ABELA v State of Victoria
[2010] FMCA 172
•12 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABELA v STATE OF VICTORIA | [2010] FMCA 172 |
| HUMAN RIGHTS – Whether sufficient detail for respondent to ascertain the claim against it – further and better particulars. |
| Federal Magistrates Act 1999, ss.3(2), 42, 45 |
| Hogan v Riley & Ors [2008] FMCA 794 Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957 Wylie v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 959 Granada Tavern v Smith [2008] FCA 646 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 |
| Applicant: | BEAU ABELA |
| Respondent: | STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT) |
| File Number: | MLG 1380 of 2008 |
| Applicant | BEAU ABELA |
| Respondent | STATE OF VICTORIA (DEPARTMENT OF EDUCATION) |
| File Number | MLG 1071 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 9 March 2010 |
| Date of Last Submission: | 9 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Perkins |
| Solicitors for the Applicant: | Access Law |
| Counsel for the Respondent: | Ms Sweet |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
That on or before 23 March 2010, the Applicant file and serve further and better particulars of his statement of claim dated
19 September 2008 in response to the Respondent’s request for further better and particulars dated 24 December 2009.
That the time provided for in paragraph 3 of the orders made in matter MLG1380 of 2008 on 30 November 2009 is extended to 13 April 2010.
That the Applicant is to file and serve any affidavits in reply within 21 days of receipt of the Respondent’s affidavits.
That the matter is listed for directions at 10am on 7 July 2010.
That the parties have liberty to apply.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1380 of 2008
| BEAU ABELA |
Applicant
And
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT) |
Respondent
MLG 1071 of 2009
| BEAU ABELA |
Applicant
And
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION) |
Respondent
REASONS FOR JUDGMENT
The respondent’s application in a case filed on 2 February 2010 seeks an order for further and better particulars of the applicant’s claim. The evidence in the affidavits of Joelle Lauren Grover sworn 4 March 2010 and filed in Court on 9 March 2010 and of Sophie Anne Williams sworn on 2 February 2010 and filed on 2 February 2010 is that the respondent is unable to determine from the material currently filed, what claims it has to meet. The respondent says that it is unable to complete its affidavits until it has further and better particulars.
Although Ms Sweet for the respondent did not formally seek that the affidavits be received into evidence, it was clear that the respondent sought to rely on them and submissions were made by both parties as to their content; the Court receives them into evidence as decided below.
The affidavit of Sophie Anne Williams sworn 2 February 2010
Ms Williams swears that she is a legal practitioner who works for solicitors for the respondent and who is assisting in the conduct of these proceedings. Mr Perkins for the applicant objects to paras.14, 15 and 16 saying that they contain certain opinions of the deponent without her stating the basis for the opinions. Ms Sweet contends that they are statements of opinion and fact by a practitioner involved in the case who is an expert in the conduct of the matters. The Court accepts that submission. The Court therefore accepts into evidence paragraphs 14, 15 and 16 of the affidavit.
Those paragraphs are as follows:
(14)The affidavits of the Respondent’s three principal witnesses are presently in draft form and yet to be finalised. These affidavits, given the vast nature of the Applicant’s material and the wide ranging allegations, still require extensive further instructions before their finalisation.
(15)In the absence of the further and better particulars sought, for the reasons set out in the exhibit marked SAW-1, the Respondent is severely disadvantaged in finalising the affidavits upon which it intends to rely at the trial of this proceeding, given the lack of specificity of the Applicant’s claims.
(16)Based on my professional judgment, the Respondent requires until 12 March 2010 to be in a position to prepare and file and serve appropriately detailed affidavits on behalf of the Respondent, assuming that an adequate response to the Request for Further and Better Particulars is received from the Applicant in a timely manner.
The Court also accepts into evidence the remainder of that affidavit and its annexures.
The affidavit of Joelle Lauren Grover sworn 4 March 2010
Ms Grover swears that she too is a legal practitioner who works for the solicitors for the respondent and who is assisting in the conduct of these proceedings. Mr Perkins objects to the content of paragraph 6 on the same basis as his objection above. Miss Sweet made the same response as above. The Court accepts into evidence the whole of the affidavit including paragraph 6 as follows:
(6)In the absence of the further and better particulars sought, the Respondent is not able to finalise the affidavits upon which it intends to rely at the trial of this proceeding.
Neither deponent was required for cross-examination, and the solicitors for the applicant were asked by letter on or around 2 February 2010 whether Ms Williams was required for cross-examination. Ms Sweet advised the Court, with no objection by Mr Perkins, that a response was not received.
The uncontested evidence before the Court is therefore, that in the absence of further and better particulars the respondent cannot finalise the affidavits on which it intends to rely at the trial, and that it would have taken until 12 March 2010 from 2 February 2010 (the date
Ms Williams swore her affidavit) to prepare and file those affidavits, assuming an adequate and timely response by the applicant to the Request for Further and Better Particulars. [Paragraph 16 of the affidavit of Sophie Williams (supra)].
