 August 2006 to 31 December 2016 in addition to holding cells at the Darwin Magistrates Court and Youth Justice Court); the number of officers and staff members involved (there is evidence that, putting to one side casual staff, the Department of Correctional Services in the Northern Territory (DCS) employed at least 175 staff in youth detention centres in the same period); the variety of conduct said to constitute the torts (holding detainees in isolation, the use of restraints (of different kinds), the use of teargas, the use of dogs, the use of force and physical violence (of different kinds), searches and examinations); and the content of the relevant law and regulations, including individual detention centre rules, which were in force from time to time. 36 Counsel for the Territory sought to demonstrate the diversity of circumstances which may be encompassed by the Group Members' claims by advancing the following hypotheticals: (a) A alleges that he was falsely imprisoned in consequence of an administrative failure by the Superintendent to release him from the Don Dale Detention Centre when his sentence expired on 1 January 2016; (b) B alleges a battery against her person by a youth justice officer at Aranda House in December 2006 when excessive force was used to restrain her physically after she had threatened to assault another detainee; (c) C alleges an assault consisting of a threatened application of force by a youth justice officer. The officer swore at the detainee and had threatened to use force to return the detainee to his cell if he did not do so voluntarily and immediately; (d) D alleges that the use of restraints against him when he travelled outside the detention centre on various occasions was unnecessary and unlawful, with each incident amounting to an assault and battery. 37 While emphasising that these were hypothetical circumstances only, counsel submitted that they indicated the potential width of the range and scope of the Applicants' allegations and that the circumstances relating to the Applicants' own claims would not, in the terms used by Rares J in Carr v Commins Hendriks Pty Ltd [2016] FCA 1282 at [27], "be sufficiently illustrative of the wide variety of potential factual situations". 38 In short, the Territory submitted that the claim of each Group Member will turn on its own particular facts and circumstances and that the circumstances of the claim of one Group Member need not have any relationship with the circumstances of the claim of another, unless assessed at a high level of abstraction. 39 The principles to be applied in relation to the related circumstances requirement are settled. In Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384, French J said, at 404-5: The question whether the claims of the persons who are proposed as members of a group arise out of "the same, similar or related circumstances" as required by s 33C(1) is not to be answered by an elaboration of that verbal formula. It contemplates a relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit. Each claim is based on a set of facts which may include acts, omissions, contracts, transactions and other events. As appears from s 33C(2), the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members. The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word "related" suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation. (Emphasis added) 40 The purpose of the legislation to which French J referred in the second of these paragraphs is the provision of "an efficient and effective procedure to do with multiple claims" - see the Minister's Second Reading Speech to which the High Court referred in Wong v Silkfield Pty Ltd at [20]. 41 The observations of Mansfield J in Guglielmin v Trescowthick (No 2) at [48] are pertinent presently: In any representative proceeding there may well be differences between the positions of the various group members in respect of their claims against the respondents. That is likely to be the case whenever a complex representative action is instituted, that is a representative action involving a course of conduct rather than one transaction or piece of conduct or a representative action involving a large number of respondents. With an active mind, one could find a plethora of differences in any such representative proceeding. It is the nature of such proceedings that there are differences between the positions of the parties. That is why there is needed a relatedness of circumstances, rather than exactly the same circumstances, in the claims of the group members. Representative proceedings are not intended only to be available in the more straightforward of circumstances where the conduct of one respondent on one occasion is alleged to have resulted in loss to a number of persons. (Emphasis added) 42 Section 33C(2) of the FCA Act indicates that claims may be in respect of the same, similar or related circumstances even if concerned with separate contracts or transactions or involve separate acts or omissions. 43 In determining whether claims are in respect of, or arise out of, the same, similar or related circumstances, it is appropriate to have regard to their differences as well as their similarities, and to the complexity of the claims (Guglielmin v Trescowthick (No 2) at [47]). Some differences are to be expected. As Mansfield J also pointed out in Guglielmin v Trescowthick (No 2), differences between individual claims are almost inevitable whenever the subject of a representative action is a course of conduct rather than a single event resulting in loss to many. The potential diversity of the individual claims and their complexity in such cases does not of itself indicate that they may not be "in respect of, or arise out of, … related circumstances". 