Jenkings v Northern Territory of Australia

WHITE J: 1 This is a judgment on a pleading and discovery dispute in a representative action. 2 The Group Members are defined (in substance) as persons who were or who had been detained in a youth detention centre of the Northern Territory at any time between 1 August 2006 and 27 November 2017, who suffered or allege they suffered discrimination in contravention of s 9(1) of the Racial Discrimination Act 1975 (Cth) (the RD Act), and who claim damages in respect of the impairment of their enjoyment of their human rights and fundamental freedoms by reason of the contraventions, and/or who suffered, or allege that they suffered, assault, battery and/or false imprisonment by the acts or omissions of officers or employees in a detention centre. 3 On 27 October 2017, the Court refused applications by the Territory seeking the striking out pursuant to r 16.21 of the Federal Court Rules 2011 (the FCR) of the pleading as representative pleadings, for an order pursuant to s 33N(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), and for an order for the cross-vesting of the proceedings to the Supreme Court of the Northern Territory: Jenkings v Northern Territory of Australia [2017] FCA 1263. It did, however, order the striking out of certain of the pleading of the Applicants' own claims. They were granted leave to file and serve an amended statement of claim. 4 The Applicants exercised that leave. Their current statement of claim is the Fifth Statement of Claim (5SC) and was filed on 27 December 2017. 5 The Territory's application seeking orders striking out particular paragraphs of the 5SC was filed on 8 May 2018. 6 On the next day, the Applicants filed an interlocutory application concerning discovery of documents. 7 It is convenient to address first the strike out application.

Relevant principles and matters of approach 14 Issues concerning the adequacy of the Applicants' pleading are occupying an undue amount of the time of the Court and of the parties. It is accordingly appropriate to restate some underlying principles. 15 The fundamental purpose of pleadings is to provide a structural framework for the litigation. Pleadings achieve this purpose by performing two basic functions. First, by defining the issues between the parties, thereby providing the basis for the determination of questions as to discovery before trial and the admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the rules as to res judicata and issue estoppel. Secondly, by providing fair notice to opponents of the case to be made against them at trial, thereby minimising the risk of injustice resulting from surprise: Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216 (King CJ); Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd [1990] HCA 11, (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J). This Court's Rules are intended to facilitate the achievement of these fundamental purposes. 16 Rule 16.02(1)(d) of the FCR specifies that a pleading must: [S]tate the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved … 17 The facts which are material to a claim can usually be pleaded at varying levels of generality or abstraction. Rule 16.02(1)(d) indicates the required level of specificity by indicating that a party must plead the material facts which are necessary to give the opposing party fair notice of the case to be made against it. Rule 16.03(1)(b) elaborates this requirement by requiring a party to plead a fact if "failure to plead the fact may take another party by surprise". See also r 16.08 in relation to pleadings subsequent to a statement of claim. 18 The FCR distinguish between the pleading of material facts, on the one hand, and the provision of particulars, on the other. Often this distinction is blurred. However, given the Territory's contention that the Applicants have not pleaded sufficient material facts and the Applicants' position that they can provide further particulars only after discovery and/or interrogatories, it is pertinent to note the distinction between the two. I have already referred to rr 16.02 and 16.03 regarding the required content of the pleading of material facts. Rule 16.41 requires a party to state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party. Lindgren J explained the different purposes of the pleading of material facts and particulars in Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568: [15] The requirement that material facts be stated has two purposes: the natural justice purpose of adequately informing the other party of the nature of the case alleged against that party; and the purpose of providing a basis for determining whether that alleged case, so exposed, constitutes a cause of action cognisable at law. Particulars serve only the former purpose. … Particulars have a role to play where all the material facts have been pleaded but leave the other party inadequately informed of the case to be met; … (Emphasis added) 19 Later, at [17], Lindgren J noted the tendency for a less strict view to be taken of the distinction between material facts and particulars than had been taken previously, but emphasised the requirement, nevertheless, for a statement of claim to contain all the material facts on which an applicant relies: … According to this view, the particulars contained in a statement of claim may be taken into account for the purpose of determining whether the statement of claim amounts to a statement of all the material facts. But even this more flexible view of pleading does not countenance the omission of material facts from the statement of claim regarded as a whole. Accordingly, if the Pleading, regarded as a whole, does not contain a clear statement of all the material facts on which [the applicant] relies, it is no answer to suggest that [the respondent] can require [the applicant] to supply particulars. (Emphasis added) 20 The adequacy or otherwise of the pleading of the material facts in a particular proceeding is very much dependent on the context and circumstances of the case. For this reason it has been said that a statement of claim must allege a cause of action with sufficient particularity and not simply make out allegations in general terms: Young Investments Group Pty Ltd v Mann [2012] FCAFC 107, (2012) 293 ALR 537 at [7]; Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] FCA 1758, [1996] APTR 41-522 at 42,679. In Young Investments Group, the Full Court elaborated the requirement for sufficient particularity by saying: [7] … The adequacy of a statement of claim is to be assessed by reference to whether the cause of action is pleaded at a level of particularity that is sufficient to define the issues and inform the other party of the case that it has to meet, in the context of the particular allegations. A respondent or defendant is entitled to know the factual foundation for the case that is being alleged, so that the respondent or defendant can prepare to meet that case at trial. In order to disclose a reasonable cause of action, a statement of claim must contain an allegation of all of the relevant facts necessary to support any allegation made in it. … (Emphasis added) 21 This means that a statement of claim should contain a pleading of the material facts which support the causes of action to be pursued by an applicant. 22 The principles which inform the Court's resolution of disputes under r 16.21 were not in dispute. I referred to those principles recently in Sitzler Pty Ltd v GPT RE Ltd as Responsible Entity of the General Property Trust [2018] FCA 1496, and it is convenient to refer, without repeating, to what I said then. It is also convenient to repeat what I said concerning the Court's approach to pleading challenges: [11] The approach of the Court to the resolution of disputes about the adequacy of a pleading is informed by the overarching purpose contained in s 37M of the Federal Court of Australia Act 1976 (Cth). It is also influenced by the case management and evidence preparation techniques typically applied by the Court. In this respect, I respectfully agree with the views of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82: [5] In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. … [6] Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met. [7] In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment. [8] Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained. [12] The application of this approach is reflected in a number of decisions of this Court, including Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13]; Wainter Pty Ltd v Freehills (A Firm) [2008] FCA 562 at [3]; Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2015] FCA 1107 at [44]; Granite Transformations Pty Ltd v Apex Distributions Pty Ltd [2018] FCA 725 at [5]; Whittenbury v Vocation Ltd [2017] FCA 1185 at [7]; Oswal v Apache Corporation (No 3) [2014] FCA 835 at [8]; and Christou v Stantons International Pty Ltd (No 3) [2011] FCA 655 at [7]. 23 In the present case, it is understandable that the youth of the Applicants throughout their periods of detention presents challenges for their legal advisors in presenting their claims. It seems reasonable to suppose that the circumstances in which they were detained meant that matters such as dates and times were not at the forefront of their consciousness and that different events may have merged in their recollection as part of a continuum. One can also readily accept that their recollections of events may be poor and that their ability to provide instructions to their advisors is limited. That suggests that a technical approach to the pleading of their claims would be inapposite. 24 Nevertheless, the fundamental purpose of pleadings is as important in this litigation as it is in other litigation brought before the Court. The Applicants have commenced substantial litigation capable of requiring the deployment of substantial resources by the Territory in response and by the Court in hearing and determining their proposed claims. By itself, this makes it especially desirable that the pleading of the Applicants' claims is in a form which achieves its fundamental purpose. It also means that there are limits to the extent to which concessions can be made in their favour by reason of their youth and lack of knowledge.

