Wotton v State of Queensland

MORTIMER J: 1 The orders made today, and these reasons, complete the set of common questions of law and fact which need to be identified so that the claims of the members of the group and subgroup identified in this proceeding can be prepared for hearing, and then heard and decided. These reasons should be read with the Court's orders and reasons in Wotton v State of Queensland (No 5) [2016] FCA 1457 (Liability Reasons). 2 These proceedings were conducted, up to the time of delivery of the Liability Reasons, with scant attention by either party to the fact that this was a class action and that there were a series of matters likely to arise under Part IVA of the Federal Court of Australia Act 1976 (Cth) which would need to be addressed in order for the claims of the group and subgroup members to proceed. As I noted in the Liability Reasons, the common questions identified in the further amended originating application failed to address all necessary matters in order to ensure proper resolution of the issues in the proceeding so far as the group and subgroup members were concerned. An earlier attempt to amend the common questions prior to trial as part of the wholesale amendment of the applicants' originating application and statement of claim did not assist and proposed 57 common questions, most involving a minutiae of factual detail quite inappropriate for a proceeding such as this (see Wotton v State of Queensland [2015] FCA 910). 3 The failure of the applicants to address in any sensible way the common questions of law and fact which arose in the proceeding has led to the truncated process now necessary to attempt to identify as many such questions as possible before the claims of the group and subgroup members are dealt with. I accept the respondents' submissions that this is a less than ideal way for a class action to proceed. It would have been more appropriate had a rational and sensible list of common questions been agreed and identified before the trial commenced, or in final submissions, at least. That did not occur. However, the parties and in particular the respondents well understood the issues in the proceeding and the trial and final submissions disclosed the parties' (and in particular the respondents') understanding of the key matters which required determination. 4 It was in those circumstances that in the Liability Reasons I considered it was appropriate to identify potential further common questions not identified in the further amended originating application but which clearly arose from the applicants' pleadings, the parties' submissions, the evidence led at trial and the findings I made: see [1535] of the Liability Reasons. There I set out four potential further questions and my proposed answers to those questions. I qualified the proposed answers in relation to two subgroup members at [1536]. 5 It is appropriate that I set out those further common questions and answers as identified at [1535] of the Liability Reasons: (a) Question: What methods and appearance did SERT [Special Emergency Response Team] officers adopt at houses other than the applicants? Answer: The evidence demonstrates that SERT officers had the same appearance and adopted the same methods and the same tactical response at each of the houses of subgroup members they attended, as set out at [351] above, as they used at the houses of the applicants. (b) Question: Were the arrests of the subgroup members lawful? Answer: No. Aside from the arrests of William Blackman Senior and Solomon Nona, all of the arrests were unlawful. (c) Question: Were the entries and searches of houses other than the applicants' houses unlawful? Answer: Yes. All of the entries and searches of the houses were unlawful. (d) Question: Did the use of SERT officers impair or nullify the recognition, enjoyment or exercise, on an equal footing, of subgroup members' human rights under Art 17 of the ICCPR? Answer: Yes. Given the appearance, methods and tactics of SERT officers were the same at each house they attended, the use of SERT to effect arrests of the members of the subgroup and the entries and searches of the houses identified was an arbitrary interference with the rights of the subgroup members to family, privacy and home under Art 17 of the ICCPR, as I have determined the concept of arbitrariness should be construed. It was also an unlawful interference for the purposes of Art 17. 6 It can be seen from question (b) that I excluded from the answer the arrests of two individual members of the subgroup. I did that because there was insufficient evidence before the Court at trial to make a finding about the lawfulness of the arrests of William Blackman Senior and Solomon Nona: see Liability Reasons at [1345]-[1346]. 7 Since the parties had not had an opportunity to consider those potential further common questions, and proposed answers to those common questions based on my findings in the Liability Reasons, I gave directions on 5 December 2016 designed to ensure the parties had an opportunity to make submissions regarding those matters, and any other common issues of law and fact they submitted arose and should be answered ahead of the claims of the group and subgroup being prepared, heard and determined. Those directions were stayed on 3 February 2017, pending the outcome of the respondents' appeal of the Liability Reasons. Following the discontinuance of that appeal, I made further orders on 20 April 2017 bringing this issue back for determination.

