Don Dale detainees who sued the Northern Territory Government rejected $150k settlement
Four former prisoners in Darwin’s Don Dale youth detention centre, who sued the Northern Territory Government, each rejected a $150,000 settlement on the eve of their trial — and will now be forced to foot their legal costs, a judgement in the Supreme Court has found.
- Justice Judith Kelly found the boys were “entirely unsuccessful” on their principal claims
- A handful of offers and counter offers were made to settle the matter before trial
- It was “unreasonable” for the group to have rejected a “generous” $150k offer
The group filed the action against the Government at the end of 2016 over an incident in August 2014 — broadcast on the ABC’s Four Corners — when the four were tear-gassed while guards tried to subdue a fellow detainee.
The children were locked in their cells in the Behavioural Management Unit (BMU) at the old Don Dale centre when the gas was sprayed into the area to overcome the detainee, who had escaped his cell but was still in a secure area.
Though Justice Judith Kelly found in her earlier judgement last year that the use of tear gas had been “reasonable and necessary”, damages were awarded for “acts of battery”, which consisted of placing spit hoods on each of the detainees, shackling their legs, and handcuffing their hands behind their backs.
The teenagers received a combined total of $53,000 in damages — three received $12,000 each, and one received $17,000.
Damages were awarded for “acts of battery”, which consisted of placing spit hoods on each of the detainees (Supplied)
However, in a ruling handed down this week, Justice Kelly ordered the group pay costs, because the Northern Territory Government had been “substantially successful” in defending the claims.
“True, the plaintiffs each received an award of damages,” she wrote.
“But… the plaintiffs were entirely unsuccessful on each of their principal claims.
“With one minor exception… the parts of their claim on which the plaintiffs succeeded were those in relation to which the defendant had admitted liability.”
‘Unreasonable’ for group to reject ‘generous offers’
The decision reveals a number of offers — and counter offers — were made in a bid to settle the matter before trial.
On July 7, 2015, the group made an offer to accept $50,000 each for general damages, $25,000 each for aggravated damages and $20,000 each for exemplary damages plus costs.
However, the Northern Territory Government did not respond to this request.
Over two months later, in a letter dated September 19, 2015, the Government unsuccessfully offered to settle the proceedings by paying each boy $100,000.
The group instead made four counter offers, including:
- Plaintiff “LO” offered to accept $350,000 — contingent upon a public apology and confirmation that children would no longer be permitted to be placed in the Behavioural Management Unit (BMU) at Don Dale
- Plaintiff “KW” offered to accept $350,000 — contingent upon a written apology for himself and his mother, and a commitment by the NT Government to improve the rules or policies at Don Dale
- Plaintiff “EA” offered to accept $200,000 — plus a public apology
- Plaintiff “JB” offered to accept $250,000 — plus costs
On September 23 and 24, in separate letters, the Northern Territory Government offered to settle the proceedings against each boy by paying $135,000.
Offers of written apologies for “EA” and “LO” were added the next day, and “LO” was advised that the Don Dale facility he was detained in had been decomissioned, and accordingly, the BMU was no longer in use.
The former Don Dale detainees rejected offers made by the Northern Territory Government (ABC News: Tristan Hooft)
The counter offer was again rejected, and in a final offer dated 25 September, the Northern Territory Government offered to pay each boy $150,000, without a public apology.
The bid was unsuccessful, and the matter subsequently proceeded to trial.
In her findings, released this week, Justice Kelly ruled the group should pay the Government’s costs on a “standard basis” to September 22, 2016 and on an “indemnity basis”, which includes the costs of all interlocutory proceedings, after that date.
Indemnity costs may be “awarded in the court’s discretion where there has been an imprudent refusal of an offer of compromise”, and Justice Kelly found it was “unreasonable in the circumstances for the plaintiffs to have rejected what were very generous offers of settlement”.
“The amounts offered by the plaintiffs in their counter-offers were totally disproportionate to any amount of damages likely to have been awarded to the plaintiffs,” she wrote.
“…Particularly in light of the fact that the statement of claim did not allege any injury to any of the plaintiffs, and the amounts offered by the defendant were generous, no matter which plaintiff’s potential claim is considered.”