Wotton v State of Queensland

MORTIMER J: 1 By two judgments (Wotton v State of Queensland (No 5) [2016] FCA 1457 (liability reasons) and Wotton v State of Queensland (No 6) [2017] FCA 245 (relief reasons)), I determined the claims made in this proceeding by the applicants under the Racial Discrimination Act 1975 (Cth). Declarations were made, and compensation was awarded in favour of the three applicants, together with interest. An order for costs on a lump sum basis was made in favour of the applicants. 2 The claims of the remaining class members, concerning relief particular to them, must now be determined. Prior to any programming orders being made, the applicants have proposed, and the respondents have agreed, that it is appropriate for orders to be made under s 33ZF of the Federal Court of Australia Act 1976 (Cth) closing the class, so that the nature and extent of the further claims to be made can be ascertained with some certainty. The proposal is that this be done through a registration process, and the respondents accept this is an appropriate approach. 3 For this process to occur, the applicants have proposed, and I agree, that notices need to be given to the class members so that they are informed about the next stage of the proceeding, are aware there is a time limit to apply to be registered as a member of the closed class, and thereafter if they are not so registered, they will most likely be unable to secure any relief in the proceeding for any claims they may have as individuals. I say "most likely" because s 33ZF is, in my opinion, wide enough to give the Court discretion to admit a person after the class is closed. On the breadth of s 33ZF see generally Courtney v Medtel Pty Ltd and Another [2002] FCA 957; 122 FCR 168 at [48]-[49], per Sackville J. 4 Initially there were some differences between the parties about the proposed form of the notices but those differences were all resolved during the case management hearing before me on 3 April 2017. I am satisfied the form and content of the notices - as amended by consent at the case management hearing - is appropriate. In particular, I observe that the form of the notices is designed to be eye-catching and understandable to a wide audience that includes large numbers of young people, as well as people who may not usually spend large amounts of time closely reading written documents containing complex information. 5 Further programming orders need to be made to determine the nature and extent of the common questions of law and fact which should be specified by the Court. The parties have agreed some programming orders to achieve that, and they are included in the proposed orders to be made by the Court. 6 The only issue in dispute concerning the notice procedure is which party should pay for the placing of the notices in various print media outlets and on Facebook. Senior Counsel for the applicants informed the Court from the bar table, without objection from the respondents, that the total cost of the advertising for the notices was approximately $20,000 including the cost of printing. 7 The applicants' submission is that the respondents should pay this cost. The respondents submit that there is no authority for the making of such an order and that it is inappropriate because the costs of printing and publishing the notices is a cost in the cause of this proceeding, similar to costs of transcript or other disbursements. 8 The applicant submits that there is authority for the making of such an order. I have assumed the statutory basis is said to be s 33ZF, or s 23 of the Federal Court Act. An order of this kind was made by Wilcox J in McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1. The applicants also submitted an order of this kind was made by J Forrest J in Matthews v SPI Electricity Pty Ltd (No 13) [2013] VSC 17; 39 VR 255. 9 I accept the submission that an order of this kind was made by Wilcox J in McMullin. This was a circumstance, like the present, where there had been a liability judgment on the applicant's claim. However, there is no reference in his Honour's reasons to this order and from the report of the decision it is not apparent whether, for example, the respondent consented to such an order. Thus, it is correct to say there is authority for the making of such an order, and this may advance the case as to the power to make such an order, as well as the proposition that in some cases such an order may be appropriate. It does not advance the case for a discretionary exercise of that power where the order is opposed. 10 In contrast, I do not consider the orders of J Forrest J in Matthews provide any support to the applicants' submission. Matthews was not a case where there had been a liability judgment: rather, the matter was still progressing towards trial. The proceeding was, of course, eventually settled. In that quite different circumstance, J Forrest J ordered the costs of the notice be costs in the cause. That is, as I understand it, the respondents' position on the current notices. 11 The applicants are correct to place some emphasis on the fact of a liability judgment having been given in their favour. Insofar as the questions of law and fact common between the applicants and the class members, the Court has found against the respondents, although the final nature and extent of the common questions is yet to be finally determined. Further, paragraphs 1 to 6, and 10, of the declarations made on 5 December 2016 bind the applicants, the group members and the respondents. 