C and J and D v Australian Capital Territory;; K v Australian Capital Territory
[2014] ACTSC 65
•17 April 2014
C AND J AND D v AUSTRALIAN CAPITAL TERRITORY;
K v AUSTRALIAN CAPITAL TERRITORY
[2014] ACTSC 65 (17 April 2014)
PLEADINGS – whether pleadings disclose a reasonable cause of action – whether pleadings sufficiently particularised – where non-compliance with Court Procedures Rules 2006 (ACT) – non-compliance with rules results in inability to answer whether they disclose a reasonable cause of action – whether claims should be struck out – where claims on foot since 2006 – where defendant filed defences – if reasonable cause of action, plaintiff entitled to have claim determined by court without delay – trial may properly proceed without further pleadings: r 426(2).
Limitation Act1985 (ACT), s 16B
Children and Young Persons Act 1999 (ACT), ss 10, 12
Legislation Act2001 (ACT), s 255(4)
Court Procedures Rules 2006 (ACT), rr 405, 406, 407, 417, 430, 432, 433, 425, 426; Div 2.6.2
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Dare v Pulham (1982) 148 CLR 658
No. SC 693 of 2006
No. SC 38 of 2007
Judge: Nield AJ
Supreme Court of the ACT
Date: 17 April 2014
IN THE SUPREME COURT OF THE ) No. SC 693 of 2006
) No. SC 38 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: C
First Plaintiff
J
Second Plaintiff
D
Third Plaintiff
AND: AUSTRALIAN CAPITAL TERRITORY
Defendant
BETWEEN: K
Plaintiff
AND: AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Nield AJ
Date: 17 April 2014
Place: Canberra
THE COURT ORDERS THAT:
The proceedings numbered SC 693/2006 and SC 38/2007 be tried without further pleadings;
The defendant is to file a list of relevant documents (such as the defendant’s file in respect of K, J and D, and any Court file in respect of K, J and D) within 21 days of the date of these orders;
The plaintiffs to inspect the defendant’s documents listed in the list of documents within 14 days after service of the list of documents;
The parties to prepare an agreed Statement of Facts and Issues within 21 days after the plaintiffs have inspected the defendant’s documents;
If the parties fail to agree upon a Statement of Facts and Issues within the period of 21 days referred to in order 4, either party may apply to the court, on 7 days’ notice to the other party, for the court to settle a Statement of Facts and Issues;
The proceedings be listed for call over by the Registrar to fix a date for hearing on a suitable date after 1 July 2014;
The defendant’s costs of the applications to be the defendant’s costs in the proceedings, to intend that, if the plaintiffs are successful on their claims, then each party will bear its own costs of the applications, but, if the plaintiffs are unsuccessful on their claims, then the plaintiffs will pay the defendant’s costs of the applications.
INTRODUCTION
C is the first plaintiff in proceedings SC 693/2006. She is a former wife of R. She is the mother of K, J, D and A, to all of whom R is the father.
K is the plaintiff in proceedings SC 38/2007. She was born in April 1988. She is now aged nearly 26 years.
J is the second plaintiff in proceedings SC 693/2006. He was born in February 1991. He is now aged 23 years and two months.
D is the third plaintiff in proceedings no SC 693/2006. He was born in May 1994. He is now aged 19 years 11 months.
The Australian Capital Territory is the defendant in both proceedings SC 693/2006 and SC 38/2007. It has been sued for the alleged negligence of staff of the Office of Children, Youth and Family Support, part of the Department of Disability, Housing and Community Services.
