Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) (No 2)
[2025] FCA 238
•21 March 2025
FEDERAL COURT OF AUSTRALIA
Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) (No 2) [2025] FCA 238
File number(s): VID 932 of 2024 Judgment of: HORAN J Date of judgment: 21 March 2025 Catchwords: CORPORATIONS – civil penalty proceedings – alleged contraventions of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – where relief sought includes declarations and pecuniary penalties – alleged breaches of National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) – where prohibition under Disability Act 2006 (Vic) on use of physical restraints on NDIS participants or person with disability – alleged use of prohibited restrictive practices on NDIS participants in contravention of NDIS Act – whether Commissioner should be required to provide a statement of claim
PRACTICE AND PROCEDURE – concise statement method – use of concise statement in civil penalty proceedings – whether applicant should be required to file and serve statement of claim – whether sufficient particulars of allegations in concise statement – whether unfairness in requiring respondents to read concise statement together with multiple additional documents
Legislation: Corporations Act 2001 (Cth) s 500(2)
Federal Court of Australia Act 1976 (Cth) s 37M
National Disability Insurance Scheme Act 2013 (Cth) ss 73J, 73V
Federal Court Rules 2011 (Cth) pt 16, r 16.43
National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) rr 5(2), 6
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) r 6
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Disability Act 2006 (Vic) ss 27(5B), 132ZY
Cases cited: Australian Communications and Media Authority v Jones (No 3) [2023] FCA 511
Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388
ASIC v Australia and New Zealand Banking Group Ltd [2023] FCA 1150; (2023) 169 ACSR 649
ASIC v Bettles [2020] FCA 1568
ASIC v National Australia Bank Ltd (No 2) [2023] FCA 1118; (2023) 171 ACSR 176
ASIC v Ryan [2024] FCA 1267
ASIC v Westpac Securities Administration Ltd (2019) 272 FCR 170
Australian Communications and Media Authority v Jones (No 3) [2023] FCA 511
Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) [2024] FCA 1468
Division: General Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 57 Date of hearing: 14 February 2025 Counsel for the Applicant: Mr P Collinson KC with Mr C Tsang Solicitor for the Applicant: NDIS Quality and Safeguards Commission Solicitor for the First Respondent: The First Respondent did not appear Counsel for the Second and Third Respondents: Ms K O’Gorman SC with Ms R Walsh Solicitor for the Second and Third Respondents: K&L Gates ORDERS
VID932/2024 BETWEEN: COMMISSIONER OF THE NDIS QUALITY AND SAFEGUARDS COMMISSION
Applicant
AND: IRABINA AUTISM SERVICES (IN LIQUIDATION) ACN 006 245 996
First Respondent
DEBRA GOLDFINCH
Second Respondent
REBECCA GOLDFINCH
Third Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
21 MARCH 2025
THE COURT NOTES THAT:
1.Any orders requiring the second respondent or the third respondent to perform tasks or take steps are subject to any claim which they may make in reliance on the privileges against self-incrimination or self-exposure to a civil penalty.
THE COURT ORDERS THAT:
1.The second and third respondents’ interlocutory application dated 20 December 2024 be dismissed.
2.By 4.00 pm on 18 April 2025, the second and third respondents (individually or together) file and serve a concise statement in response, which must not exceed 5 pages. Except in so far as the second and third respondents rely upon the privilege against self-incrimination or self-exposure to a penalty, their concise statement in response shall set out the matters on which they rely in response to the Commissioner’s concise statement, as supplemented by the particulars dated 15 November 2024 and further particulars dated 13 December 2024, as amended on 13 February 2025, including any relevant defence or ground of dispensation on which they intend to rely.
3.By 4.00 pm on 2 May 2025, the applicant file and serve any concise statement in reply to the concise statement in response, which must not exceed 3 pages.
4.The proceeding be referred to mediation before a Registrar on or before 23 May 2025, the costs of which are to be borne equally by:
(a)the applicant; and
(b)the second and third respondents.
5.By 4.00 pm on 27 June 2025, the applicant file and serve any:
(a)lay affidavits it proposes to read; and
(b)lay witness statements or outlines of evidence it proposes to tender or rely upon.
6.By 4.00 pm on 25 July 2025, the applicant file and serve any expert evidence it proposes to rely upon.
7.By 4.00 pm on 8 August 2025, the applicant file and serve a list of any documents upon which it intends to rely at trial.