The Racial Discrimination Act claims 73 The Applicants claim damages, including aggravated damages, pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) in respect of alleged discrimination by the Territory in contravention of s 9(1) of the RD Act. 74 Section 9 of the RD Act provides (relevantly): 9 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. … (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. … 75 In Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; (2014) 221 FCR 86, Kenny J (with whom Greenwood and Logan JJ agreed) identified a contravention of s 9(1) as involving the following elements: (a) the respondent did an act; (b) the act: (i) involved a distinction, exclusion, restriction or preference; (ii) based on race, colour, descent or national or ethnic origin; and (c) the act: (i) had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs; (ii) that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 76 In Wotton v Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 at [66], Mortimer J suggested that Kenny J was setting out only the matters to be proved by the appellants in the case then before the Court. It is not necessary presently to consider whether Kenny J's statement of the s 9(1) elements was, in some way, limited by the circumstances of that case as the Applicants did not contest the Territory's submission that the statement is appropriate and, as will be seen, have structured their pleading of their RD Act claim in a way which corresponds closely with the elements stated in Iliafi. 77 In accordance with the principles discussed at the commencement of these reasons, the Applicants must plead the materials facts supporting each of the identified elements. 78 The 5SC alleges that the Territory contravened s 9(1) by two forms of conduct: by a course of conduct in relation to Group Members generally, at [114]-[117]; and (in relation to the First Applicant) by conduct of members of staff in the Don Dale Centre directed to him, at [118]-[126]. Paragraphs [127]-[129] contains pleas that the Territory's breaches of s 9(1) caused loss and damage to the First Applicant as well as his claim for damages in respect of that loss and damage. 79 Paragraphs [130]-[136] contain, in relation to the Second Applicant pleadings which are counterparts to those in [123]-[129]. 80 The Territory seeks to have [114]-[117], [123]-[129] and [130]-[136] struck out. 81 Its principal complaint is that the pleadings in [114]-[117] in relation to the Group Members are incorporated into the pleading of the Applicants' individual claims, with the consequence that it will have to answer the Group Members' claims in order to answer the individual claims. It contends further that the pleading in [114]-[117] is deficient in several respects. 82 For the reasons which follow, I consider that these submissions are well made, and should be upheld. 83 In addition, the Territory contends that the pleading of the Applicants' claims in terms which put in issue more than a decade of youth detention in the Northern Territory, including at times when, and at places at which, the Applicants were not themselves detained is oppressive. I have taken account of this submission when addressing the Territory's critique of the adequacy of the pleading.