The parties' submissions 8 By a letter dated 21 March 2017, the applicants' solicitors proposed to the respondents' solicitors certain directions in relation to the finalisation of the common questions. In that letter the applicants indicated to the respondents that they intended to submit that, first, the common questions and answers proposed by the Court at [1535] of the Liability Reasons should be adopted, and second, that there should be additional common questions and answers, which the applicants' solicitors set out in that letter and which I reproduce below. The applicants' solicitors also proposed that the common questions should be dealt with by way of a schedule, using the approach adopted by Jessup J in Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5) [2010] FCA 605. Finally, the applicants' solicitors suggested to the respondents that the Court should make an order pursuant to s 33Z and 33ZB of the Federal Court Act describing or otherwise identifying the group members who are bound by the Court's judgment, such an approach having been taken by Middleton J in Haslam v Money For Living (Aust) Pty Ltd (No 2) [2008] FCA 1832 at [10]. 9 The additional common questions and answers proposed by the applicants' solicitors in their correspondence are as follows: (a) Question: Did the QPS [Queensland Police Service], in the entries and searches of the homes of subgroup members, use the minimum force necessary to effect those entries and searches? Answer: No, the force used by the QPS in those entries and searches was excessive. (b) Question: Did the QPS, in the entries and searches of the homes of subgroup members, avoid the unnecessary disturbance of the occupants of those homes? Answer: No, the occupants were unnecessarily disturbed. (c) Question: Did the QPS, in the arrests of subgroup members during the entries and searches of the homes of subgroup members, use the minimum force necessary to effect those arrests? Answer: No, the force used by the QPS to effect those arrests was excessive. (d) Question: Did the entries and searches of the homes of subgroup members constitute acts involving a distinction, exclusion, restriction or preference based on race? Answer: Yes, the entries and searches were acts involving distinctions and restrictions based on race. (e) Question: Did the arrests of subgroup members in the course of the entries and searches of the homes of subgroup members constitute acts involving a distinction, exclusion, restriction or preference based on race? Answer: Yes, the arrests were acts involving distinctions and restrictions based on race. 10 After the applicants' solicitors' correspondence, the matter came before the Court for a case management hearing on 3 April 2017. Amongst other directions given, directions were made providing an opportunity for the respondents to answer the applicants' suggestions about the common questions and for the applicants to reply to the respondents' submissions. 11 All those submissions have now been received. 12 The respondents also accept that it is appropriate for the common questions and the proposed answers to those questions as set out by the Court in [1535] of the Liability Reasons to be included in an order, although, as I have noted, the respondents properly take issue with the sequence of events in relation to common questions in this proceeding. They do not however suggest they are prejudiced by the somewhat unusual course these matters have taken. 13 The respondents oppose the stating of the additional questions and answers set out in the applicants' solicitors' correspondence. They submit the applicants should not be able to use the Court's invitations to make further submissions as: an opportunity, at this late stage, to trawl through the judgment identifying intermediate findings in the search for common questions. Unless their identification is likely to assist in the resolution of the real issues in the proceeding the identification of further common questions is unlikely to have any utility. 14 The applicants dispute this characterisation of their proposed questions and I consider they are correct to do so. However, there are other difficulties with some of the applicants' proposed questions and answers and I deal with these in further detail below. 15 The respondents submit that some of the applicants' further questions are redundant because of the Court's own further questions and answers set out at [1535] of the Liability Reasons. They submit the final two proposed questions are repetitive of common question 6 which was answered at [1527] of the Liability Reasons. I do not accept this submission, for reasons I set out below. They also submit that the first three questions, which relate to a level of force used by QPS, are nothing more than "intermediate finding[s]" which are not determinative of the respondents' liability to the group members. 16 As the applicants submit, the characterisation of the finding of fact as "intermediate" may not preclude its identification as a common question of fact in a class action. Such intermediate findings, if common, are likely to assist the resolution of the proceedings when the ultimate issues of liability in relation to the group members may not be common, as is the case here. Such intermediate findings, as the applicants submit, are still capable of narrowing the issues remaining to be determined in the outstanding group members' claims and this serves one of the statutory purposes of Part IVA. 17 My real difficulty with the first three of the applicants' proposed five questions does not relate to utility or redundancy, nor their characterisation as intermediate findings. Rather, it relates to the way that they travel outside the findings the Court has made. In other words, I do not consider the questions and their answers reflect the Court's findings in the Liability Reasons and I turn to explain why that is so.

