Jenkings v Northern Territory of Australia (No 4)

• Jurisdiction: Australia Federal only
• Judgment Date: 26 July 2021
• Neutral Citation: [2021] FCA 839
• Court: Federal Court
• Date: 26 July 2021

Federal Court of Australia

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

File number:	NTD 64 of 2016
Judgment of:	MORTIMER J
Date of judgment:	26 July 2021
Catchwords:	PRACTICE AND PROCEDURE – representative proceeding – notification of settlement pursuant to s 33X of the Federal Court of Australia Act1976 (Cth) – interlocutory application seeking suppression orders over Deed of Settlement and/or settlement sum – application dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth), Part IVA Youth Justice Act 2005 (NT)
Cases cited:	AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)[2019] HCA 6; 364 ALR 202 Caason Investments v Cao (No 2) [2018] FCA 527 CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050; 165 ALD 566 Clark v National Australia Bank Ltd (No 2) [2020] FCA 652 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2)[2020] FCAFC 44; 275 FCR 377 DRJ v Commissioner of Victims Rights[2020] NSWCA 136 Dyczynski v Gibson[2020] FCAFC 120; 381 ALR 1 Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433 Fowler v Airservices Australia [2009] FCA 1189 Giddings v Australian Information Commissioner [2017] FCAFC 225 Harrison v Sandhurst Trustees Ltd [2011] FCA 541 Hogan v Australian Crime Commission[2010] HCA 21; 240 CLR 651 Hudson Ventures Pty Ltd v Colliers International Consultancy and Valuation Pty Limited [2014] FCA 982 Liverpool City Council v McGraw‐Hill Financial Inc [2018] FCA 1289 Mid-Coast Council v Fitch Ratings, Inc[2019] FCA 1261 Santa Trade Concerns Pty Ltd v Robinson (No 2) [2018] FCA 1491 University of Sydney v ResMed Limited (No 4) [2010] FCA 1403; 120 ALD 16 Wong v Silkfield[2000] FCA 1421 Wotton v State of Queensland (No 10) [2018] FCA 915 Pearson v State of Queensland (No 2)[2020] FCA 619
Division:	General Division
Registry:	Northern Territory
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	96
Date of hearing:	16 July 2021
Counsel for the Applicants:	Mr P Batley
Solicitor for the Applicants:	Maurice Blackburn
Counsel for the Respondent:	Mr T Moses
Solicitor for the Respondent:	Solicitor For The Northern Territory

ORDERS

		NTD 64 of 2016
BETWEEN:	DYLAN RILEY JENKINGS First Applicant ; AARON HYDE Second Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent
AND IN THE INTERLOCUTORY APPLICATION
BEtween:	NORTHERN TERRITORY OF AUSTRALIA Applicant
AND:	DYLAN RILEY JENKINGS First Respondent ; AARON HYDE Second Respondent

order made by:	MORTIMER J
DATE OF ORDER:	26 July 2021

THE COURT ORDERS THAT:

1. The interlocutory application by the Northern Territory, filed on 15 July 2021, be dismissed.

2. Until 10.15am on 8 November 2021, Annexure KMP38 to the affidavit of Kerry Palmer sworn 4 June 2021 not be available for inspection by any third party without leave of the Court.

Suppression orders

3. The following orders be vacated:

   1. Orders 1 and 10 of the orders of Justice Mortimer made on 9 June 2021; and

   2. Order 2 of the orders of Justice Mortimer made on 16 July 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. The applicants in this proceeding have, by an interlocutory application filed on 14 July 2021, applied pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) for orders preparatory to an application for the Court to approve a settlement reached between the parties in this proceeding. The Court has agreed to list the settlement approval application for hearing on 8 and 9 November 2021. The proposed preparatory orders centred on the giving of notice of the proposed settlement under s 33X of Federal Court Act to group members.

2. In the affidavit evidence supporting the interlocutory application and in some previous applications and evidence filed with the Court on 4 June 2021 for the purposes of a case management hearing, in the proposed preparatory orders, and in the proposed settlement notice and accompanying information, the core terms of the settlement between the parties are disclosed. Those core terms include:

1. the payment of a sum of compensation to group members;

2. the payment of costs to the applicants’ legal representatives;

3. the agreed inclusive sum representing the two payments above (described in the Deed of settlement as “the settlement sum”);

4. that the settlement has been reached with a denial of liability on behalf of the respondents, the Northern Territory; and

5. the recognition, and reproduction, of an apology given on behalf of the Territory to those who have been detained while juveniles in the Territory.

3. The Territory largely agreed to the preparatory orders sought, and to the proposed terms of the settlement notice to group members. It proposed some minor changes which were substantively accepted by the applicants, and to which the Court agreed.

4. What remained in dispute was the disclosure of the settlement sum referred to at [2(c)] above. Counsel for the Territory informed the Court that after negotiations between the parties, no agreement could be reached in relation to this disclosure. Accordingly, the day before the case management hearing the Territory filed an interlocutory application seeking suppression of all references in documents and evidence filed to the settlement sum, and removal of the sum from the settlement notice and accompanying information. Alternatively, it sought suppression of the whole of the settlement Deed (which was exhibited to a previous affidavit read at the 9 June 2021 case management hearing), and also suppression of any other references to the settlement sum and removal of the sum from the settlement notices and accompanying information.

5. The Territory sought these orders on a permanent basis, alternatively on an interim basis until the settlement approval hearing in November 2021.

6. For the reasons set out below the Territory’s interlocutory application will be dismissed.

7. I am otherwise satisfied the proposed settlement notices, accompanying documents and proposed arrangements to publicise the settlement to group members give group members a reasonable and appropriate opportunity to become aware of the settlement, its terms, and the approvals process, so that they can make an informed decision whether to register for the payment of compensation, or whether to object, or whether they do not wish to take part in either process. The applicants’ solicitors and those who have assisted them are to be congratulated on producing innovative proposals...