Plaintiff v First Defendant

1 The trial in this class action proceeding under Part 4A of the Supreme Court Act 1986 (Vic) (the Act) has been put off on several occasions and is now scheduled to commence on 26 April 2017 before a jury.

2 I will not repeat, except where it is necessary, the basis for the claim nor the pleadings of the case.[1]

3 This ruling concerns whether the claim of AS should proceed individually or as representative plaintiff in the class action. The two defendants (the Minister for Immigration and Border Protection, and the Commonwealth) contend that, pursuant to s 33N(1) of the Act, the proceeding should be 'declassed' and the claims of group members prosecuted separately. They are supported in the application by the third parties, IHMS and Serco.

4 AS alleges that she sustained personal injury (physical and psychological) as a result of her detention at the Christmas Island Detention Centre (the detention centre) between July 2013 and August 2014. At the time, she was a five-year-old asylum seeker who had been detained as an 'unlawful non-citizen' pursuant to s 189(3) of the Migration Act 1958 (Cth).

5 The claim, as it currently stands, is on behalf of all persons (adults, minors and pregnant women) held at the detention centre between 27 August 2011 and 26 August 2014 and who, it is alleged, suffered injury (physical and psychological) as a result of the failure of the defendants to provide reasonable care for their health and wellbeing whilst in detention.[2]

6 The decision on this point affects an interrelated question as to the mediation and what, if any, steps should be taken by the defendants to assist the lawyers for AS in ascertaining the composition of the class and the potential claims that the members may have.

7 The following matters are extracted from affidavits filed by the parties on this application and appear to be undisputed.[3]

9 AS, in the company of her mother and father, left Iran and arrived by boat on Christmas Island on 26 July 2013.

10 At that time, there were five immigration facilities on Christmas Island. Three, North-West Point, Aqua and Lilac, are adjacent to each other on the north-west of the island and the other two, Phosphate Hill and Construction Camp, are about a 20-30 minute drive away on the north-east of the Island.

11 The family of AS was housed at Phosphate Hill until 12 August 2013. She was then housed for four days in Lilac/Aqua; AS, with her father, went to Darwin four days later to join her mother, who was about to give birth. The family was housed at the Darwin Airport Lodge from 16 August 2013 to 18 October 2013.[4]

12 From 18 October 2013 to 19 August 2014, AS, with her family (which included her sibling brother, who was born in Darwin), returned to the detention centre and was housed at the Construction Camp.

13 The family then left the detention centre and, from 15 January 2015, have been resident in the Australian community on a temporary bridging visa.

14 In total, approximately 35,000 asylum seekers have been placed at the detention centre between 27 August 2011 and 26 August 2014.

15 AS alleges discreet duties were owed by the defendants to her and group members, or sub-group members. The duties are said to be owed to the following groups, and sub-groups and cover the period from 27 August 2011 to 26 August 2014:

(a) Group members (comprising every person who was held in detention at the detention centre);

(b) (Minor group members (all group members under the age of 18 whilst in detention) held at the detention centre;

(c) School age minor group members (all group members of school age under the School Education Act 1999 (WA) (the WA Act)) held at the detention centre.

16 The defendants are said to owe AS and each group member a non-delegable 'Common Law General Duty of Care to Detainees',[5] expressed as follows:

each of the Commonwealth and the Minister owed and owe separately a duty of care to AS and each of the Group Members while they were in detention on Christmas Island, to:

1. take reasonable care to ensure that their detention did not or does not cause injury, or exacerbate existing injury;
2. provide reasonable health care in the event that any of them suffered injury or were pregnant; and

1. exercise due care and skill in providing such care.

17 In addition to the 'Common Law General Duty of Care to Detainees', it is alleged that the defendants owe AS and each of the minor group members the following non-delegable duties:

(a) a 'Common Law General Duty of Care to Minor Detainees';[6] and

(b) a 'Common law Educational Duty to Minor Detainees'.[7]

18 The 'Common Law General Duty of Care to Minor Detainees' is described as follows:

each of the Commonwealth and the Minister owed and owe separately a duty of care to AS and each of the Minor Group Members while they were in detention on Christmas Island, to:

1. take reasonable care to ensure that their detention did not cause injury, or exacerbate existing injury;
2. provide reasonable care in the event that any of them suffered injury; and

c. exercise due care and skill in providing such care.

19 The 'Common Law Educational Duty to Minor Detainees' is described as:

each of the Commonwealth and the Minister owed and owe separately a duty of care to AS and each of the Minor Group Members while they were in detention on Christmas Island to:

1. provide them with reasonable educational programs and facilities; and/or
2. exercise due care and skill in providing such care.

20 Finally, there is a claim, the 'Statutory Education Duty to Minor Detainees', arising out of the WA Act as follows:

in the Relevant Period the Minister had a duty to AS and the School Age Group Members to:

1. enrol them in an educational programme for their compulsory education period; and
2. ensure that they attended a school (as defined in the SE Act) on each day on which the school was open for instruction,

The Second Defendant owed AS and people in held immigration detention a non-delegable duty of care to ensure that reasonable care is taken of them.

22 The following breaches are alleged against the defendants in respect of the asserted duties:[8]

(a) the 'Conditions Breach' described as:[9]

In breach of the Common Law General Duty of Care to Detainees, each of the Commonwealth and the Minister failed to ensure that the physical conditions of detention on Christmas Island were not such as were likely to cause or exacerbate injury to AS and some Group Members.

(b) the 'Medical Care Failure Breach[es]'[10] described as:

In breach of the Common Law General Duty of Care to Detainees, each of the Commonwealth and the Minister failed to do the following while AS and Group Members were in detention on Christmas Island (each a Medical Care Failure Breach):

1. adequately assess and monitor the condition of AS and Group Members to determine whether, and to what extent, they suffered from injury which might be caused or exacerbated by detention on Christmas Island;
2. have in place a system for the assessment and monitoring of the condition of AS and Group Members to determine whether, and to what extent, they suffered from injury which might be caused or exacerbated by detention on Christmas Island;

1. provide AS and Group Members with timely access to adequate medical services for injuries which should have been identified had an adequate assessment and monitoring system been in place;

1. provide AS and Group Members with timely access to adequate medical services for injuries which it had identified;
2. have in place a system for the medical treatment of AS and Group Members which was capable of ensuring that they were provided with timely access to adequate medical services in respect of injuries;

(c) In addition to those set out at (a) and (b) in respect of minors -

In further breach of the Common Law General Duty of Care to Minor Detainees, the Commonwealth and the Minister:

a. failed to ensure that AS was not separated from her parents

In further breach of the Common Law General Duty of Care to Minor Detainees, the Commonwealth and the Minister:

...

b. failed to do the following (each a Family Care Breach):

1. ensure that the physical conditions of detention on Christmas Island were not such as were likely to cause or exacerbate injury to AS's parents (F and M), such that their ability to mitigate the negative impacts of any injury, or exacerbation of existing injury to AS were further adversely affected;
2. ensure that reasonable care was provided to AS's parents (F and M) so as to avoid injury, or the exacerbation of existing injury to them, such that their ability to mitigate the negative impacts of any injury, or exacerbation of existing injury to AS were further adversely affected.

(iii) 'Developmental Conditions Breach':[13]

In further breach of the Common Law General Duty of Care to Minor Detainees, each of the Commonwealth and the Minister failed to ensure that the physical conditions of detention on Christmas Island were not such as to cause or exacerbate developmental delay in AS and some Minor Group Members

(iv) 'Developmental Medical Failure Breach[es]':[14]

In further breach of the Common Law General Duty of Care to Minor Detainees, each of the Commonwealth and the Minister failed to do the following (each a Developmental Medical Failure Breach):

1. adequately assess and monitor the development of AS and Group Members to determine whether, and to what extent, their development might be delayed or otherwise adversely affected by detention;
2. provide AS and Group Members with timely access to adequate remediation in respect of developmental affectations which it should have identified.

(d) In addition to each of those set out above in relation to minors of school age:

In breach of the Common Law Educational Duty to Minor Detainees, each of the Commonwealth and the Minister failed to make adequate arrangements for AS and School Age Group Members to undertake an appropriate educational programmes or attend school

(ii) 'Statutory Educational Breach':[16]

In breach of the Statutory Educational Duty to Minor Detainees, each of the Commonwealth and the Minister failed to ensure that AS and School Age Group Members attended a school (as defined in the SE Act) on each day on which the school was open for instruction

23 The common questions, as most recently detailed in the statement of claim of 23 September 2016, were as follows:

1. the Common Law General Duty of Care to Detainees to AS and Group Members?
2. the Common Law General Duty of Care to Minor Detainees to AS and Minor Group Members?

1. the Common Law Educational Duty of Care to Minor Detainees to AS and Minor Group Members?

1. the Statutory Educational Duty of Care to Minor Detainees to AS and Minor Group Members?

1. If either of the Defendants owe any of the duties referred to in question 1, which of those are non-delegable?
2. Did either Defendant breach the Common Law General Duty of Care to Detainees by failing to ensure that the physical conditions of detention on Christmas Island were not such as to cause or exacerbate:
   1. injury (the Conditions Breach)?
   2. developmental delay in Minor Group Members (the Developmental Conditions Breach)?
3. Did either Defendant breach the Common Law General Duty of Care to Detainees by:

1. failing to adequately assess and monitor the condition of AS and Group Members to determine whether, and to what extent, they suffered from injury which might be caused or exacerbated by detention on Christmas Island; 2. failing to have in place a system for the assessment and monitoring of the condition of AS and Group Members to determine whether, and to what extent, they suffered from injury which might be exacerbated by detention on Christmas Island;

1. failing to provide AS and Group Members with timely access to adequate medical services for injuries which should have been identified had an adequate assessment and monitoring system been in place;

1. failing to provide AS and Group Members with timely access to adequate medical services for injuries which it had identified; 2. failing to have in place a system for the medical treatment of AS and group members which was capable of ensuring that they were provided with timely access to adequate medical facilities in respect of injuries;

1. Did either Defendant breach the Common Law Educational Duty of Care to Minor Detainees by failing to make adequate arrangements for AS and School Age Group Members to undertake an appropriate educational programmes or attend school?
2. Did either Defendant breach the Statutory Educational Duty by failing to ensure that AS and School Age Group Members attended a school (as defined in the SE Act) on each day on which the school was open for instruction?

