Former Don Dale detainee’s racial discrimination compo claim thrown out of court

A former Don Dale detainee has had his damages claim thrown out and will have to pay the Territory government’s costs, despite a court ruling he was unlawfully detained when he was 17.

A FORMER Don Dale detainee has had his damages claim thrown out and will have to pay the Territory government’s costs, despite a court ruling he was unlawfully detained when he was 17.

The now 26-year-old, who cannot be named, sued the government for racial discrimination, assault, battery and breach of duty of care over various periods of detention in Darwin and Alice Springs in 2011 and 2012.

In dismissing the majority of his claims, Justice Richard White found the use of spit hoods and other restraints on the man while he was in detention was reasonable and justified.

“Given ordinary understandings about the effects of spitting and the evidence … about those effects on prison and detention officers, it is understandable that the corrections officers sought to protect themselves against the risk of spitting,” he said.

“Their use of the very piece of equipment provided at (the centre) for that purpose was in my view both reasonable and justifiable.”

But Justice White found there was no lawful justification for the man being held in Don Dale’s notorious behavioural management unit (BMU) for a period of eight days in 2012.

Justice White found the conditions in the BMU were “more stringent” than the lawful conditions under which the man was detained in general population.

“When the applicant was placed in the BMU, he became subject to the additional restraint and, on my findings, that additional restraint in the period between 2 and 9 January, 2012 was unauthorised,” he said.

Justice White said the successful wrongful detention claim would have entitled the man to up to $8000 in damages had it not been brought out of time and it was also dismissed for that reason.

He said an application for an extension of time had been abandoned by the man’s lawyers at the last minute in what he described as “an astonishing development in the trial”.

“Even now, it has not been properly explained,” he said.

In ordering the man to pay the government’s costs, Justice White said his claims of racial discrimination “seemed to have been ill thought out” and “did not, on any reasonable view, have reasonable prospects of success”.

“That became particularly evident during the final submissions when counsel had difficulty in articulating a realistic factual basis upon which it could be found that the impugned conduct of the respondents had been based on race,” he said.

“This is not a case in which there was a deliberate, intentional or reckless disregard of the applicant’s interests of the kind which justifies an award of exemplary damages,” he said.

“It is to be remembered that the respondents were dealing with a difficult situation, attributable in no small part to the applicant’s own conduct.”