Chronology
Taken from the documents filed in the two proceedings, the chronology of known relevant events seems to be –
Date
Event
Source
07/04/1961
C born
Report 01/02/2012 of Dr W Knox
1985
C and R married
Report of Dr Knox
04/1988
K born
Report 29/3/04 of Dr McDonald
02/1991
J born
Report of Dr McDonald
05/1994
D born
Report of Dr McDonald
1998
A born
Report of Dr McDonald
Late 2000
D diagnosed with ADHD
Paragraph 6 of affidavit sworn 02/12/2005 by Meredith Darvill
Early 2001
J diagnosed with Asperger’s Syndrome
Paragraph 6 of affidavit of Ms Darvill
Early 2001
C and R separated; K, J, D and A remained in the care of C
02/05/2001
C signed a Voluntary Care Agreement for the care of J and D for the period 02/05/2001 to 13/06/2001, consenting to J and D living with R
Paragraph 2 of the defendant’s first Statement of Defence
05/2001
J and D placed into the care of R; K and A remained in the care of C
Report of Dr Knox
05/2001
K (then aged 13 years) left C’s home and moved to live in R’s home with J and D; A remained in the care of C
Report of Dr Knox
08/2001
J and D interviewed by Dr R McClymont
Report 25/01/2002 of Dr McClymont
11/12/2001
Case conference in respect of J and D
Report of Dr McClymont
2002
Family Court ordered, by consent, that K, J and D were to live with R
Paragraph 2 of the defendant’s first Statement of Defence
30/07/2003
D placed in foster care
Report 01/05/2004 of Dr T McDonald
05/08/2003
J placed in foster care
Report of Dr McDonald
09/08/2003
K (then aged 15 years) left R’s home and returned to live in C’s home
Page 3 of the report 16/02/2005 of Ms A Harmer
08/2003
R remarried
Report of Dr McDonald
17/12/2003
The ACT Children’s Court declared J and D to be children in need of care and, with the consent of C, it gave parental responsibility for J and D to the Chief Executive for 2 years
Paragraph 4 of the defendant’s first Statement of Defence
After 17/12/2003
J placed into the care of Marymead and D placed into the care of Barnardo’s
Report of Dr McDonald
14/04/2004
J interviewed by Dr McDonald
Report of Dr McDonald
07/2004
C asked the Office for Children, Youth and Family Support for the return of J and D to her care
Paragraph 12 of the affidavit of Ms Darvill
24/10/2004
C agreed with the terms upon which Ms Antoinette Harmer, psychologist, would conduct a family assessment
Paragraph 13 of the affidavit of Ms Darvill; page 2 of the report of Ms Harmer
Between 03/12/2004 and 05/02/2005
Ms Harmer conducted the family assessment required by the Office of Children, Youth and Family Support
Pages 3 and four of the report of Ms Harmer
16/02/2005
Ms Harmer reported to the Office of Children, Youth and Family Support
Report of Ms Harmer
01/04/2005
A “restoration plan”, to commence on 22/04/2005, was formulated by Ms Darvill and agreed with by C for the return of J and D into C’s care
Paragraph 14 of the affidavit of Ms Darvill
19/04/2005
C rejected the “restoration plan”; the return of J and D into the care of C postponed pending agreement between the Office of Children, Youth and Family Support and C
Paragraph 15 of the affidavit of Ms Darvill
05/2005
C diagnosed with a brain tumour; C underwent removal of a benign tumour from her brain
Paragraph 16 of the affidavit of Ms Darvill
08/07/05
J interviewed by Dr Foce
Report 08/07/2005 of Dr Foce
26/08/2005
C interviewed by Dr E O’Brien at the Rehabilitation Out-Patient’s Clinic of Canberra Hospital
Report 30/08/2005 of Dr O’Brien
26/08/2005
C agreed to a “revised restoration plan” for the return of J and D into her care
Paragraph 17 of the affidavit of Ms Darvill
13/09/2005
A “final restoration plan” signed by Ms Darvill and C; this plan, which commenced on 16/09/2005, provided for the gradual return of J and D into the care of C by 17/12/2005
The plan
26/10/2005
C informs Ms Darvill that she may not be able to care for D on a full-time basis
Paragraph 19 of the affidavit of Ms Darvill
08/11/2005
C informed Ms Darvill that she is unable to care for D on a full-time basis and asked that D remain with his foster carers until mid March 2006
Paragraph 20 of the affidavit of Ms Darvill
14/11/2005
C informed Ms Darvill that she will not be “trialling” the restoration plan for D until the first week of the school term of 2006
Paragraph 22 of the affidavit of Ms Darvill
17/12/2005
J returned to live with C (and K and A) on a full-time basis
Annual review report 11/11/2005 of Ms Darvill
February or March 2006
D returned to live with C (and K, J and A) on a full-time basis
I suspect that there are many more relevant events that are not referred to in the documents filed in the proceedings but are contained in documents held by the defendant, the Family Court or the ACT Children’s Court, which will reveal the steps taken by the Office of Children, Youth and Family Support for the care of J and D while they were under the care of the Chief Executive.
THE PROCEEDINGS TO DATE
The First Statement of Claim Proceedings SC 693/2006
By Statement of Claim SC 693/2006, filed in the registry of the Supreme Court on 8 September 2006, C, on behalf of herself, J and D, sued the Chief Executive of the Department of Disability, Housing and Community Services in negligence seeking compensation for:
1.exposing [J] and [D] to physical and emotional abuse by placing them in May 2001 into the care of their father, and
2.placing [J] and [D] in July 2003 into inappropriate foster care.
The First Statement of Claim Proceedings SC 38/2007
By Statement of Claim SC 38/2007, filed in the registry of the Supreme Court on 16 January 2007, K sued the Chief Executive of the Department of Disability, Housing and Community Services in negligence seeking compensation for placing in July 2003 her brothers, J and D, in foster care, thereby separating her from her brothers.
An Application in both proceedings
By Applications, one in SC 693/2006 and the other in SC 38/2007, filed in the registry of the Supreme Court on 29 November 2007, the plaintiffs sought an order that the name of the defendant, “Chief Executive of Department of Disability, Housing and Community Services”, be changed to “The Australian Capital Territory”.
On 10 December 2007, Master Harper ordered (apparently by consent) that the name of the defendant be changed from the Chief Executive of Department of Disability, Housing and Community Services to the Australian Capital Territory.
Amended Statements of Claim
By Amended Statements of Claim, one in SC 293/2006 and the other in SC 38/2007, filed in the registry of the Supreme Court on 10 December 2007, the plaintiffs amended their Statements of Claim by changing the name of the defendant. However, the Amended Statements of Claim were otherwise identical with the earlier Statements of Claim.
A request for particulars in proceedings SC 693/2006
By letter dated 21 January 2008 to her then solicitor, the defendant’s solicitor requested that C, on behalf herself, J and D, provide particulars of their claims. The letter contained 23 questions, most with multiple sub-questions, over six pages.
A request for particulars in proceedings SC 38/2007
By letter dated 22 January 2008 to her then solicitor, the defendant’s solicitor requested that K provide particulars of her claim. This letter was similar in its questions to the defendant’s solicitor’s letter in proceedings SC 693/2006. So far as I am aware, the plaintiff’s then solicitor did not provide any particulars in answer to this letter.
A Defence in proceedings SC 693/2006
Notwithstanding that the plaintiff had not provided particulars of their claim, by Statement of Defence in proceedings SC 693/2006, filed in the registry of the Supreme Court on 10 February 2009, the defendant denied the allegations of negligence made by C, on behalf of herself, J and D, and claimed that C's claim is barred by s 16B of the Limitation Act1985 (ACT).
Particulars in proceedings SC 693/2006
By letter dated 6 March 2009 the plaintiffs’ then solicitor provided particulars of the plaintiffs’ claim in answer to the defendant’s solicitor’s letter dated 22 January 2008. I consider that some of the plaintiffs’ answers to the defendant’s solicitor’s questions were unhelpful and other answers were incomplete.
An Application in proceedings SC 693/2006
By Application, filed in the registry of the Supreme Court on 18 May 2009, the defendant sought orders that:
1. The plaintiff’s [sic] claim be dismissed.
2. The [plaintiffs] pay the [defendant’s] costs of and incidental to this application.
This application raised the question: Do the pleadings plead and articulate the existence of the cause of action?
The hearing of the Application
On 17 June 2009, Master Harper ordered that:
1.The plaintiffs have leave to file a Further Amended Statement of Claim within 28 days.
2.The first plaintiff pay the defendant’s costs of the Application, and those costs not to be recoverable until final orders are made in the action.
I do not know whether these orders were made by consent or after a contested hearing.
A Further Amended Statement of Claim in proceedings SC 693/2006
By Further Amended Statement of Claim, filed in the registry of the Supreme Court on 13 July 2009, the first plaintiff, C, for herself, J and D, completely recast the first Statement of Claim (see paragraph 7 above); other than paragraph 4, nothing was left of the first Statement of Claim. However, in broad terms, by her Further Amended Statement of Claim she claimed compensation for herself, J and D for the alleged failure of the defendant “to ensure that [J and D] were looked after in the manner required by the Act” during the period of care of them by the Office of Children, Youth and Family Support or the Chief Executive.
