Williams v Director-General of the Justice and Community Safety Directorate

1. In the dispute between Ms Williams, the Director-General of the Justice and Community Safety Directorate and others, I have previously found in Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396 (Williams) that conduct at the Alexander Maconochie Centre (AMC) was incompatible with a number of human rights under the Human Rights Act 2004 (ACT) (HR Act).

Remaining issues for determination

2. Before making declarations, I invited the parties to address the court on whether the Territory should be either added or substituted as a party to the proceeding. The issue of costs also remains to be determined.

3. The Defendants argued that the Territory should be substituted for the second and third defendants. They relied on s 223 of the Corrections Management Act 2007 (ACT) (CM Act) in submitting that they should never have been made parties because that section operated to make the Territory the entity responsible for the conduct of those performing statutory functions under the CM Act. The words of s 223 are as follows: 223 Protection from liability (1) This section applies to a person who— (a) exercises, or has exercised, a function under this Act; or (b) is, or has been, otherwise involved in the administration of this Act. (2) The person does not incur civil liability for an act or omission done honestly and without recklessness for this Act. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and the corrections rules (see Legislation Act, s 104). (3) Any civil liability that would, apart from this section, attach to the person attaches instead to the Territory.

4. The plaintiff argued that the Territory should be added to the proceeding as a party, but that it was a matter for the court whether it was necessary and appropriate for the second and third defendants to also be removed from the proceeding.

The Territory should be substituted

5. This judgment determines that the Territory should be substituted, because: (a) By the words of the CM Act: (i) a person who has exercised a function under the CM Act “does not incur civil liability” in circumstances where the person acted honestly and without recklessness for the CM Act (s 223(2); and (ii) any civil liability that would, apart from this section, attach to the person attaches instead to the Territory (s 223(3)). (b) The conduct here involved the second and third defendants performing functions under the CM Act honestly and without recklessness. (c) In those circumstances, a proceeding that would result in civil liability against the second and third defendants was never available against them individually but was instead available against the Territory. Substitution is necessary for the Territory to be properly bound by the declaratory relief to be granted in the proceeding.

The plaintiff’s arguments to the contrary do not alter that legal position

6. The plaintiff raised three matters as bearing upon that conclusion as a matter of law: (a) The first was that under s 40C of the HR Act as it stood when the proceedings were commenced and heard, the decision-makers performing functions were ‘public authorities’ and were appropriate defendants. (b) The second was that the words “civil liability” in s 223 of the CM Act did not include relief limited to bare declarations. (c) The third was that procedurally, the process of substitution was governed by the rules of court (rr 220 and 230 of the Court Procedures Rules 2006 (ACT) (Rules)). Those rules focus on whether it is “appropriate or necessary” for a party to be involved in the proceeding. The plaintiff argued that the inclusion of the second and third defendants was appropriate to give them the opportunity to be heard as active participants in respect of findings that were to be made about their conduct.

First Issue – the decision-makers were never the appropriate defendants when regard is had to the provisions of the CM Act

7. I accept that the second and third defendants were public authorities as defined under the HR Act: see Williams at [21]-[23]. That gave rise to the ability to commence a human rights action “against the public authority” under s 40C(2)(a) of the HR Act, as it stood at the time proceedings were commenced and in its current iteration. However, that is not the end of the matter because the law as to the identity of the appropriate defendant extended more broadly than what was contained in s 40C of the HR Act in this case. Here, the conduct itself was governed by the CM Act. Any civil liability arising out of that conduct was also affected by the CM Act. The words of s 223 of the CM Act dealt squarely with the question of the appropriate defendant and the two pieces of legislation must be read together. It is not a question of which piece of legislation trumped the other. Rather, this was a case where s 223 of the CM Act informed the statutory cause of action available to the plaintiff created by s 40C of the HR Act.

Second issue – “civil liability” means any civil obligation

8. The second matter concerned the term “civil liability”. The plaintiff argued that declaratory relief was the only relief sought against the second and third defendants. Costs were only sought against the first defendant.

9. The plaintiff drew the court’s attention to Littlewood v George Wimpey & Co Ltd and British Overseas Airways Corporation [1953] 2 QB 501 at 515 (cited in Amlin Corporate Member Ltd v Austcorp Project No 20 Pty Ltd [2014] FCAFC 78; 311 ALR 222 at [70]), where Denning LJ referred to two competing meanings of “liable”, the first being liable by reason of the entry of judgment, and the second being responsible in law.

