Roe (Administrator) v State of Western Australia

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 September 2026
• Neutral Citation: [2026] FCA 1364
• Date: 15 September 2026

FEDERAL COURT OF AUSTRALIA

Roe (Administrator) v State of Western Australia [2026] FCA 1364

Counsel for the First and Second Applicants:	Mr R Merkel SC and Mr C Lum
Solicitor for the First and Second Applicants:	Levitt Robinson Solicitors
Counsel for the Respondents:	Ms J Taylor and Ms C Mintz
Solicitor for the Respondents:	Norton Rose Fulbright Australia

ORDERS

WAD 5 of 2022
BETWEEN:	SHERONA ROE AND DAVIN FERREIRA AS CO-ADMINISTRATORS OF THE ESTATE OF THE LATE MS JULIEKA DHU First Applicant KEENNAN COURTNEY DICKIE Second Applicant
AND:	THE STATE OF WESTERN AUSTRALIA First Respondent REGISTRAR OF THE FINES ENFORCEMENT REGISTRY OF WESTERN AUSTRALIA Second Respondent

order made by:	COLVIN J
DATE OF ORDER:	15 September 2026

THE COURT ORDERS THAT:

1. There be leave to the applicants to amend their application and statement of claim substantially in the terms annexed to the interlocutory application dated 25 June 2026 save that the amendments as to the common questions shall reflect the terms of these orders.

2. On or before 25 September 2026, the applicants file and serve a notice specifying the names of four of the group members listed in the interlocutory application who will be the group members for the purposes of these orders.

3. The notice will confirm that the each of the group members have consented to their claims being determined at the initial trial to be conducted in these proceedings.

4. The claims of the four group members will be determined at the initial trial to be conducted in these representative proceedings and will be so determined on the basis that their determination will form part of the conduct of these representative proceedings by the applicants as representative applicants and on the basis that the resolution of those claims will relate to the claims of group members.

5. Subject to further order, the common questions for determination at the initial trial as ordered on 7 March 2025 be amended to add the following additional questions (and common question N be amended in the following terms):

MA Was the power purportedly conferred on the Registrar to issue a warrant or commitment under ss 53 and 55D(1)(c) and (f) of the FPINE Act without complying with the rules of natural justice or with any duty of procedural fairness:

(a) repugnant to or incompatible with the exercise by the Magistrates Court of Western Australia of federal judicial power under Ch III of the Constitution; and/or

(b) a power that substantially impairs the institutional integrity, and/or one or more of the essential characteristics, of a Ch III Court,

with the consequence that the purported conferral of that power on the Registrar contravened Ch III of the Constitution?

MB If the answer to any part of the question MA is 'yes', was the arrest, detention and/or imprisonment of Ms Dhu, Ms Dickie and the group members (including the female group members) false imprisonment at common law by reason of the consequential invalidity at all material times of ss 53 and 55D(1)(c) and (f) of the FPINE Act?

N If the issue of warrants of commitment under s 53 or s 55D(1)(c) and (f) of the FPINE Act was unlawful:

(a) under or by operation of the Racial Discrimination Act, is the State vicariously liable pursuant to s 18A of the Racial Discrimination Act or pursuant to the common law or both for the issue of the warrants?

(b) by reason of the Kable principle (as defined by the applicants in their statement of claim), is the State vicariously liable pursuant to the common law or otherwise for the purported issue of the warrants and the consequential arrest, detention and/or false imprisonment of Ms Dhu, Ms Dickie and the group members (including the female group members)?

P Was the commencement of these representative proceedings the commencement of an action on a cause of action for the purposes of s 13, s 16, s 38 and s 44 the Limitation Act 2005 (WA)?

Q Insofar as s 13 or s 16(d) of the Limitation Act are operative or applicable in this matter, having regard to the answers to questions A to H, MA, MB and N, was the issue of warrants of commitment in respect of Ms Dhu and the group members (including the female group members) improper conduct within the meaning of s 38(2) of the Limitation Act:

(a) of either, and if so, which respondent; or

(b) of a person for whom either respondent was vicariously liable?