44 Section 33C(1)(b) does not require the claims themselves to be the same, similar or related: only for the circumstances from which they arise or which they concern to have that character. Some of the submissions made on behalf of the Territory did not reflect that circumstance. 45 The present case may well be towards the centre of the spectrum to which French J referred in Zhang. Nevertheless, I consider that the matters to which the Applicants refer do indicate a sufficient relatedness of circumstances. Those matters include: (a) all Group Members were youths who had been detained in youth detention centres in the Territory; (b) common legislative and regulatory provisions applied to the youth detention centres and to the conduct of officers and staff members in those centres;. The fact that the relevant provisions of the YJ Act had been amended with effect from 9 September 2014 and again from 1 August 2016 and that some detention centres had their own rules does not alter this circumstance because it seems that there is an underlying core of common regulatory provisions; (c) the conduct said to constitute the false imprisonment, assault or battery and other forms of adverse action are said to be incidents in a form of systemic conduct by officers or staff members; (d) the conduct is said to constitute a form of racial discrimination. 46 In short, I am not satisfied that the potential for there to be significant differences between the claims of individual Group Members has the consequence that they cannot be regarded as being in respect of, or arising out of, related circumstances. This part of the Territory's application fails.

Questions 1 and 2 50 Questions 1 and 2 concern s 44 of the Limitation Act which empowers a court to extend the time fixed by that Act or any other Northern Territory Act for (relevantly) the institution of an action. It will be pertinent in this case because s 215(4) of the YJ Act as in force before 8 September 2014, and s 215B of the YJ Act as in force from 9 September 2014, provide for a six month limitation period. 51 Paragraphs [69]-[72] of the 2FASC are relevant to Questions 1 and 2. In [69] and [70], the Applicants plead: [69] If necessary, which is not admitted, the first applicant seeks on his own behalf and on behalf of Group Members, pursuant to section 44(1) of the Limitation Act (NT), an extension of the time for instituting this action otherwise limited by s 215(4) of the Act, in force until 8 September 2014. [70] Additionally or alternatively, if necessary, which is not admitted, the first applicant seeks on his own behalf and on behalf of Group Members, pursuant to section 44(1) of the Limitation Act (NT), an extension of the time for instituting this action otherwise limited by s 215B of the Act. 52 It is not necessary to set out [71] and [72] separately because in those paragraphs, the Second Applicant makes the same claims as had the First Applicant in [69] and [70]. 53 There is a question as to whether s 44 of the Limitations Act can apply in respect of the limitation period fixed by s 215(4) of the Limitation Act as in force until 8 September 2014. That question arises by reason of s 5 of the Limitations Act: This Act does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to s 3. 54 The YJ Act is not an enactment listed in s 3. Read literally, this could be taken to mean that the power to extend time contained in s 44 of the Limitations Act is not available in respect of actions to which the limitation period fixed by the YJ Act applies. However, there is a settled line of authority in the Northern Territory to the effect that the subject matter of s 5 is the preservation of special limitation periods prescribed by enactments other than those to which s 3 refers and that it does not have the effect of excluding courts exercising the power under s 44 to extend the time fixed by a special act. These include the decisions of the Full Court of the Supreme Court of the Northern Territory in Vershuuren v Toms' Tyres Corporation Ltd (1992) 86 NTR 1 at 7-8; Drover v Northern Territory of Australia [2004] NTCA 11; and Johnson v Northern Territory of Australia [2014] NTSC 18. Those decisions do not of course bind this Court but, having regard to usual principles, this Court would depart from them only if satisfied that they were clearly wrong. The Territory did not foreshadow any submission to that effect. In these circumstances, it was unsurprising that counsel for the Applicants did not contend that the question of the operation of s 5 of the Limitations Act in this case in relation to the six month limitation period fixed by the YJ Act gave rise to a "substantial" common question of law. 55 Further, and in any event, the possible significance of s 5 does not arise under s 215B of the YJ Act as subs (2) of that provision provides expressly that subs (1) does not prevent a court exercising jurisdiction under s 44 of the Limitation Act. 56 There is, however, a fundamental reason why s 44 does not give rise to a substantial common question. In Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd [2017] FCA 14, Griffiths J held that the commencement of proceedings under Pt IVA of the FCA Act on behalf of group members constituted the institution of an action by the group members for the purposes of s 44. Accordingly, not all Group Members will require an extension of time. Those who complain of conduct occurring in the six months before 23 December 2016, will be regarded as having instituted their actions within time. The issues concerning the application of s 44 will not concern these Group Members. 57 That being so, Questions 1 and 2 cannot be regarded as giving rise to a substantial common question.