8.By 4.00 pm on 5 September 2025, subject to any claim to be relieved of any obligation to do so by reason of any privilege, the second and third respondents file and serve:
(a)any expert evidence on which they intend to rely at the trial;
(b)any affidavits, witness statements or outlines of lay evidence in chief on which they intend to rely at the trial from any person other than the second respondent or the third respondent; and
(c)a list of any documents upon which they intend to rely at trial.
9.The matter be listed for a further case management hearing on a date to be fixed after 15 September 2025.
10.Costs be reserved.
11.The parties have liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J
In this proceeding, the Commissioner of the NDIS Quality and Safeguards Commission seeks declarations of contravention and pecuniary penalty orders against each of the respondents in respect of alleged contraventions of ss 73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and rr 6(c), (d) and (e) of the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth).
The proceeding was commenced using the “concise statement method”, with an originating application accompanied by a concise statement dated 13 September 2024: see Central Practice Note: National Court Framework and Case Management (CPN-1) (7 February 2025), [6.8]–[6.10]; see also the Commercial and Corporations Practice Note (C&C-1) (7 February 2025), [5.4]–[5.9].
The first respondent, Irabina Autism Services, is in liquidation. On 18 October 2024, I granted leave to the Commissioner pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence and proceed with the proceeding against Irabina, on the Commissioner’s undertaking not to enforce any pecuniary penalty order or costs order against Irabina unless there is a surplus of assets in the liquidation: Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) [2024] FCA 1468.
The second and third respondents are Debra Goldfinch, the former Chief Executive Officer of Irabina, and her daughter Rebecca Goldfinch, Irabina’s former General Manager Specialist Services and Authorised Program Officer. For convenience, I will refer to Debra and Rebecca together as the respondents.
By an interlocutory application dated 20 December 2024, which is supported by an affidavit of John Alexander Monroe affirmed 16 October 2024, the respondents seek orders that the proceeding against them proceed by statement of claim in accordance with the Federal Court Rules 2011 (Cth), along with orders for the Commissioner to file and serve a statement of claim and for the respondents to file and serve a defence. The Commissioner opposes the respondents’ application.
For the following reasons, I consider that it is appropriate for the case to continue by way of the concise statement method, and that the Commissioner should not be required to file and serve a statement of claim. Accordingly, the respondents’ interlocutory application is dismissed.
BACKGROUND
Irabina provided disability support services in Victoria as a registered National Disability Insurance Scheme (NDIS) provider.
Omitting relevant dates, the Commissioner alleges in the originating application that:
(a)Irabina used prohibited restrictive practices on NDIS participants or persons with disability contrary to the Code of Conduct, the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth);
(b)by using prohibited restrictive practices and continuing to train staff on the use of prohibited restrictive techniques notwithstanding concerns that had been raised by third parties about such use, Irabina failed promptly to take steps to act on concerns raised about matters that may impact the quality and safety of supports and services provided to people with disability; and
(c)Irabina employed or continued to employ Rebecca in roles with responsibility for authorisation and delivery of supports or services to persons with disability, in circumstances where she was not competent in relation to those roles and did not possess relevant expertise or experience.
The Commissioner alleges against Debra that (omitting relevant dates):
(a)by permitting Irabina to use prohibited restrictive practices and to train staff on the use of prohibited restrictive techniques within its severe behaviour program, Debra failed to provide supports and services in a safe and competent manner or with care and skill;
(b)by failing to prevent Irabina’s use of prohibited restrictive practices and continued training on and use of prohibited restrictive techniques within its severe behaviour program, and by failing to remove Rebecca from her roles and positions, Debra did not promptly take steps to act on concerns raised about matters that may impact the quality and safety of supports and services provided to people with disability; and
(c)by permitting Irabina to continue to employ and promote Rebecca to positions of influence or responsibility over the provision of supports or services when she knew her to be neither experienced nor competent to undertake those roles, and by taking action to minimise or avoid criticism of her daughter’s competence by Irabina personnel, Debra failed to act with integrity, honesty and transparency in providing supports or services to people with disability.
The Commissioner alleges against Rebecca that (omitting relevant dates):
(a)by failing to prevent, or otherwise permitting, each use by Irabina of prohibited restrictive practices, Rebecca failed to provide supports and services in a safe and competent manner or with care and skill; and
(b)by failing to prevent the use of prohibited restrictive practices and continued training on and use of prohibited restrictive techniques within Irabina’s severe behaviour unit after concerns had been raised about Irabina’s proposed or potential use of prohibited restrictive practices, Rebecca failed promptly to take steps to act on concerns raised about matters that may impact the quality and safety of supports and services provided to people with disability.