10. The plaintiff argued that, as the second and third defendant were not alleged to be liable to pay anything to the plaintiff, the proceeding insofar as it was brought against either of them did not involve “civil liability”. Accordingly, s 223 of the CM Act did not apply.

11. There was no suggestion here that the proceedings were criminal in nature. They were obviously concerned with civil remedies. The real question was what “liability” meant and whether it included bare declarations.

12. That is a matter of statutory construction of the term located in the CM Act. The process to be followed was set out in Williams at [162]-[163]. In this instance, the purpose of the provision is akin to making the Territory vicariously liable (or responsible) for the conduct of its public servants, as long as they are fulfilling the functions of the CM Act in good faith and without recklessness. It is sufficient to state the definition of liability in the Dictionary to the Legislation Act 2001 (ACT) (Legislation Act) which provides: liability means any liability or obligation (whether liquidated or unliquidated, certain or contingent, or accrued or accruing).

13. The above definition makes it clear that the meaning of liability extends more broadly than monetary claims and includes any obligation.

14. There is nothing in the purpose or context of the CM Act to indicate that the provision adopted anything other than the standard definition in the Legislation Act.

15. What the proceedings concerned was responsibility at law for conduct incompatible with the plaintiff’s human rights. That relief falls squarely within the broad concept of “any obligation” and thus within the term “civil liability” as it is used in the CM Act.

Third Issue – the procedural rules facilitate substitution where the Territory is the appropriate party

16. The third matter was the operation of rr 220 and 230 of the Rules. Under r 220(1) of the Rules: (1) The court may order that a person be included as a party to a proceeding if— (a) the person ought to have been included as a party; or (b) including the person as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding.

17. That order may be made at any stage of the proceeding and on the court’s initiative or on application by a party: r 220(2).

18. The Territory should have been included as a party here because it was the person legally responsible for the conduct of the second and third defendants by virtue of s 223 of the CM Act, for reasons explained above and in Williams at [19]-[25]. It would have been quite unjust for the court to determine that there had been conduct incompatible with the plaintiff’s human rights but that she should be denied relief because she sued the individuals when she should have sued the Territory.

19. As to whether the individuals should be removed from the proceeding, the complementary provision operates, in that r 230(1) provides: (1) The court may order that a person be removed as a party to a proceeding if the person— (a) has been inappropriately or unnecessarily included as a party; or (b) has stopped being an appropriate or necessary party.

20. Again, the order can be made at any point in the proceedings and on the court’s own initiative or on application by a party: r 230(2) of the Rules.

21. Here, the second and third defendants were unnecessary because, although they were relevant decision makers, any liability attached to the Territory from the outset.

22. It is thus appropriate to substitute the Territory. However, a further order is required to extend the time in which to commence the proceeding against the Territory, because of the consequence arising from r 242 of the Rules, which is as follows: 242 Included or substituted parties—date proceeding taken to start (1) This rule applies if the court orders that a person be included or substituted as a party in the proceeding. (2) The date the proceeding starts in relation to the person is taken to be— (a) the date when the order is made; or (b) if another date is stated in the order—that date. (3) However, an earlier date must not be stated in the order if the inclusion or substitution of the person on that date would bring the start of the proceeding within a limitation period applying to the person.

23. That rule operates here. Absent an order otherwise, the proceeding against the Territory is taken to have commenced on the date the order for substitution is made. The above rule contemplates orders which may provide for substitution of a party to take effect from the commencement of the proceeding.

24. Here however, the court cannot state an earlier date in the order of that kind because there is a 1-year limitation period provided for by s 40C(3) of the HR Act: r 242(3). The events founding the statutory cause of action occurred in 2021, and the proceeding was commenced on 18 November 2021.

25. The HR Act, and within it, the stipulated limitation period, applies to the Territory as a “public authority”: Williams v Australian Capital Territory [2023] ACTSC 18 at [36] (a case involving a different plaintiff with the same surname). Insofar as any action against the Territory is concerned, it is currently outside that limitation period.

26. Although the court has the power to dispense with the operation of r 242, I have decided to take a different course, because the Court has a broad discretionary power to extend the limitation period under s 40C(3), and the Territory consents to being substituted at this late stage.