Question 3 58 The Territory accepted that Question 3 is common to all Group Members. It submitted nevertheless that the question did not satisfy the requirements of s 33C(1), having regard to the following: (a) the question is solely a question of law; (b) the answer to the question of law may be found in Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 (PAC Inc v ADC); (c) absent a contextual foundation, the question is abstract and unreal; (d) absent a denial by the Respondent of vicarious liability, the question is not in issue. 59 Some of these matters may be disposed of shortly. As the Applicants' counsel pointed out, satisfaction of s 33C is a threshold requirement which is not dependent on the attitude which a respondent might take in its pleading. A respondent's admission of an issue which is both common and substantial does not foreclose the existence of the issue, although in some circumstances it may bear upon the issues which arise under s 33N. If the Territory admits its vicarious liability in respect of the claims of the Group Members, then the common issue which it accepts exists will have been resolved. If it denies vicarious liability, the common issue will remain to be resolved. On either approach, the threshold requirement would have been satisfied. 60 The circumstance that the question is one of law rather than fact does not preclude the question from satisfying the requirements of s 33C(1)(c). 61 It is doubtful that the decision in PAC Inc v ADC provides the complete "answer" to the question of law. That decision concerned (relevantly) the vicarious liability of a school for the sexual abuse of a 12 year old boarder by one of its employed housemasters. The High Court reviewed the authorities bearing upon the existence of vicarious liability in cases of that kind and gave guidance as to the approach to be adopted in its determination: [81] Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable. (Emphasis added) 62 As can be seen, the High Court identified "the relevant approach" to be adopted in cases of the kind then under consideration, namely, the sexual abuse of children entrusted to an employee's care or supervision. The present claim is not of that kind. No doubt the approach suggested in PAC Inc v ADC will be of considerable assistance in the present proceedings but, contrary to the Territory's submission, I do not think that it should be held at this stage that the approach will be decisive. There are some obvious differences between the conduct in question in PAC Inc v ADC and the present. In particular, the conduct in question in these proceedings does not turn on the employees' ability "to achieve intimacy with the victim" , this being a matter which the High Court said may be "especially important" in determining whether the apparent performance of an employee's role may be said to provide the "occasion" for the wrongful act. 63 The determination of the alleged vicarious liability of the Territory in the present proceedings is likely to involve the determination of issues common to all claims, if only of the principles to be applied and the matters pertinent to the existence or otherwise of the claimed vicarious liability. 64 So far, I have been speaking of vicarious liability in the common law. However, the issue of vicarious liability in the present proceedings in respect of any conduct found to infringe the RD Act will be governed by s 18A of that Act. Section 18A provides: 18A Vicarious liability (1) Subject to subsection (2), if: (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and (b) the act would be unlawful under this Part if it were done by that person; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. 65 As can be seen, there are material differences between the statutory imposition of vicarious liability under s 18A, on the one hand, and the common law position, on the other. The decision of the High Court in PAC Inc v ADC does not address the former. 66 Section 18A may well give rise to some common questions. That is especially so given the pleading of "routine" conduct in [81] and [82] of the 2FASC. If conduct of that kind be established, the enquiry under s 18A(2) may relate to the conduct of the Territory in relation to the system or practice of officers and staff members rather than in relation to the acts of individual employees. 67 However, I am not willing to rest a finding that a common question arises on this basis. In the first place, s 18A(2) appears to be a matter of defence to be raised, if at all by the Territory. Secondly, as will be seen, I consider that the present pleading by the Applicants of the RD Act claims are flawed. The question of vicarious liability depends on those claims being viable and the shortcomings in the pleadings means that there is some doubt about that viability. That being so, I think it preferable to proceed on the basis that Question 3 does involve a substantial common question with respect to vicarious liability at common law. It may also do so in relation to vicarious liability under s 18A but that cannot be determined until the underlying pleading has been finalised.