Paragraph [116] 97 Paragraph [116] purports to particularise the fourth element of [114], namely, the allegation that the distinctions, exclusions and restrictions were based upon the Aboriginality of the majority of Group Members. The paragraph contains 20 subparagraphs purporting to particularise that allegation. Very few of these subparagraphs provide the particularisation which they purport to give. 98 It is evident that the Applicants use the term "based upon" with the same meaning which it has in s 9(1) of the RD Act. In this Court, that term has been held not to connote a relationship of cause and effect, whether in a "but for" or any other sense. In Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 27, Weinberg J said: [T]he expression ["based on"] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referrable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics "caused" the impugned conduct. This reasoning was endorsed on appeal: Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287; (1999) 91 FCR 47 at [8]. It has been followed in numerous authorities, including Wotton v Queensland (No 5) at [88]. 99 Paragraph [116.1] alleges that the course of conduct described in [114.2]-[114.4] (the allegations concerning isolation and use of inappropriate force and restraint before and after 1 August 2016) and in [114.11]-[114.13] (the allegations concerning deprivation of protection from batteries, assaults, isolation and intimidation and the allegations concerning unlawful, arbitrary and disproportionate punishment before and after 1 August 2016) involved systemic contraventions of the YJ Act. 100 Paragraph [116.2] alleges that the conduct alleged in [114] was contrary to the objects of the YJ Act and its principles. 101 Of themselves, neither [116.1] nor [116.2] can reasonably be regarded as a particular of the allegation that the alleged distinctions, exclusions and restrictions were "based upon" the Aboriginality of the majority of Group Members in the sense discussed in Macedonian Teachers. 102 Paragraphs [116.3]-[116.11] can be considered together. Paragraph [116.3] alleges the receipt by the Territory of a number of reports concerning youth detention in the Territory. Paragraphs [116.4]-[116.10] allege particular content of those reports. Paragraph [116.11] concludes the series of particulars with an allegation that, despite the matters identified in the listed reports, "the commissioner, the superintendent and members of staff persisted in the conduct described in paragraph 114". 103 None of [116.3]-[116.11] refer to any matter concerning the Aboriginality of the majority of detainees. Considered by themselves, these subparagraphs cannot be regarded as a plea of material facts supporting the allegation that the alleged distinctions, exclusions and restrictions were "based upon" the Aboriginality of the majority of Group Members. To the extent that the pleaded matters constitute particulars, they could equally be particulars of an allegation that the pleaded conduct was based upon some other distinguishing feature of the majority of detainees, such as their youth, sex or spiritual belief. The "neutrality" of the allegations in that respect means that they cannot be regarded as "fleshing out" the material facts so as to inform the Territory of the case it has to meet. 104 Paragraphs [116.12]-[116.13] and [116.17] are in a different category. They allege in different ways that commissioners, superintendents and/or members of staff made racially derogatory comments. Paragraphs [116.14] and [116.15] allege that commissioners, superintendents and/or members of staff did not investigate or act on reports of the use of racially derogatory language and that officers were not disciplined for the use of such language. 105 Paragraph [116.16] alleges that Indigenous Group Members were instructed by officers and school teachers not to speak their Indigenous language but rather to speak English. 106 Paragraph [116.18] contains an allegation as to the manner in which commissioners, superintendents and members of staff performed their roles. This is a very generalised pleading but for present purposes it is apparent that it does not support the primary allegation that the alleged distinctions were based upon the Aboriginality of the majority of detainees. 107 Nor does [116.19] support that allegation. Instead, it summarises the effect of s 18 of the RD Act, which provides: 18 Acts done for 2 or more reasons Where: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done for that reason. 108 Paragraph [116] concludes with the following subparagraph: [116.20] The commissioners, superintendents and members of staff would not have engaged in, persisted in and permitted the repeated, systematic and comprehensive breaches of the Act, the Regulations, directives and the human rights of Group Members described in paragraph 114 above, if the detainees had not been predominantly of the Aboriginal race. 109 Paragraph [116.20] cannot be regarded as particularising the allegation in the chapeau to [116] that the distinctions, exclusions and restrictions described in [114] were based upon the Aboriginality of the majority of Group Members. All it does is to make the same allegations but in reverse order.

[1996] FCA 1758

[2006] WASC 281

(1990) 169 CLR 279

(2014) 221 FCR 86

(1998) 91 FCR 8

(1995) 38 NSWLR 622

(2005) 222 CLR 612

(1999) 91 FCR 47

(1988) 52 SASR 215

(2016) 352 ALR 146

(2012) 293 ALR 537

(2006) 33 WAR 82

[2002] FCA 1568

[2005] HCA 48

[2018] FCA 1496

[2016] FCA 1457

[2012] FCAFC 107

[2012] FCAFC 15

[2015] FCA 1107

[2018] FCA 725

[2014] FCA 835

[2011] FCA 655

[2012] NSWCA 352

[2008] FCA 562

[2017] FCA 1185