27. It is necessary to say something about the significance of that consent because of an earlier observation made in Williams at [24]. There, I took the preliminary view that the Territory was effectively or for practical purposes on notice of the proceeding from the outset, by virtue of the proceeding being brought against the Director-General of the Justice and Community Safety Directorate as the first defendant. Having now heard submissions from the Territory on that point, I accept the position may be more nuanced than that. The Director-General has been found elsewhere not to be the privy of the Territory (or vice versa) in circumstances where what was in issue was whether the Director-General had complied with duties imposed by the CM Act: Featherstone v Australian Capital Territory [2022] ACTSC 250 at [41]. In that case, Kennett J went on to state that the Territory had no legal interest in the outcome of the proceeding. However, his Honour did not refer in that judgment to the effect of s 223 of the CM Act and was instead considering a different issue about whether an estoppel arose in subsequent litigation.

28. It is unnecessary to traverse the legal consequences or full effect of s 223 of the CM Act here because the Territory accepted that it should be substituted pursuant to s 223 of the CM Act, and did not take issue with joinder after the final hearing. The court therefore does not need to delve into general statements of principle as to the intersection between statutory provisions deeming responsibility and notions of representation. It suffices to say that I accept it does not necessarily follow from the fact that the first defendant was a party to the proceeding that the Territory was “represented” in the proceeding or formally on notice of it. That point is reflected in the fact that I considered it necessary to join the Territory, rather than to leave declaratory relief to be granted against the first defendant. Similarly, the substitution of the Territory for the first defendant in the proceeding was not contemplated, although much of what has been said above would have justified that course. Nevertheless, I have endeavoured to clarify my earlier words, lest they subsequently have any unintended consequences.

29. The Territory’s consent position weighs heavily in the exercise of the Court’s discretion. Considerations that might ordinarily be relevant in deciding whether to extend time can thus be addressed briefly. The delay was lengthy but has not apparently occasioned prejudice of the kind that might other potentially arise where a defendant has not been formally notified of the prospect of a proceeding until years after and indeed, after the hearing had occurred. The full suite of relevant evidence was put before the court. Further, no submission was made that the Territory would have put any different case had it been substituted prior to the hearing. It is otherwise in the interests of justice that the limitation period be extended and an order to that effect will be made.

The first defendant and the Territory should pay 90% of the plaintiff’s costs

30. The final issue for determination is the costs of the proceeding. I have determined that the Territory should pay 90% of the plaintiff’s costs because: (a) Costs are in the discretion of the court. (b) The principled application of the discretion is guided by fairness and the compensatory purpose of costs orders. (c) Any costs liability of the Second and Third defendant attaches to the Territory upon substitution. (d) The defendants were partially successful in respect of one part of the proceeding. (e) That aspect was significant but not dominant, nor was it entirely discrete. (f) Nevertheless, it was substantial enough to warrant a modest reduction, to reflect the fact that costs are compensatory and it would not be fair to require the defendants to compensate the plaintiff for the costs of pursuing an action concerning a decision that was ultimately found to be compatible with the authority’s obligations under the HR Act.

Costs are in the discretion of the Court

31. The starting point is that costs are discretionary, pursuant to r 1721(1) of the Court Procedures Rules 2006 (ACT) (Rules).

32. The discretion is a very wide one, though it must be exercised judicially, in accordance with established principle and the statutory context: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [35], [65].

33. The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9]; Latoudis v Casey (1990) 170 CLR 534 (Latoudis) at 567; Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 (Foots) at [34].

The principles guiding the exercise of the discretion

34. The compensatory purpose of costs orders is deeply entrenched: Law Society v Ford (No 3) [2025] ACTSCFC 1 (Ford (No 3)) at [9] (citing Latoudis) and has led to a principle that ordinarily, “costs follow the event”: Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 at [294].

35. The event is determined by reference to the outcome of the matter in substance: Latoudis at 568; Foots at [34].

36. The context of a proceeding may be relevant, depending on whether the dispute arises in a strictly private law context, or has a public law or regulatory context: Ford (No 3) at [10].

37. Fairness is the touchstone. The result should be fair having regard to the particular facts and circumstances of the proceeding. “Ultimately, the Court is required to determine the appropriate order in the interests of justice”: Clarkson Williams Partners Ltd v Vaughan (No 2) [2016] ACTCA 8 at [12]. In other words, the Court makes a “broad evaluative judgment of what justice requires”: Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 at [2]. The liability of the defendants in the present case

38. The defendants here relied on the principle that where there are multiple issues in proceedings, the Court generally does not differentiate between those on which the party succeeded or failed: Wu v Wu (No 3) [2024] ACTCA 34 at [8(e)] and the cases there-cited. However, where an issue or group of issues is clearly dominant or separable, a different costs order in respect of those particular issues is not precluded: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]. It may be appropriate to give effect to the compensatory purpose of costs orders.

