FEDERAL COURT OF AUSTRALIA DZQ18 as litigation representative for DZP18 v Minister for Home Affairs [2024] FCA 38 File number(s): VID 932 of 2018 Judgment of: MURPHY J Date of judgment: 30 January 2024 Catchwords: NEGLIGENCE – claim alleging breach of duty of care in relation to the medical treatment of a child detained on Nauru – application by the litigation representative for approval of an infant's compromise under r 9.70 of the Federal Court Rules 2011 – whether the settlement is in the best interests of the infant – whether suppression and non-publication orders are necessary to prevent prejudice to the proper administration of justice – settlement approved Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Migration Act 1958 (Cth) Federal Court Rules 2011 r 9.70 Cases cited: Bannister v State of Victoria [2012] FCA 1341 BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2) [2024] FCA 16 FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 245 Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43; 270 CLR 372 Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 44 Date of last submission: 16 October 2023 Date of hearing: Determined on the papers Counsel for the Applicant: Ms S Gold Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondents: Mr T Katz Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 932 of 2018 BETWEEN: DZQ18 AS LITIGATION REPRESENTATIVE FOR DZP18 Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent order made by: MURPHY J DATE OF ORDER: 30 january 2024 THE COURT NOTES THAT: A. The Applicant was born on 18 January 2018 and is a person under a legal incapacity within the meaning of Schedule 1 of the Federal Court Rules 2011 (the Rules) B. The Applicant commenced the proceeding by his litigation representative, DZQ18, by way of Originating Application and Statement of Claim dated 3 August 2018 (the Proceeding). C. The parties have exchanged deeds of settlement and release (the Deed), noting that settlement is subject to approval of the Court (proposed settlement). D. The Applicant's litigation representative applies for approval of the compromise or settlement outlined in the Deed, under r 9.70 of the Rules. In respect of the application the Court has read: (a) the affidavit in support of Jacinta Lewin affirmed 15 September 2023, which includes the confidential opinion of Stella Gold of counsel regarding the proposed settlement dated 13 September 2023 (Counsel's Opinion), being Annexure "JL-3"; and (b) the affidavit in support of DZQ18 sworn 14 September 2023. AND THE COURT ORDERS THAT: Settlement Approval 1. The settlement set out in the Deed be approved. 2. Within two (2) business days after these orders being made, the Applicant is to send these orders, and subject to Order 5 below) the affidavits filed in support of the Applicant's application to the Senior Master of the Supreme Court of Victoria (SCV). 3. If the Senior Master of the SCV makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure Rules) 2015 (Vic) that the Settlement Sum be held in Court for the benefit of the Applicant: (a) the Respondents shall, within 28 days after service of an authenticated copy of the order of the Senior Master on the Respondents' solicitors, pay the Settlement Sum to the trust account of the Applicant's solicitors for the benefit of the Applicant; and (b) the Applicant has leave to file a notice of discontinuance of this proceeding with costs to be dealt with as set out in the Deed. This constitutes as an order otherwise for the purposes of r 26.12(7) of the Rules. 4. If the Senior Master of the SCV does not make an order described in Order 3 above within 28 days of this order, the matter be listed for case management hearing forthwith. Confidentiality 5. The suppression and non-publication orders made by Justice Steward on 3 August 2018 be vacated and in lieu thereof the following orders apply. 6. Until three years from the date of these orders or until further order, pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Deed being "Annexure JL-2" to the affidavit of Jacinta Lewin affirmed 15 September 2023, and its terms including the settlement amount be treated as confidential to the parties to this proceeding, be marked as confidential to the parties on the Court's file, and not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript. The publication or disclosure of the Deed or its terms is prohibited. 7. Until further order, pursuant to ss 37AF and 37AG of the Act and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the following documents be treated as confidential to the parties to this proceeding, be marked as confidential to the parties on the Court's file, and not be made available for public inspection, disclosed in open court or disclosed in the open part of the transcript of any court proceeding: (a) the following annexures to the affidavit of Jacinta Lewin affirmed 15 September 2023: (i) the bundle of medical reports filed and served on behalf of the applicant being "Annexure JL-1"; (ii) the bundle of correspondence from Medicare dated 25 May 2023, being "Annexure JL-4"; and (iii) the correspondence between the Applicants' solicitors and the Supreme Court of Victoria – Funds in Court, being "Annexure JL-5"; and (b) anything which tends to reveal the name of the applicant or his father or mother identity. 