The Commissioner alleges that the above matters amount to contraventions of ss 73J and 73V of the NDIS Act and rr 6(c), (d) and (e) of the Code of Conduct, as in force during the relevant period (between 10 September 2019 and around 28 June 2021).
Section 73J of the NDIS Act provides:
73J Registered NDIS providers must comply with conditions of registration
A person contravenes this section if the person:
(a) is a registered NDIS provider; and
(b) breaches a condition to which the registration of the person is subject.
Civil penalty: 250 penalty units.
Section 73V of the NDIS Act provides:
73V NDIS Code of Conduct
(1)The National Disability Insurance Scheme rules may make provision for or in relation to a code of conduct that applies to either or both of the following:
(a) NDIS providers;
(b)persons employed or otherwise engaged by NDIS providers or members of the key personnel of NDIS providers.
(2)Rules made for the purposes of subsection (1) are to be known as the NDIS Code of Conduct.
(3) A person contravenes this section if the person:
(a)is subject to a requirement under the NDIS Code of Conduct; and
(b) fails to comply with the requirement.
Civil penalty: 250 penalty units.
The Code of Conduct covers NDIS providers, and persons employed or otherwise engaged by NDIS providers or members of the key personnel of NDIS providers: r 5(2). As in force at the relevant time, r 6 of the Code of Conduct relevantly provided:
6 NDIS Code of Conduct
In providing supports or services to people with disability, a Code‑covered person must:
…
(c)provide supports and services in a safe and competent manner, with care and skill; and
(d)act with integrity, honesty and transparency; and
(e)promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability; …
The Commissioner’s concise statement sets out the important facts giving rise to the claim, including the allegations regarding the use by Irabina of prohibited restricted practices on NDIS participants (specifically children on the autism spectrum) within its severe behaviour program at Bayswater, Victoria, and the training of staff on practices and procedures comprising the “Marcus Crisis Prevention Program” (MCPP), which is alleged to have involved the use of prohibited restrictive practices.
The Commissioner alleges in her concise statement that, at all relevant times, Commonwealth and Victorian legislation required that “regulated restrictive practices” (as defined in r 6 of the Behaviour Support Rules), including physical restraints, could only be used if authorised and could not be used if prohibited. The Commissioner further alleges that, on 5 September 2019, the Senior Practitioner issued a written prohibition under s 27(5B) of the Disability Act 2006 (Vic) that prohibits registered NDIS providers from using specified forms of physical restraint in Victoria on a NDIS participant or any person with a disability (the VSP Prohibition) and, on 10 September 2019, the acting Senior Practitioner issued a written direction under s 132ZY of the Disability Act requiring compliance with the Senior Practitioner Physical Restraint Direction Paper: Guidelines and Standards for Physical Restraint as amended from time to time (the VSP Direction Paper).
The Commissioner’s concise statement proceeds to address the allegations against the respondents, including the alleged failure by them to act on concerns raised about the use of prohibited restrictive practices, and to articulate the primary legal grounds for the relief sought against each of them.
Several weeks after the proceeding was commenced, the respondents’ legal representatives wrote to the Commissioner’s legal representatives, requesting the Commissioner to consent to filing a statement of claim in the proceeding.
In response, the Commissioner proposed that orders be made for the respondents to identify the matters within the concise statement in respect of which particulars were sought, and that the proceeding continue by way of concise statement. The Commissioner’s legal representatives stated that
… [t]his proposal would ensure that only the matters that may be in issue in the proceedings are the focus of further particularisation, and would avoid unnecessary cost and delay on the part of the Applicant (and, in turn, the Respondents) having to plead matters already adequately particularised or uncontroversial as between the parties.
By letter dated 14 October 2024, the respondents’ legal representatives advised that they did not agree that a formal statement of claim was unnecessary or inappropriate, nor that it was appropriate for the proceeding to continue by way of concise statement. The respondents reserved their position on whether to press for a statement of claim until they were in a position to assess whether the provision of particulars had cured the perceived deficiencies in the articulation of the Commissioner’s case.
On 18 October 2024, orders were made for each of the respondents to serve a request for particulars of allegations made in the Commissioner’s concise statement and for the Commissioner to file a response to any such request for particulars, following which the respondents could file an application for an order that the proceeding proceed by way of statement of claim or that the Commissioner file an amended concise statement.
On 1 November 2024, the respondents served on the Commissioner a request for particulars of the Commissioner’s concise statement. On 15 November 2024, the Commissioner gave particulars in response to that request.