Question 19 78 This question raises the issue of whether damages are available under s 46PO(4)(d) of the AHRC Act as compensation for loses constituted by the impairment of the Applicants' and Group Members' enjoyment of the human rights and fundamental freedoms pleaded in [83] of the 2FASC. 79 Section 46PO of the AHRC Act provides (relevantly): (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: … (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; … (5) In the case of a representative proceeding under Part IVA of the [FCA Act], subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the [FCA Act]. … 80 Two matters about s 46PO(4) may be noted. The first is that subs (d) refers to "damages by way of compensation for any loss or damage". The second is that the enumerated matters are not exhaustive of the kinds of orders (including orders for the payment of damages) which may be made. 81 In relation to the RD Act claims, the Further Amended Originating Application indicates that the Applicants seek for themselves and for the Group Members "[t]he remedies under s 46PO of the [AHRC Act] set out under the heading 'Remedies Sought'". Paragraph [3] of those remedies is as follows: The Applicants ask the Court for … 3. Orders pursuant to s 46PO(4)(d) of the AHRC Act requiring the Respondent to pay to the Applicants and Group Members damages by way of compensation for any loss or damage suffered because of the conduct of the Respondent, including losses constituted by the impairment of the Applicants' and Group Members' enjoyment of the human rights and fundamental freedoms described in paragraph 84 [sic] of the 2FASOC. (Emphasis added) 82 The 2FASC does not contain an articulation of the claim for damages on behalf of the Group Members in respect of the alleged breaches of s 9(1) of the RD Act. Instead, the 2FASC pleads in [102] that the claims of the Group Members will be "pleaded and particularised after an initial trial of the Applicants' claims and the common issues." 83 Despite the terms of [3] of the relief sought as quoted above, counsel for the Applicants submitted that there is an issue as to whether s 46PO(4), whether by subpara (d) or otherwise, permits an award of compensation for contraventions of s 9(1) which do not result in loss. He submitted that this was a common issue affecting the trial of all Group Members. 84 In support of this submission, counsel relied on passages in the judgment of Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457 in which her Honour adverted to the possibility that damages may be awarded for infringements of s 9 of the RD Act even though those infringements did not result in loss. The relevant passages are as follows: [1625] The applicants did not seek orders other than the kind usually sought under s 46PO: that is, compensation for actual loss and damage proven to have been suffered by an individual. In that sense, the applicants' case treated proof of non-economic or economic loss or damage as an integral element in securing an order for compensation under s 46PO(4). [1626] In my opinion, it was possible for orders to be sought under s 46PO on a different basis. In his recent text on Damages and Human Rights (Hart Publishing, 2016), Jason Varuhas draws a distinction (see p 25) between what he calls the "vindicatory torts" (trespass to land or goods, battery, assault, false imprisonment, defamation) and the "compensatory torts" (negligence being the principal example he gives). In the former category, Varuhas contends, correctly in my respectful opinion, that what is being vindicated by an award of damages is the infringement of a right itself, rather than compensation for actual loss or damage. He refers (at p 54) to false imprisonment cases where compensation is expressed as given for loss of liberty itself: see, eg, R v Governor of Brockhill Prison; Ex parte Evans (No. 2) [1999] QB 1043 at 1060 (Lord Woolf MR). So too (although less frequently, he concedes) for assault, where the infringement of personal bodily integrity can lead to compensation: see, eg, Forde v Skinner (1830) 4 Car & P 239; 172 ER 687 (in which parish officers cut off a woman's hair by force and without her consent); Loudon v Ryder [1953] 2 QB 202 (in which the defendant broke into the plaintiff's flat and assaulted her); and Ms B v An NHS Hospital Trust [2002] EWHC 429 (in which the claimant was given invasive artificial ventilation without her consent, leading to declarations and a nominal award of damages). Trespass to land is, Varuhas contends, in the same category: damages are given for the interference with exclusive possession, whether or not damage is caused to the land: Plenty v Dillon [1991] HCA 5; 171 CLR 635 at 647. In Plenty at 654-55, Gaudron and McHugh JJ said: True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land. … The appellant is entitled to have his right of property vindicated by a substantial award of damages. (Emphasis added.) [1627] Eschewing any bright lines between human rights law as "public law" and torts as "private law", Varuhas criticises developments in United Kingdom law which diminish the role and importance of damages in human rights cases. He criticises cases such as Anufrijeva v Southwark LBC [2003] EWCA Civ 1406; [2004] QB 1124 and R (Faulkner) v Secretary of State for Justice [2013] UKSC 47; [2013] 2 AC 254 which characterise damages as a remedy of last resort in human rights cases because "public law" remedies - bringing the breach of rights to an end for example - are the remedies which it is said should be given prominence. Varuhas instead contends that a "vindicatory" approach should be taken, by analogy with those torts which recognise the need to vindicate the importance of basic and fundamental rights by an award of damages for the infringement of the right itself. [1628] It should be said at once that Varuhas' text is concerned principally with human rights law in jurisdictions with bills of rights, whether statutory or constitutionally entrenched. It should also be said that, as the authorities to which I refer at [1613] demonstrate (Richardson in particular), it is not the case that damages for breaches of statutory equality rights (as a subset of human rights) are approached by Australian courts from any secondary perspective, as if monetary compensation is less important than other remedies. Quite the opposite. In that sense, Varuhas' concerns may not be apparent in Australian cases. Further, Varuhas criticises courts in the United Kingdom for tying the "quantum of awards for non-pecuniary loss to Strasbourg levels of awards, which are far lower than domestic scales for equivalent losses" (at p 95). The case law of the European Court of Human Rights, to which Varuhas refers, is far less of an influence on Australia law. [1629] However, his emphasis on the origins of many torts in the vindication of a fundamental right is not without significance for the grant of relief under statutory provisions such as s 46PO, especially read with prohibitions such as those in s 9. If s 9 is, as the authorities emphatically state, concerned with the protection of equality before the law, and concerned to prohibit the nullification or impairment of the enjoyment of human rights on an equal footing, then why would it not be the case that compensation could be ordered to vindicate such a right, without proof of actual damage? I do no more than ask the question, because in this case, the applicants have not sought to develop such an argument. Had they done so, interesting questions might have arisen about what compensation could be ordered for the first five contraventions of s 9 that I have found proven - including whether such orders could be made in a class action of this kind, equally in favour of each class member, where the right infringed was a community's right to have policing services following a death in custody provided to that community in an independent and impartial way. 85 It may accepted that, as the authorities currently stand, the passages in Wotton identify a question which may have to be determined at some stage. 86 Counsel for the Territory submitted that Question 19 did not raise a common question because all the Court would determine in the case of the Applicants was whether the particular matters which they allege constituted an impairment of an enjoyment of a human right. He submitted that any such finding would be fact-based having regard to the circumstances of the Applicants and otherwise would be at such level of generality and not determinative of anything in relation to the claims by other Group Members. 87 I do not accept that submission. Of course, any award of damages would turn on the facts of an individual case. But to say that does not preclude the determination that an infringement of s 9(1) which is not productive of loss may, as a matter of principle, sound in damages and that s 46PO(4) permits an award of damages of that kind. Such a determination could be binding in relation to the claims of all Group Members. 88 For these reasons, I accept that Question 19 may give rise to a question of common application. However, again the existence of the question turns upon there being a pleading of viable RD Act claims. Given that I will uphold the Territory's criticisms of the pleading of those claims, that stage has not yet been reached.