8. Until further order, pursuant to ss 37AF and 37AG of the Act and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Counsel's Opinion being "Annexure JL-3" to Ms Lewin's affidavit be marked as confidential on the Court file, and not be made available for inspection by the Respondents or the public, disclosed in open court or disclosed in the open part of the transcript of any court proceeding. The publication or disclosure of the Counsel's Opinion or its terms is prohibited. 9. Within 14 days of these orders, the Applicant shall file a version of the affidavit of DZQ18 redacted to the extent required by Order 7(b). For the avoidance of doubt, it is not necessary to redact the documents referred to in Order 7(a) as a redacted version has already been filed and they shall not be publicly available in any event. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MURPHY J: INTRODUCTION 1 Before the Court is an interlocutory application dated 15 September 2023 in which the applicant seeks Court approval of an agreement to settle the proceeding pursuant to r 9.70 of the Federal Court Rules 2011 (the Rules). The applicant is a minor, being five years of age, and brings that proceeding through his father, DZQ18, as his litigation representative. 2 The applicant and the respondents, the Minister for Home Affairs and the Commonwealth of Australia, also seek confidentiality orders under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the FCA) in respect of some of the material filed in support of the application, including the Deed of Settlement (the Deed) and the settlement amount. 3 For the reasons I now turn to explain, it is appropriate to approve the settlement and to make confidentiality orders, but to limit the period of time for which some of the confidentiality orders will operate. FACTUAL AND PROCEDURAL BACKGROUND 4 The following factual background is largely drawn from the affidavit of Jacinta Lewin, a principal lawyer at Maurice Blackburn, the solicitors for the applicant, affirmed on 15 September 2023, including the material annexed thereto. These reasons should not be understood as making findings in relation to any contested factual matter. 5 The applicant's parents are citizens of Somalia. They arrived on Christmas Island by boat without a visa on or around October 2013 and were designated "unlawful maritime arrivals" and "unlawful non-citizens" upon arrival by operation of the Migration Act 1958 (Cth) (the Act). They were subsequently taken to Nauru by officers of the Commonwealth where they were detained at the Nauruan Regional Processing Centre (RPC). The applicant's father was determined to be a refugee within the meaning of the Refugee Convention by the Government of Nauru on 8 December 2014, and the applicant's mother was also so determined on 26 June 2015. Following the refugee determinations, the applicant's parents were granted Temporary Settlement Visas permitting them to live in the community on Nauru. 6 The applicant was born on Nauru on 18 January 2018. The relevant events on Nauru 7 From around February 2018, and particularly from late June 2018, when the applicant was just an infant, the applicant's parents repeatedly took the applicant to the Nauruan Regional Health Clinic, operated by the International Heath and Medical Service (IHMS), the medical service contracted by the Commonwealth to provide healthcare to detainees and refugees on Nauru. The clinic was located outside of the RPC and was accessible by those who had received refugee determinations and lived in the community on Nauru. 8 On 19 June 2018, the applicant presented at the clinic with a dry rash over his body. On 4 July 2018, he again presented at the clinic and was diagnosed with atopic dermatitis and a hypersensitive reaction to insect bites and prescribed topical treatments. 9 On 13 July 2018, the applicant returned to the clinic having suffered from vomiting and a fever the preceding night. The doctor recommended blood and urinalysis testing be undertaken, but the blood tests were not performed as it was deemed not possible to collect blood from a child under two years of age. 10 On 23 July 2018, the applicant again presented with a fever and a painful right wrist and X-rays were ordered. The X-rays were not performed until 25 July 2018 and the results were not received by the clinic until 31 July 2018. 11 On 27 July 2018, a senior paediatrician Dr Paul Bauert prepared a report in relation to the applicant's medical treatment needs at the request of the Asylum Seeker Resource Centre, which was provided to IHMS on 30 July 2018. Dr Bauert opined that the applicant's differential diagnoses included fracture of the right wrist, fracture with infected haematoma, abscess, septic arthritis, osteomyelitis and bone tumour. In terms of the necessary treatment Dr Bauert said: I cannot emphasise strongly enough the urgency in this situation of appropriate investigation to include, as a minimum, a full blood count, inflammatory markers, blood cultures and sensitivity testing. An intravenous line should be inserted and broad-spectrum antibiotics commenced whilst awaiting results and planning further investigations. These almost certainly would include ultrasound scanning or MRI. The possible consequences of not fully assessing and appropriately treating [the applicant] could be life threatening. The arm lesion has the real potential to suddenly progress to septicaemia and death. Additionally, [the applicant] may well be at risk at any time of aspiration during feeds, with subsequent pneumonia and death, without appropriate inpatient management. 