6. On or before 25 September 2026, the respondents file and serve particulars specifying relevant circumstances that it is alleged may apply to some but not all group members or may apply in materially different terms as between group members and that are alleged by the respondents to bear upon a determination for the purposes of s 38(2) of the Limitation Act 2005 (WA) as to when an action by a group member on a cause of action of the kind alleged in these proceedings ought reasonably have been commenced (on the assumption that the issue of warrants of commitment by the second respondent was improper conduct within the meaning of s 38(2) of the Limitation Act).

7. On or before 2 October 2026, the parties confer as to their available dates for the initial trial in these proceedings to be conducted in June, July or September 2027 and communicate to the associate to the case managing judge their joint available dates and their estimates as to the length of the initial trial.

8. Within 14 days of the parties being informed by the associate to the case managing judge of the dates for the initial trial in these proceedings, the parties do confer as to further orders for the conduct of the initial trial and provide to the associate to the case managing judge an agreed minute of orders or competing minutes of order for the conduct of the initial trial. If orders are not to be made in terms of an agreed minute, a further case management hearing will be listed.

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

REASONS FOR JUDGMENT

COLVIN J:

1 Between 2014 and 2020, the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act) provided for the issue of warrants of commitment by the Registrar of the Western Australian Fines Enforcement Registry where there had been default in paying court-imposed fines. It is alleged that thousands of people were arrested and held in custody based on warrants issued by the Registrar under the FPINE Act. Two representative applicants challenge the lawfulness of the warrants. They have brought proceedings in this Court against the State and the Registrar on behalf of a group of persons being (a) those Indigenous persons arrested and detained pursuant to warrants issued by the Registrar; alternatively (b) those Indigenous women so arrested and detained.

2 The case for the applicants relies, in part, upon the alleged disproportionate application of the legislation to Indigenous people (alternatively Indigenous women) contrary to the Racial Discrimination Act 1975 (Cth). It also includes claims of alleged failure to comply with the requirements of the FPINE Act which raise issues as to the proper construction of the terms of the FPINE Act. Part of the case alleges a failure to comply with requirements of natural justice and procedural fairness as to the exercise by the Registrar of powers conferred by the FPINE Act, including the power to issue warrants of commitment. The whole claim depends upon allegations as to the usual practice followed in relation to the exercise of the relevant powers conferred upon the Registrar by the FPINE Act.

3 There are provisions in the FPINE Act to the effect that the Registrar is an officer of the Magistrates Court of Western Australia and that any warrant issued by the Registrar under the FPINE Act is to be taken to be a warrant issued by the Magistrates Court. The applicants now propose to amend their case to include a further alternative claim to the effect that the FPINE Act purported to confer upon a State court exercising federal judicial power the decision-making power to authorise the imprisonment of fine defaulters without complying with the rules of natural justice or procedural fairness. They seek to invoke the constitutional limitation identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (and subsequent cases) as a further basis for the claim that the warrants issued by the Registrar were void, invalid and of no effect.

4 Ultimately, the various claims as to invalidity of the warrants are advanced as the foundation for a common law claim of false imprisonment.

5 The applicants seek declaratory relief, damages at common law and damages pursuant to the provisions of the Australian Human Rights Commission Act 1986 (Cth), noting that the personal claim of one of the representative applicants, being the administrators of the estate of the late Ms Julieka Dhu, is confined to declaratory relief.

6 Orders have been made for the determination of common questions at an initial trial.

7 The applicants now apply for interlocutory orders to the following effect:

(1) Leave to amend their originating application;

(2) Leave to amend their statement of claim;

(3) An order that the time in which an action for the relief sought can be commenced be extended pursuant to s 38 of the Limitation Act 2005 (WA);

(4) An order amending the common questions to be determined at the initial trial;

(5) An order providing for the claims of eight identified group members to be determined at the initial trial.

8 The applicants also seek to have dates allocated for the initial trial based upon their estimate of 5 days.

9 As to (1) and (2), the respondents do not oppose the leave sought (save to the extent of certain aspects of the proposed amendments to the common questions).

10 As to (3), the respondents propose that the interlocutory application for an extension of time be heard at the initial trial, a course that is accepted by the applicants as being appropriate. However, the respondents also submit that the question whether there should be an extension of...