24 As required by s 33H of the Act these were the 14 common questions upon which this application was premised. However, less than two days prior to the hearing (and without notice), the lawyers for AS filed submissions which contained a whole raft of new common questions. Then, on the second day of the hearing, a third version was provided (again without notice) which AS sought to rely upon. It reads as follows:

A. Questions Common to all group members

Common Law Duty of Care

1. What was the scope and content of the duty of care owed by each of the Defendants to Group Members? [SOC par 22, defence par 22]
2. Did the duty of care owed by either or both of the Defendants to Group Members extend to the Common Law General Duty of Care to Detainees, namely a common law duty of care to Group Members while they were in detention on Christmas Island to:
   1. take reasonable care to ensure that their detention did not cause injury or exacerbate existing injury?
   2. provide reasonable health care in the event that any of them suffered injury?
   3. exercise due care and skill in providing health care? [SOC par 22, defence par 22]
3. What was the standard of care required of the Defendants in discharging the duty of care owed by them to Group Members, and in particular was it:
   1. the standard applicable to the general Australian community; or
   2. the standard applicable to Australian communities in remote areas; or
   3. the standard applicable to detainees in other places of detention; or
   4. some other standard? [SOC par 22, defence par 22]
4. Was the scope and/or standard of the duty of care owed by either of the Defendants to Group Members circumscribed by the fact that the Group Members were detainees pursuant to section 189(3) of the Migration Act?
5. Is the Commonwealth vicariously liable for any of the alleged negligent acts and omissions of the Minister? [SOC par 10, defence par 10]

Detention Conditions during the Plaintiff's Detention

1. What were the physical conditions of detention in which Group Members were detained during the periods and at the locations of the Plaintiff's detention? [SOC par 19 particulars, defence par 19]
2. What was the daily routine that was imposed on Group Members while in detention during the periods and at the locations of the Plaintiff's Detention? [SOC par 19 particulars, defence par 19]
3. What were the occupational and leisure activities that were available to the Group Members while in detention during the periods and at the locations of the Plaintiff's Detention? [SOC par 19 particulars, defence par 19]
4. Were personal effects made available to Group Members while in detention during the periods and at the locations of the Plaintiff's Detention and under what conditions? [SOC par 19 particulars, defence par 19]
5. Who imposed the conditions of detention referred to in paragraphs 6-9 above (Conditions of Detention) and by what systems and procedures? [SOC pars 18-19, defence pars 18-19]

Conditions of detention - primary and mental health care

1. What system, services and facilities of primary health care were available to the Group Members on Christmas Island during the Plaintiff's Detention Period? [SOC par 88, defence par 88]
2. What system, services and facilities of mental health care were available to the Group Members on Christmas Island during the Plaintiff's Detention Period? [SOC par 88, defence par 88]

1. During the Plaintiff's Detention Period was it reasonably foreseeable to the Defendants that the imposition upon Group Members of the Conditions of Detention may place Group Members at risk of injury or exacerbation of existing injury? [SOC par 21, defence par 21]
2. Did the imposition upon Group Members of the Conditions of Detention constitute a breach by either or both of the Defendants of the duty of care which they owed to Group Members?
3. Were the systems, services and facilities of primary health care that were available to Group Members on Christmas Island during the Plaintiff's Detention Period reasonable? If not, in providing systems, services and facilities of primary health care, did either or both Defendants breach the duty of care which they owed to Group Members?
4. Were the systems, services and facilities of mental health care that were available to the Group Members on Christmas Island during the Plaintiff's Detention Period reasonable? If not, in providing systems, services and facilities of mental health care, did either or both Defendants breach the duty of care which they owed to Group Members?

False imprisonment [assuming leave to amend is granted]

1. What was the purpose of the detention of the Designated Regional Processing Cohort after 19 July 2013 and when, if at all, did that purpose change?
2. Was the purpose or were the purposes of detention identified in paragraph 17 lawful?
3. During the Relevant Period, was detention of asylum seekers from Australia:

i. on Nauru; or

ii. in Papua New Guinea

lawful in those countries?

1. If the answer to 19 is 'yes', when, if at all, was it reasonably practicable to remove to a regional processing country a Designated Regional Processing Cohort member who had a family member who was:

i. Under 13 years old

ii. Under 7 years old

iii. Under 4 years old

iv. Under 1 year old

v. Under 4 months old

vi. Pregnant by over 30 weeks

vii. A person with a blood borne virus?

1. Did the detention of Group Members on Christmas Island constitute false imprisonment?

1. The laws of which jurisdiction are applicable in the assessment of damages in respect of Group Members' claims?

1. Is the First Third Party liable to the Second Defendant under contract or otherwise for any loss and damage the Second Defendant suffers as a result of any of the Second Defendant's breaches of duties owed to Group Members? If so, what is the basis for and the extent of such liability? [IHMS Amended Third Party Notice; Defence and Counterclaim to Statement of Claim on Third Party Notice]
2. What was the scope of the contractual obligations of the First Third Party in the provision of health care services to Group Members on Christmas Island under its relevant Health Services Contracts with the Second Defendant? [IHMS Amended Third Party Notice pars 8, 9, 10; IHMS Defence and Counterclaim to Statement of Claim on Third Party Notice pars 8, 9, 10]
3. What was the scope and content of any duty owed by the First Third Party to;

i. Group Members; and

ii. The Second Defendant

in the provision of health care services to Group Members on Christmas Island? [IHMS Amended Third Party Notice par 10; IHMS Defence and Counterclaim to Statement of Claim on Third Party Notice par 10]

1. Did the First Third Party breach any:
   1. contractual obligation and/or tortious duty of care owed to the Second Defendant;
   2. duty of care owed to Group Members

in the provision of health care services to Group Members during the periods and at the locations of the Plaintiff's Detention on Christmas Island [IHMS Amended Third Party Notice par 12; IHMS 12, 12A Defence and Counterclaim to Statement of Claim on Third Party Notice pars 8, 9, 10]

1. Is the Second Third Party liable to the Second Defendant under contract or otherwise for any loss and damage the Second Defendant suffers as a result of any of the Second Defendant's breaches of duties it owed to Group Members during the Plaintiff's Detention Period? If so, what is the basis for and the extent of such liability? [Serco Amended Third Party Notice; Serco Defence to Statement of Claim on Third Party Notice and Counterclaim]
2. What was the scope of the contractual obligations of the Second Third Party in the provision of services on Christmas Island under its relevant contracts with the Second Defendant? [Serco Amended Third Party Notice par 8; Serco Defence to Statement of Claim on Third Party Notice and Counterclaim par 8]
3. What was the scope and content of any duty owed by the Second Third Party to:

i. Group Members; and

ii. The Second Defendant

in the provision of services on Christmas Island? [Serco Amended Third Party Notice par 9; Serco Defence to Statement of Claim on Third Party Notice and Counterclaim par 9]

1. Did the Second Third Party breach any:
   1. contractual obligation and/or tortious duty of care owed to the Second Defendant;
   2. duty of care owed to Group Members

in the provision of services on Christmas Island during the periods and at the locations of the Plaintiff's detention? [Serco Amended Third Party Notice par 11; Serco Defence to Statement of Claim on Third Party Notice and Counterclaim par 11]

1. The laws of which jurisdiction govern statutory contribution rights and the assessment of contribution as between the Defendants and Third Parties? [IHMS Defence and Counterclaim to Statement of Claim on Third Party Notice par 15; Serco Defence to Statement of Claim on Third Party Notice and Counterclaim par 14]

B. Questions Common to Minor Group Members

Common Law General Duty of Care to Minor Detainees

1. Did the duty of care owed by either or both of the Defendants extend to the Common Law General Duty of Care to Minor Detainees, namely a duty to Minor Group Members in detention on Christmas Island to:
   1. Take reasonable care to ensure that their detention did not cause injury or exacerbate existing injury;
   2. Provide reasonable care in the event that any of them suffered injury; and
   3. Exercise due care and skill in providing care to them? [SOC par 29, defence par 29]
2. Did the duty of care owed by either or both of the Defendants extend to the Common Law Educational Duty to Minor Detainees, namely a duty to Minor Group Members in detention on Christmas Island to:
   1. Provide them with reasonable education programs and facilities; and
   2. Exercise due care and skill in providing such care? [SOC par 35, defence par 35].
3. What was the standard of care required of the Defendants in discharging the duty of care owed by them to Minor Group Members?