12 On 28 and 29 July 2018, the applicant was assessed by IHMS paramedics who reported mild oedema and skin discolouration of the applicant's right forearm. On 29 July 2018, following assessment by an IHMS general practitioner (GP), the applicant was transferred that day to the IHMS clinic within the RPC for overnight observation and assessment. The clinical notes record that the applicant's parents were told that the applicant had atopic dermatitis and were given a topical cream, that he was currently well with no evidence of infection, and that his physical presentation was contradictory to their concerns. The following day the applicant's parents discharged him from the clinic, doing so in the belief that he was not receiving adequate treatment. 13 On 31 July 2018, the applicant attended the IHMS clinic for a consultation with a GP, a paediatric orthopaedic surgeon and an anaesthetist. The X-ray was reviewed which was reported as showing signs of active bone sepsis with osteomyelitis. The surgeon recommended, amongst other things, that the applicant be transferred to a tertiary hospital with neonatal anaesthetic capabilities, within the next 10 days. 14 On 1 August 2018, Dr Nicole Montana recommended to the Overseas Medical Referral Committee (OMR) on Nauru that the applicant be "transferred to a tertiary centre with neonatal anaesthesia capabilities. Baby requires [general anaesthetic] with biopsy of lytic right wrist lesion for culture and histopathology, for definitive diagnosis to rule out infection vs tumor". Commencement of the proceeding 15 The applicants contend that notwithstanding the recommendation by D Bauert on 27 July 2018, and the recommendation by IHMS on 31 July 2018, as well as the further recommendation to the OMR on 1 August 2018 seeking an urgent medical transfer to a tertiary level hospital with neonatal anaesthesia capabilities, the respondents took no steps to transfer the applicant to a place where he could receive appropriate medical treatment. 16 On 3 August 2018, the applicant commenced this proceeding by way of originating application and statement of claim seeking damages for alleged negligence in failing to provide adequate and reasonable medical treatment to the applicant, coupled with an urgent interlocutory application seeking an order that the applicant and his parents be brought to Australia for urgent specialist paediatric care at a tertiary level hospital. 17 On 3 August 2018, the Court made orders requiring the respondents to transfer the applicant, together with his parents, as soon as reasonably practicable and within 48 hours, to the Children's Hospital, Westmead, Sydney, for assessment and diagnosis. The applicant and his parents were so transferred on 5 August 2018. Having regard to the applicant's age and circumstances, the orders suppressed the applicant's identity. The applicant's medical position 18 The applicant was admitted as an inpatient to the Children's Hospital in Sydney and placed on IV antibiotics. He was discharged after about a month and required oral antibiotics for approximately a further six months. 19 The injury to the applicant's wrist has subsequently resolved. Section 494AB of the Act 20 In this proceeding, and in a cohort of approximately 50 like proceedings, the respondents submitted that s 494AB of the Act is a bar to proceedings being brought or continued in this Court. Four of the proceedings, including this one, were referred to the Full Court for determination of relevant separate questions. On 28 August 2019, the Full Court held in each of the cases that s 494AB did not preclude the proceedings being instituted or continued in the Court: FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 245 (Kenny, Robertson and Griffiths JJ). 21 The respondents appealed the judgment of the Full Court to the High Court. On 2 December 2020 the High Court held that s 494AB of the Act did not have the effect that the proceeding could not be instituted or could not be continued, but that in an appropriate case the respondents could plead that the section applied to the proceeding and to seek that the proceeding as then framed be stayed. In Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43; 270 CLR 372 (Kiefel, Bell, Gageler, Keane and Gordon JJ) the High Court explained (at [4]) that, in practical terms, s 494AB "creates a defence which the Commonwealth may, but need not, plead to specific claims in all courts, except the High Court. If no practical benefit is to be gained by raising s 494AB, the Commonwealth acting as a model litigant need not and, it may be expected, would not raise it. 22 I infer that the Commonwealth saw no practical benefit in raising s 494AB as a defence in this proceeding, likely because the outcome would be that a fresh proceeding would be instituted in the High Court only for it