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Counsel hits out at Qld in heated debate over pleadings
The lawyers behind a “modern stolen generation” class action have delivered a scathing criticism of the state of Queensland’s delay and refusal to hand over key child protection documents.
Naomi Neilson
Two landmark lawsuits that alleged Indigenous children were deprived of their connection and culture have yet to enter the discovery stage, 15 months after the proceedings were filed in the Queensland division of the Federal Court of Australia.
Appearing in court on Friday (7 February), Dr Kristine Hanscombe, for the applicants, accused the state of Queensland of dragging its feet in proceedings that have been plagued by “delay, delay, delay”.
Hanscombe said the applicants have “already acceded to a number of complaints and accommodated [the state] as best we can” by making adjustments to the case, but its refusal to hand over key documents has made it impossible to finalise the pleadings.
However, Hanscombe explained the state has refused to hand over those documents until the pleadings have been finalised.
If the applicants move forward on inference or speculation alone, Hanscombe said she can predict another fight with the state.
“We’re between a rock and a hard place,” Hanscombe said.
According to Hanscombe’s submissions, lawyers for the state argued the current case pleaded against them contains only a “bare and conclusionary pleading that the matters alleged were wholly or partly because of, and were a function of, race”.
Without the documents to provide factual foundation, Hanscombe said this was true because there is no way to tell “how the internal machinery of government has operated on these people’s lives”.
“What we do know is what they say it has done to their lives, and they say it has occurred because of race,” Hanscombe said.
In response, Christopher Murdoch KC, counsel for the state, argued it was a “forensic problem for the applicant” and is one for “any applicant in any litigation when they need to plead”.
He added if the applicants’ lawyers could state the basis for the alleged discrimination, then the discovery “can be conducted accordingly”. As an example, he suggested a hypothetical basis could be that decision-makers did not like aspects of First Nations culture.
Murdoch said he was also concerned with a new argument the applicants have sought to make in proposed amendments, particularly that children were mistreated “wholly or partly because of a function of the applicant’s race or the race of one or more of the applicant’s First Nations parents, and/or their family group”.
“The fact that the group of individuals whose race is now said [to be the basis for the decision] makes it even more important that there be a factual foundation provided as to how it is said to be on the basis of race,” Murdoch said.
In reply, Hanscombe took issue with the suggestion the applicants were facing a “forensic problem” that all litigants struggle with.
“In the context of the child case that Burns represents, including her own, that is a frankly deplorable statement,” Hanscombe said.
“By definition, these people were not of age when whatever happened to them, happened. By definition, it is unlikely they are going to know why things that happened to them, happened to them.”
Hanscombe added this was a “forensic problem that can be solved by the respondents with the production of the documents”.
It was revealed during Friday’s proceedings that the state had acceded to the request for documents in Burn’s case, but Hanscombe said there has been no word on Gunning’s case.
The counsel added the applicants have had to “force” the state into responding or relying on the court to move the matter along.
In addition to being 15 months into the proceedings, Hanscombe said it took six weeks to get a list of documents from the respondents that had already been produced under the Right to Information Act.
“These people are not counters in a procedural game; they have claims they want adjudicated,” Hanscombe said.
“Maybe they won’t win, maybe some of them won’t win, but they are entitled to bring forward a properly constituted claim and they are entitled to see it progressed through the court in an orderly way.”
Justice Craig Dowling has reserved his judgment.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