1. During the Plaintiff's Detention Period was it reasonably foreseeable to the Defendants that a failure to provide Minor Group Members in detention on Christmas Island with reasonable education programs and facilities could pose a risk of injury or exacerbation of existing injury? [SOC par 28, defence par 28]
2. What educational programs and facilities were provided to Minor Group Members in detention on Christmas Island during the Plaintiff's Detention Period? [SOC par 99, defence par 99]
3. Were the educational programs and facilities provided to Minor Group Members on Christmas Island during the Plaintiff's Detention Period reasonable? If not, in failing to provide reasonable educational programs and facilities for Minor Group Members on Christmas Island during the Plaintiff's Detention Period did either or both of the Defendants breach their duty of care to Minor Group Members? [SOC par 99, defence par 99]
4. During the Plaintiff's Detention Period was it reasonably foreseeable to the Defendants that the imposition upon the family members of Minor Group Members of the Conditions of Detention and the failure to provide to such family members adequate primary and mental health care systems, services and facilities could adversely affect their ability to care for their children and hence could pose a risk to Minor Group Members of injury or exacerbation of existing injury? [SOC par 28, defence par 28]
5. During the Plaintiff's Detention Period did the Defendants breach their duties of care to Minor Group Members by subjecting the family members of Minor Group Members to the Conditions of Detention and by failing to provide to such family members adequate primary and mental health care systems, services and facilities? [SOC par 92(b)]
6. During the Plaintiff's Detention Period was it reasonably foreseeable to the Defendants that the imposition upon Minor Group Members of the Conditions of Detention and the failure to provide them with adequate primary and mental health care systems, services and facilities could cause or exacerbate developmental delay?
7. During the Plaintiff's Detention Period did the Defendants breach their duties of care to Minor Group Members by subjecting them to the Conditions of Detention and by failing to provide them with adequate primary and mental health care systems, services and facilities so as to expose them to the risk of developmental delay? [SOC pars 93, 94]

25 I should add that at about the same time as the production of the second set of common questions, AS abandoned her pleaded claim for false imprisonment (paragraph E of the statement of claim) and sought to introduce a revised version which is also part of the new common questions. I will return to that issue later in my reasons.

27 The defendants made application to Kaye J on 21 November 2014 to have the claim struck out pursuant to s 33C of the Act; and alternatively, to have the proceeding not continue as a group proceeding pursuant to s 33N of the Act - it is this application that is renewed and is the subject of this ruling.

28 His Honour refused the applications under ss 33C and 33H.[17] His Honour also refused the application brought by the defendants under s 33N, although it is clear, and I will detail this part of his Honour's judgment later, that his Honour regarded the application as being validly made but premature.[18]

29 His Honour struck out large parts of the statement of claim, holding that they were inappropriate for a negligence claim and were more suited to a claim seeking administrative law relief.[19]

30 On 4 March 2015, Kaye JA ordered that the initial trial determine:

(b) the common questions to be identified by further order of the Court.

31 On 22 May 2015, at a directions hearing before Kaye JA, the scope of the trial was discussed, and counsel for AS stated:

There is furious agreements so far as the plaintiff is concerned that this trial will deal solely with the claim of AS[20]

32 On 27 November 2015, I held a directions hearing (Kaye JA no longer being available) at which counsel for AS said:

We've said repeatedly both before your Honour and Mr Lee before Kaye J that the trial will be a trial about A.S....It's not a roving commission about what happened at Christmas Island, it's simply about AS[21]

Counsel also accepted that the expert evidence to be adduced by AS would address her case only and, to the extent that expert evidence raised broader issues, AS would not rely upon that evidence in relation to those issues.[22]

33 On 31 March 2016 at a directions hearing, after I expressed fears about the case expanding notwithstanding previous assurances, I said:

Mr Stanley raised a fair point, it seems to me, is this still a single-person case? That's what the parties have proceeded upon and that's what I've been told on several occasions. Is it a single-person case?

Yes. I don't know how many times we need to go on the record about...we say now what we have said every other time. We don't back track on a word that Mr Lee has said that your Honour has referred to.[23]

34 On 30 June 2016, I struck out AS's statement of claim and gave leave for it to be to re-pleaded. I said as follows:

I repeat, in the hope that it may be heeded, what I have said previously. The case that goes to trial, as I have been repeatedly told by counsel for AS, will only relate to her case against the defendants. It is therefore imperative that the allegation will focus on the matters that are relevant to her care at the detention centre - not an investigation into every aspect of the centre. Moreover, it is essential that the statement of claim that ultimately emerges properly identifies the breaches that are alleged to have resulted in the diverse range of injuries that AS is said to have sustained.[24]

35 On 23 September 2016, AS filed a further amended statement of claim which identified the claim to be prosecuted at trial, of which I have set out.

The structure of Part 4A of the Supreme Court Act 1986 (Vic)

36 The Federal group proceeding provisions have now been in force for over 25 years. The genesis of Part IVA of the Federal Court of Australia Act 1976 (Cth) was the 1988 report of the Australian Law Reform Commission.[25] The aim of the statutory provisions (which were generally in accordance with the terms of the report) was the '[e]fficient use of judicial resources and fairness to respondents requires that lawyers and individuals be encouraged to bring similar or related claims in one set of proceedings'.[26]

37 In Victoria, Part 4A of the Act took effect from 1 January 2000 and, with only a couple of minor exceptions, is an analogue of the Federal Part IVA.

38 In Mobil Oil Australia Pty Ltd v Victoria, Gleeson CJ observed that the primary object of Part 4A (and therefore Part IVA) is clear enough:

It is to avoid multiplicity of actions, and to provide a means by which, where there are many people who have claims against a defendant, those claims may be dealt with, consistently with the requirements of fairness and individual justice, together.[27]

39 Rather than introduce a certification regime,[28] as in the Federal Court of the United States,[29] a combination of s 33C, s 33H and s 33N regulate which cases proceed to trial as class actions.[30]

40 Section 33C is foundational and provides the basis for bringing a claim on behalf of a class or group. In essence, it requires seven or more persons to have claims against the same person, arising out of the same, similar or related circumstances, giving rise to a substantial common question of law or fact. It is an important provision. As Gordon J said in Timbercorp:

These conditions in s 33C are central to the scheme set out in Pt 4A. The purpose of commencing a group proceeding is so that a substantial common question of law or fact can be decided for at least seven persons whose claims involve the same, similar or related circumstances. Section 33C expressly recognises that each group member may, as an individual, have different claims against the defendant, but the foundation of a group proceeding is that they all have an interest in the resolution of a substantial common question of law or fact.[31]

41 Previously, the High Court in Wong v Silkfield Pty Ltd said of the application of Part IVA and s 33C:

Clearly, the purpose of the enactment of Pt IVA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in cases such as Carnie. This suggests that, when used to identify the threshold requirements of s 33C(l), "substantial" does not indicate that which is "large" or "of special significance" or would "have a major impact on the ... litigation" but, rather, is directed to issues which are "real or of substance".

...

It was not to the point that, in the final resolution of the litigation, this might not prove to be the "major" or "core" issue. It was not necessary to show that litigation of this common issue would be likely to resolve wholly, or to any significant degree, the claims of all Group Members.[32]

42 It is also clear that a Court will give a liberal interpretation to the requirements of s 33C given the evident legislative purpose. In Zhang v Minister for Immigration, Local Government and Ethnic Affairs, French J said:

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.

...

In the present case, the relationship between the circumstances of each group member is defined by a few common integers which leaves room for considerable diversity in circumstances which might support individual claims to set aside the review decisions. Some applicants may have complaints about aspects of the decision-making process which have nothing to do with the question whether or not they should be afforded an oral hearing. There may be applicants who are able to show that even if there is no common entitlement to the opportunity of an oral hearing, the particular circumstances of their cases require such a hearing as a matter of natural justice.[33]

43 The second provision, 33H, provides that the endorsement on the writ must identify the group members to whom the proceeding relates, specify the nature of the claims made on behalf of the group members and the relief sought, and 'specify the questions of law or fact common to the claims of the group members'. So as the plurality observed in Timbercorp, these two provisions:

identify the subject matter of a group proceeding as a claim which gives rise to common questions of law or of fact. The plaintiff represents the Group Members with respect to their interests in that regard and the Group Members claim through the plaintiff to the extent of that interest.[34]

44 The other provision which regulates the continuance of a class action is section 33N, to which I now turn.

Proceeding not to continue under this Part

(1) The Court may, on application by the defendant, order that a proceeding no longer continue under this Part if 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 group 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 group proceeding; or

(c) the group 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 group 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 defendant 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 thinks fit.

46 In Wong, the High Court said of the relationship between s 33C and s 33N:

At a stage when a question arises under these provisions, particularly s 33N, it is more likely that issues will have been clarified and, if there be pleadings, have been joined. One difficulty with the various formulations by the majority of the Full Court of the construction of par (c) of s 33C(l) is that they postulate the evaluation of the issues at a stage in litigation well beyond the threshold at which s 33C operates. That provision is concerned with the commencement, not subsequent conduct, of litigation using the procedures provided in Pt IVA. In terms, s 33C(1) looks to the claims made by seven or more persons against the same person, being claims which are in respect of, or arise out of, the same, similar or related circumstances, and asks whether claims so understood give rise to a substantial common issue of law or fact. How in the present case, to apply terms used by the majority in the Full Court, could one sensibly ask whether the issue with respect to the s 49 statements "can be seen, in the circumstances of [this] case, to be a matter the resolution of which will have a major impact on the litigation because it is an issue at the core of the dispute between [Silkfield] and each group member" so that it may properly be described as being a "substantial" common issue?[35]

47 To make an order under s 33N, a Court must be satisfied that it is in the interests of justice for the proceeding not to continue as a class action for one or more of the reasons set out in subparagraphs (a)-(d) of s 33N(1). Whilst satisfaction of those requirements enlivens the power to order de-classification, it does not mandate it.[36]

48 The Commonwealth's application is made pursuant to s 33N(1)(c) and (d). There are a number of decisions concerning the application of these provisions which require consideration.