Section 33N of the FCA Act 90 Section 33N provides: 33N Order that proceeding not continue as representative proceeding where costs excessive etc. (1) The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because: (a) the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or (b) all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or (c) the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or (d) it is otherwise inappropriate that the claims be pursued by means of a representative proceeding. (2) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court. (3) Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just. 91 The Territory submits that, even if the Applicants have satisfied the s 33C(1) threshold requirements, the Court should nevertheless exercise the discretion under s 33N and order that the proceedings no longer continue under Pt IVA. It raises a number of matters in support of that submission, including: (a) the litigation costs are likely to exceed those of individual proceedings by reason that, unless and until all claims by all Group Members are fully pleaded, it will be unable to make fully informed forensic choices in order to confine its own proof to essential evidence, limit the issues in dispute, make concessions or attempt to resolve matters extra-judicially; (b) all of the relief sought by the Group Members can be obtained by means of separate proceedings, which could be heard together when practical and convenient to do so; (c) the representative action will be inefficient and ineffective as the claim of each Group Member will depend on its own unique circumstances and the different rules in force in the various detention centres; (d) it is otherwise inappropriate that the claims be pursued as a representative action when: (i) the Group Members are or were minors and may be exposed to adverse determinations of liability and res judicata or estoppel if their claims are not properly advanced (citing Schanka v Employment National (Administration) Pty Ltd (No 2) [2001] FCA 1623; (2001) 114 FCR 379); (ii) the Territory does not have a full pleading of claims by all Group Members and so does not know the manner in which the case is put against it and is therefore unable to make informed forensic choices to meet that case (citing Zhang at 405 (French J)). 92 As can be seen, these submissions reflected closely the terms of subs (a) to (d) of s 33N(1). 93 There is considerable scope for doubt about proposition (a), and it does not seem to pay due regard to efficiencies to be achieved by the determination of common questions. Nor do the submissions give due regard to the ability of the Court to put in place appropriate arrangements for the determination of individual claims once the common questions have been determined. 94 Further, on their face, the matters advanced by the Territory would be applicable in many representative actions brought pursuant to Pt IVA, and yet experience does not bear out its concerns. 95 However, I consider that it is not necessary to reach a final view about these submissions. That is because I consider that, in the circumstances that the Territory has not yet filed a defence, it would premature for the Court to determine that the proceeding not be permitted to continue as a representative action. The absence of a defence means that there has been no crystallisation of issues which the Court can assess in the context of s 33N. 96 In the ordinary course, the Territory would by now have filed a defence. However, when the Territory raised a challenge to the Court's jurisdiction, I considered it appropriate, in accordance with the usual principles, for that question to be determined at the outset and before directions were made in respect of the filing of a defence. The Territory abandoned its challenge to jurisdiction only shortly before the present hearing but despite that change in circumstance, did not file a defence. 97 The significance of an application under s 33N being made before the filing of a defence was addressed by Lindgren J in his judgment in Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 at [18]: The applications under s 33N were made at a procedurally early stage. Defences have not yet been filed. In substance, the applicant commenced a representative proceeding which ex hypothesi, the legislature intended she be entitled to commence because of the presence of substantial common issues of law and fact, yet the Court was immediately asked to accept that the proceeding would not provide an efficient and effective means of dealing with the claim of the Group Members. I do not mean to suggest that an application under s 33N at such an early stage of a properly commenced representative proceeding would always be premature: if there were an incompatibility or conflict between the representative party's case and the cases of the represented parties … or if the only substantial common issue were one of law on which a decision in the case of one group member would bind the others, it may be thought not efficient or effective for the representative proceeding to continue. But ordinarily one would expect that, in an attempt to give effect to the legislative intention, a means will be sought, by case management techniques, to enable a representative proceeding to continue to the stage of resolution of the substantial common issues on the basis that after that stage is completed, an order under s 33N or directions under s 33Q will be made … (Citations omitted) 98 In Guglielmin v Trescowthick (No 2), Mansfield J referred to and applied this passage, saying at [76]: The defences are yet to be filed. When they are filed, the real issues between the parties may more readily emerge. The further management of this proceeding may include consideration of the creation of sub-groups within the claim group. It may include consideration of orders for the separate trial of issues. It may include directions that the issues of relevance be refined by reference to the circumstances of particular sub-groups or members of the claim group, as a preliminary step to considering how the hearing should progress. 