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The applicants (who were interveners in the proceeding) sought an order under s 33ZF of the Federal Court of Australia Act 1976 (Cth) to reinstate them as class members in a class action on behalf of youth detainees, subject to specified limitations. The applicants were expressly excluded from the class description at a 2017 case management hearing without the input of the applicants.

The applicants had each initiated separate proceedings (Individual Proceedings) in relation to their treatment while they were detained in juvenile and adult detention facilities in the Northern Territory. Those Individual Proceedings were settled and the respective parties entered into a deed of settlement and release (Deed).

Clause 5.1 in each Deed was identical, and provided a broad exclusion that prevented the applicants from bringing any actions, claims or demands for liabilities of any nature against the Territory, including any matter directly or indirectly related to the Individual Proceedings or the applicants’ detention in a Northern Territory correctional facility. 

The applicants contended that there is only limited overlap between the subject matter of the Individual Proceedings and the class action, in that although both proceedings concerned assault, battery and false imprisonment, the Individual Proceedings related only to a limited period. Since both applicants served extensive periods of detention, there were multiple instances where the applicants were subjected to false imprisonment, assault and/or battery cognate to the claims in the class action, where the applicants have not brought any claims before the Supreme Court of the Northern Territory or any other court. 

The applicants further contended that they were unjustly precluded from the 2017 case management hearing where they were removed as class members and, citing Bray v Hoffman-La Roche Ltd [2003] FCA 1505, that there was an inherent conflict of interest when the application for an amendment to the class description was made on behalf of an applicant in a representative proceeding under Pt IVA which adversely affects the interests of some class members. Policy concerns underlying Anshun estoppel may also operate to prevent the applicants from re-litigating in individual actions the same events and subject matter in issue.

The Northern Territory relied on the exclusion under the Deeds. The applicants submitted that they did not waive any claims which they might have as class members in the Individual Proceedings and that the subject matter of those settlements are confined to the subject matter of the Individual Proceedings in the Supreme Court.

Justice Mortimer agreed that the claims made in the class action were different in some respects to those made in the Individual Proceedings. However, her Honour held that both the Individual Proceedings and class action concern, at base, the same subject matter — namely, the detention of individuals in juvenile correctional facilities, and in adult correctional facilities, in the Northern Territory, and their treatment while in detention. Hr Honour held that the exclusions in the Deeds were effective in preventing the applicants from recovering any further damages or compensation in relation to their detention at various juvenile correctional facilities and adult correctional facilities administered by the Northern Territory. Her Honour noted that, unlike four other similarly affected class members, there was an unreasonable delay by the applicants in taking action when informed of the amendments to the class description that excluded them.

Her Honour explained that the principle in Wichmann v Dormway Pty Ltd [2019] 3 Qd R 323; [2019] QCA 31 in relation to the exclusion clause in the Deed is assessed in the context of the Deed read fairly and as a whole, to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time that they signed the Deed. As such, the exclusion was effective and it was neither unconscientious nor inequitable for the Northern Territory to seek to rely on it.

Jenkings v Northern Territory of Australia (No 3) [2021] FCA 621

Federal Court of Australia, Mortimer J,  
8 June 2021

Applicants’ Solicitors: O’Brien Criminal & Civil Solicitors;
Respondent’s Solicitors: Solicitor for the Northern Territory;
Applicants’ Funder: N/A

Austlii Link: Accessible here

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