Applicants' proposed common questions (a), (b) and (c) 18 Question (a) and question (c) both ask whether QPS used "the minimum force necessary" to effect, respectively, the entries and searches of the homes of the subgroup members, and the arrests of the subgroup members during those entries and searches. The question of the level of force used by SERT officers in their operations on the island on 27 November 2004 arose on the pleadings in the context of a series of allegations made by the applicants about the unlawfulness of the arrests and entries and searches. I dealt with the unlawfulness allegation as it was made in relation to Mr Lex Wotton at [1335]-[1338] of the Liability Reasons. I then said at [1338]: If, contrary to my findings, I had determined that Mr Wotton's arrest was lawful, I would in any event have found that the use of a taser meant his arrest was effected with more force than was reasonably necessary in the circumstances. That is, I would have upheld the applicants' alternative pleading in [300] of the third further amended statement of claim. This would have led me to conclude, as I have in any event, that the arrest of Mr Wotton was an act involving a distinction based on race: the distinction was the disproportionate and unnecessary force applied to effect his arrest arising from the use of SERT officers to apprehend him. 19 At [1339]-[1341] I went on to explain why I had accepted the alternative pleading about excessive force. I concluded (at [1340]) that the individual SERT officers were not to be criticised for doing what they were trained to do and reacting the way they were trained to react once they had been deployed. Rather, the level of force used to arrest Mr Wotton (including tasering him) was "excessive and unnecessary because there was no objective basis for an armed arrest of the kind the SERT officers are trained to perform". 20 These were findings specific to circumstances of Mr Wotton's arrest, albeit that the underlying factual premise of these findings (namely the use of SERT officers to effect the entries and searches and arrests), is common to the subgroup members. 21 I noted at [1342] that there was less evidence about the circumstances of the arrests of the members of the subgroup as I had identified them at [351]-[352] of the Liability Reasons. However, I did find at [1347] that there was sufficient evidence (by which I meant the evidence I had set out at [348]-[362]) to establish that: "the same level of force, and armed presence, as occurred at Mr Wotton's house occurred at each other house. It was equally disproportionate and unnecessary at each of the houses, and in each of the other arrests." 22 That finding is covered, as the respondents submit, by the answer to common question 5 which expressly includes the subgroup members: see [1526] of the Liability Reasons. 23 I made no findings in the Liability Reasons about whether QPS officers, and SERT officers in particular, used "the minimum force necessary" to effect the entries and searches of the houses or the arrests. The phrase "minimum force" comes from the action plan prepared by Inspector Underwood, Inspector Kachel and Detective Inspector Webber: see [346] and [1354] of the Liability Reasons. 24 As I noted in [1354] of the Liability Reasons, there was no freestanding allegation in the pleadings about use of excessive force in relation to the entries and searches of the applicants' houses, nor was there any such allegation in relation to the subgroup or group members. Rather, the allegations about use of force were, as I have noted, part of the matrix relied on by the applicants to prove that both the entries and searches and the arrests were unlawful. The third further amended statement of claim (at [300] and [303] in particular) alleged non-compliance with the action plan, and unlawfulness, and in relation to the latter, at least in the particulars at [300], picked up alleged obligations in the OPM (Queensland Police Service Operational Procedures Manual Issue 24, July 2004) about the use of force. 25 In the end, I found (at [1356]-[1363]) that the entries and searches were unlawful because of a lack of statutory authorisation to enter and search the houses without a warrant. I then noted (at [1364]-[1365]): As to the applicants' third and fourth allegations [in their written submissions] (the use of unnecessary force and the unnecessary disturbance of occupants in the entry and search of the homes of the first, second and third applicants), those matters in my opinion are appropriately considered below, because they are properly characterised as the distinctions and restrictions involved in acts rather than acts themselves. In submissions, the applicants concentrated on the allegation that the entries and searches of the house of Mr Wotton and Ms Cecilia Wotton, and the house of Mrs Agnes Wotton, were unlawful. Little if any time was spent on the lawfulness of the entries and searches of the houses of the subgroup. Nevertheless, the pleadings extend to the subgroup on this issue: see [287], [303], [309(e)], [313] and [323] of the third further amended statement of claim. In my opinion, the entries and searches of the houses of the subgroup members were unlawful for the same reasons I have given in relation to the three applicants. (Emphasis added.) 26 Thus, although "minimum force" was a phrase used by the applicants in their pleadings and submissions, I made no findings whether the QPS used the "minimum force necessary" to effect the arrests of the first applicant and the subgroup members. Accordingly, there is no basis in my findings in the Liability Reasons for the questions and answers set out in (a) and (c) of the applicants' proposed further common questions. 