Another request for particulars in proceedings SC 693/2006
By letter dated 23 August 2010 to her then solicitor, the defendant’s solicitor requested that C, on behalf herself, J and D, provide particulars of their claims. Unsurprisingly, in view of the almost complete recasting of their claims, the letter contained 162 questions, many with multiple sub-questions, over 36 pages. I note that, notwithstanding the request for particulars, the defendant’s solicitor considered the plaintiffs’ Further Amended Statement of Claim to be defective.
Further particulars in proceedings SC 693/2006
By letter dated 19 September 2011 the plaintiffs’ new solicitor provided particulars of the plaintiffs’ claim in answer to the defendant’s solicitor’s letter dated 23 August 2010. I consider that, although some of the answers were unhelpful and some of the other answers raised argument, the answers provided the defendant with a broad outline of the plaintiffs’ claims.
Another defence in proceedings SC 693/2006
By Statement of Defence to Further Amended Statement of Claim, filed in the registry of the Supreme Court on 15 December 2011, the defendant, although not denying the provisions of the Children and Young Persons Act 1999 (ACT), denied that it owed a duty of care to any of the plaintiffs and, in any event, denied that it was negligent as alleged by the plaintiffs.
A Further Amended Statement of Claim in proceedings SC 38/2007
By Further Amended Statement of Claim, filed in the registry of the Supreme Court on 4 October 2012 pursuant to an order made by consent on October 2012, the plaintiff, K, like the plaintiffs in proceedings SC 693/2006, almost completely recast the second Statement of Claim (see paragraph 8 above) to follow, in general terms, the form of the Further Amended Statement of Claim in proceedings SC 693/2006.
Another Defence in proceedings no SC 38/2007
By Statement of Defence to Further Amended Statement of Claim, filed in the registry of the Supreme Court on 5 November 2012, the defendant, as it had done in proceedings SC 693/2006, denied that it owed the plaintiff a duty of care and that it was negligent as alleged by the plaintiff.
A third request for particulars in proceedings SC 693/2006
Although the defendant’s Statement of Defence had been filed (see paragraph 22 above), the defendant’s solicitor was not content with the plaintiffs’ answers (see paragraph 20 above) to his request for particulars (see paragraph 19 above) and so, by letter dated 1 February 2013, the defendant’s solicitor raised with the plaintiffs’ solicitor a number of issues related to the plaintiffs’ Further Amended Statement of Claim and to the particulars of their claim. I consider that this letter, which covered 27 pages, was unnecessary as it was argumentative.
However, by letter dated 19 February 2013 the plaintiffs’ solicitor answered the defendant’s solicitor’s letter of 1 February 2013. This letter rebutted the defendant’s solicitor’s arguments; moreover, it confirmed (if “confirmed” is the accurate word) that the plaintiffs’ claim was based upon a breach of duty “imposed by common law and by statute” and that “the statutory duty” “is to be found in Sections 10 and 12 of the Children and Young Persons Act 1999 (ACT)”.
Unfortunately, the plaintiffs’ solicitor’s letter dated 19 February 2013 prompted a letter from the defendant’s solicitor. This letter is dated 21 March 2013. The defendant’s solicitor repeated his assertion that the plaintiffs’ Further Amended Statement of Claim did not disclose a cause of action and that the particulars provided by the plaintiffs were inadequate.
Finally, in answer to the defendant’s solicitor’s letter dated 21 March 2013, the plaintiffs’ solicitor wrote, by letter dated 4 April 2013, saying that the pleading was “adequate”.
A third request for particulars in proceedings SC 38/2007
The plaintiffs’ solicitor, by letter dated 19th of February 2013, informed the defendant’s solicitor that the letter dated 19 February 2013 in the proceedings SC 693/2006 of C and others should be “adopt[ed]” “in answer to your request of 1 February 2013 in these proceedings”.
Another application in both proceedings
By applications, one in the SC 693/2006 and the other in SC 38/2007, filed in the registry of the Supreme Court on 19 April 2013, the defendant sought orders that:
1.The plaintiffs’ claim be dismissed.
2.In the alternative, the plaintiffs provide further particulars of their claim by 7 June 2013.
3.Costs.
These applications raised the questions:
1. Do the pleadings disclose a reasonable cause of action?
2. Are the pleadings sufficiently particularised?
THE HEARING OF THE APPLICATIONS
On 6 June 2013, the applications came on for hearing before me. Mr E. Pike, of counsel, appeared for the defendant and Mr R Clynes, of counsel, appeared for the plaintiffs. In addition to a number of documents provided by the parties, I had Mr Pike’s submissions (dated 22/05/2013), Mr Clynes’ submissions (dated 31/05/2012 [sic]) and Mr Pike’s submissions in reply (dated 6/06/2013). After hearing submissions from Mr Pike and Mr Clynes, I reserved my judgment.
The starting point – pleadings
The starting point is Division 2.6.2 Rules of Pleading in the Court Procedures Rules 2006 (ACT) (Court Procedures Rules). The Rules provide that:
Rule 405 – Pleadings – Formal Requirements
(1)Each pleading must be in writing.
(2)If a pleading alleges or otherwise deals with several matters—
(a)the pleading must be divided into paragraphs; and
(b)each matter must, as far as convenient, be put in a separate paragraph; and
(c)the paragraphs must be numbered consecutively.
(3)If a plaintiff seeks relief in relation to 2 or more distinct claims based on different grounds, they must be stated, as far as possible, separately.
(4)If a defendant relies on 2 or more distinct grounds of defence, set-off or counterclaim based on different facts, they must be stated, as far as possible, separately.
(5)If a pleading is settled by counsel, it must state—
(a)that it was settled by counsel; and
(b)counsel’s name.
NoteDiv 6.3.1 (General provisions about documents for filing) contains provisions about formal requirements for documents (including pleadings) to be filed, see esp r 6103 (1) (Documents—layout etc) and r 6106 ((Documents—signing).
Rule 406 – Pleadings – Statements in
(1)Each pleading must—
(a)be as brief as the nature of the case allows; and
(b)contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved; and
(c)state specifically any matter that if not stated specifically may take another party by surprise; and
(d)subject to rule 419 (Pleadings—other relief), state specifically any relief the party claims; and
(e)if a claim or defence under a statute is relied on—identify the specific provision of the statute.
(2)A party may raise a point of law in a pleading if the party also pleads the material facts in support of the point.
Rule 407 – Pleadings – Matters to be specifically pleaded
(1)Without limiting rule 406, the following matters must be specifically pleaded:
(a)an accident the cause of which is unknown and undiscoverable;
(b)breach of contract or trust;
(c)breach of statutory duty;
NoteSee r 432 (Pleadings—negligence and breach of statutory duty).
(d)damages of every kind claimed, including, for example, special and exemplary damages;
NoteSee also r 417 (Pleadings—kind of damages etc).
(e)duress;
(f)estoppel;
(g)extinction of right or title;
(h)fraud or illegality;
(i)interest (including the rate of interest and method of calculation) claimed;
(j)malice or ill will;
(k)misrepresentation;
(l)motive, intention or other condition of mind, including knowledge or notice;
(m)negligence or contributory negligence;
NoteSee r 432 (Pleadings—negligence and breach of statutory duty).
(n)payment;
(o)performance or part performance;
(p)release;
(q)statute of limitations;
(r)a statute requiring that contracts be in, or evidenced by, writing (for example, statute of frauds);
(s)undue influence;
(t)voluntary assumption of risk;
(u)waiver;
(v)want of capacity, including disorder or disability of mind;
(w)that a testator did not know and approve of the contents of a will;
(x)that a will was not properly made;
(y)wilful default;
(z)anything else required by a practice note to be specifically pleaded.
NoteAn example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.
(3)In a defence or pleading after a defence, a party must specifically plead any matter that—
(a)the party alleges makes a claim or defence of the opposite party not maintainable; or
(b)shows a transaction is void or voidable; or
(c)raises an issue of fact not arising out of a previous pleading.
Rule 417 – Pleadings – kind of damages etc
(1)If damages are claimed in a pleading, the pleading must state—
(a)each kind of damages claimed; and
(b)for any damages that are not general damages—the amount of the damages claimed that is known to the party.
(2)Without limiting rule 407 (1) (d) (Pleadings—matters to be specifically pleaded), a party claiming general damages must include the following particulars in the party’s pleading:
(a)the nature of the loss or damage suffered;
(b)the exact circumstances in which the loss or damage was suffered.
