Supreme Court finds Commonwealth was ‘high handed’ in Christmas Island class action case

28 May 2015
A Victorian Supreme Court judge has criticised the conduct of the Commonwealth in a class action on behalf of injured asylum seekers held on Christmas Island and ordered the government to pay indemnity court costs for the plaintiffs.

Justice Stephen Kaye said that it was “high handed” of an official from the Department of Immigration and Border Protection on Christmas Island not to comply with court orders which expressly gave permission for lawyers to access detention facilities to gather photographic evidence for the class action.

Justice Kaye said in his ruling:

“In my view, the conduct of the officers of the defendants was, in this case, highhanded and it involved an unacceptable disregard for the orders that I made on 15 April and the intention which underlay those orders.  The defendants, being a Minister of the Crown and the Commonwealth of Australia, are expected to be model litigants in our courts.  In this instance, in this litigation, the conduct of the defendants has fallen well short of the standard of conduct that the courts are entitled to expect of them.”

Jacob Varghese, principal at Maurice Blackburn said the firm had specific orders granted by the judge allowing lawyers to access the detention centres to gather evidence and yet the Commonwealth had tried to frustrate the process, citing privacy concerns.

“Over a three day period in late April two Maurice Blackburn lawyers Elizabeth O’Shea and Min Guo, were at Christmas Island with copies of court orders that set down conditions for accessing the detention centre. They repeatedly asked for access to the White Compound,” Mr Varghese said.

“At first privacy concerns were cited as a reason to block access, but those concerns were put to rest by getting the consent of asylum seekers. Only after we applied to the Court to resolve the issue did the Commonwealth reveal the real reason for withholding access, which they said were ‘security concerns’.

“We had to return to court in Melbourne seeking an urgent application for access, wasting time and resources to settle this matter. We are pleased the court has acknowledged this.”

The inspection took place without any incident.

“With this issue behind us now, we are now able to continue with gathering evidence in the class action which seeks damages on behalf of injured people who have been detained on Christmas Island,” Mr Varghese said.

The lead plaintiff is a seven year old girl known as “AS” to protect her identity. AS is seeking protection from persecution and has been detained on Christmas Island. She is now on the Australian mainland and is represented by her litigation guardian Sister Brigid Arthur.

The matter returns to court in September.

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