99 I respectfully adopt that reasoning and consider that it is apposite presently. Further, like Mansfield J, I am conscious that an order under s 33N at this stage would effectively put a very large number of the Group Members out of Court. The Court should be cautious before adopting such a step. 100 Accordingly, the Territory's application under s 33N is refused. Given the basis for the refusal, I am not minded on my present understanding, to make an order under s 33N(2) but will hear from the parties on that question.

The cross-vesting application 101 The third application of the Territory is for an order that these proceedings be transferred, pursuant to s 5(4) of the Cross-vesting Act, to the Supreme Court of the Northern Territory. 102 Ms Pikoulos, a lawyer employed by the Solicitor for the Northern Territory, has deposed to the existence of six actions in the Supreme Court brought by or on behalf of youth detainees seeking damages in respect of conduct said to have occurred while they were in detention. In four proceedings, the plaintiffs identified as "LO", "EA", "KW" and "JB", made allegations of assault and battery while they were detained at the Don Dale Youth Detention Centre (DDDC). Their claims included allegations of: (a) the deployment of CS gas on 21 August 2014; (b) the use of handcuffs, ankle shackles and spit hoods in August 2014; (c) physical violence by youth justice officers in the period between August 2014 and April 2015. The majority of the allegations arose out of an incident which occurred at the DDDC on 21 August 2014 and its aftermath. 103 The four proceedings brought by LO, EA, KW and JB were tried together in the Supreme Court of the Northern Territory between 26 September 2016 and 18 October 2016. Judgment was delivered on 21 March 2017: LO v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 (LO v NT). 104 The plaintiffs in the remaining two proceedings are Dylan Voller and Levi Aldenhoven as litigation guardian for Jake Roper. They make allegations of false imprisonment, assault and battery of a generally similar kind to those made by the four plaintiffs in the earlier proceedings. Those matters have not yet come to trial. 105 The Territory sought the transfer of the proceedings to the Supreme Court of the Northern Territory for the following reasons: (a) the present action is related to the matter of Dylan Voller (and, although the Territory did not rely on it specifically, the claim of Jake Roper); (b) the issues for determination involve principally questions as to the application of Northern Territory laws; (c) there has already been one determination of related matters in the Supreme Court and it is in the interests of justice that these claims be heard in the same forum; (d) the effect of s 4 of the Cross-vesting Act is that the Supreme Court of the Northern Territory has jurisdiction to hear and determine the claims brought pursuant to s 46PO of the AHRC Act, that is, the jurisdiction of this Court with respect to such claims is not exclusive. 106 The Supreme Court Act of the Northern Territory does not have an equivalent of Pt IVA of the FCA Act. Order 18 of the Supreme Court of the Northern Territory Rules does provide for the bringing of representative proceedings, but only when numerous persons have the "same interest" in a proceeding. The regime contemplated by Order 18 is not as advantageous to members of a class as is Pt IVA of the FCA Act. Accordingly, an order for transfer would mean that the Applicants and the Group Members would lose the procedural advantages provided by the regime in Pt IVA. Such a consequence would not be in the interests of justice. I respectfully agree with the reasoning of Hollingworth J in relation to an issue of this kind in Hall v Australian Finance Direct Ltd [2005] VSC 306 at [76]-[94]. The circumstance that the proceedings will involve the interpretation of laws of the Northern Territory and that some individuals have commenced proceedings the Supreme Court of the Northern Territory does not alter the locus of the interests of justice. Nor does the fact that the Supreme Court has already determined in one judgment that claim of four individuals in relation to specified incidents have that effect. I note that counsel for the Territory was unable to identify any particular procedural efficiency or other matter indicating that advantages of efficiency or economy would be obtained if the proceedings are transferred to the Supreme Court. 107 Accordingly, I decline this aspect of the Territory's application.