Pursuant to orders made on 25 November 2024, the respondents served a request for further clarification of the particulars given by the Commissioner. At the same time, the respondents’ legal representatives invited the Commissioner to consider filing and serving a statement of claim which would incorporate the concise statement and the further particulars, and address various “problems” that were said to arise from the Commissioner’s case. On 13 December 2024, the Commissioner provided a response to the further request for particulars.
THE RESPONDENTS’ INTERLOCUTORY APPLICATION
The respondents submit that the proceeding should proceed by way of statement of claim and subsequent pleadings in accordance with Part 16 of the Rules.
In their submissions in support of the interlocutory application, the respondents refer to the “central allegation” in paragraph [26] of the Commissioner’s concise statement that Debra (as the CEO of Irabina) had failed to provide supports and services in a safe and competent manner or with care and skill, in breach of r 6(c) of the Code of Conduct and in contravention of s 73V of the NDIS Act, “by permitting Irabina to train on and use prohibited restrictive techniques, and use prohibited restrictive practices, within its severe behaviour program on and from 10 September 2019”. Analogous allegations to similar effect are made against Irabina and Rebecca in respect of using, or permitting or failing to prevent the use of, prohibited restrictive practices on and from 10 September 2019: see paras [23]–[24] and [28] of the Commissioner’s concise statement.
The “prohibited restrictive practices” are defined in the Commissioner’s concise statement by reference to the VSP Prohibition, which describes eight categories of physical restraints (as defined in the Behaviour Support Rules) that a registered NDIS provider is prohibited from using on a NDIS participant or any person with a disability, namely:
i. the use of prone restraint (subduing a person by forcing them into a face down position)
ii. the use of supine restraint (subduing a person by forcing them into a face-up position)
iii. pin downs (subduing a person by holding down their limbs, or any part of the body such as their arms or legs)
iv. basket holds (subduing a person by wrapping your arm/s around their upper and/or lower body)
v. takedown techniques (subduing a person by forcing them to free-fall to the floor or by forcing them to fall to the floor with support)
vi. any physical restraint that has the purpose of effect of restraining or inhibiting a person’s respiratory or digestive functioning
vii. any physical restraint that has the effect of pushing the person’s head forward onto their chest
viii. any physical restraint that has the purpose or effect of compelling a person’s compliance through the infliction of pain, hyperextension of joints, or by applying pressure to the chest or joints
However, the respondents contend that the Commissioner’s concise statement does not attempt to describe or provide meaningful particulars of the prohibited restrictive techniques and prohibited restrictive practices that are the subject of the central allegation, that is, the kinds of physical restraints that are alleged to have been used or permitted by the respondents and the categories of prohibited restrictive practices into which they fall.
The respondents submit that these deficiencies have not been cured by the Commissioner’s responses to their request for particulars. In those responses, the Commissioner refers to the training of staff employed in the severe behaviour program at Irabina, including various identified “defensive and restrictive manoeuvres” forming part of the MCPP, by reference to a training manual and slides that are said to contain the prohibited restrictive techniques on which Irabina staff were trained. However, the respondents complain that the Commissioner has not provided “basic particulars” of the central allegation, including by failing to identify the individuals who are alleged to have engaged in each of the restrictive practices.
The respondents submit that concise statements are not necessarily well-suited to civil penalty proceedings, at least in cases involving complicated factual and legal issues. This is particularly so in proceedings against natural persons, who are entitled to claim the privilege against self-exposure to civil penalties. The respondents’ concern is that the use of the concise statement method in the present case would not afford them procedural fairness in circumstances where:
(a)the Commissioner “has disclosed the most central aspects of her case only iteratively, and in a number of documents, and only after repeated requests for particulars”; and
(b)the Commissioner “is still yet to remedy significant ongoing deficiencies in the pleading of her case”.
In respect of the first issue, the respondents complain that the case to be advanced by the Commissioner can only be understood by reading a number of documents together (that is, the concise statement together with the first and second requests for particulars and the first and second responses to those requests). The respondents submit that this is “needlessly complicated” and may lead to misunderstandings resulting in procedural unfairness, and that the provision of a single comprehensive statement of claim will promote the efficient resolution of the case by avoiding the need to read five documents together.
In respect of the alleged pleading deficiencies, the respondents submit that the Commissioner has failed, despite repeated requests, to identify the persons at Irabina who are alleged to have carried out the physical restraints constituting the prohibited restrictive practices. Without such particulars, the respondents submit that they have “no way of interrogating their memories of events to ascertain whether [the Commissioner’s] allegations are true or not”.