39. The defendants argued that here, the conduct that involved whether to grant the plaintiff leave to attend the sorry business of her late grandmother was entirely separate from the later decisions about whether to strip search the plaintiff and whether to use force upon her to do so. Not only was the cause of action separate, different witnesses and evidence were involved.

40. I accept that the defendants succeeded in defending the statutory action insofar as it concerned the initial decision refusing the plaintiff leave and that this was a factually discrete issue. However, it involved the application of legal principles, including questions of construction of various provisions of the HR Act and evidentiary rulings. Some of those legal principles and rulings overlapped with the application of the law in respect of other causes of action, where the plaintiff succeeded in establishing conduct incompatible with her human rights. Factually, the decisions were different, but legally there was a degree of commonality. That is why I have not accepted that the part of the proceeding on which the plaintiff failed was discrete.

41. As to whether that cause of action was dominant, I have accepted that it was substantial but not that it was dominant in a sense that warrants the significant reduction in costs for which the defendants contended. There were certainly more witnesses required to address the issue because the documentary evidence conflicted with what various witnesses remembered. A substantial part of the judgment was devoted to resolving those factual controversies. However, the submissions and argument devoted to the law were an equally substantial part of the proceeding, including the policies that were in place at the AMC and what impact they had in informing whether the conduct under scrutiny was compatible with human rights. On balance, I was not persuaded of the dominance that the authorities speak of when that principle has been invoked to deprive an otherwise successful plaintiff of part of their costs. Apportionment is appropriate

42. That conclusion does not mean that no reduction is appropriate. Where a plaintiff succeeds on one cause of action but fails on another, apportionment is available (see also r 1705 of the Rules) as part of the exercise of discretion.

43. This proceeding involved the conduct of public authorities, and while not regulatory in any formal sense of being pursued by a regulator, there was a public law context. The outcome certainly had broader consequences for the regulation of conduct at the AMC.

44. I have taken that into account when considering whether apportionment is appropriate here and if so, to what extent. When the proceedings are viewed as a whole, the interests of justice favour a modest reduction to reflect the fact that the bulk of the work performed in respect of the causes of action on which the plaintiff failed was done by the defendants and that work was substantial. The plaintiff is not being ordered to pay the costs of the causes of action on which she failed. Rather, the modest reduction is what fairness in the interests of justice requires in applying the compensatory principle underlying the determination of costs.

Orders

45. For the above reasons, the Territory will be substituted, declaratory relief will be granted in respect of the defendants, and a costs order will be made in the plaintiff’s favour as to 90% of her costs. The remaining orders deal with matters of sensitive evidence that was tendered in the proceeding. The parties have agreed to facilitate a version of that evidence being made available. Accordingly, the orders of the Court are: (1) The Australian Capital Territory (Territory) is substituted for the Second and Third Defendants as follows: (a) The Territory is added as the fourth defendant to the proceeding; and (b) The Second and Third Defendants are removed from the proceeding. (2) Pursuant to s 40C(3) of the Human Rights Act 2004 (ACT), the time in which a proceeding may be brought against the Territory is extended to 15 October 2025. (3) The pixelated version of the CCTV and hand-held camera footage provided by the Defendants (marked as MFI 2) is to be placed on the court file. (4) The defendants’ application in proceedings filed 4 September 2025 is otherwise dismissed. (5) The costs of and incidental to the defendants’ application in proceedings filed 4 September 2025 are costs in the cause. (6) The Court declares that: (a) The Territory’s use of force on the plaintiff on 11 January 2021 was incompatible with the plaintiff’s human rights to humane and appropriate treatment under s 19(1) and 19(3) of the Human Rights Act; and (b) The Territory’s attempted strip search of the plaintiff in the cell at the Crisis Support Unit (CSU) on 11 January 2021 was conduct incompatible with: (i) The plaintiff’s rights to humane and appropriate treatment under ss 19(1) and 19(3) of the Human Rights Act; (ii) The plaintiff’s right to privacy under s 12 of the Human Rights Act; and (iii) The plaintiff’s right to protection from degrading treatment under s 10 of the Human Rights Act; and (c) The Territory’s conduct of a strip search in the bathroom at the CSU on 11 January 2021 was conduct incompatible with: (i) The plaintiff’s right to humane and appropriate treatment while deprived of liberty on remand, under ss 19(1) and 19(3) of the Human Rights Act; and (ii) The plaintiff’s right to privacy under s 12 of the Human Rights Act. (7) The defendants are to pay 90% of the plaintiff’s costs of the proceeding.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: