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 of children by staff at the Home which emerged in the course of the Royal Commission into Institutional Responses to Child Sexual Abuse.

[2]   The current case does not involve allegations of any wrongdoing by staff of the Home. Although the Plaintiff was a resident at the Home, he was not a ward or a welfare placement. The Plaintiff resided at the Home as his parents were employed there. He lived with his parents in on-site accommodation provided by the parents’ employer. The Plaintiff alleges that he was sexually abused on a number of occasions by children who had been placed at the Home as wards.

[3]   The Plaintiff’s claim against the First Defendant (Commonwealth) is on the basis of the Commonwealth's involvement in the funding of the construction of the Home and in the operation, ongoing management and supervision of the Home under Commonwealth laws. Essentially it is alleged that the Commonwealth thereby owed the Plaintiff a non-delegable duty of care to ensure the health, welfare and safety of the Plaintiff.

[4]   The claim against the Second Defendant is also based on a breach of a duty of care and on the basis that the Second Defendant is the successor of the trustees (the AIM Trustees) of a certain trust. The AIM Trustees were appointed by an unincorporated body known as Australian Inland Mission of Australia (AIM). It is alleged, but disputed by the Second Defendant, that the AIM Trustees were involved in the operation of the Home at all relevant times. The Second Defendant says that AIM alone was the operator of the Home.

[5]   The Plaintiff seeks to recover any award of damages for the breach of the duty owed by the AIM Trustees, on the basis that the Second Defendant is the current trustee of the same trust and as a liability enforceable against the Second Defendant by way of the equitable lien which secures a trustee’s right of indemnity.

[6]   Both Defendants filed a summons seeking orders of a like nature and both summonses were heard concurrently. These reasons deal with both summonses.

[7]   In the case of the Commonwealth, orders are sought for a strike out of specified paragraphs of the Third Amended Statement of Claim (the Pleading), which is the current version of the Statement of Claim. In the case of paragraphs 3, 15.1, 16.1 and 16.6, that is pursuant to rule 23.02(c) of the Supreme Court Rules (SCR), namely that those paragraphs are embarrassing. In relation to paragraphs 16, 17 and 21, that is pursuant to rule 23.02(a) namely, that those paragraphs fail to disclose a cause of action. Succinctly, the Commonwealth’s overall position is that the Plaintiff’s claim against it, being based only on breach of various alleged duties, fails to set out the valid existence of those duties.

[8]   The Second Defendant sought orders for strike out of paragraphs 8, 10, 11 and 24 of the Pleading pursuant to rule 23.02(c) of the SCR, again for failing to disclose a cause of action. In the alternative, the Second Defendant sought summary judgment pursuant to rule 23.01(1) of the SCR. The Second Defendant seeks similar orders against the Commonwealth on the same basis mutatis mutandis as against the Plaintiff, as the Commonwealth has filed a Contribution Notice against the Second Defendant.

[9]   The applicable rules from the SCR are:-

23.01Stay or judgment in proceeding

(1)Where a proceeding generally or a claim in a proceeding:

(b)     is scandalous, frivolous or vexatious; or

(c)     is an abuse of the process of the Court;

the Court may stay the proceeding generally or in relation to a claim or give judgment in the proceeding generally or in relation to a claim.

(2)Omitted.

(3)Omitted.

23.02Striking out pleading

Where an endorsement of claim on a writ or originating motion or a pleading or a part of an endorsement of claim or pleading:

(a)       does not disclose a cause of action or defence;

(b)       is scandalous, frivolous or vexatious;

(c)may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)       is otherwise an abuse of the process of the Court,

the Court may order that the whole or part of the endorsement or pleading be struck out or amended. 

[10]    I first make some general comments in respect of applications for strike out. The current strike out applications are based on either or both of the grounds that the pleadings do not disclose a cause of action or that they are embarrassing. As to the latter, in LKAJ Two Pty Ltd v Squire Patton Boggs (AU) & Anor,[1] I summarised the current position and said that an embarrassing pleading is broadly, a pleading that does not state allegations sufficiently clearly so that the opposing party is in doubt as to what is alleged. Multiple examples were then given. Relevant to the current case are the examples of:-

·An unintelligible or ambiguous pleading;

·A pleading which is too vague and general;

·A pleading which lacks a coherent narrative;

·A pleading which fails to comply with the pleading rules (relevantly including rule 13.02(1)(a), 13.02(1)(c) and 13.09 of the SCR);

·A pleading which pleads conclusions;

·A pleading which pleads irrelevancies;

·A pleading which pleads inconsistent allegations;

·A pleading which does not allege all the material facts which a party relies on;

·A pleading which pleads particulars instead of material facts.

[11]     The principles in respect of summary judgment were most recently discussed in Monck v The Commonwealth of Australia.[2] In that case, I summarised those principles, derived from the cases I referred to there. The most recent decision on summary judgment by the Northern Territory Court of Appeal is Outback Civil Pty Ltd v Francis[3] which is to the effect that summary judgment will only be ordered where a plaintiff’s case is “so clearly untenable that it could not possibly succeed”.[4] Although both of the cases cited were decided based on the now repealed rule 22.02(1) of the SCR, that rule was the predecessor of rule 23.01 and the principles remain relevant.  Briefly, including the principle in Outback Civil Pty Ltd v Francis referred to above, those principles are:-

·The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried;

·Summary judgment will be refused if there are facts which, if true, would constitute an arguable case;

·A case must be very clear to justify the summary intervention of the court.

·Summary judgment will only be granted where the case of the plaintiff is so clearly untenable that it cannot possibly succeed or where it is clear that there is no real question to be tried.

·Summary judgment will only be ordered where a plaintiff’s case is so hopeless or untenable that it is plain that the plaintiff cannot succeed.

[12]    I deal first with the Second Defendant’s summons.

[13]    Although it is not clearly pleaded, the Plaintiff pleads a case against the Second Defendant based on a trustee’s right of indemnity alleging that the Second Defendant is the trustee successor of the AIM Trustees and that those trustees, being the operators of the Home at the material times, are responsible in tort to the Plaintiff.

[14]    The principles of trustee’s indemnity relevant to the Second Defendant’s summons, as derived from a number of cases,[5] are:-

·A trustee is personally liable for debts or liabilities incurred on behalf of the trust;

·A trustee is entitled to be indemnified out of the assets of the trust for liabilities incurred on behalf of a trust;

·That right of indemnity will be either a right of reimbursement, which arises where the trustee has first paid the liability, or a right of exoneration where the liability has been incurred, but not paid, by the trustee;

·The right of indemnity is secured by an equitable lien over the trust assets and that lien has priority to the claims of the beneficiaries;

·An equitable lien is a form of equitable charge;

·The security of an equitable lien does not depend upon possession and may be enforced as an equitable charge namely, by court order for sale or payment out;

·Where trust assets are transferred to a new trustee, the former trustee’s lien survives and the new trustee takes the trust assets subject to the former trustee’s equitable lien;

·A trustee is entitled to retain possession of trust assets, as against a beneficiary, until the right of indemnity is exercised;

·A trustee is not entitled to retain trust assets, as against a new trustee, until the right of indemnity is exercised;

·Creditors have no direct access to the assets of a trust to enforce the liabilities incurred to them by a trustee;

·Creditors may be subrogated to the rights of indemnity of the trustee against the trust assets in respect of the liabilities incurred to them by a trustee.