to be remitted to this Court, an outcome that is inconsistent with its obligations as a model litigant. Case management of the proceeding 23 Following the High Court's decision the proceeding was allocated to the docket of Justice Wheelahan. It was case managed by a Judicial Registrar who made various orders on 14 February 2022 with respect to the conduct of the proceeding, including that the proceeding be referred to mediation to be concluded by 16 December 2022. The proceeding did not settle at that mediation and further orders for mediation were made. Ultimately, the parties reached the proposed settlement in June 2023. THE CLAIMS AND DEFENCES SUMMARISED The applicant's claims 24 In broad summary, in the Second Amended Statement of Claim, the applicant alleges that the respondents owed him a duty of care to take reasonable steps to ensure access to medical treatment of a reasonable and adequate standard and, or in the alternative, a non-delegable duty to provide reasonable medical treatment to him by IHMS. 25 The applicant claims that the duty was breached by the respondents' failure to: (a) diagnose and adequately treat the applicant in a timely manner when he attended the IHMS clinic, and particularly from 23 July 2018 by failing to take and report an X-ray of the applicant's right arm when he was showing signs of osteomyelitis; and (b) act upon recommendations from the applicant's treating medical practitioners to transfer the applicant to a tertiary level hospital with neonatal anaesthesia capabilities to conduct testing to definitively diagnose and treat the applicant by at least 27 July 2018. 26 By reason of the respondents' alleged negligence, the applicant claims to have suffered the following injuries: (a) development of focal chronic osteomyelitis (now resolved) in the right wrist requiring inpatient hospital admission and long-term antibiotic treatment; and (b) unnecessarily delayed investigation and treatment of the applicant's condition, causing prolonged pain and suffering. 27 The applicant claims future medical and like expense, capped to ongoing reviews of his injury by a general practitioner and specialist orthopaedic paediatrician up to when he reaches majority. He also seeks damages for gratuitous attendant care voluntarily given to the applicant by his parents from the date of the injury to 25 November 2022 for their role taking him to and accompanying him at his medical appointments and administering his medication at home. 28 The applicant claims aggravated and exemplary damages in large part relying on the respondents' delay in transferring the applicant to Australia for medical treatment until mandated by Court order, despite urgent medical advice. The respondents' defences 29 In respondents deny the applicant's claims. In their Defence to the Second Amended Statement of Claim they deny that they owe the applicant the pleaded duty of care, non-delegable or otherwise. They say that: (a) the posited duty and standard of care pleaded is inconsistent with: (i) the statutory duty in s 198AD of the Act; (ii) the non-compellable nature of s 198AE; (iii) the discretionary and temporary nature of s 198B; and (iv) the scheme of Subdiv B of Div 9 of Pt 2; (b) the imposition on them of a duty of care in relation to the applicant's time on Nauru is incompatible with: (i) the statutory duty to take an unauthorised maritime arrival to a Regional Processing Country contained in s 198AD(2) of the Act; and (ii) the purpose of Subdiv B of Div 8 of Part 2; (c) the applicant's allegations made concerning his time on Nauru impermissibly invite the Court to apply a standard of negligence to decisions of high level government policy, which involve or are dictated by economic, social and political factors, including the Minister's relationships with foreign governments, in respect of which the Court should not impose a duty of care. 30 The respondents deny any liability for damages, including aggravated and exemplary damages. THE SETTLEMENT APPROVAL APPLICATION Materials relied upon 31 The applicant, through her litigation representative, seeks orders for approval of the proposed settlement contained in the Deed. The applicant relies upon: (a) the affidavit of Jacinta Lewin affirmed 15 September 2023 and its annexures, including: (i) medical records and reports in respect of the applicant; (ii) a copy of the Deed; and (iii) the confidential Counsel's Opinion in support of settlement approval. (b) the affidavit of DZQ18, the applicant's father and litigation representative sworn 14 September 2023 in which he deposes that he accepts the advice of the applicant's legal representatives that the proposed settlement is in the applicant's best interests. Applicable principles 32 I recently set out the relevant principles in BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs (No 2) [2024] FCA 16 at [26]-[30], and it is unnecessary to again set them out. I have applied those principles here. Consideration 33 For the following reasons, I am satisfied that the proposed settlement is in the best interests of the applicant and that it is appropriate to approve it. 34 First, the applicant, through his father as litigation representative, has agreed to the proposed settlement having had the benefit of legal advice from experienced and competent lawyers. The applicant's father is in a good position to understand the applicant's best interests of the applicant. 