49 In Bright v Femcare Ltd the Full Federal Court allowed an appeal by the representative plaintiff against the decision of the trial judge to discontinue the proceeding under s 33N.[37] The claim concerned two groups of women who had undergone a failed sterilisation procedure. In essence, the plaintiff's case was that the failed procedures resulted from improperly calibrated applicators that the defendants had failed to warn of this risk, and of the need to regularly check the applicators. The trial judge concluded that whilst there were some common, substantive issues between the group members, resolution of those issues in the lead plaintiff's trial would not advance in any meaningful way the resolution of the group members' claims. In the Full Federal Court, Finkelstein J observed:

An action which has properly been commenced as a representative proceeding (or class action as it is commonly referred to) may be ordered no longer to continue as such a proceeding only "if it is in the interests of justice': s 33N Federal Court of Australia Act 1976 (Cth). Whether or not it is in the interests of justice to make such an order has to be weighed against the public interest in the administration of justice that favours class actions. That requires one to consider the principal objects of the class action procedure. They are: (1) to promote the efficient use of court time and the parties' resources by eliminating the need to separately try the same issue; (2) to provide a remedy in favour of persons who may not have the funds to bring a separate action, or who may not bring an action because the cost of litigation is disproportionate to the value of the claim; and (3) to protect defendants from multiple suits and the risk of inconsistent findings.[38]

50 Kiefel J also explained the exercise to be undertaken:

As her Honour the primary judge observed, a proceeding might satisfy the requirements of s 33C(1) but an order for its discontinuance as a representative proceeding might nevertheless be appropriate under s 33N(1). In general terms the matters listed for the court's consideration under paras (a)-(c) of the latter subsection require consideration as to what would be achieved by a determination of the proceedings in their present form and the costs of doing so. If there is some real benefit to be gained, the requirement that the proceedings be seen as an inefficient means of dealing with the claims might not be met. A consideration as to whether the proceedings would, or would not, provide an efficient means of dealing with the claims of Group Members would almost certainly involve an assessment of the findings which might be made in an applicant's case and of the extent to which they would be likely to resolve the other claims. It does not seem to me that the subsection requires an audit to be conducted of the findings which might be useful, and those which might not be in the other claims. The inquiry required by the subsection is not whether the continuance of the representative proceeding can be seen to be efficient, but whether the court is satisfied that it is in the interests of justice to order its discontinuance as a proceeding under Pt IVA for the reasons listed in paras (a)-(c) of s 33N(1). A court may also order a discontinuance if it thinks it otherwise inappropriate for the claims to be pursued in that way: para (d).[39]

51 In P Dawson Nominees Pty Ltd v Multiplex Funds Management Ltd (Multiplex),[40] at first instance, Finkelstein J returned to the issue he had addressed in Bright. This case was a representative proceeding in relation to securities issued by Multiplex to investors. They claimed, amongst other things, that Multiplex had failed to comply with the disclosure requirements of the ASX listing rules and had made misrepresentations to the public and to the ASX. His Honour said:

The regime created by s 33N involves a two step process. First, the court must decide whether one of the conditions in paras (1)(a)-(d) has been satisfied. If it has, then, and only then, is the court entitled to consider whether, because of the existence of that condition, it is in the interests of justice to make a discontinuance order. In Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 at 588; [2002] FCAFC 243 (Bright), a decision of the Full Court of the Federal Court, Lindgren J said that the first step "raise(s) practical questions which require that the Pt IVA proceeding be compared with other proceedings that are available to the applicant and Group Members as a means of resolving their claims." In the same case I said, in a somewhat similar vein, that to exercise the power to make an order under s 33N(1) one of the conditions in paras (a)-(d) had to be satisfied and that was to be decided upon an objective assessment of the facts.[41]

52 On appeal to the Full Federal Court, the manner in which the inquiry under s 33N(1) was to be conducted was again analysed.[42] Lindgren J said:

Paragraphs (a) and (b) of s 33N(1) expressly call for a comparison between the particular Pt IVA proceeding and a non-Pt IVA proceeding. Paragraph (c) invites but does not compel a comparison between the particular Pt IVA proceeding and any other proceeding, including any under Pt IVA, by which the claims may be pursued. Paragraph (d) does not require, although it does not prohibit, a comparison between the particular Pt IVA proceeding and non-Pt IVA proceedings by which the claims may be pursued. Paragraph (d) does not, however, permit a comparison between the particular Pt IVA proceeding and some other hypothetical proceeding under Pt IVA. This last proposition arises from the use of the indefinite article "a" rather than the definite article "the".

...

Inappropriateness of the present Pt IVA proceeding within s 33N(1)(d) is not established merely by pointing to a hypothetical different Pt IVA proceeding that the Court may consider "more appropriate". Paragraph (c) directs attention to the particular proceeding under Pt IVA that is on foot, whereas para (d) directs attention to the Group Members' claims and poses the question whether it is appropriate that they be pursued by a proceeding under Pt IVA at all.[43]

53 Jacobson J (with whom French J agreed) said as follows:

Section 33N(1) confers power to make an order of discontinuance of the proceeding under Pt IVA. Implicit in this is that the Court will consider whether it is in the interests of justice that the proceeding be determined as a non-representative action, or as a number of such actions. Indeed, s 33P provides for that consequence.

Thus, s 33N(1) envisages that the Court will engage in a comparison between how the factors specified in grounds (a) to (d) apply to the existing representative proceeding and how they would apply to a hypothetical non-representative proceeding. This is explicit in grounds (a) and (b). It is implicit in grounds (c) and (d).

But it does not follow that the weighing exercise involved, in particular, in grounds (c) and (d), will always entail detailed evidence of the likely course or form, of the comparator proceeding. I do not consider that the remarks of Lindgren J in Bright v Femcare [2002] FCAFC 243; 195 ALR 574 at [76] were intended to state an invariable rule of practice.

The considerations applicable to grounds (c) and (d) will vary greatly, depending upon the facts and the form of each representative proceeding. It is plain from what Kiefel J said in Bright v Femcare [2002] FCAFC 243; 195 ALR 574 at [128]- [130] that in considering the "inefficiency" or "inappropriateness" grounds, the Court will focus more closely on matters such as the commonality and non-commonality of issues raised in the representative proceeding, as well as the purpose of that proceeding. See also Wong [1999] HCA 48; 199 CLR 255 at [33], citing the observations of Spender J at first instance.

In my view, nothing in the language or context of s 33N(1) requires the Court, as a necessary precondition to the exercise of the power in s 33N(1)(c) or (d), to give detailed consideration to the likely course of the comparator proceeding. It may be that in some cases the inefficiency or inappropriateness of the claims as a representative proceeding will be so great that the only possible order is to "de-class" the proceeding and permit it to proceed as a separate action or a series of separate actions.

Section 33N(1)(c) calls for a consideration of the efficiency and effectiveness of the representative proceeding as a means of dealing with the claims. So too, s 33N(1)(d) calls for consideration of the appropriateness of "a representative proceeding", as a vehicle by which the claims are to be pursued.

The focus therefore of both of those grounds is "the claims" of the Group Members. What is required to enliven those grounds is a consideration of the efficiency or appropriateness of the claims in the existing representative proceeding. The enquiry is a wide one as was explained by Kiefel J in Bright v Femcare [2002] FCAFC 243; 195 ALR 574 at [128] and [130].[44]

54 In this Court, Hall v Australian Finance Direct Ltd (No 2)[45] concerned a real estate investment training program and an allegation of misleading conduct on the part of the defendant. Hollingworth J said:

I accept that group proceedings are not suitable for resolving claims which are fundamentally an investigation into individual circumstances. But, s 33N is not to be approached as some sort of exercise in balancing the common issues against the individual issues, and seeing which is the heavier. Instead, the court should consider whether there are common issues which the group proceeding can effectively and efficiently determine, before deciding what to do with any remaining, individual issues.[46]

55 In Peterson v Merck Sharp & Dohme (Australia) Pty Ltd (No.3), it was alleged that the plaintiff suffered myocardial infarction as a result of consuming Vioxx tablets manufactured by the defendant.[47] The plaintiff sued in negligence, and under various provisions of the Trade Practices Act 1974 (Cth). Jessup J made the point that final resolution of a legal or factual point is not necessary:

It is true that, jurisprudentially, in at least a number of ways the applicant puts his case, the respondents' liability may depend to a large extent on how a reasonable supplier would have reacted to a growing body of scientific and medical evidence as had potential relevance to the applicant himself. But that is not to gainsay the relevance, or the significance, of that evidence as such to all Group Members. In other words, although the evidence may have a relevance which differs in point of detail between Group Members, it will, almost by definition, have a relevance.[48]

56 Finally, Giles v Commonwealth should be mentioned as it bears some similarities to this case.[49] Giles was a class action in the New South Wales Supreme Court brought on behalf of children in the care of the Fairbridge Society between 1937 and 1974. The representative plaintiffs had been resident at the Fairbridge Farm in rural New South Wales between 1954 and 1964, and 1959 and 1971 respectively. The Commonwealth, the State of New South Wales and the Fairbridge Society were the defendants to the claim.

57 An application was made under the New South Wales equivalent of s 33N.[50] The question for Garling J was whether it was appropriate 'at the present stage of the proceedings' to discontinue the representative proceeding.[51]

58 A crucial part of his Honour's reasoning was as follows:

From the pleadings, it is clear that there are some complex questions of law surrounding the existence of a duty of care by each of the defendants. This requires an analysis of legislation in respect of the first and second defendants, the inter-governmental agreement in respect of the Commonwealth and a variety of documents, including licensing documents, so as to enable an identification of who, in truth, was in control of the affairs of the Fairbridge Farm.

Given that each of the plaintiffs falls within an identified group, namely, children who attended at the school, and were resident on the Fairbridge Farm, the issue of the nature and content of any duty of care on the part of each defendant, and how it arises is most likely to be identical with respect to each member of that group.

The contention advanced, at least by the first and second defendants, with respect to why a duty is not owed, also equally applied to all members of the group as well as the plaintiffs themselves. This question of duty of care is a matter of substance which at this stage appears to be a common question which would require findings of fact and determination of questions of law.

In considering whether or not a duty exists, and if so, whether in respect of either plaintiff, any defendant has breached that duty, a central question will arise to which the parties have not specifically adverted, which is whether, having regard to the provisions of s 3B of the Civil Liability Act, and in light of the nature of the claims made in the pleadings, the Civil Liability Act applies to the claims made.[52]

59 His Honour also identified issues relevant to this case:

In dealing with the common issues which have been identified, there is a risk, as the defendants correctly submitted, particularly given the 34 year operation of the Fairbridge Farm, that the hearing of those questions would become a procedure which was closer to an inquiry of the kind conventionally seen in a Royal Commission, rather than the determination of an adversarial dispute upon which the plaintiff bears an onus of persuading the court that he or she has proved each of the elements of the pleaded cause of action.