[15]    The only disagreement between the Plaintiff and the Second Defendant as to these principles was the challenge by Mr Grove, for the Second Defendant, of the right of the Plaintiff to enforce the equitable lien. He submitted, without citing authority, that by its nature an equitable lien can only be enforced by the lienor, which is the trustee. However, as the Plaintiff will be a creditor if he is successful against the Second Defendant in the substantive proceedings, he has the right to enforce any award against the Second Defendant as the current trustee by subrogation to the trustee’s rights of indemnity.[6]

[16]    The Second Defendant’s application for summary judgment is on two distinct bases. Firstly, the Second Defendant says that it is not a successor trustee, but is a trustee of a different trust, albeit for the same purposes and involving related entities as the AIM Trustees. Secondly, the Second Defendant disputes that the AIM Trustees were the tortfeasors responsible for the Plaintiff's loss. The Second Defendant says that the proper and only tortfeasor is AIM, the unincorporated body.

[17]    I accept that if that second basis is established, the Plaintiff will not have any means of enforcing any liability against the Second Defendant based on the trustee’s right of indemnity. Indeed, in that event, any consideration of a trustee’s right of indemnity, and succession of trustees, will be rendered unnecessary.

[18]    The Second Defendant relied on three affidavits of the Second Defendant’s solicitor, Michael Grove made 24 September 2020 (the Grove September Affidavit), 16 November 2020 and 8 December 2020 as well as the affidavit of Clifford Letcher made 8 December 2020 (the Letcher Affidavit).

[19]    In summary, what it is pleaded to support the Plaintiff’s claim against the Second Defendant is:-

·Paragraph 5: Between 1962 and 1974 AIM, the unincorporated association, operated the Home;

·Paragraph 6: In 1944, the Constitution of AIM was amended to vest its real and personal property on trustees in trust for the work of AIM;[7]

·Paragraph 8: Thereafter those trustees acquired land, built the Home, employed staff to operate the Home and operated and managed the Home;

·Paragraph 10: In November 1980 the Second Defendant was incorporated and the trustees transferred all the real and personal property of that trust previously held by the trustees to the Second Defendant as the new trustee;

·Paragraph 11: The Plaintiff’s claim against the initial trustees is a liability incurred by those trustees on behalf of the trust and in respect of which those trustees have a right of indemnity against the trust property enforceable as a lien over the trust property;

·Paragraph 11: The right of indemnity and lien is enforceable against the Second Defendant, as the trustee successor and holder of the trust property.

[20]    What is essentially required for the Plaintiff to succeed in his case against the Second Defendant can be ascertained from the foregoing summary. That is, the Plaintiff must first establish that the AIM Trustees were liable for the torts alleged to have been committed on the Plaintiff. Secondly, that the trust of which the Second Defendant currently is the trustee, is the same trust as that of which the AIM Trustees were trustees at the time that the alleged torts on the Plaintiff were committed.

[21]    As AIM was an unincorporated association during the relevant times, it seems that the trust arrangement was made to place the assets of AIM into trust to avoid the difficulties usually faced by unincorporated associations regarding property ownership and contracts.[8]

[22]    In summary, the background facts are that AIM commenced operations as an unincorporated association sometime in 1935. The Constitution of AIM was amended in 1944 to provide for the appointment of trustees to hold the property of AIM. The AIM Trustees were appointed by AIM. The Second Defendant was incorporated as Aborigines Inland Mission Of Australia (Property Holding) Pty Ltd on 6 November 1980 and its name was changed to its current name on 3 November 1988. There is no documentary evidence to show a transfer of assets from the AIM Trustees to the Second Defendant. The members and directors of the Second Defendant were common with the members of the management committee of AIM. An association known as Australian Indigenous Ministries Incorporated, was incorporated in New South Wales in 2004. There was no evidence to show succession from AIM, the unincorporated body, to that incorporated association.

[23]    In respect of the first basis of the summary judgment application, the core argument of the Second Defendant was that it is the trustee of an entirely different trust. Mr Grove relied on the lack of evidence of the succession of trustees, and of transfer of trust property, to support that. On my assessment of the evidence, much was done informally and was not necessarily reflected in any appropriate documentation. Moreover, many likely relevant documents have been lost with the passage of time.[9] However, the absence of those documents is neutral and does not advance the case of the Second Defendant.

[24]    The available evidence in respect of property ownership does not clarify the position. The Home was operated on Crown land which was the subject of a special purposes Crown lease granted to the AIM Trustees. Sometime after 1973, the Crown lease on which the Home stood was surrendered in two stages. Initially there was a partial surrender in 1973 followed by a surrender of the balance in 1982. Why it occurred in two stages is not known and likely does not matter. Relevantly, that Crown lease had not been finally surrendered until approximately two years after the incorporation of the Second Defendant.

[25]    The Crown lease, which clearly was an asset of the trust, was never transferred to the Second Defendant before it was finally surrendered. The most pertinent evidence of that is the combination of the two documents which effected the surrender of the Crown lease. The first was the document of partial surrender of Crown lease[10] which shows that the proprietors were the same persons as the AIM Trustees at that time. Then, the title search[11] following the full surrender. The Second Defendant was incorporated in the interim period but the same persons remained as “owners” of the Crown lease despite that.

[26]    Notwithstanding that, Mr Grove maintained that a new trust was created on the incorporation of the Second Defendant. He submitted that the Second Defendant was trustee of a new and separate trust.

[27]    There is no evidence of any transfers of the property of the trust to the claimed new trust. Usually, that is effected by a vesting deed and, in the case of a registrable title interest such as a Crown lease, there would be a registered transfer.

[28]    It is clear that the AIM Trustees executed the final surrender of lease. Although the surrender documents run counter to Mr Grove’s argument, that remains inconclusive as there ought to have been a transfer in either case, i.e., whether there was a new trust or simply a succession of trustee of the same trust. Having said that, the failure to transfer that Crown lease is more understandable in the case of succession of trustees. It is less understandable in the case of a new trust as that is a more significant change and the new trustee would not be able to deal with that trust property.

[29]    Dealing now with the remainder of the evidence in respect of both bases of the summary judgment application. Firstly, the Grove September Affidavit at annexure MG6 attaches the Memorandum of Association of Aborigines Inland Mission Of Australia (Property Holding) Pty Limited. That was the initial name of the Second Defendant on incorporation.

[30]    Mr Grove relied on some of the objects in that document to argue that it established that the Second Defendant is the trustee of a new trust. The object contained in paragraph 3(a) of that document records:

To undertake the office of and act as the trustee for the Aborigines Inland Mission of Australia, an unincorporated body, of all or any property both real and personal owned or leased from time to time by the said Mission.

Subparagraph (b) goes on to provide:

To transact all or any agency or trust business as may be required of it by the Aborigines Inland Mission of Australia from time to time but in every instance exclusively for and on behalf of the Aborigines Inland Mission of Australia and then only in accordance with and pursuant to its Constitution.

[31]    I do not read either as conclusively establishing that a new trust was created. Both objects equally support the position that the Second Defendant was a successor trustee. Further, those objects can support an argument that a new trustee was appointed, but not necessarily in respect of a new trust. I therefore reject Mr Grove’s submission that this document is evidence that a new trust was set up.

[32]    Paragraph 12(b) of the AIM Constitution was also relied on by the Second Defendant to support the same argument. Ms Sibley, counsel for the Plaintiff, later argued that the same paragraph supported the Plaintiff’s position. That paragraph provides:

THE FEDERAL ADVISORY COUNCIL shall from time to time appoint TRUSTEES, who shall hold all real and personal property upon trust for the work of the MISSION, and subject to direction of the FEDERAL ADVISORY COUNCIL.

[33]    Mr Grove argued that this demonstrated the demarcation of the functions and powers of the management committee of AIM, namely, the Federal Advisory Council (FAC), from the trustees who were there to only hold property on trust. Although the object referred to can support the Second Defendant’s argument, I do not consider that it is conclusive, even when viewed alone. The common membership of the FAC and the AIM Trustees can support a contrary interpretation, which was Ms Sibley’s argument.

[34]    Annexures MG3-MG11 to the Grove September Affidavit, which consist of minutes of the FAC, were also relied on to support the argument that the business of AIM, conducted via the FAC, was completely separate to the business of the AIM Trustees.

[35]    Considering each of these annexures in turn, annexure MG3 is the minutes of an FAC meeting held on 2 April 1979, i.e., before the incorporation of the Second Defendant. The minutes deal with an item of business relating to that incorporation, recording that there was a recommendation that AIM incorporate "to the extent required to hold the property that belongs to the Mission”. This can support the argument that all the Second Defendant was to do was to hold the property of the Mission, but not necessarily as trustee. It is inconclusive as to whether a new trust was to be set up as well as to the existence of a trust.

[36]    Ms Sibley also argued that the reference to the proposed incorporation of the Second Defendant in the annexure established succession of trustees and not the creation of a new trust. I disagree as the document is consistent with both cases.

[37]    Annexure MG4 is the minutes of a meeting of the FAC held on 4 August 1980, just before the incorporation of the Second Defendant. An item entitled "Holding Company" notes that there was a resolution to proceed with the incorporation of "…a company to hold property owned by the Mission". The persons to be the members and directors of the company were all members of the FAC. Like annexure MG3, there is nothing which conclusively establishes either that the property was held on trust, or if so, that a new trust was to be set up.

[38]    However, I think those minutes provide good evidence that the actual position is that the Second Defendant succeeded the AIM Trustees as trustee of the same trust, as opposed to being appointed as trustee of an entirely new trust. That follows from the reference in those minutes to the saving of stamp duty. I think that supports the position of simply a change of trustee in respect of the same trust because stamp duty on transfer would only be payable in the case of a transfer between trustees of different trusts. I read that minute as indicating that the trustees would have the benefit of stamp duty laws which exempted the payment of stamp duty on transfers which merely effect a change of trustee of an existing trust.[12]

[39]    Annexure MG5 is the minutes of the FAC meeting held on 13 October 1980. Under the heading "Holding Company" it is recorded that the incorporation documents (referring to the Second Defendant) had been lodged. It then states "The next step is to transfer all the property from the Trustees to the Holding Company". Although the reference to "from the Trustees", which must mean the AIM Trustees, is at least evidence of the existence of a trust, that is not necessarily conclusive as to the creation of a new trust as it is also consistent with a transfer consequent on a change of trustee.

[40]    Annexure MG8 annexes minutes of a Special Field Council meeting held on 11 and 12 November 1980. Other than that the members of that body are common with the members of the FAC and the AIM Trustees, there is no evidence to show what the functions of that body were, or the relevance of those minutes. It is not a Council referred to anywhere in the evidence, and specifically not in the Constitution of AIM. Although it is also inconclusive as to the core issues, absent appropriate evidence, I disregard that document for current purposes.

[41]    There is then a big gap in time between annexure MG8 and annexure MG9, the latter being the minutes of Australian Indigenous Ministries on 14 September 2004. That is the name of the incorporated association in New South Wales, not AIM the unincorporated association. No connection with that incorporated association, relative to the issues in the current proceedings, has been established, so that is also irrelevant. In any case, again that was also inconclusive as to whether there was simply a succession of trustees or the creation of a new trust.

[42]    Further evidence appears in the Letcher Affidavit which deposes to searches for documents specifically with respect to the appointment of trustees. Mr Letcher deposes to only having found minimal documents with references to trustees and I now consider those in turn.

[43]    Annexure CJL1 to the Letcher Affidavit, the date of which is not known but which at least is after 22 May 1964, is a list of the surviving trustees of “TRUSTEES OF MISSION PROPERTY”. Those trustees, at that time at least, were Messrs Leeder, Beeby, Long, Perry and Collins, names which regularly appear in the minutes of the FAC meetings. That is also inconclusive in terms of the current issues.

[44]    Annexure CJL2 to that affidavit, which is the minutes of FAC meeting held on 26 October 1968, shows that the FAC then dealt with a testamentary gift of shares to AIM. Consistent with the position that the property of AIM was to be held by the AIM Trustees on trust, it is recorded that those shares would be transferred into the names of the AIM Trustees. Curiously, the minutes then add "… for later sale or otherwise as the council may determine " (emphasis added). That suggests that the FAC had some reserve powers, or control, over the assets of the trust, a position which is inconsistent with the demarcation Mr Grove argued for.

[45]    Annexure CJL3 is the initial partial surrender of the Crown lease dated 2 April 1973. It is a surrender made by Messrs Collins, Long and Beeby and clearly made in their capacity as trustee. That is so because the document refers to the holding as "with no survivorship" which is an indicator of legal ownership as a trustee. That supports the contention that the asset was held in trust. However, that does not conclusively support Mr Grove’s contentions and clearly cannot do so as the instrument is dated well before the incorporation of the Second Defendant.

[46]    Annexure CJL5 is a copy of a file cover which describes Messrs Collins, Perry and Mullins as trustees. There is not much temporal context for that other than what appears to be appointment dates. It commences with a notation that Messrs Collins, Perry and Mullins were appointed on 8 October 1979. Below that is a reference to "HOLDING COMPANY” and then a reference to the date of the resolution to proceed with the incorporation of the Second Defendant. That is followed by the date of 2 February 1981, with a sub-heading of "Trustee". That seems to confirm that the Second Defendant was then the trustee but does not necessarily rule out that the Second Defendant may be the trustee of a different trust. It remains inconclusive.

[47]    Annexure CJL6 is a document simply titled "TRUSTEES". Messrs Long, Collins, Perry and Mullins as well as the Second Defendant are referred to as "trustees". It seems to be a record of the appointment and resignation dates of members of the FAC as well as a record of attendances at FAC meetings. There should not be such an overlap if there was a clear demarcation of functions between the trust and the operations of the Home. The reference to four of the AIM Trustees as well as the Second Defendant again confirms at least a succession of trustees, but not necessarily the establishment of a new trust.

[48]    Annexure CJL7 relates to the final surrender of the Crown lease. It is a Land Titles Office search which shows that the surrender of lease was registered on 23 March 1982. The joint "owners" are recorded as Messrs Long, Beeby and Collins, three of the then AIM Trustees and the same persons named in annexure CJL3, the partial surrender of lease. That however establishes nothing in respect of the current question.

[49]    Turning now to consider the second basis of the Second Defendant’s argument, namely that the AIM Trustees were not involved in the operation of the Home, and therefore were not liable to the Plaintiff. Although the argument of the Plaintiff is not as strong, for the reasons which follow I think it is still sufficient to satisfy me that the Plaintiff’s case is at least arguable and not destined to fail.

[50]    Mr Grove relied on various documents to make out his case that the AIM Trustees were not responsible to the Plaintiff. Central to that was the submission that the documents demonstrated that the trust was only for the purposes of holding the property of AIM and specifically that neither the trust, nor the AIM Trustees, were not involved in the operation of the Home. Further, that the actual operator of the Home was AIM, the unincorporated body, and only AIM had any liability to the Plaintiff.

[51]    The evidence concerning that consists mainly of minutes of meeting of the FAC. Although the minutes only refer to operational matters and not trust matters, that does not necessarily and conclusively establish the separation of functions as Mr Grove argued because there may not have been any agenda items in respect of the trust. On the other hand, no separate minutes of trustee meetings or business have been produced. The Crown lease, which is clearly trust property, was often dealt with at FAC meetings, and that runs counter to the clear demarcation which Mr Grove argued for.

[52]    Relevant also is that AIM, the unincorporated association, was managed by various management committees, primarily the FAC. The AIM Trustees were at all times at least a subset of the same persons that constituted the FAC, which is also arguably indicative of an overlap of the functions of the AIM Trustees and the FAC. Also relevant are the references in various minutes of meeting of the FAC and other minutes which also deal with assets of the trust. Although they clearly deal with trust business, and not Mission business, that has been recorded in FAC minutes which lends support to the Plaintiff's argument.

[53]    Those references are firstly, annexure MG3 to the Grove September Affidavit. That contains a minute dealing with the pending disposal of some church land. If all property was in the trust, the FAC should not be dealing with that.

[54]    Secondly, annexure MG4. That specifically deals with the Crown lease. That annexure is the minutes of the FAC held on 4 August 1980 where it was resolved, I think with respect to the surrender of the balance of the Crown lease, that "…we will review its use within two years" and would then consider a surrender.

[55]    Thirdly, annexure MG5 which annexes the minutes of the FAC meeting held on 13 October 1980. That contains a report on the receipt of a letter from the Department of Lands that a new lease over the Home had been approved. The minutes record that a "… letter will be sent to the Department regarding the Holding Company". Those minutes clearly deal with trust property.

[56]    Fourthly, annexure MG8. This annexes minutes of the meeting of the Special Field Council, the relevance of which has not yet been established (see paragraph 40 above), but that also deals with trust property, again the lease over the Home. It records that the "… Mission has been granted a change of lease which will enable the site to be used for various Mission purposes". If the Special Field Council is connected with the management of AIM, that is a clear overlap between the operations of AIM and the trust assets.

[57]    Returning to the minutes at annexure MG4, those minutes can also support the Plaintiff’s argument. Under the heading "R.D.H. Funds", it is recorded that it was resolved that "…funds from the Retta Dixon Home be banked in the General Fund…". There is no evidence as to what these "funds" are or what the "General Fund" is. However, it is arguable that this relates to the property of the trust. The timeframe puts that at two years before the final surrender of the Crown lease. If, as the Constitution states, all real and personal property of AIM was to be held by the AIM Trustees, this is evidence which runs counter to that as it shows a connection between the functions of the trustees and those of the FAC.

[58]    Ms Sibley also relied on that annexure as evidence of not only a transfer of the property from the AIM Trustees to the Second Defendant, but that there was a transfer of personnel as well. I understand that submission to be a reference to the minutes which names members and directors of the Second Defendant, being persons who are some of the persons who were the AIM Trustees.

[59]    It was argued that this evidenced an overlap between the FAC and the AIM Trustees and I agree that is arguable. Ms Sibley also argued that the overlap of trust and FAC functions was also evident in paragraph 12(b) of the AIM Constitution, specifically in the context of the FAC appointing trustees to hold all real and personal property upon trust for the work of the Mission, the reference to "…subject to direction of the FEDERAL ADVISORY COUNCIL". Ms Sibley argued that the paragraph specifically making the trustees subject to the direction of the FAC, cut across Mr Grove’s submission of a clear demarcation of function between the management of the Home and the ownership of trust assets. It is probably more correct to say that the relationship between the FAC and the AIM Trustees was loose but in any case that at least renders it arguable that the AIM Trustees were involved in the operation of the Home.

[60]    Looking at that evidence in its entirety, in respect of the first basis, although there is sufficient evidence to establish the existence of a trust, the position as to whether the Second Defendant was a trustee of a new trust is not as clear as Mr Grove submitted. The strongest evidence points to the Second Defendant being a successor trustee. That is the evidence in relation to the saving of stamp duty as discussed above. Even leaving that aside, the inconclusive state of the evidence either way means that the Plaintiff's position, namely, that the Second Defendant is the successor trustee of the AIM Trustees and in respect of the same trust, is clearly arguable and that alone is sufficient to negative summary judgment as the Plaintiff’s case is clearly not a hopeless one in that respect.

[61]    As to the second basis, although the Second Defendant’s argument that the initial AIM Trustees were not the operators of the Home is arguable, I am satisfied that the evidence of the overlap between the operations of the Home and the business of the AIM Trustees renders the Plaintiff's case to be at least arguable. Although I do not consider the Plaintiff’s case to be a strong case, nonetheless it is sufficient to overcome the test for summary judgment as it is not a hopeless case either.

[62]    I now to deal with the Second Defendant’s application for strike out of paragraphs 8, 10, 11 and 24 of the Pleading, which is on the basis that the pleading fails to disclose a cause of action.

[63] I will deal first with two preliminary points. The Second Defendant submitted that AIM was incorporated in New South Wales in 2004. The Certificate of Incorporation was in evidence per annexure MG10 to the Grove September Affidavit. The Second Defendant’s submissions also contain random references to a name change to account for name differences. However, no evidence has been produced to support either succession from AIM to the incorporated body or of the name change. The Certificate of Incorporation is of a body known as "Australian Indigenous Ministries Incorporated". The evidence Mr Grove relied on to support the connection was annexure MG9 which is a document titled "Australian Indigenous Ministries". Although it can be described by the same acronym (AIM), the actual name of AIM, the unincorporated body, by reference to its Constitution, is Aborigines Inland Mission of Australia. To the extent that it is relevant, I disregard any submission to the effect that the association incorporated in New South Wales in 2004 is the same as, or a successor of, AIM the unincorporated body.

[64]    Secondly, the Second Defendant’s submissions raise the question of whether the AIM Trustees at the time of the alleged torts should be parties to the proceedings. In my view the AIM Trustees do not have to be parties. The Plaintiff’s claim for the enforcement of any award of damages against the assets of the trust of which the Second Defendant now is alleged to be the trustee needs only to establish firstly, the liability in tort of the AIM Trustees and secondly, that the Second Defendant is the successor trustee of the AIM Trustees and in respect of the same trust. Once that is properly pleaded, including an appropriate amendment to the prayer for relief,[13] the Plaintiff's case can be maintained notwithstanding that the AIM Trustees are not parties.

[65]    Paragraph 10 of the Pleading pleads that there was a transfer from the AIM trustees “..of all property both real and personal" to the Second Defendant on incorporation. Presumably that was the property that was previously owned by the AIM Trustees and if so, a statement to that effect should have been pleaded. The Second Defendant's submissions seem to attempt to draw support from the absence of a transfer of the Crown lease. Although that appears to be factually correct, that is not the point. The Plaintiff's intended claim against the Second Defendant is that it is the successor trustee of the AIM Trustees who owed, and breached, a duty to the Plaintiff causing loss. Whether there was a transfer of any property or not might be factually relevant, but that is not a material fact for pleading purposes.

[66]    However, what must necessarily be pleaded to support that claim are all of the material facts necessary to establish the Plaintiff’s case of the liability of the AIM Trustees, and of succession of trustees. Paragraph 10 does not sufficiently plead the Plaintiff's intended case as I know it to be following argument. It does not clearly set out the trustee succession to support the claim based on the trustee’s right of indemnity.

[67]    The transfer of property to the Second Defendant currently referred to in that paragraph is mode of proof.[14] The material fact that ought to be alleged is that the Second Defendant became the trustee in place of the AIM Trustees and holds the assets of the trust as the current trustee of the (same) trust. Further, the reference in that paragraph to “the AIM trustees" is embarrassing as the term has not been defined in the Pleading, hence that also needs to be rectified.

[68]    Paragraph 10 therefore does not disclose a cause of action. It is also embarrassing and must be struck out. As I am satisfied that a valid basis of claim can be demonstrated with an amendment, I intend to allow the Plaintiff an opportunity to re-plead.

[69]    Paragraph 11 of the Pleading alleges that "…AIM in its capacity as trustee has incurred a liability on behalf of the trust…". Which trust that is intended to refer to is apparent based on the argument before me but is otherwise not clearly set out in the Pleading, and should be. Leaving that aside for the moment, the Plaintiff’s case is that AIM only appointed trustees. It was not the trustee. Paragraph 11 therefore should plead who the trustees were, at least generically, during the period when the alleged torts occurred. The last two sentences of that paragraph amount to a pleading of a conclusion of law and I query whether the requirements of 13.02(2) of the SCR have been complied with to permit that.

[70]    Paragraph 24 of the Pleading then pleads that as a consequence of "…the breach of duty by AIM…" the Second Defendant has become liable to indemnify AIM. That is factually incorrect as, on the Plaintiff’s case as I understand it following argument, any liability of the Second Defendant cannot be as a consequence of a breach of duty by AIM. It is inconsistent with paragraph 11 to that extent also, which makes it embarrassing on that account alone. This paragraph must plead, inter alia, that the AIM Trustees, as opposed to AIM owed, and breached, the duty to the Plaintiff.

[71]    In short, I think the Second Defendant is correct that, coupled with the defect in the pleading in paragraph 10 discussed above, paragraphs 11 and 24 of the Pleading do not disclose a cause of action against the Second Defendant.

[72]    Paragraphs 11 and 24 of the Pleading therefore also should be struck out but again, an amendment can cure the defect and I will allow the Plaintiff an opportunity to re-plead those paragraphs.

[73]    That leaves paragraph 8 of the Pleading. In argument, Mr Grove submitted that the Home was never operated by the AIM Trustees, a submission which overlaps with the Second Defendant’s case on the summary judgment application. The comments I made in that respect apply equally here. That renders that a factual dispute between the Plaintiff and the Second Defendant which is not an appropriate basis for strike out.

[74]    Having said that, I am not sure what paragraph 8 of the Pleading is intended to achieve. If it is pleaded to support the allegation that the AIM Trustees operated the Home on behalf of AIM, a simple statement to that effect will suffice. Absent that, it pleads mode of proof which renders it liable to strike out on that basis.

[75]    Dealing now with the Commonwealth's summons seeking strike out of paragraphs 3, 15.1, 16, 17 and 21 of the Pleading.

[76]    The Plaintiff has provided further and better particulars (the Particulars) in response to a request by the Commonwealth. The arguments of the Plaintiff and the Commonwealth in respect of the Commonwealth’s summons were based on the Pleading in conjunction with those Particulars and I will determine the Commonwealth’s summons on the same basis.

[77]    Paragraph 3 of the Pleading alleges that the Commonwealth was "responsible for" the welfare, safety and conduct (emphasis added) of children residing in the Home by reason of specified sections of named legislative enactments. The Particulars elaborate and include an additional legislative provision.[15] The Plaintiff then pleads that responsibility as the basis for the existence of a duty owed by the Commonwealth to the Plaintiff.

[78]    The Commonwealth initially complains that the Particulars provided in respect of paragraph 3 of the Pleading are material facts and should be pleaded as such. In principle, I agree that defects in the pleading of necessary material facts cannot be cured by particulars.[16] That should be rectified in the next amendment. More substantively, the Commonwealth argues that the Particulars are still insufficient in any case.

[79]    The Plaintiff also relies on a number of other allegations set out in the Particulars. Firstly, that the Commonwealth licensed the operator of the Home. Secondly, that the legislative provisions of the Aboriginals Ordinance 1918-1947 and the Welfare Ordinance 1953-1960 applied to the Home by reason of that licensing. The Particulars then go on to state what the duties of the "Director" were. Succinctly, that is in respect of the supervision, use and management of an "institution" pursuant to the Welfare Ordinance 1953-1960. Thirdly, that the Social Welfare Ordinance 1964 provided that land reserved for the use or benefit of children placed under Commonwealth care, were prescribed as "reserves". There is then again a statement of the duties of the "Director" which again are in respect of the supervision, use and management, this time of a "reserve".

[80]    I think all of the foregoing are material facts, not particulars and therefore that should also be rectified in the next amendment. Leaving that aside for the present, the Commonwealth pointed out that there is nothing in section 7 of the Aboriginals Ordinance 1918-1947 in respect of the pleaded responsibility and that section 78 of the Welfare Ordinance 1953-1960 seems to relate to a limited subset of children placed in care. Similarly, that section 12(b) of the Social Welfare Ordinance 1964 applies to "reserves" and not "institutions", arguing that the Home can only be an institution. I agree that the Plaintiff needs to plead the material facts to support the claimed duty and that includes material facts to show that the Home is either a “reserve” or an “institution”, as the case may be. Currently that is done by a very general and brief allegation which is insufficient.

[81]    More significantly, the Plaintiff's written submissions describe the duty on the Commonwealth as arising from its role in the creation, management and use of “institutions” and “reserves”[17] such as the Home. That self-evidently would be the case for wards. However, the Plaintiff was not a ward. It is not clear, from the Ordinances referred to, that a responsibility on the Commonwealth for the Plaintiff is created. It is clear that those Ordinances task the Commonwealth with the care of wards, but that does not include the Plaintiff. Similar to my comments in respect of paragraph 3 of the Pleading, if the Plaintiff is to rely on the specified provisions of the Ordinances to establish the duty, material facts or particulars to show how any duties on the Commonwealth which derive from those Ordinances apply to other than wards at the Home must be pleaded.

[82]    The Plaintiff's argument in this respect ties in with paragraphs 9 and 15.2 of the Pleading. As to paragraph 9 of the Pleading, the Plaintiff’s submissions rely on the licensing by the Commonwealth of the operators of the Home in conjunction with the allegations in paragraph 9 of the Pleading. Clearly the licensing referred to in the Plaintiff’s submissions should be pleaded as paragraph 9 of the Pleading, as worded, does not support the Plaintiff’s argument as it simply provides that the Home "…was operated by AIM at the direction of, under the auspices of and/or in collaboration with the First Defendant". It is not clear what this means. Paragraph 9 is therefore embarrassing as it currently stands.

[83]    Paragraph 15.2 of the Pleading pleads that the Plaintiff’s parents were appointed by AIM, pursuant to the Ordinances referred to in paragraph 3 of the Pleading, and were required to manage premises where wards resided together with the Plaintiff. In the written submissions, the Plaintiff submits that the Commonwealth “authorised or permitted" the Plaintiff to reside at the Home[18] and then refers back to paragraph 15.2 of the Pleading. That submission does not correspond with the pleading in paragraph 15.2 so an amendment will be required if that is the intended allegation.

[84]    Further, the Plaintiff’s written submissions submit that the Commonwealth was tasked by statute with the management and use of institutions, later known as reserves, where the Plaintiff resided. I agree with the Commonwealth that all of the foregoing are material facts and not particulars and therefore must be alleged in the Pleading and not in the Particulars.

[85]    The next paragraph challenged by the Commonwealth was paragraph 15.1 of the Pleading which alleges that the Plaintiff lived in the Home “in facilities made available by the First Defendant and/or AIM”. The Commonwealth’s application to strike out that sub-paragraph is on the basis that the pleading is vague and too general because it does not allege all the material facts necessary to support the allegation. In part the complaint is also that the term "facilities" is undefined. What the term “facilities” is intended to mean is, I think, sufficiently made clear by the Particulars at paragraph 3.1 which provides to the effect that the Plaintiff lived in the employee accommodation with his parents, something that is also apparent from other paragraphs of the Pleading. Although it may just be a matter of style, I do not see that it was necessary for the Plaintiff to plead in terms of the provision of "facilities" which seems to have only confused the position. Rather, it would have sufficed to simply state that the Plaintiff resided at the Home in employee accommodation if that is the extent of the allegation.

[86]    Regarding the Commonwealth’s complaint of the absence of necessary material facts, the Particulars repeat that the Home was licensed by the Commonwealth and was subject to the supervision and regulation of its use and management by the Commonwealth, who also authorised persons to enter and remain in the Home. The latter requires elaboration to make it clear that it applies to the Plaintiff, and how so, as opposed to only wards and perhaps employees. This builds on the matters sought to be alleged in respect of paragraph 3 of the Pleading as discussed above.

[87]    Paragraph 3.3 of the Particulars raised the funding of the Home by the Commonwealth as a basis for the duty, but apparently the Plaintiff lacked supporting evidence at the time the Particulars were provided. By the time of argument, the Plaintiff had evidence regarding the Commonwealth's funding of the Home. Ms Sibley has indicated that the Plaintiff proposes to rely on evidence that the Commonwealth granted a lease over Crown land as a site to construct the Home, provided funds to construct the Home and was involved in the design, construction and ongoing maintenance of the Home. That will necessarily be required to be pleaded in any further amended Statement of Claim.

[88]    Overall, I think that paragraph 15.1 of the Pleading remains defective for a number of reasons. Firstly, better particulars need to be provided in respect of the allegation that the Commonwealth was tasked by statute with the management of the Home.

[89]    Secondly, the licensing of the operators of the Home by the Commonwealth does not, without more, establish the pleaded duty. More material facts are required to support the various allegations in respect of which this is to be alleged.

[90]    Thirdly, if the Plaintiff’s written submissions, to the effect that the Commonwealth "authorised or permitted" the Plaintiff to reside at the Home, is to be incorporated into the Pleading, that will still be deficient for lacking material facts to show how that establishes the duty. In any case, I think that particulars should be provided as to precisely how the Commonwealth "authorised" and/or "permitted" the Plaintiff to reside in the Home.

[91]    Lastly, a bare conclusory statement that the Commonwealth was involved in the ongoing operation of the Home is insufficient and material facts or particulars to state precisely what the Commonwealth’s involvement in the operation was said to be, such as the matters referred to in paragraphs 86 and 87 above, are required.

[92]    As it currently stands, paragraph 15.1 of the Pleading is deficient and is to be struck out but again, I will grant the Plaintiff leave to re-plead.

[93]    Paragraph 16.1 of the Pleading alleges that the Commonwealth "… had a responsibility to all children residing in the Home pursuant to the Ordinances …" (referring to the Ordinances pleaded in paragraph 3 of the Pleading). The Commonwealth complains of a formal defect in this pleading saying that it is not clear whether it pleads material facts or particulars. That can render that embarrassing but that is not as significant as the substantive complaint namely, whether the reference to "all children" refers just to wards only or includes every child howsoever residing at the Home. Clearly it is intended to go beyond wards and to apply to the Plaintiff, else the allegation is irrelevant. The position is not clear as currently pleaded. Ms Sibley indicated an intention to amend the Pleading to allege that the Commonwealth was responsible for the conduct and actions of wards. I note that is similar to the plea of responsibility for the conduct of wards in paragraph 3 of the Pleading. Leaving aside whether that will sufficiently address the defect for the moment, that clearly concedes the insufficiency of the current pleading.

[94]    The basis of the Commonwealth's argument in respect of this sub-paragraph I think highlights the failure to properly spell out, by reference to the provisions of the Ordinances relied on in paragraph 3, how the alleged duties are said to arise. The Commonwealth essentially argues that the Pleading does not support the allegation that the Commonwealth provided any "facilities" to the Plaintiff's parents, whatever those facilities are intended to be. I agree that the pleading does read as a bare conclusion as it currently stands.

[95]    The Plaintiff submitted that it would, by amendment, rely on the further information referred to in paragraph 87 above. That does not cure the current defect of the lack of material facts to tie in the provision of the "facilities", whatever that means, to the duty alleged to be owed to the Plaintiff. Therefore, paragraph 16.1 of the Pleading is defective, and therefore embarrassing, in its current form.