27 A similar approach must be taken to the proposed question (b), in relation to "unnecessary disturbance", and its answer. That term also arises from the action plan, which noted that "other occupants within the dwellings were not to be disturbed, if possible": see [346] of the Liability Reasons. There is no independent finding to the effect suggested in the proposed question and answer (b) in the Liability Reasons. My findings of excessive and disproportionate use of force are already covered by the existing common questions and their answers. 28 Otherwise, my findings about excessive and disproportionate force by reason of using SERT officers to effect the entries and searches, and the arrests, were employed in concluding that such use of force constituted a series of distinctions and restrictions for the purposes of s 9: see [1371]-[1440]. I also found these were distinctions and restrictions based on race: see [1441]-[1456]. 29 It is necessary to refer separately to the terms of my finding in [1457], being one of the paragraphs identified in the applicants' submissions. In that paragraph, I state: It will be apparent from the findings I have already made that I accept the applicants' alternative arguments (see [303] of the third further amended statement of claim) that there was unnecessary force used against and unnecessary disturbance of occupants in the entries and searches of the homes of the first, second and third applicants. Those descriptions in the third further amended statement of claim are another way of expressing the findings I have already made: namely that the arrests, entries and searches involved distinctions and restrictions (unnecessary force and unnecessary disturbance because SERT officers were employed to effect the arrests, entries and searches), and those distinctions and restrictions were based on race. 30 It is true that in terms, I used the phrases "unnecessary force" and "unnecessary disturbance", the latter being part of the allegation in [303] of the third further amended statement of claim. However, those findings, as I said in [1457], were simply another way of describing or identifying the distinctions and restrictions, for the purposes of s 9(1) of the Racial Discrimination Act 1975 (Cth) (RDA), that I concluded were involved in the conduct of the QPS officers. Here, the relevant conduct being deciding to employ SERT officers to effect the arrests, entries and searches. 31 None of these findings involve the same issue, or the same language, as that proposed in the applicants' proposed common questions (a), (b) and (c). The language there used, and the issue raised, aligns to alleged non-compliance with the action plan formulated at the school by DI Webber, Inspector Underwood and Inspector Kachel. For example, the applicants' proposed question (b) asked whether the QPS "avoid[ed]" unnecessary disturbance, which is picking up the language of the action plan. In the way I approached these matters in the Liability Reasons, the formulation of the action plan by those three officers was a key part of the decision-making to employ SERT officers to conduct the entries and searches and undertake the arrests. Contrary to some of the applicants' submissions at trial, I did not take the view that compliance with the action plan as formulated was relevant for the purposes of s 9(1). 32 I do not consider the applicants' proposed question (b) assists in the resolution of the remaining issues in the proceeding. It singles out a finding on the phrase "unnecessary disturbance" which was used in a particular way by the applicants in their pleadings and submissions, and which the Court did not accept. The question fails to grapple with the way the Court's findings did employ that phrase in [1457] which, as I have pointed out, was to find that phrase captured one description of the distinctions and restrictions involved in the act of deciding to use SERT officers to effect the arrests, entries and searches. The respondents are correct to make this point at [15] of their submissions on the common questions.

Applicants' proposed common questions (d) and (e) 33 The applicants' proposed additional questions (d) and (e) fall into a different category. I accept that these questions are appropriate because they raise issues of law and fact common to the claims of the applicant and members of the subgroup. They should be answered in the way proposed, with one modification to each answer. These questions and answers specify the Court's findings in a way which is more squarely based on the terms of s 9(1) of the RDA than the common questions in relation to the subgroup members which were originally nominated by the applicants. Those common questions and my answers can be seen at [1529]-[1532] of the Liability Reasons. It can be seen that the first two of those questions focus on the unlawfulness of the arrests, entries and searches and the third one focuses on relief. I have made the observations in the Liability Reasons about the undue focus by the applicants at trial on the unlawfulness of the arrests, entries and searches, although in the Liability Reasons I also recognise that for the purpose of the second limb of s 9(1), lawfulness or unlawfulness has a role to play. 34 The difficulty with the common questions as framed in the Further Amended Originating Application is that common questions 4 and 5 were not directed expressly at subgroup members. As I noted in the answer to question 4 (see [1525]) that question was not applicable to group members in general. It was capable of being applicable to the subgroup members, but was not framed in that way. Question 5 was not framed by reference to any of the applicants, the subgroup members or the group members. Nevertheless I answered the questions in more specific terms so as to narrow the issues in dispute in the remaining claims by the subgroup members. 