Mr Perkins submits that there is sufficient material before the Court for the respondent to determine the details of the applicant’s claims. He submits that, along with the detail put before the Human Rights and Equal Opportunity Commission (“HREOC”), there is presently sufficient detail for the respondent to ascertain the case it is facing. As raised by the Court with Mr Perkins, the proceedings before HREOC were for the purposes of conciliation which is a different procedure from conducting a case before the Court. Ms Sweet made a submission along those lines.
As raised with Mr Perkins, s.45 of the Federal Magistrates Act 1999 (“the Act”) prohibits discovery and interrogatories without a declaration by the Court that it is appropriate in the interests of the administration of justice, to allow them. It was noted that the Act does not contain the same prohibition on further and better particulars.
“Discovery” is the process by which one party obtains knowledge of the relevant documents held by the other party. (Civil Procedure, Gerard Nash p.211)
“Interrogatories” are questions in writing addressed to one party by the other, and which relate to the matters in issue between the parties. Interrogatories may be in the nature of a demand for Further and Better Particulars (Ibid p.190).
The function of Particulars is to limit the issues of fact to be investigated (Ibid p.111).
Although Interrogatories may be in the nature of a demand for Further and Better Particulars, it is significant that the later are not prohibited. If Interrogatories are sought it may be that the Court would allow them to the extent that they are sought to enable a respondent to understand the case against it.
Section 42 of the Act provides:
(42)Federal Magistrates Court to operate informally
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
Mr Perkins relied on this section as a reason to oppose an order for further and better particulars. The Court takes the view that providing further particulars at this stage should enable the respondent to understand what is claimed and to respond to it in its affidavits. That is not proceeding with undue formality and should ensure that the proceedings are not protracted beyond what is necessary to afford the respondent procedural fairness.
Mr Perkins referred the Court to the judgment in Hogan v Riley & Ors [2008] FMCA 794 where the Court at [7] referred to the objects in s.3(2) of the Federal Magistrates Act 1999 to:
“…operate as informally as possible” and “…use streamlined procedures”, and then referred to s.42 of the Act.
The Court does not find that those provisions are intended to deny a respondent details of the claim it is facing.
Mr Perkins referred next to the judgment in Davidson v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 957 where the Court at [36] referred to the need for flexibility in proceedings in this Court. Notwithstanding, the Court will not act to deny a respondent details of the claims it is facing.
Mr Perkins referred next to the judgment in Wylie v McCann Worldgroup Pty Ltd & Ors [2009] FMCA 959 where the Court at [28]-[32] referred to pleadings and
“a respondent not having an absolute right in every case to insist upon the applicant pleading …every material fact.”
At [29] the Court referred to the need for flexibility. Paragraphs
[30]-[32] discuss striking out points of claim, and that “the primary function of pleadings is to state with sufficient clarity the case that must be met by the respondent and in that way to afford them procedural fairness.”
The decision is of relevance as the failure to state a case with sufficient clarity may be a denial of procedural fairness.
Mr Perkins referred next to the judgment in Granada Tavern v Smith [2008] FCA 646 where Justice Heerey referred to ss.3 and 42 of the Act. The decision adds nothing to what is covered in the cases above.
The Court finds nothing in the above decisions to say that an order for further and better particulars should be denied.
Mr Perkins submitted the decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 is relevant to a criminal matter but not here, and a Court must look at the circumstances “to reach a view as to whether the way the matter is put leaves is to be expressed in another way.”
Ms Sweet for the respondent relied on statements in paras.[26] to [28] of Kirk (supra) as underlined by the Court:
(26)The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge[22]. In John L Pty Ltd v Attorney-General (NSW)[23], it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed[24]. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet[25]. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence"[26]. These facts need not be as extensive as those which a defendant might obtain on an application for particulars[27]. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions"[28]. McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged"[29].
(27)The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged[30].
(28)The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.
The Court finds the decision to be relevant. In the present case it is alleged that the respondent breached statutory duties, and in that sense has some similarity to the prosecution for breach of statute [the Occupation Health and Safety Act 1983 (NSW)] in Kirk.
The Court accepts that the draft orders prepared by the respondent on
9 March 2010 are appropriate and makes those orders as follows:
(1)On or before 23 March 2010, the Applicant file and serve further and better particulars of his statement of claim dated
19 September 2008 in response to the Respondent’s request for further better and particulars dated 24 December 2009.(2)The time provided for in paragraph 3 of the orders made
30 November 2009 is extended to 13 April 2010.(3)The Applicant is to file and serve any affidavits in reply within 21 days of receipt of the Respondent’s affidavits.
(4)The matter is listed for direction at 10am on 7 July 2010.
(5)The parties have liberty to apply.
(6)Costs reserved.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date: 12 March 2010
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