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This is a decision arising in the context of the class action brought on behalf of minors who were detained in juvenile detention facilities in the Northern Territory (NT) between 1 August 2006 to 27 November 2017. The applicants, Dylan Jenkings and Aaron Hyde, alleged that while in detention, they were wrongfully imprisoned (in certain circumstances) and that at times the conduct and actions of officers in the detention facilities constituted assault and battery. A settlement was reached between the parties and an interlocutory application was filed on 14 July 2021 for approval of the settlement, which is due to be heard in November 2021. The parties were broadly in agreement as to the orders sought, save for a dispute as to the contents of the settlement notice to class members: the NT objected to the settlement notice disclosing the settlement sum and additionally sought suppression of other material which disclosed the settlement sum (including the settlement deed and evidence filed in support of the settlement approval application), filing an interlocutory application for orders under ss 33ZF, 37AG(1)(a) and 37AF of the Federal Court of Australia Act 1976 (Cth) (FCAA).

Before discussing Mortimer J’s decision and reasons, it should be noted that the form of notice proposed to be distributed is very innovative. As the notice is to be distributed to minors and young adults, many of whom do not speak English, the notice was translated with the assistance of a sociolinguist, into the four main indigenous languages spoken in the NT, and designed as a pamphlet displaying the text in each of the languages. This approach was commended by her Honour.

Her Honour dismissed the NT’s interlocutory application (which was opposed by the Applicants) for suppression of the settlement sum. At [23] her Honour set out the principles underpinning an application under s 37AG(1)(a), which provides that the Court may make a suppression order if “the order is necessary to prevent prejudice to the proper administration of justice”. In considering what is meant by the term “administration of justice” her Honour endorsed what Nettle J had said in AB v CD; EF v CD (2019) 364 ALR 202; [2019] HCA 6 at [21] where his Honour held that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. Whilst noting that certain proceedings – such as one seeking an injunction to prevent the publication of confidential material – warranted the making of a suppression order, the present case was not such a proceeding.

Her Honour distinguished the authorities on which the NT relied (see [29]-[44]), holding that the authorities involved a consent position being advanced in the context of an application for settlement approval orders under s 33V of the FCAA, as distinct from this proceeding, in which “there is an inherent public interest”. Her Honour also endorsed (at [45]-[51]) Lee J’s reasons regarding suppression orders in Liverpool City Council v McGraw‐Hill Financial Inc [2018] FCA 1289 where his Honour held that the mere fact that the parties consent to a suppression orders does not, in itself, mean that the making of a suppression order is “necessary”. 

The NT advanced a number of arguments as to why the suppression order ought be made, including that the NT was party to other proceedings of a similar nature regarding conditions in youth detention and that publishing the settlement sum could confuse class members. None of these arguments found favour with her Honour. Her Honour noted:

[64] … the context in which parties agree to settle a Part IVA proceeding is a specific one. The agreement is reached on the premise, and with the knowledge, that the Court – which performs its functions in public – must approve the settlement. The premise of open justice is thus introduced expressly into the settlement negotiations of any Part IVA proceeding…

[65] … the parties to a Part IVA settlement cannot bind the Court’s hands to make suppression orders by the way they express the terms of settlement in a Deed, in particular the terms as to confidentiality. Suppression, and compromise of the open justice principle, will always be a matter for the Court to determine…

Her Honour’s comments for dismissing the NT’s argument that including the settlement sum would confuse class members (at [73]-[87]) are also noteworthy. In particular, her Honour’s statement at [84] is particularly pertinent:

In the present proceeding, the administration of justice requires that as many group members as possible are reached by the notice process, and that they are as well and completely informed about the key aspects of the proposed settlement as is reasonably practicable. Inclusion of the settlement sum is a core component of the settlement; indeed it is the core component. This is a proceeding about compensation for personal injury and deprivation of residual liberty. The primary remedy sought was damages. While the settlement is made with a denial of liability by the [NT], there is no getting away from the fact that the principal relief in the proceeding was compensation. To withhold the settlement sum from group members in the very documentation designed to inform them is not compatible with the administration of justice in this proceeding.

Her Honour also noted that the interests of the administration of justice clearly favoured the disclosure of the settlement sum. Her Honour held (at [91]):

This proceeding is itself about the administration of justice. It is about the exercise of public powers in respect of minors held in juvenile detention in the [NT]. It concerns the treatment of those minors while deprived of their liberty…

Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839

Federal Court of Australia, Mortimer J,
26 July 2021

Applicant’s Solicitors: Maurice Blackburn;
Respondents’ Solicitors: Solicitor for the Northern Territory;
Applicant’s Funder: N/A

Austlii Link: Accessible here

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