35 The utility in the final two questions posed by the applicants' solicitors in their letter of 21 March 2017 is that the questions and answers pick up the quite extensive fact-finding by the Court, directly relevant to the contraventions of s 9(1) of the RDA, and do so expressly in relation to subgroup members and what occurred during the entries and searches, and during the arrests of subgroup members. As I have attempted to set out above, the Liability Reasons make it clear, as does the first additional common question I posed, that I found there was no relevant difference between fundamental features of the SERT operation in relation to the subgroup members and their houses, and fundamental features of the SERT operations in relation to to the first, second and third applicants. 36 I am satisfied therefore that it is appropriate to state those two questions and to answer them in the way the applicants suggest, in order to make clear that the first limb of s 9(1) of the RDA was proven on the evidence before the Court in relation to the conduct of QPS officers (as set out in the declarations) and the decision to employ SERT officers to effect the entries and searches of the homes of the subgroup members and the arrest of the subgroup members. The remaining issue of the lawfulness or unlawfulness of the arrests of Solomon Nona, William Blackman Senior, Russell Parker Junior and Robert Nugent and how this affects the application of the second limb of s 9(1) to each of those individuals, will need to be determined at the trial in the remainder of the proceeding. 37 Flowing from my observations at [1538] of the Liability Reasons, detailed fact finding on the second limb of s 9(1) is best left to the hearing and determination of the individual claims of the subgroup, when evidence will be led in more detail about what happened at each of the other houses. It will be apparent from my fact finding about the three applicants that the nature and extent of the impairment of any human rights and fundamental freedoms will be quite fact specific in terms of what occurred at each house. There was some evidence about this during the trial, in terms of the experiences of a number of (mostly young) people present during the entries and searches, which I relied on to conclude the decisions to use the SERT officers resulted (because of their methods) in distinctions and restrictions, which I then concluded were based on race. These findings went to the first limb of s 9(1). 38 In the answers to the applicants' proposed common questions (d) and (e), I have added a cross-reference to the section of the Liability Reasons where the Court's findings in relation to distinctions and restrictions based on race can be found. I consider some specificity is appropriate in the answer to these two questions.

Conclusion 39 Accordingly, it is appropriate that the Court now draw together in one document, by way of a schedule to the orders which accompany these reasons for judgment, a complete list of the common questions of law and fact and the Court's answers, so that going forward there can be better clarity for the parties about the matters that do not need to be the subject of further evidence or argument in the preparation, hearing and determination of the claims of the group and subgroup members. For ease of reference, I have renumbered the questions and answers sequentially, although some have had to be re-ordered to reflect whether they apply to the group as a whole, or only to the subgroup. This does not alter the sense of the questions and answers, as the only cross-reference (in what is now question 4), can be preserved as it is a cross-reference to questions 1,2 and 3 (which are the original questions 1, 2 and 3). 40 As I noted at [8] of these reasons, the applicants' solicitors also raised in correspondence with the respondents' solicitors the question whether orders should be made under ss 33Z and 33ZB of the Federal Court Act, describing or otherwise identifying the group members who will be affected by the judgment. 41 In paragraph 1 of the declarations made on 5 December 2016, applicable thereafter to the next five declarations, I defined the group members by reference to the Further Amended Originating Application filed 24 August 2015. This in my opinion would be sufficient compliance with s 33ZB. 42 However, the subgroup members were not defined in those orders, nor in any other order. 43 This is not a representative proceeding where there has been any debate, or difference of opinion, about the composition of the group or the group's characteristics. In their Defence to the Third Further Amended Statement of Claim, filed on 11 September 2015, the respondents admitted the group and subgroup as pleaded and the trial proceeded on that basis. 44 Further, the two classes will be closed in July 2017, on completion of the registration process set out in paragraphs 1 and 2 of the Court's orders dated 20 April 2017 and the trial of the group and subgroup claims will proceed by reference to identified individuals. 45 Nevertheless, out of an abundance of caution, I have structured the orders made today so as to identify the group and the subgroup affected by the Court's declarations and orders in this proceeding, and to do so by reference to the definitions in the Further Amended Originating Application filed on 24 August 2015, repeated in [1A] and [4] of the Third Further Amended Statement of Claim filed on 24 August 2015 and later admitted by the respondents. Given the importance of these matters to the resolution of the claims of the group and subgroup members, and the somewhat piecemeal way in which these issues have been dealt with to date, I consider it is appropriate to draw these matters together in one set of orders. In doing so, for the purposes of describing the subgroup, I have adopted the applicants' term "Raids", although in the Liability Reasons (at [8]), I noted this was a term I preferred to avoid. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.