35 Second, from the outset the respondents have denied that they owed the applicant the pleaded duty of care, non-delegable or otherwise. While in my view the existence of such a duty is plainly arguable, it is contestable. It is likely that if the proposed settlement is not approved the respondent will contest the existence of such a duty at trial. This proceeding has already been on foot for more than five years and is yet to be set down for trial, and even if it was set down for trial within the year, there is the prospect of appeal due to the issues in dispute. 36 Third, if the applicant can establish the existence of a duty of care, to my mind the evidence of breach of duty seems strong. The outline of evidence of the applicant's father shows desperate attempts to obtain adequate medical treatment and indicates that IHMS practitioners failed to provide it, until the end. The medical evidence indicates that the applicant suffered osteomyelitis, a bacterial bone infection, of the right wrist with onset from late June or early July 2018. Nevertheless, there remains a question as to whether, had the applicant been provided with adequate medical treatment would he have avoided osteomyelitis altogether, or would it have been of lesser duration or severity. It is uncontroversial that the applicant's injury has resolved, there is no evidence of persisting psychological harm or developmental delays attributable to the alleged negligence. 37 Fourth, I have considered the confidential Counsel's Opinion. Ms Gold has been briefed in the case for some time and has a detailed understanding of the applicant's evidence and the case's strengths and weaknesses. It is appropriate to give substantial weight to Counsel's Opinion as it was prepared in Ms Gold's capacity as an officers of the Court, with a view to assisting the Court with its determination of whether the proposed settlement is in the best interests of the applicant, rather than as an advocate acting upon instructions: Bannister v State of Victoria [2012] FCA 1341 at [12]. 38 I cannot go into the detail of the Counsel's Opinion, and it must suffice to note that Ms Gold has given thorough consideration of the risks attendant to establishing liability, the likely quantum of the applicant's claim and the best possible recovery for the applicant. Taking those factors into account, Ms Gold concludes that it is in the applicant's best interests for his claim to be compromised in the terms of the Deed. 39 Fifth, with respect to preserving the settlement sum for the applicant's benefit, it is proposed that the funds be paid into the trust account of the applicant's solicitor, and thereafter be transferred to the Funds in Court division of the Supreme Court of Victoria (SCV) to manage on the applicant's behalf. It is not uncommon in cases such as this for this court to make orders referring administration of settlement funds to the SCV as this court does not have an equivalent scheme. THE CONFIDENTIALITY APPLICATION 40 By an interlocutory application dated 14 September 2023, the parties jointly seek suppression or non-publication orders in respect of the terms of the Deed, including the settlement amount, doing so under ss 37AF(1) and 37AG of the FCA on the basis that it is necessary to prevent prejudice to the administration of justice. 41 The applicant also seeks a suppression or non-publication orders in respect of the confidential Counsel's Opinion, and: (a) the affidavit of DZQ18 sworn 14 September 2023; and (b) some of the annexures to Ms Lewin's affidavit, namely: (i) the bundle of medical reports which is "Annexure JL-1"; (ii) the correspondence from Medicare which is "Annexure JL-4"; and (iii) the correspondence between the applicant's solicitors and SCV Funds in Court which is "Annexure JL-5". 42 On 25 September 2023, I made interim suppression and non-publication orders under s 37AI of the FCA in respect of the materials listed above. In accordance with those orders redacted versions were subsequently filed redacting those parts subject to the order. 43 In support of the application, the respondents rely upon the affidavit of Dejan Lukic, a senior executive lawyer with the Australian Government Solicitor, the solicitor for the respondents, affirmed 18 September 2023. The parties also filed their respective submissions in support of the application on 6 October 2023. Consideration regarding confidentiality 44 I considered the issue of non-publication or suppression orders in the context of an analogous settlement approval application in BXD18 at [42]-[50], and the appropriate duration of any such orders. For essentially the same reasons, I consider similar orders are appropriate in this proceeding. I have made orders for the terms of the Deed, including the settlement amount to be kept confidential for three years, and orders for the Counsel's Opinion, various annexures to the affidavit of the applicant's solicitor and the applicant's identity to be kept confidential, without time limitation. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate: Dated: 30 January 2024