(3)If practicable, the party must also plead each kind of general damages and state the nature of the damages claimed for each kind.
The second point – particulars
The second point is Division 2.6.4 particulars in the Court Procedures Rules, which provides that:
Rule 430 – pleadings – all necessary particulars must be included
(1)A party must include in a pleading particulars necessary to—
(a)define the issues for, and prevent surprise at, the trial; and
(b)enable the opposite party to identify the case that the pleading requires the opposite party to meet; and
(c)support a matter specifically pleaded under rule 407 (Pleadings—matters to be specifically pleaded).
(2)This rule does not require a party to include in a pleading particulars of any claim for interest up to judgment other than those required by rule 51 (2) (Originating claim—additional matters for claims for debt and liquidated demands) or rule 304 (2) (Third-party notice—additional matters for claims for debt and liquidated demands).
Rule 432 – pleadings – negligence and breach of statutory duty
(1)If a party pleads negligence (whether contributory or otherwise) or breach of statutory duty, the particulars must state the facts and circumstances of the negligent act or omission or breach of statutory duty.
(2)Also, if the party alleges 2 or more negligent acts or omissions or breaches of statutory duty, the particulars must, as far as practicable, state separately the facts and circumstances of each negligent act or omission or breach of statutory duty.
Rule 433 – pleadings – how particulars must be given
(1)The particulars to be given by a pleading must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading.
(2)Further particulars may be given by correspondence.
(3)A party giving further particulars must file a copy of the particulars.
The purpose of pleadings and particulars
Pleadings and particulars have two functions; the first is to identify the issues, the resolution of which will determine the outcome of the proceedings; and the second is to apprise the opposite party of the case to be met; as revealed by such authorities as:
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it... they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial...and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.: Dare v Pulham (1982) 148 CLR 658 at 664.
The function of pleadings is to state with sufficient clarity the case that must be met... In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.
Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219.
The basis for the defendant’s applications
The defendant’s applications are brought pursuant to r 425 of Division 2.6.3 of the Court Procedures Rules, which provides that:
Rule 425 – pleadings – striking out
(1)The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading—
(a)discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or
(b)may tend to prejudice, embarrass or delay the fair trial of the proceeding; or
(c)is frivolous, scandalous, unnecessary or vexatious; or
(d)is otherwise an abuse of the process of the court.
Note 1The registrar may also reject a document that is filed if it does not comply with these rules (see r 6140 (Rejecting documents—noncompliance with rules etc) or if it is an abuse of the court’s process or is frivolous or vexatious (see r 6142 (Rejecting documents—abuse of process etc)).
Note 2Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Note 3Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.
(2)The court may receive evidence on the hearing of an application for an order under this rule.
(3)If the court makes an order under this rule, it may also make any other order it considers appropriate, including, for example—
(a)if the court makes an order under subrule (1) (a)—an order staying or dismissing the proceeding or entering judgment; and
(b)an order about the future conduct of the proceeding.
NoteAn example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The first question – do the Further Amended Statements of Claim comply with the Court Procedures Rules?
Mr Pike, counsel for the defendant, submitted, in broad terms, that the plaintiffs’ Further Amended Statements of Claim do not comply with rr 405(3), 406(1), 407(1)(c) and (m), 430(1), 432(1) and 433 of the Court Procedures Rules, in that, again in broad terms, they do not specify whether the duty, a breach of which is alleged, was a common law duty or a statutory duty; they do not plead the facts to establish a duty, whether a common law duty or a statutory duty; and they do not plead the facts to show a breach of the duty, whether a common law duty or a statutory duty.
Mr Clynes, counsel for the plaintiffs, submitted in broad terms, that the form of the plaintiffs’ Further Amended Statements of Claim substantially complies with form 2.5 of the approved forms (as to which, see, by analogy, rr 53(2) and 6106 of the Court Procedures Rules and s 255(4) of the Legislation Act2001 (ACT)), in that they state the time, date and place of the acts or omissions constituting negligence, the particulars of that negligence and the injury suffered by each plaintiff, such that the defendant has notice of the case to be met, providing the issues for discovery and setting the parameters of the evidence that might be led and tested at a hearing.