This is a factor which is to be weighed in the determination. But, I think, as did Mansfield J in Gugliemin, that any such risk can be managed with appropriate directions. As well, a hearing by means of common questions as a part of representative proceedings means that there is a positive benefit in terms of the saving of legal costs for the parties, which is readily able to be identified.

The defendants in their submissions, pointed to the many differences which were likely to be encountered in the course of hearing a representative proceeding. So much can be accepted, particularly since these are all claims for personal injury arising out of physical abuse or sexual assaults. However, as I have earlier noted, the legislative scheme of representative proceedings recognises that this may be so, and the court's power to give directions can be readily used to ensure that the existence of such differences do not work an injustice on the parties. Taken with the public interest to which Finkelstein J has referred in Bright, this factor is not sufficient, without more, to justify an order under s 166.

Ultimately, it is a question, in light of the foregoing and all of the submissions of the parties, of whether the court is satisfied that it is in the interests of justice to order that the proceedings no longer continue as representative proceedings under Part 10 of the Civil Procedure Act, having regard to the provisions of the various subsections in s 166 of the Civil Procedure Act.

I am not so satisfied. On the contrary, as things presently appear, at this stage of the proceedings, I am satisfied that the most efficient and cost effective method of disposition of these claims is by a representative proceeding as it is presently constituted.[53]

60 I apologise for this somewhat rambling excursus, but I think it is possible to draw together the following propositions.

61 First, the requirements of s 33C and s 33N are not to be conflated. Provided a claim satisfies s 33C (in that it either has not been challenged or any challenge has been defeated) then the provisions of s 33N (if invoked) dictate whether it can proceed to determination as a class action.

62 Second, it is not necessary for the representative plaintiff's claim to determine all, or for that matter even a substantial amount, of the identified common issues.

63 Third, in carrying out the analysis under s 33N(1), it is necessary that the Court determine:

(a) whether one of the conditions contained in s 33N(1)(a) to (d) have been satisfied; and

(b) then, whether it is in the interests of justice to make an order of discontinuance in relation to that condition.

64 Fourth, and this relates specifically to 33N(1)(c), it is necessary to consider whether the determination of the representative proceeding is an effective and efficient mechanism to resolve the common issue(s) relevant to the group members to give some utility or benefit to the case continuing to trial as a representative claim. The inquiry is wide and requires the Court to focus on what are (and are not) the commonality of issues agitated in the representative proceeding with those of the group members.

65 Fifth, in terms of the analysis under s 33N(1)(c) in most, but not necessarily all, cases, it will be necessary to compare the utility of the representative plaintiff's claim as against that of the prosecution of individual claims by group members.

66 Sixth, the management of the trial in the context of the agitation of disparate issues which may be irrelevant to the claim of the representative plaintiff is a relevant consideration in determining whether to permit the proceeding to continue as a class action.

67 Seventh, there is no prescribed time at which an application under s 33N should be made. The authorities, in general, demonstrate that such a determination should not be made until there is a full understanding of the representative plaintiff's case and how it relates to both the common questions and the interests of the group members. It follows that such a determination may be made after the pleadings have closed, or once outlines of evidence have been exchanged (if that be ordered) or, for that matter, during or at the conclusion of the trial. What is important is that the Court is in a position to assess the requirements of s 33N(1) including, of course, that of it being in the interests of justice to terminate the representative proceeding.

Should the proceeding be allowed to continue as a class action?

68 Before I turn to this question, I should deal with an issue relevant to the seventh point I have just mentioned: it is appropriate, in my opinion, to determine this application at the present time.

69 Kaye J, in his ruling of 28 November 2014,[54] refused the defendants' applications under s 33C and s 33N. However, it has been open for the defendants to renew the s 33N application. His Honour said as follows:

Ultimately, a precise elucidation of the relevant common questions of fact or law will need to be undertaken before the trial of the proceeding. I agree with Mr Lee that, in all probability, the procedure which should be adopted in the present case is that which was discussed by the Full Court of the Federal Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson. That process will require that, after the completion of most, if not all, of the interlocutory steps in the case, and before the case is set down for trial, the parties will need to specify the particular common questions of fact and law which need to be determined in the trial, additional to the individual issues pertaining to the claim made by AS alone.

It is for those reasons that I also agree with the submission made by Mr Lee, that, at this early stage of the proceeding, it is premature to consider an application under s 33N that the action no longer continue as a group proceeding. Such a question could be more appropriately determined later in the proceeding, particularly at the stage at which the parties seek to identify the common questions of fact or law which need to be determined upon the trial of the individual proceeding of AS.[55]

70 The analysis by Kaye J holds good. The proceeding has progressed since then, in that the pleadings are now settled; the common issues have been identified by AS; and expert witness reports and most of the outlines of evidence have been filed with the court. At the heart of the dispute between the parties is a fundamental question: whether AS's claim can resolve any or sufficient issues to have utility as a representative class action.

71 In my opinion, now is the time to determine the issue and formulate precisely the parameters for the trial. I reject the submission on behalf of AS that I should delay consideration of this issue until the conclusion of the trial. Whilst I accept that there is at least one example of this course being undertaken (Bright), there are many others where courts have determined prior to trial that an action either proceed or not proceed as a group proceeding.

Will the proceeding fail to provide an efficient and effective means of dealing with the claims of group members?

72 For the following reasons, I am satisfied that this proceeding is not an efficient and effective means of dealing with the claims of group members.

73 The first relates to the nature of the claim. The claim of AS is a traditional, individual personal injuries claim in negligence. It relates solely to her treatment (medically and socially) whilst in detention. In my opinion, the pleaded case does not involve the consideration of a common thread (or any real part of it) which permeates the claims of other group members - rather it focuses on her alleged predicament whilst held in the detention centre, with little or no commonality with the claims of other group members.

74 It is helpful, at this point, to contrast this claim to other proceedings that have proceeded as a class action - with or without a s 33N application. As Kaye J observed,[56] a claim arising out of a single allegedly tortious event provides a proper foundation for a Part 4A claim. So there was no question of the suitability of Part 4A for claims arising out of the Black Saturday bushfires. Similarly, a claim arising out of the manufacture and distribution of a particular product to consumers, such as that in Peterson and Bright,[57] had a sufficient common element.

75 However, with AS, her claim necessarily focuses on her treatment in terms of medical services, educational facilities, provision of housing and other support mechanisms whilst she was held in the detention centre. AS was kept at the detention centre for ten months. She was primarily a resident in one of the five camp areas. This is reflected in the particulars of breach which cover the following areas:

(a) the physical conditions of detention of AS;[58]

(c) separation of AS from her family;[60]

(d) the conditions of AS and her family;[61]

(e) medical and social developmental issues of AS;[62] and

76 Whilst I accept that the presence of a multiplicity of peculiarly individual factors said to give rise to a breach of duty does not mean a case cannot proceed under Part 4A, it necessitates an inquiry into what truly are common issues (whether in fact or law or both) for the group (or part of it) and whether the proceeding is efficacious in achieving the purposes of the Part.

77 By contrast to the claim of AS, the position of the group members as a whole needs to be considered. The group may comprise as many as 35,000 persons (broken up into several sub-groups) held at the detention centre in five different camps over a period of four years. Presumably, a number may have claims for personal and physical injury arising out of the circumstances of their confinement. Each group member may have a different complaint. One might relate to medical treatment, another to accommodation, another to provision of services (whether to the group member or his or her family) and, in the case of a child of school age, to educational facilities in his or her particular situation. But the fundamental point is that the circumstances of the detention of each group member is individual - the only common bond between the group members in relation to a personal injuries claim is their confinement at the Detention Centre.

78 Moreover, and I will return to this in more detail in a moment, it is inevitable that in each group member's case, individual issues relevant to breach, causation and damages will need to be examined.

79 This imbalance between common and individual issues may ultimately lead to the conclusion that termination under s33N may be appropriate. In Connell v Nevada Financial Group Ltd, Drummond J observed:

the area of issues common to all claims is so limited, in comparison with the totality of the issues that have to be resolved both as to liability and relief, as between each of the group members and the respondents, that the present proceedings so much involve an investigation of individual circumstances as to justify an order being made under s 33N that the proceeding no longer continue under Pt IVA of the Act...[64]

81 Second, and this follows from the first point, it is impossible to see how the resolution of the claim of AS would resolve any (or, at absolute best, perhaps a few) of the common questions in their most recent iteration.

82 Notwithstanding that this version was produced to the parties and the Court at the commencement of the second day of the hearing, it was agreed that this list of common questions would form the basis for the application under s 33N.

83 The new common questions, set out at [24] cover the following topics:

(b) Detention conditions during the plaintiff's detention;

(c) Conditions of detention - primary and mental health care;

(g) Common law general duty of care to minor detainees; and

(h) Breaches of common law duty of care to minor detainees.

84 At the outset, I should make the following point. There is nothing in the affidavits filed on behalf of AS in relation to this application to support the proposition that any or some of the common questions, if capable of being answered in the trial of AS, have application across the group or, for that matter, to part of the group. The pleadings do not assist except to make generalised assertions without any real particularity.

85 In Roads and Traffic Authority of NSW v Dederer, Gummow J said as follows:

The errors of which the appellant rightly complains, regarding both the reasons of the trial judge and those of the New South Wales Court of Appeal, did not turn on factual matters upon which reasonable minds might differ. Rather, they concerned the misapplication of basic and settled matters of legal principle. These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.[65]

86 In a negligence claim, it is not enough to present 'conditions of detention' or 'common law duties' as an amorphous risk[66] giving rise to a breach of duty (as a number of the common questions suggest) - it must be more nuanced; so in this case, identifying particular aspects of medical treatment, accommodation, food, amenities or education.[67] This is to be contrasted, as I have noted, to a single event or product claim - where the risk is sufficiently identifiable and common to the group - e.g. that the failure of an electricity conductor may cause a bushfire, or that a product may produce a particular type of injury.