12 It is conceivable that individual claims of group members may, at least in part, arise from the subject matter of some of those declarations. The applicants have indicated as much as to paragraph 6, which concerns the making and continuation of the emergency declaration under s 5 of the Public Safety Preservation Act 1986 (Qld) between 26 and 28 November 2004. 13 The matters to which I have referred in [11] and [12] weigh in favour of a substantial part of the "cause" of the group members against the respondents having already been determined in favour of the group members. The applicants have, of course, had a more substantial part of the "cause" determined in their favour. In those circumstances, I do not consider it appropriate to approach the question of payment for notices designed to inform the group members about what the Court has already decided, and what the further processes of the Court will be, as if there had been no such determination. In my opinion it is fair and reasonable that the Court's determination of liability, as reflected particularly in the declarations made extending the group members, have consequences for who should bear the costs of properly informing group members of what has occurred, and of what they need to do to protect their entitlement to seek individual relief. 14 That said, the underlying purpose of the next stage is to facilitate claims by individual group members for relief, and those group members will have to prove their claims in the usual way. The respondents are not to be assumed to have liability to any of those group members in the same way the Court has found they have liability to the three applicants. In that sense, there is merit in the applicants, as representatives of the group members, continuing to bear the costs of the proceeding in the usual way, including necessary disbursements. 15 In my opinion, the fair approach in the somewhat unique circumstances of this proceeding is to order the applicants and the respondents to pay 50% of the cost of the production, distribution and placement of the notices. 16 Senior Counsel informed the Court that the applicants had elected to use Dr Eades to advise them about the content and structure of the notices, and to retain the services of a graphic designer. The copies of the short form and long form notices handed up to the Court during the case management hearing were, as I have said, appropriately eye-catching and digestible. As I noted to the applicants' Senior Counsel, I consider the photographs which appeared in the draft handed to the Court should not be included. I do not consider, however, that the costs associated with the retention of a graphic designer should be shared between the applicants and the respondents, unlike the costs of the printing of the notices and their publication. The applicants unilaterally elected to use a graphic designer without consulting the respondents. While that election may have improved the end product, the applicants should bear the cost of that election as a cost in the cause. 17 Aside from the issue of which party should pay for the notices, the other matters dealt with in these reasons are some further variations to the proposed orders that I have considered, on reflection, to be appropriate, as well as the changes discussed with the parties during the case management hearing. 18 For example, on reflection I consider publication in The Australian is appropriate. The Court should not make assumptions without foundation about the media services which group members may choose to access. 19 Another change I have made to the form of orders as discussed at the case management hearing is to delete part of paragraph 8(c), whereby the long form notice was to be ordered to be available for distribution at the Palm Island Police Station. Given the nature of the allegations in this proceeding against police officers, and including conduct at the former Palm Island Police Station, I do not consider that is an appropriate location for these notices to be displayed, or available. I consider there is a more than fanciful risk it may cause unnecessary tension between Palm Islanders and the police officers now stationed on the island. The three remaining locations - the Palm Island store, the community health service and the local school, are all appropriate and in a community the size of Palm Island, provide the necessary reach to all community members, especially since there is only one store on Palm Island. 20 Further, there are some minor changes to the proposed publication regime associated with the Court, to reflect the Court's usual practices in this respect. 21 Finally, I note the originally proposed orders in paragraph 8 did not provide for hard copies of the documents and notices to be available in Townsville. On the evidence at the trial of the applicants' claims, it was clear there may be substantial numbers of group members who currently reside in Townsville. The parties have now agreed on the Federal Circuit Court and the Aboriginal and Torres Strait Islander Legal Service in Townsville to be added as paragraph 8(e) of the proposed orders. I accept that these locations are appropriate for the distribution of the documents and notices. 22 The parties were given an opportunity to consider my further changes to the proposed orders and responded with minor amendments by consent. I have included each of these proposed amendments in the orders. 23 This proceeding represents a somewhat unusual and unique set of circumstances for a class action and it is important to ensure each step of finalising the proceeding for the remaining class members is carefully considered and undertaken. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.