[96]    The Commonwealth submits that all of paragraph 16, and specifically subparagraphs 16.1 and 16.6, should be struck out, both for failure to disclose a cause of action and as being embarrassing. A key aspect of paragraph 16 is that it alleges the Commonwealth owed the Plaintiff a non-delegable duty.

[97]    I am however concerned about the sufficiency of the bare statement that the duty owed by the Commonwealth was a non-delegable duty. As the Plaintiff was not placed in the Home as a ward but merely resided there in conjunction with the employment of his parents, I am not satisfied that those circumstances amount to a basis for the existence of the type of special relationship required to found a non-delegable duty.

[98]    A non-delegable duty, also known as a personal duty, is essentially a duty that cannot be abrogated by delegating responsibility to independent parties engaged by the person primarily responsible. It is a duty of such a nature that its performance cannot be delegated to a third party, which might otherwise be sufficient in the case of an ordinary duty of care. A non-delegable duty will be imposed where there is some element in the relationship between the parties that makes it appropriate to impose a duty, see Kondis v State Transport Authority.[19] Recognised categories are the duty owed by an employer to an employee, by a hospital to patient and by a school to a pupil.

[99]    The Commonwealth's complaint is that, other than the bare allegation of the existence of a non-delegable duty, the Plaintiff has not pleaded material facts to establish the existence of the duty based on its relationship with the Plaintiff.

[100]  In answer, the Plaintiff submits that the relationship of the Commonwealth and the Plaintiff is analogous to the non-delegable duty owed by a school to its pupils. In the current case I think that analogy is only apt in the case of wards placed at the Home. It does not necessarily follow in the case of children otherwise residing in the Home who were not wards. The Plaintiff's submission fails to address that. This complaint of the Commonwealth is well-founded. I agree that if the allegation of a non-delegable duty it is to be maintained, the Plaintiff must properly plead all the material facts and particulars to show how the duty arises in the circumstances so that the Commonwealth knows the case that it has to meet and can then make an informed decision as to how it should proceed.

[101]  The Plaintiff has flagged a proposed amendment to paragraph 16 of the Pleading. The proposed amendment will plead the matters referred to in paragraphs 87 and 95 above. Although I am not convinced that the proposed amendments will cure the defect of the absence of material facts demonstrating the existence of a non-delegable duty, for now I must decide the application on the basis of the current Pleading. The current pleading in relation to the non-delegable duty is deficient.

[102]  As to paragraph 16.1 of the Pleading, the Commonwealth complains that this is a bare conclusory statement lacking necessary material facts. However, I think the problem with that pleading is that in alleging that the responsibility on the Commonwealth was to all children residing at the Home pursuant to the specified Ordinances, that can only refer to wards as that is all that is provided for in those Ordinances. Therefore, clearly the allegation does not relate to the Plaintiff in its current form. Therefore it cannot be the basis of a claim for the Plaintiff in its current form.

[103]  In this respect, Ms Sibley also relied on the proposed amendment to allege that the Commonwealth was responsible for the conduct and actions of the children placed at the Home as wards. Paragraph 3 of the Pleading supports the existence of a duty to the Plaintiff based on responsibility of the Commonwealth for the conduct of wards towards others, such as the Plaintiff, on ordinary negligence principles.  However, a bare allegation to that effect would still be defective. Only the clear pleading of material facts to demonstrate that alleged responsibility can achieve that.

[104]  The Particulars were also relied on in this respect, specifically the previously discussed allegation that the Commonwealth licensed the Home, regulated the use and management of the Home and controlled access to the Home. I think those are material facts, not particulars, and must therefore be pleaded as such by amendment. Whether that will be sufficient to prove the claimed duty is another matter, but that is not currently a concern given that the current application is for strike out only.

[105]  The Commonwealth's complaint with subparagraph 16.6 of the Pleading is the absence of material facts to support the allegation that personnel appointed by the operators "…were engaged in the Commonwealth's business" and "…tasked with achieving the Commonwealth's objects…". The Commonwealth complains that it cannot plead to this as the terms "Commonwealth’s business" and "Commonwealth's objects" have not been defined and the Commonwealth therefore cannot know what the Plaintiff it is alleging by this pleading. The Particulars provide that that business and those objects are the establishment of institutions for the care and welfare of children for which the Commonwealth was responsible. That should also contain a reference to the conduct of wards as in paragraph 3 of the Pleading, else it can only refer to wards and I am not certain that that is intended.

[106]  Mr Ingrames, for the Commonwealth suggested that this might be an attempt to plead a vicarious liability on the Commonwealth in respect of those staff members. Vicarious liability is specifically pleaded elsewhere in the Pleading, as discussed below,[20] but I do not think that is what is intended by paragraph 16.6 of the Pleading having regard to the argument before me.

[107]  Notwithstanding that, the Pleading remains deficient. The Plaintiff must plead material facts to support the allegation that the Second Defendant’s personnel were undertaking duties for the Commonwealth and must plead how that is the case and particularise what those duties were. For now, I am of the view that subparagraph 16.6 of the Pleading is embarrassing and should be struck out. Again, as the defect can be cured, I am prepared to allow the Plaintiff an opportunity to re-plead.

[108]  Paragraph 17 of the pleading is also alleged to be defective both for failing to disclose a cause of action and for being embarrassing.

[109]  The Commonwealth submits that the Particulars provided are inconsistent with the allegations pleaded in paragraph 17 of the Pleading. As I read paragraph 17 of the Pleading, it alleges vicarious liability as it specifically pleads that the Commonwealth employed staff to operate and manage the Home and is liable for those staff. The Plaintiff however reads the Commonwealth’s complaint as raising issues of inconsistent pleadings as Ms Sibley argued that inconsistent pleadings are allowed by the SCR if it is clear that they are pleaded in the alternative.[21]

[110]  I do not believe the position is that simple. The inconsistency complained of is between the Pleading and the Particulars, i.e., in respect of the same pleading. In my view that inconsistency is manifest as the Pleading in paragraph 17 is a clear pleading of vicarious liability. The Particulars allege inconsistent facts, i.e., that the Commonwealth was involved in the engagement of staff, not the direct employment of staff, and the provision of funding for that purpose. That role is therefore less than the actual engagement of staff, so that the Commonwealth would not be vicariously liable for those staff. Therefore, currently paragraph 17 is internally inconsistent, does not comply with rule 13.09 of the SCR and it is also unclear. It is therefore embarrassing and should be struck out. However again, as that can be cured by amendment I will allow the Plaintiff leave to re-plead.

[111]  Lastly, in respect of paragraph 21 of the Pleading the Commonwealth’s complaint is based on the absence of material facts alleging firstly, how the Commonwealth is said to have been aware that the Plaintiff was residing at the Home, and secondly, how that imposed a duty on the Commonwealth to the Plaintiff, and thirdly, how the Commonwealth was aware that the Plaintiff was at risk of harm from other children.

[112]  Paragraph 21 seems to introduce a new basis for a duty owed by the Commonwealth to the Plaintiff. It may be intended to simply supplement the material facts in respect of the pleaded duties, but that is not clear and it can be read as alleging a new duty based on the Commonwealth's knowledge that the Plaintiff was residing at the Home. The allegation is made jointly in respect of the Commonwealth and the operators of the Home.