The striking out of pleadings 108 By [4] of its Further Amended Interlocutory Application, the Territory sought, in the alternative to the orders sought under ss 33C(1) and 33N(1), orders pursuant to r 16.21 of the FCR striking out particular paragraphs of the 2FASC. They are [49], [63], [69] to [70] and [78] to [83]. The Territory contended that these pleadings are evasive or ambiguous (subr (1)(c)), likely to cause prejudice, embarrassment or delay in the proceeding (subr (1)(d)), and/or fail to disclose a reasonable cause of action (subr (1)(e)). In relation to [78] to [83] of the 2FASC, the Territory seeks the striking out for an additional reason, namely, the failure of the 2FASC to meet the requirements of r 16.41 that a statement of claim provide the necessary particulars of each of its pleaded claims. 109 The Territory's strike out application was made relatively belatedly and was included in the Amended Interlocutory Application by a grant of leave at the hearing. 110 The principles relating to the application of rr 16.21 and 16.41 are settled and need not be rehearsed in these reasons. Some matters bearing upon the application of those principles in the context of Pt IVA proceedings were addressed by Sackville J in Philip Morris at [129]-[137]. His Honour's reasons have has been approved in a number of subsequent cases, including Williams v FAI Home Security Pty Ltd (No 2) [2000] FCA 726 at [15]-[16]; Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2001] FCA 1073 at [7]; Peter Hanne & Associates Pty Ltd v Village Life Limited [2008] FCA 719 at [40]-[42]. 111 The propositions identified by Sackville J can be summarised as follows: (a) Part IVA does not abrogate the general pleading requirements applicable to proceedings in this Court and an inadequately pleaded representative proceeding may be struck out or dismissed; (b) in contrast to a failure to satisfy the threshold requirements specified in s 33C(1), inadequacies in the pleadings do not necessarily mean that the proceeding cannot continue as a representative action. Whether they have that effect will depend on their nature and whether they are curable by amendment or may be addressed through other case management techniques; (c) the fact that the ordinary rules of pleadings apply to Pt IVA proceedings does not mean that applicants in such proceedings are bound to plead material facts specific to each group member; (d) regard should be had to the principal functions of pleadings, namely, to provide a statement of the case sufficient to allow the opposing party a fair opportunity to meet it, to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial, and to enable the opposing party to understand and assess the pleaded case for the purposes of settling the litigation. The extent of the pleading necessary to satisfy these requirements depends on the general subject matter of the proceedings and on what is required to convey to the opposite party the case which it must meet; (e) in the context of Pt IVA proceedings, these purposes may be achieved by the pleading of the case of each class member at a reasonably high level of generality. If the rules of pleading do not permit this degree of flexibility, serious inroads will be made into the utility of the procedure established by Pt IVA; (f) whether the pleading of the claims of group members at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached. 112 As can be seen, these principles concern mainly the pleading of the claims of group members. The position is different in respect of the pleading of an applicant's own claims. There is no reason why the pleading of those claims should not comply with the Court's pleading requirements: Peter Hanne & Associates at [41]. Even with respect to the claims of group members, the level of generality should not be so great that a respondent cannot reasonably be expected to know, with some precision, the case which it is to meet: Peter Hanne & Associates at [42]; Williams v FAI Home Security (No 2) at [16].

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