87 The position is the same if the case is tried in a State with Ipp 'reform' legislation. So, for example, if the Civil Liability Act 2002 (WA) applies to the claim of AS and group members, then the position is clear. Section 5B requires identification of the risk of harm in much the same way as the common law does:

In considering the application of the section it is thus important at the outset to identify the relevant risk of harm.[68]

88 I do not propose to traverse all the common questions posed in the new version. A few extracts from the categories suffice to demonstrate that in the light of the above propositions and the evidence it is difficult to see how the determination of the claim of AS will provide any meaningful disposition of issues concerning group members.

What was the scope and content of the duty of care owed by each of the Defendants to Group Members?

90 Determining the scope and content of the duty to all group members cannot be achieved by the trial of AS's claim. This can only be accomplished by an examination of the circumstances of each individual group member (or, perhaps a small sub-group). For instance how could a finding of the scope of the duty owed to AS have any relevance to a male adult held at a different site at a time after AS had left the detention centre.

91 Then there are the questions (questions 5-12) relating to 'detention conditions' which cannot be answered, in any sensible way, by AS's claim. For instance, 'what was the daily routine imposed upon group members while in detention during the period and at the locations of the Plaintiff's detention' (Question 7). AS was five years of age when first kept in detention. How her 'daily routine' could have any relevance to the claims of group members escapes me.

During the Plaintiff's Detention Period, was it reasonably foreseeable to the Defendants that the imposition upon Group Members of the Conditions of the Detention may place Group Members at risk of injury or exacerbation of existing injury?

93 As I just mentioned, the High Court and intermediate appellate Courts have repeatedly emphasised the need to identify with some precision, the foreseeable risk of injury so that the question of the scope of the duty and any correlative breach can be determined.[69] This question cannot be answered in any sensible way in the context of 35,000 potential group members held at different places, at different times with presumably, different complaints.

94 The 'questions' said to be common to 'minor group members' (questions 32-41) suffer from the same problems. The provision of a 'reasonable education program' is not identified with any precision. The claim of AS will involve consideration of how education programs (if any) were delivered to her. There is no hint in the common questions or the pleadings as to any common element other than a broad enquiry into the reasonableness of the education programs and facilities provided at the detention centre. The same holds good for the inquiry into primary and mental health care systems.

95 Finally, the new common questions (questions 23-31) include a number which deal with the third party claims by the Commonwealth against Serco and IHMS. Neither the Commonwealth nor the third parties have sought to have their issues resolved as part of the representative proceeding. As the third party notices made it clear, the issue for determination at trial relates solely to the individual claim of AS. When one looks at the common issues as a whole, it is evident that a number involve consideration of the conditions in the detention centre generally over a period of four years. That, in itself, would not be inimical to a group proceeding continuing, providing the case of AS was sufficiently representative so that a number (certainly not all) of those issues could be resolved. But the problem is that it is close to impossible to ascertain which, if any, of those common questions could be (at the highest) partially resolved at the trial of AS. And with those questions that relate to the detention of AS it has never been made apparent how their resolution have an application to other group members or sub-groups.

96 It is not appropriate, as I was urged by counsel for AS, to continue the case as a group proceeding, effectively in the hope that something may emerge which might bind or affect other group members in terms of a common issue. As I mentioned earlier, the time for making a decision is now.

97 Third, and this flows from the previous point, the one common issue that may have permitted the action to proceed into a trial phase is the question of the existence of a duty of care. This appears to have been the primary point that influenced Garling J to permit the proceeding to continue as a class action in Giles.[70] In Giles, the question of duty of care was a matter of substance which necessitated findings of fact and determination of questions of law which were common to the class on a whole.[71]

98 The relevant common question (Question 2) was framed as follows:

Did the duty of care owed by either or both of the Defendants to Group Members extend to the Common Law General Duty of Care to Detainees, namely a common law duty of care to Group Members while they were in detention on Christmas Island to:

1. take reasonable care to ensure that their detention did not cause injury or exacerbate existing injury?
2. Provide reasonable health care in the event that any of them suffered injury?
3. Exercise due care and skill in providing health care?

99 But here, the point is a relative non-issue. The Commonwealth admits that it owed a non-delegable duty of care to AS to take reasonable care for her safety whilst in detention. That, it seems to me, is the end of the matter. It is not to the point, as the pleaded case of AS appears to do, to try and identify sub-categories (e.g. physical, medical, education) of what constitutes an overarching general duty of care.

100 As McHugh J said in Vairy v Wyong Shire Council:[72]

The duty in negligence is generally described as a duty to take reasonable care. In some areas of the law of negligence, however, the duty is expressed in more limited and specific terms.

101 The division, in the pleaded claim, of different 'categories' of duty of care is a chimera.[73] These are not separate duties; rather, they may illustrate the scope and content of the duty of care and any correlative breach relevant to AS, and depending on their circumstances, other group members.

102 The common question is answered by the Commonwealth's admission which, in turn, means that the scope of the inquiry in any putative class action trial is reduced. Emmett J in Murphy v Overton Investments Pty Ltd said:

Overton has foreshadowed that it intends to rely on limitation defences and res judicata or issue estoppel defences. In the course of the hearing of Overton's motion, I required Overton to file an indicative defence in an endeavour to determine the nature of the issues that were likely to be raised in the proceeding. While that might not be of particular relevance in relation to the question raised by s33C(1), it appears to me to be directly material to the exercise of any discretion conferred by s33N. That is to say, even though the claims as pleaded in a statement of claim may give rise, on the pleading, to substantial common issues of law or fact, a defence may indicate that there is, in fact, no substantial common issue to be determined by reason of admissions made on the pleadings.

Accordingly, consideration of the questions raised in relation to s33C(1) must proceed without reference to the issues that might be raised by Overton's defence. On the other hand, consideration of the issues raised by s33N may well take account of admissions, made by Overton in any defence, that could have the effect of eliminating issues that would otherwise arise on the further amended statement of claim.[74]

103 At the risk of being justifiably accused of repetition, I repeat that in contrast to this case, in a one-event or a common product negligence case determination of issues of scope of duty, identification of the foreseeable risk of harm, breach (by identification of what steps may have alleviated that risk) and (perhaps) causation may be applicable across all or part of the group. But here, where it is a question of the individual treatment of AS and other group members whilst held in detention, no such consideration arises, unless there is shown to be the necessary commonality.

104 Fourth, counsel for AS emphasised that her claim will provide the foundation for findings of systemic failures in the detention centre that may be applicable to other group members. In the submissions, filed on behalf of AS, the following appears:

This proceeding is properly framed as a group proceeding because it is substantially about systems, omissions and conditions common to the experience of all group members arising from their detention on Christmas Island. It is fundamentally concerned with the systemic failures and omissions of the Defendants, the systemic conduct of the Defendants and the injury-causing or injury-exacerbating conditions to which all group members were subjected as a result thereof.[75]

The systemic failures not only injured the Plaintiff but also many others. It is for this reason that Part 4A is an entirely appropriate vehicle for the disposition of those many claims.[76]

105 The common questions on this issue (questions 11, 12 and 15) were framed this way:

What system, services and facilities of primary health care were available to the Group Members on Christmas Island during the Plaintiff's Detention Period?

What system, services and facilities of mental health care were available to the Group Members on Christmas Island during the Plaintiff's Detention Period?

Were the systems, services and facilities of primary health care that were available to Group Members on Christmas Island during the Plaintiff's Detention Period reasonable? If not, in providing systems, services and facilities of primary health care, did either or both Defendants breach the duty of care which they owed to Group Members?[77]

106 I accept that it is likely that there were protocols or guidelines in force and applicable to AS which may have application to group members not only in the camps in which she was confined, but those located on other parts of the island. I also accept that an allegation of a breakdown of systems, protocols or guidelines in relation to AS is appropriate for determination at the trial and may potentially have an impact on putative claims of other group members.

107 It can be seen that the common questions are framed at a high level of generality. That, of itself, is not fatal although it is unhelpful in determining what is the real issue for consideration. The pleaded case is no different in that it fails to identify what systems, guidelines or protocols (call it what you may) will be an issue be in the trial of AS and may lead to a determination that might apply to other group members. At best, AS was only able to identify 'system allegations' in very broad terms as this table shows:

Allegations about physical conditions ('Christmas Island Detention Conditions')

Systems breach: the Christmas Island Detention Conditions were 'likely to cause or materially contribute to the development or exacerbation of psychiatric injury'

Failure to 'have in place a system' for medical treatment capable of ensuring timely access to medical services (e)

Systems breach: failure to ensure that the physical conditions of detention were not such as to cause or exacerbate injury to parents

Systems breach: the Christmas Island Detention Conditions were 'likely to cause or materially contribute to' developmental delay

108 A search of the pleadings fails to identify any specific system, guideline or protocol which is said to be inadequate. There is no reference with any detail to the type of system, guideline or protocol that should have been in place. Rather, the particulars (appropriately) deal with the treatment of AS individually. Nothing in the affidavits filed on behalf of AS addresses this issue. The short point, emphasised by the defendants and the third parties, is that notwithstanding the assertions made in the submissions, at no time has AS identified what is the system failing that would be investigated at her trial which has implications, in terms of a common finding for other group members - even if only for a limited number.

109 I should add that although pleaded as a cause of action, the allegation of statutory duty arising out of the WA Act is not raised as a common question.