[113]  Although it seems apparent that the operators of the Home had the requisite knowledge of the residence of the Plaintiff based on the employment of the Plaintiff's parents and the provision of accommodation, nonetheless that cannot be assumed even in the case of the Second Defendant. That needs to be the subject of a specific pleading. In the case of the Commonwealth, this allegation appears to overlap with paragraph 17 of the Pleading as the allegations against the Commonwealth seem to depend on whether the allegation that the Commonwealth was involved in the hiring of staff at the Home can be made out.

[114]  In response, the Particulars simply refer back to references to the Ordinances referred to in paragraph 3 of the Pleading. This seems to be relying on section 17 of the Social Welfare Ordinance which provides for an administrator, or the director, or a welfare officer of the operator of the Home to authorise a person to enter and remain on a “reserve”, which the Plaintiff argues includes the Home. Whether this is sufficient will be a matter for trial or a summary judgment application but for the moment, if that is the basis, it must be clearly pleaded. The Pleading it is not currently clear and the specific basis of the claimed knowledge of the residence of the Plaintiff at the Home also needs to be pleaded as opposed to simply making a conclusory statement to that effect as is currently the case.

[115]  In conclusion I think the Commonwealth’s summons has been mostly made out.

[116]  Simply striking out the paragraphs that each of the Defendants have successfully challenged will be problematic. I therefore propose to strike out the entirety of the Pleading and allow the Plaintiff a further opportunity to file and serve an amended Statement of Claim. That will also give the Plaintiff occasion to consider, and if necessary, address my general comments which follow. Those comments go beyond the matters raised by the Defendants, but I hope that they assist in the proper pleading of the case.

[117]  I think the Pleading is difficult to follow. The setting out of the pleading could be improved to make it easier to follow. Presently a number of allegations of breach of duty are levelled at the Commonwealth and each in a different part of the pleading. That is notwithstanding that there is obvious overlap in the allegations of breach of duty. The material facts to support the breach of duty are scattered throughout the pleading. An improved structure would make the allegations easier to follow.

[118]  I consider that much of paragraph 6 is superfluous. The second sentence, namely “In about 1935 AIM adopted a constitution and on or about 6 November 1944 the Constitution was amended by the Federal Advisory Council of AIM which vested all real and personal property of AIM to trustees on trust for the work of AIM”, does not plead a material fact. It is also factually incorrect on the evidence led on the application.[22] At best it pleads mode of proof contrary to rule 13.02(1)(a) of the SCR. The material fact which should be pleaded is to the effect that, from a specified date, the assets of, specifying whom (presumably AIM), were vested in trustees for, specifying whom (which is presumably the then members of AIM, unincorporated body).

[119]  Paragraph 7 appears to be superfluous and at least partly duplicitous with paragraph 5.

[120]  Paragraph 18 is mostly acceptable save for the reference to the Commonwealth's "records" in paragraph 18(d). That appears to be a pleading of mode of proof. That can be more readily excused in the context of particulars given that particulars are more generally in nature of evidence than material facts. However, what those "records" are should be properly particularised. If it refers to the attendance by a representative of the Commonwealth at the meeting referred to in the last sentence of that sub-paragraph, that should be more clearly pleaded.

[121]  As to the allegations of breach of duty in paragraph 22, it is not clear how the allegation in sub-paragraph (a), which relates to the pre-appointment failure to investigate the suitability of persons to be employed at the Home, can be causative given that the alleged assaults on the Plaintiff were perpetrated by children placed in the Home, not staff. Absent clarification, that allegation is irrelevant and is therefore embarrassing.

[122]  The allegation that the Defendants "invited" the Plaintiff to be sexually abused or assaulted at the Home appears to allege deliberate conduct. That is a serious allegation and if that is intended and is to be maintained, it should be properly pleaded with full material facts and particulars of how and by whom that was said to occur.

[123]  Further, the allegations of breach in paragraph 22 should be clear in delineating which allegation of breach relates to which Defendant. If it is meant to be both Defendants, and I accept that could be intended given  the current lack of any delineation between the Defendants, that should be clearly pleaded.

[124]  I query whether sub-paragraphs (l), (m) and (o) of paragraph 22 are duplicitous with each other, and likewise sub-paragraphs (o) and (p) as well as sub-paragraphs (g) and (t).

[125]  I think sub-paragraphs (b) and (c) of paragraph 28 are duplicitous to a certain extent. Further, I query how sexual assault by adults on children placed at the Home could be a ground for an award of exemplary damages when the Plaintiff was not assaulted by adults. That should be clarified. Similar comments apply in respect of paragraph 28(f).

[126]  In summary, I dismiss the Second Defendant’s application for summary judgment, both in respect of the Plaintiff’s claim and also in respect of the Commonwealth’s Contribution Notice. I also order that the Pleading be struck out in its entirety. I will give the Plaintiff leave to file and serve a further amended Statement of Claim.

[127]  I will hear the parties as to the time that should be allowed for the filing of a further amended Statement of Claim and as to any consequential orders.

---------------------

[1] [2020] NTSC 45.

[2][2017] NTSC 49.

[3][2011] NTCA 3.

[4] [2011] NTCA 3 at para 10.

[5]    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.

[6]    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; Re Suco Gold Pty Ltd (1983) 33 SASR 99.

[7]    That is not factually correct as the 1944 amendment did not vest property on the trustees as pleaded. Rather, it directed the FAC to appoint trustees to hold all property for AIM for the work of the Mission. Consequently, appointments of trustees and transfers of trust assets would still be required.

[8]    An unincorporated association has no legal identity independent of its members and the membership can change from time to time, per Carlton Cricket and Football Social Club v Joseph [1970] VR 487. The individual members of an unincorporated association are personally liable for the liabilities of that association, per Bradley Egg Farm v Clifford [1943] 2 All ER 378.

[9]    See generally the Letcher Affidavit.

[10]    See more detailed discussion in para 45 below.

[11]See more detailed discussion in para 48 below.

[12]    That applied at that time by reason of section 11(b), Schedule 2, para 9A(b) of the Stamp Duty Ordinance (NT) 1978.

[13]    As the enforcement of the lien is a key part of the remedy, if that is not claimed in the prayer for relief, that relief will be unavailable per rule 13.02(1)(c) of the SCR; see also, Dare v Pulham (1982) 148 CLR 658, Benfield v Farebrother [2011] NTSC 65 and Weeks v Bennett (1921) 30 CLR 80.

[14]    Which is not permitted by rule 13.02(1)(a) of the SCR.

[15]    Social Welfare Ordinance 1964 section 4.

[16]    RTA Pty Ltd & Orsv Brinko Pty Ltd & Ors [2012] NTSC 3 following Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568.

[17]    As those terms are used respectively in the Welfare Ordinance 1953-1960 and the Social Welfare Ordinance 1964.

[18]Para 8.3 of the Plaintiff’s written submissions filed 25 January 2021.

[19][1984] 154 CLR 672 at 687.

[20]See para 109.

[21]    Rule 13.09 of the SCR.

[22]See para 19 (at bullet point No 2) and para 69, above.