Finding – The Further Amended Statements of Claim do not comply with the Court Procedures Rules
I can guess, from a reading of the Further Amended Statements of Claim and the plaintiffs’ solicitor’s letters providing particulars of the claims, that the plaintiffs in each proceedings allege a breach of a common law duty and a breach of statutory duty claimed to be owed to them by the defendant (in the form of the Office of Children, Youth and Family Support) because, in the cases of J and D, they were placed into inappropriate care and because, in the case of K, she was separated between 2003 and 2005 from J and D.
But guessing is not good enough. The Further Amended Statements of Claim should comply with the Rules so that the trier of the proceedings would realise by reading the Statements of Claim, which should include all relevant particulars, what claim or claims are made by the plaintiffs and the basis in fact for the claim or claims. I accept that the Further Amended Statements of Claim do not comply with the Rules.
The second question – do the Further Amended Statements of Claim disclose a reasonable cause of action?
Because the Further Amended Statements of Claim do not comply with the Court Procedures Rules, I cannot say that they disclose a reasonable cause of action. However, that said, I am not prepared to say that J and D could not have a reasonable cause of action if their claims are properly pleaded, although I would doubt, on the basis of the known events (see paragraph 6 above), that C and K have a reasonable cause of action.
RESULT
As the plaintiffs’ claims relate to events which occurred between May 2001 and February/March 2006 (as revealed by the chronology of known relevant events), as the plaintiffs’ claims have been on foot since 2006, and as the defendant has filed a Statement of Defence to each Further Amended Statement of Claim, I do not intend to order, pursuant to r 425(1)(a) of the Court Procedures Rules, that the plaintiffs’ Further Amended Statements of Claim be struck out, because the plaintiffs, if each of them has a reasonable cause of action, are entitled to have their claims determined by the Court without further delay.
Rather, I intend to make use of r 426 of the Court Procedures Rules, which provides that:
Rule 426 – pleadings – trial without
(1)This rule applies if, in a proceeding, the court considers that—
(a)the issues between the parties can be defined without pleadings or further pleadings; or
(b)for any other reason the proceeding may properly be tried without pleadings or further pleadings.
(2)The court may order that the proceeding be tried without pleadings or further pleadings.
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(3)If the court makes an order under subrule (2), it may order the parties to prepare a statement of facts and issues involved in the proceeding or, if the parties do not agree on a statement, may settle a statement itself.
I consider that, notwithstanding that the plaintiffs’ Further Amended Statements of Claim do not comply with the Court Procedures Rules, each proceeding may properly be tried without further pleadings.
ORDERS
I make the following orders:
1. The proceedings numbered SC 693/2006 and SC 38/2007 be tried without further pleadings;
2. The defendant is to file a list of relevant documents (such as the defendant’s file in respect of K, J and D, and any Court file in respect of K, J and D) within 21 days of the date of these orders;
3. The plaintiffs to inspect the defendant’s documents listed in the list of documents within 14 days after service of the list of documents;
4. The parties to prepare an agreed Statement of Facts and Issues within 21 days after the plaintiffs have inspected the defendant’s documents;
5. If the parties fail to agree upon a Statement of Facts and Issues within the period of 21 days referred to in order 4, either party may apply to the court, on 7 days’ notice to the other party, for the court to settle a Statement of Facts and Issues;
6. The proceedings be listed for call over by the Registrar to fix a date for hearing on a suitable date after 1 July 2014;
7. The defendant’s costs of the applications to be the defendant’s costs in the proceedings, to intend that, if the plaintiffs are successful on their claims, then each party will bear its own costs of the applications, but, if the plaintiffs are unsuccessful on their claims, then the plaintiffs will pay the defendant’s costs of the applications.
COMMENTS
It is obvious, I think, that Dr Knox based his reports upon incomplete material and that, therefore, his reports are next to useless.
K should, I suggest, consider her position carefully, as the known relevant facts do not show that the Office of Children, Youth and Family Support made any decision as to where she would live or who would care for her or that it was under any duty to make any such decision in relation to her.
I certify that the preceding forty six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Nield.
Associate:
Date: 17 April 2014
Counsel for the Plaintiffs: Mr R.Clynes
Solicitor for the Plaintiffs: Blumers Personal Injury Lawyers
Counsel for the Defendant: Mr F. Pike
Solicitor for the Defendant: ACT Government Solicitor
Date of hearing: 6 June 2013
Date of judgment: 17 April 2014
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