110 Fifth, it is difficult to see how the hypothetical 'comparator proceedings' which might be brought individually by a group member would be conducted differently if prosecuted individually. I cannot perceive any true benefit from the determination of the claim of AS under Part 4A.[78]

111 Even allowing for a finding in the claim of AS in relation to a systems defect applicable to all detention facilities on the island (which I do not accept), this will not obviate the need for each group member to prove his or her case on questions of scope of duty, breach and causation - he or she would need to prove that such a defect was relevant to his or her treatment or management at the relevant part of the detention centre and, further, that it was a cause of any alleged injury. In other words, even if there was a finding of a systemic failure in relation to AS's case, it is difficult to see how that could have any real benefit to the group member.

112 Sixth, there was scope for AS's lawyers (who have vast experience in class action litigation) to enlarge the basis upon which findings might have been made by the Court which could bind other members of the group and the defendants: by the use of a technique of trying the claims of sample group members in the trial of AS. This was employed in the Longford gas claims,[79] and the Kilmore East Bushfire claim.[80] That device enables findings to be made in respect of parts of the claim that the representative plaintiff's case cannot resolve. This course has not been suggested nor undertaken. Rather, the lawyers have elected to proceed with a claim which, once it is tried, will have little, if any, relevance or benefits to the claims of other group members, as illustrated by the common issues.

113 It follows that I am satisfied that there is a lack of commonality between the claim of AS and those of other group members, and that her claim does not provide an efficient or effective means of dealing with the claims of group members.

114 In this regard, the remarks of Edmonds J in Meaden v Bell Potter Securities Ltd (No 2) are resonant in this case:

The entire theory of Pt IVA representative proceedings is that the trial of one representative action will determine for all group members the common question or questions. The efficacy of that process depends upon true commonality of issues. Any determination will ordinarily bind all group members, other than those opting out... I agree with the submission of Bell Potter that the fundamental problem with this case is that it is impossible to see how the trial of an action based on evidence from and concerning only Ms Meaden will determine any issues of sufficient significance to render it a process that has any real utility. There is such a lack of commonality that any determination of Ms Meaden's claim would offer no real guide as to how the balance of the claims by the claimants would be determined were they to proceed to be determined individually.[81]

115 Given this conclusion, it is not necessary to go to the considerations relevant to s 33N(1)(d).

Is it in the interests of justice to terminate the proceeding as a group proceeding?

116 The matters I have set out at [72] and [115] are relevant to this issue. In addition the following considerations lead to the conclusion that it is in the interests of justice to terminate this representative proceeding.

117 Importantly, there is the question of the interests of the other group members if I make such an order. It is not at all clear how many group members are genuinely interested in being involved in this litigation. Some 426 have opted out and only 28 or so have indicated to Maurice Blackburn that they have an interest in the proceeding. This, of course, may change. In addition, one cannot lose sight of the fact that this is an open class proceeding so that the group members are perfectly entitled to sit back and await what happens in AS's case if it proceeds as a representative claim.[82]

118 That said, I see little, if any, prejudice to those group members who are interested in pursuing their individual claims by the termination of the representative aspect of this proceeding (or, to put it another way, I see no real benefit to those group members who may wish to pursue their claims as part of this proceeding). Inevitably, each would have to proceed to a trial of their individual claim. As I mentioned previously, such a trial would involve questions similar to those in the claim of AS: the nature of their treatment (medical, social or educational) in the particular area in which the person was detained, whether it was consistent with reasonable care, what injuries he or she sustained, and whether they were causally related to the alleged breach and if so, what award of damages is appropriate. On the material adduced on this application those matters cannot be resolved by determination of AS's claim. Moreover, even if there were some minor common findings in AS's case relevant to some group members this would have little if any practical impact on the prosecution of individual claims by group members.

119 Accordingly, given the nature of the claims of each group member, I can see little, if any, prejudice caused by granting the application under s 33N. I note in particular that there is no question of any prejudice caused by a limitation period, as the Act specifically takes this into account: s 33ZE.

120 Next, notwithstanding constant affirmations by counsel for AS and the refinement of the pleadings in accordance with directions given by Kaye J and myself, permitting this case to proceed as a class action raises real issues of trial management, given the apparent indefatigable enthusiasm of AS's lawyers to treat the case as an inquiry into conditions generally at the detention centre. In this regard, I need only refer to a couple of the outlines of evidence provided by the lawyers.

121 For instance, that of Dr Grant Ferguson: - 'Living containers were generally situated very close each other.'[83] Dr Ferguson did not see any play equipment or toys in any of the detention centres that he visited in Bravo camp.[84] Older boys played soccer on the phosphate ground because there was no grass. They sometimes fell over and hurt themselves.[85] Detainees had to wait for their Health Induction Assessments.[86]

122 The outline of the doctor's evidence continues for some 15 pages with widespread criticisms of the management of the detention centre, including information management systems, medical transfers, medical treatment of children other than AS, preliminary questions for detainees, treatment of pregnant women and dealings with IHMS management.

123 This evidence may or may not be relevant to a claim of a particular group member but, on its face, it has little to do with the claim of AS. If it does, it is not identified in the statement.

124 Then there is the expert report of Professor Elizabeth Elliott which whilst dealing with aspects of AS's treatment at the detention centre, also contains a considerable amount of discussion of matters relevant only to other group members and as to the conditions generally at the detention centre.

125 The expert report of Associate Professor Karen Zwi of 7 March 2017 headed 'Christmas Island Immigration Detention' suffers from the same vice. It appears to deal generally with the care of minors in detention.

126 As well, the outlines of evidence of other witnesses (such as Ms Zar Hosmas-Cummins, Ms Baker, Dr Young and Dr Bleaney) do not appear to come to grips with any specificity with the individual situation of AS but relate primarily to the overall conditions at the detention centre, and often at places other than Construction Camp where AS spent most of her time in detention.

127 I should make the following clear. I intend no criticism of the evidence of these witnesses; rather, it is the breadth of the evidence that is sought to be introduced at the trial of AS that concerns me.

128 Whilst I accept that it may well be that many or all of these witnesses can give evidence (either directly or inferentially) relevant to the circumstances of the care of AS whilst in detention, the breadth of their proposed evidence supports the proposition that the lawyers for AS are determined to run a case well beyond the scope of her individual claim. This is notwithstanding repeated protestations to the contrary.[87]

129 Indeed, this apprehension is, to a large extent, substantiated by the breadth and generality of the proposed common questions in their final form. The evidence which I have adverted to goes to support many of the propositions contained in the common questions rather than that which could reasonably be adduced at the trial of AS. It seems to me that there is a real prospect that the management of the trial would be significantly disrupted if AS's lawyers continue with this approach.

130 Garling J when faced with similar common questions in Giles noted that:

the hearing of those questions would become a procedure which was closer to an inquiry of the kind conventionally seen in a Royal Commission, rather than the determination of an adversarial dispute upon which the plaintiff bears an onus of persuading the court that he or she has proved each of the elements of the pleaded cause of action.[88]

131 Whilst Garling J thought this risk could be managed by appropriate directions,[89] I am not so confident in this case. It is no answer to say that the parameters of the trial can be set by the judge; that proposition seems to have had no real effect on pre-trial management - at least to date. At trial, each time evidence is led outside the scope of AS's pleaded case, there will be objections, counter-objections and inevitable delay. This risk, as put by the defendants and the third parties (and noted by Garling J), is that in some way the case will become an overarching inquiry (indeed a Royal Commission) into the conditions at the detention centre generally. I think there is some force in this, given the history of this proceeding and the breadth of the common questions.

132 There is also the question of the mode of trial. AS has sought trial by jury, and this is embraced by the defendants and the third parties. An application by AS to dispense with a trial by jury has been foreshadowed. If that application is unsuccessful and the case proceeds before a jury, then their task will be made all the more difficult by attempts to introduce evidence in the course of the trial not relevant to AS's claim.

133 Whilst I do not regard this consideration as determinative, having managed the case for nearly two years, I am satisfied that if it proceeds as a class action, then the risk of trial disruption by reference to matters outside the claim of AS is one that cannot be discounted.

134 Third, I do not accept the submission on behalf of AS that I should delay the determination of the s 33N question until finalisation of the application to amend the statement of claim to include a revised false imprisonment claim. The history of the claim for false imprisonment is problematic. There was no such claim in the original statement of claim or in the two subsequent amendments. It first surfaced in the September 2016 version; but this has now been abandoned and it is now sought to be re-pleaded in different form in the proposed amendment.

135 It is clear that the proposed amendment will provoke considerable debate, as it appears to involve the question of the exercise of Ministerial discretion in relation to the detention of asylum seekers under the provisions of the Migration Act 1958 (Cth). It calls into issue the legality of the decision to hold AS in the detention centre rather than transfer her and her family to another place of detention. It is not necessary to say any more about this at the present time, other than pursuant to s 47(3)(c) of the Civil Procedure Act 2010 (Vic) (the CPA) I will defer the hearing of the application for the amendment (in the context of both AS's own claim and as representative of the group) until the primary claim of AS in negligence and breach of statutory duty is resolved.

136 Finally, I should deal with a matter that was raised by Senior Counsel for Serco. Although not stating it directly, counsel implied that the bringing of this claim as a representative proceeding was an abuse of process. It was not. Abuse of process arises 'in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute'.[90] There is no question here of either oppression or bringing the administration of justice into disrepute. To the contrary, AS had obtained, by virtue of the application before Kaye J, leave to continue the proceeding as it complied with the requirements of s 33C - a provision which, in effect, operates to prevent an abuse of Part 4A procedures.

