Barnes v Commonwealth of Australia - [2021] NTSC 30

CITATION:Barnes v Commonwealth of Australia & Anor [2021] NTSC 30
PARTIES:GEOFFREY NOEL BARNES

v
COMMONWEALTH OF AUSTRALIA
AND
AUSTRALIAN INDIGENOUS MINISTRIES PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2020-00570-SC
DELIVERED:  18 March 2021
HEARING DATE:  5 February 2021
JUDGMENT OF:  Luppino AsJ
CATCHWORDS:

Practice and Procedure – Strike out of pleadings which fail to disclose a cause of action – Strike out of pleadings which are embarrassing – When a pleading is embarrassing – Requirements of pleadings.
Practice and Procedure – Summary Judgment – Test to be applied in Summary Judgment applications.

Supreme Court Rules rr 13.02(1)(a) and (c), 13.02(2), 13.09, 23.01, 23.02.
Aboriginals Ordinance 1918 s 7.
Aboriginals Ordinance (No 2) 1953.
Welfare Ordinance 1953-1960 s 78.
Social Welfare Ordinance 1964 ss 12(b), 170.
Stamp Duty Ordinance 1978, section 11(b) and Schedule 2, para 9A(b).

LKAJ Two Pty Ltd v Squire Patton Boggs (AU) & Anor [2020] NTSC 45.
Monck v The Commonwealth of Australia [2017] NTSC 49.
Outback Civil Pty Ltd v Francis [2011] NTCA 3.
Ex parte Edmonds (1862) 45 ER 1273.
Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319.
Jones v Matrix Partners Pty Ltd (2018) 354 ALR 436.
Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 368 ALR 390.
Octavo Investments Pty Ltd v Knight (1970 144 CLR 360.
Pitard Consortium Pty Ltd & Ors v Les Denny Pty Ltd & Ors [2019] VSC 614.
Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550.
Hewett v Court (1983) 149 CLR 639.
Re Suco Gold Pty Ltd (1983) 33 SASR 99.
Carlton Cricket and Football Social Club v Joseph [1970] VR 487.
Bradley Egg Farm v Clifford [1943] 2 All ER 378.
Dare v Pulham (1982) 148 CLR 658.
Benfield v Farebrother [2011] NTSC 65.
Weeks v Bennett (1921) 30 CLR 80.
RTA Pty Ltd & Orsv Brinko Pty Ltd & Ors [2012] NTSC 3.
Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568.
Kondis v State Transport Authority [1984] 154 CLR 672.
REPRESENTATION:
Counsel:
Plaintiff:K Sibley
First Defendant:  J Ingrames
Second Defendant:  M Grove
Solicitors:
Plaintiff:Maurice Blackburn Lawyers
First Defendant:  Australian Government Solicitor
Second Defendant:  Ward Keller
Judgment category classification: B
Judgment ID Number:                   Lup2102

Number of pages: 48

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Barnes v Commonwealth of Australia & Anor [2021] NTSC 30
2020-00570-SC

BETWEEN:
GEOFFREY NOEL BARNES
Plaintiff

AND:

COMMONWEALTH OF AUSTRALIA First Defendant

AND:
AUSTRALIAN INDIGENOUS MINISTRIES PTY LTD
Second Defendant

CORAM: Luppino AsJ
REASONS

(Delivered 18 March 2021)

[1] These proceedings relate to events that occurred between 1962 and 1974 when the Plaintiff was an infant residing at the Retta Dixon Home (the Home). The Home has local notoriety due to the allegations of historical abuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NTSC 30
Decision Date: 18 March 2021

CaseChat Overview and Summary

The proceedings in Barnes v Commonwealth of Australia & Anor [2021] NTSC 30 involved a claim by the Plaintiff, Geoffrey Noel Barnes, against the Commonwealth of Australia and Australian Indigenous Ministries Pty Ltd, based on the alleged sexual abuse of the Plaintiff as a child residing at the Retta Dixon Home between 1962 and 1974. The Plaintiff's claim against the Commonwealth was based on the Commonwealth's involvement in the funding, management, and supervision of the Home under Commonwealth laws, alleging a breach of a non-delegable duty of care. The claim against Australian Indigenous Ministries Pty Ltd was based on a trustee's right of indemnity, alleging that the company is the successor trustee of the AIM Trustees, who were involved in the operation of the Home at the relevant times. The defendants filed summons seeking orders for the strike out of certain paragraphs of the Plaintiff's Statement of Claim and, in the case of the Second Defendant, also seeking summary judgment.

The court considered the applications for strike out and summary judgment, focusing on whether the pleadings disclosed a cause of action and whether they were embarrassing. The court found that the Second Defendant's application for summary judgment should be dismissed as the Plaintiff's case was at least arguable. Regarding the applications for strike out, the court held that several paragraphs of the Pleading were defective and should be struck out, but allowed the Plaintiff an opportunity to re-plead. The court also found that the Commonwealth's application for strike out had mostly been made out, and ordered that the Pleading be struck out in its entirety, with leave for the Plaintiff to file an amended Statement of Claim. The court provided general comments on the pleading to assist the Plaintiff in properly setting out the case.

Orders