137 I also reject the submission made by Senior Counsel for Serco that in some way AS or her lawyers breached the provisions of ss 7, s 8, s 16, s 18, s 20, s 23, s 28 and s 29 of the CPA: 'They have just made up a case about a class action when it didn't exist'.[91] Neither she nor the lawyers did any such thing. They were entitled to bring the claim as they saw fit within the parameters of Part 4A of the Act, particularly so given the decision of Kaye J. But that is not the real problem - it is the use of the CPA to try and stymie a claim. Judd J recently said as follows in ACN 005 590 540 Pty Ltd v Robert Frederick Jane Pty Ltd:

The threat of a costs order against a practitioner, engaged in litigation, based on the perceived strength or weakness of a case is, unfortunately, not uncommon. In most instances I have observed, such threats have been unnecessarily provocative, uninformed and premature. If found to be improper, the maker may have breached the paramount duty to further the administration of justice, and the overarching obligations to ensure a proper basis for the threat at the time it was made. After all, such a threat foreshadows a claim. In such circumstances, the maker would be amenable to an order under s 29 of the Act. In the present case, the threat was based upon the plaintiffs' subjective assessment of the defendants' prospects of success, made prior to the defendants having filed all of their material, without the advantage of any adjudication by the court. It was premature, provocative and unjustified.

The factors identified by Mr Mereine, in his letter of 23 December 2015, did not provide a proper basis for the threat. A threat based on a prediction of the likely outcome of an application or trial, before the evidence is complete, is subjective, and uninformed by any findings of the court on the material presented at the trial or hearing. His reliance on the earlier determination of a similar application in the Family Court was misplaced for, as the trial judge said, it was based on the evidence before him.

Sometimes a threat may be intended as no more than bluster or negotiating rhetoric. If so, it is improper. Such a threat may be reasonably understood by the person against whom it is made, as a challenge to his or her duty to continue to act on behalf of a client and pursue a particular course in response to instructions. All practitioners must, of course, comply with their duty to the court, and statutory obligations under the Act. But if such a threat is to be taken seriously, a moment's reflection should cause the maker to realise that it may have the tendency to interfere with the ability of a litigant, the practitioner's client, to advance a case for adjudication by the court.

Such threats can also have a chilling effect on a practitioner's ability to act in the best interests of a client. A solicitor or counsel, against whom a threat is made, may feel compelled, or may take advantage of the opportunity, to apply for leave to withdraw on the threshold of a hearing or trial. Such a step was taken by the defendants' solicitor following receipt of Mr Mereine's letter of 10 December 2015, who made application for leave to withdraw shortly before the date then fixed for trial. The basis of his application was the threat of costs against him. Leave to withdraw was granted by the trial judge.

In my opinion, all such threats intrude on the special relationship between litigant and practitioner, which is fundamental to the maintenance of the adversarial system of justice that continues to be a cornerstone of our civil justice system. Contrary to the plaintiffs' submission that the warnings provided a basis for making an order for costs against the defendants' legal representatives, I find these particular threats were uninformed, premature, and unjustified.[92]

138 I endorse those remarks. Although there was no suggestion of threats in this case, it is the invocation of the provisions of the CPA as a device to enhance an application such as this by attacking the other side's lawyers that is unsatisfactory. The time and place for an application under the CPA based on the initiation or continuation of a proceeding (or defence of it) is, except in the most extraordinary of circumstances, not during the proceeding and certainly not in terrorem of the other side or its lawyers. If there is a legitimate complaint about the conduct of the other side or its lawyers in bringing the claim, it can be resolved by standard and well established processes - such as an application that the proceeding constitutes an abuse of process; or an application for summary judgment; or by an application under the CPA at the conclusion of the proceeding. To endeavour to litter the pre-trial landscape and the proper conduct of the case with threats of consequences arising out of the provisions of the CPA is not only inconsistent with the purposes of the Act, but may, of itself, constitute a breach of the Act - ironically enough, as Judd J pointed out.

139 It is sufficient to say for the purposes of this case that the checks and balances within Part 4A operate effectively in determining if and when class action can be prosecuted.

140 The application by the defendants that the proceeding no longer continue under Part 4A is granted.

141 Given that I propose to make orders halting the proceeding under Part 4A, it is not necessary to consider the application concerning mediation and the Commonwealth's contact with group members.

142 The trial of AS's claim alone will proceed on 26 April 2017 on the basis of the pleaded cases of the parties absent references to the claims of the group members.

143 Subject to hearing from the parties, I propose to make the following orders:

(1) Subject to order 5 the proceeding no longer continue under Part 4A of the Supreme Court Act 1986 (Vic).

(2) That the claim of AS be the subject of a mediation on or before 20 April 2017.

(3) That the trial of the personal claim of AS, apart from that of her proposed claim for false imprisonment be heard on 26 April 2017.

(4) That the trial of AS be conducted on the basis of the current form of the pleadings, with the exception of those references to the claims of group members and/or claims under Part 4A.

(5) That the determination of the question of whether the trial proceed before a jury or judge alone be fixed for hearing on 21 April 2017.

(6) That the application to amend paragraph E of the Statement of Claim to include a claim for false imprisonment be heard after the conclusion of the trial of all other claims of AS.

(7) In the event that AS is given leave to amend her Statement of Claim for false imprisonment (whether on her own behalf or pursuant to Part 4A), that claim be heard separately to all other claims alleged in the Statement of Claim which are to be tried on 26 April 2017.

[1] See previous rulings in which the gist of the case and the pleadings are set out: AS v Minister for Immigration and Border Protection [2014] VSC 486; AS v Minister for Immigration and Border Protection [2014] VSC 593; AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642; AS v Minister for Immigration and Border Protection (Ruling No 4) [2016] VSC 351; AS v Minister for Immigration and Border Protection [2016] VSCA 206; AS v Minister for Immigration and Border Protection (Ruling No.6) [2016] VSC 774.

[2] The claim for minors of school age extends to a failure to provide appropriate education for AS and minor group members.

[3] On behalf of AS: Affidavit of Nicole Lees dated 15 March 2017. On behalf of the defendants: Affidavit of Matthew David Crowley, 14 February 2017; Karen Marie Hacker, 6 March 2017; and Julia Louise Hayes, 8 March 2017. On behalf of Serco: Affidavit of Katrina Anne Sleiman, 8 March 2017.

[4] AS remained detained under s 189 of the Migration Act 1958 (Cth).

[17] AS v Minister for Immigration and Border Protection [2014] VSC 593, [47]-[63].

[21] T 41, of hearing of 27 November 2015.

[24] AS v Minister for Immigration and Border Protection (Ruling No 4) (2016) 310 FLR 166, 188 [98].

[25] Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988).

[27] Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, 24 [12] (cited with approval in Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 339 ALR 11, 20-21 [43] ('Timbercorp')).

[28] The ALRC considered and rejected the need for such a step.

[29] Federal Rules of Civil Procedure, Rule 23(c)(1).

[30] There are other provisions which can also be utilised but these are the primary ones- see also ss 33R and 33Q.

[31] Timbercorp (2016) 339 ALR 11, 31 [105].

[32] [1999] HCA 48; (1999) 199 CLR 255, 267 [28], 268 [30] ('Wong'); see also Timbercorp (2016) 339 ALR 11, 22 [50] (French CJ, Kiefel, Keane and Nettle JJ).

[33] [1993] FCA 489; (1993) 45 FCR 384, 404, 405; see also AS v Minister for Immigration and Border Protection [2014] VSC 593, [55].

[34] Timbercorp (2016) 339 ALR 11, 22 [49].

[35] [1999] HCA 48; (1999) 199 CLR 255, 266 [26].

[36] ACCC v Giraffe World Australia Pty Ltd [1998] FCA 819; (1998) 84 FCR 512.

[37] [2002] FCAFC 243; (2002) 195 ALR 574 ('Bright').

[39] Ibid 601 [128] (emphasis added).

[40] [2007] FCA 1061; (2007) 242 ALR 111.

[42] [2007] FCAFC 200; (2007) 164 FCR 275 ('Multiplex').

[44] Ibid 293-294, [127]- [133] (emphasis added).

[45] [2007] VSC 233 ('Hall').

[47] [2009] FCA 5 ('Peterson').

[48] Ibid [40] (emphasis in original).

[49] Giles v Commonwealth of Australia [2014] NSWSC 83 ('Giles').

[50] Civil Procedure Act 2005 (NSW), s 166.

[52] Ibid [132]-[135] (emphasis added).

[54] [2014] VSC 593.

[55] Ibid [64]-[65] (emphasis added).

[56] [2014] VSC 593, [58].

[57] See also Downie v Spiral Foods Pty Ltd [2015] VSC 190.

[64] Connell v Nevada Financial Group Ltd (1996) 139 ALR 723, 733.

[65] (2007) 234 CLR 330, 337-338 [18] (emphasis added).

[66] Takla v Nasr [2013] NSWCA 435, [71]-[73] (McColl JA).

[67] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 611-612 [192] (Gummow and Hayne JJ).

[68] Gulic v Boral Transport Pty Ltd [2016] NSWCA 269, [38] in respect of the NSW analogue to the WA provisions.

[69] Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220, [33]; Shaw v Thomas [2010] NSWCA 169.

[70] [2014] NSWSC 83.

[72] [2005] HCA 62; (2005) 223 CLR 422, [25] (Cited with approval by Gummow CJ in Dederer at [49]).

[74] [1999] FCA 1123, [67]-[68] (emphasis added).

[75] Plaintiff's Outline of Submissions of 14 March 2017, [3].

[77] Common Questions [11,], [12] and [15].

[78] Bright [2002] FCAFC 243; (2002) 195 ALR 574, 584-589 [74], 589 [76] (Lindgren J).

[79] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No. 3) [2001] VSC 3724; see also the discussion on the utility of this process by Beach J in Earglow Pty Ltd v Newcrest Mining [2015] FCA 328; (2015) 324 ALR 316, 330-331 [55]-[66].

[80] Matthews v SPI Electricity Pty Ltd (Ruling No. 5) [2012] VSC 66; (2012) 35 VR 615.

[81] [2012] FCA 418; (2012) 291 ALR 482, 495 [65].

[82] Mobil Oil Australia Limited v Victoria (2002) 211 CLR 1, 32 [40].

[90] Timbercorp (2016) 339 ALR 11, 26 [69]; Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 518-519 [25]-[26].

[92] [2016] VSC 217, [19]-[23].