Further, the respondents submit that the Commissioner has sought to use the concise statement method to avoid providing a “complete set of allegations” that would be required under the Rules, including by giving particulars of allegations of knowledge (for example, the allegations that Debra knew that staff at Irabina were using prohibited restrictive practices or were being trained on prohibited restrictive techniques): cf. r 16.43 of the Rules. The respondents also complain that the Commissioner has attempted to plead only a “sample” of the central allegations that constitute her case — for example, by failing to identify the “complete” set of occasions on which it is alleged that Debra observed the use of physical restraints, or actively encouraged other staff to do so.
The Commissioner opposes the making of orders to require the proceeding to continue by way of pleadings, rather than by the concise statement method. Noting the extensive particulars and documents that have been provided by the Commissioner in response to the respondents’ requests, the Commissioner submits that requiring a statement of claim to be filed would not advance the overarching purpose set out in s 37M of Federal Court of Australia Act 1976 (Cth) (FCA Act) to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. The Commissioner submits that her case and the material facts upon which she relies are sufficiently disclosed in the concise statement together with the particulars given on 15 November 2024 and 13 December 2024.
In particular, the Commissioner submits that a concise statement can be read together with further material such as particulars, for the purposes of disclosing a party’s case: see Australian Communications and Media Authority v Jones (No 3)[2023] FCA 511 at [44]–[48] (Thomas J); ASIC v National Australia Bank Ltd (No 2) [2023] FCA 1118; (2023) 171 ACSR 176 (NAB (No 2)) at [35] (Derrington J). The particulars given by the Commissioner identify each alleged use of prohibited restrictive practices, including the date and (in most instances) the time of that use and the NDIS participant against whom the practice was used. Further, the Commissioner indicated that she has video footage of almost all of the alleged use of prohibited restrictive practices, which she is prepared to provide to the respondents in order to assist them in responding to the concise statement. The Commissioner submits that the identity of the particular employees involved in each alleged use is not a material fact, and is not necessary to a proper understanding the Commissioner’s case. The Commissioner denies that the concise statement method is being used to avoid providing a complete set of allegations which would otherwise be required under the Rules, and submits that sufficient particulars have been provided of Debra’s alleged knowledge and encouragement of the use of prohibited restrictive practices.
Accordingly, the Commissioner submits that the preparation of a statement of claim in the present case would be an unnecessary, duplicative and costly exercise, in circumstances where the concise statement and particulars sufficiently inform the respondents of the case against them. In so far as there are any specific and narrow aspects of the Commissioner’s case that have not been sufficiently disclosed, the Commissioner submits that the most efficient course would be the provision of particulars or the filing of further material addressing those specific aspects of her claim.
CONSIDERATION
As stated in paragraph [6.8] of the Central Practice Note,
… [t]he purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute, as well as the essential relief sought from the Court before incurring what might be the considerable cost of preparation of detailed pleadings.
A concise statement is not simply a “short form of pleading”; rather it is to be “prepared more in the nature of a pleading summons, and may be drafted in a narrative form”: Central Practice Note, [6.8]; see also Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388 at [141], [148] (McKerracher and Colvin JJ). As is suggested by its name, a concise statement generally should not exceed five pages in length, and it should be “plain, concise and direct in every regard”: Central Practice Note, [6.10]. Concise statements usually provide a summary of the important facts giving rise to the claim, the relief sought, the primary legal grounds for that relief, and the alleged harm suffered by the applicant: Central Practice Note, [6.10].
As Derrington J observed in NAB (No 2), “the current zeitgeist is that a concise statement is a legitimate means by which a party, including a regulator, might articulate its case in a proceeding involving the potential imposition of a civil penalty”: at [30]. Nevertheless, his Honour was at pains to emphasise that a degree of care should be exercised by a regulator in adopting such a course and that, if it does so, the concise statement should be drafted with diligence: NAB (No 2) at [31], [35]. Further, the regulator “must also be prepared to supplement the concise statement with further material that is apt to disclose the full detail of its case, if necessary, … such that the alleged contravenor is informed proactively and at an early stage of the case brought against it”: NAB (No 2) at [35]. Justice Derrington continued (at [36]):
None of this is intended to disparage the use of concise statements by regulators as a preliminary step in the commencement of civil penalty proceedings. It is merely to emphasise the potential complexities that might follow from the choice to proceed by that method, as opposed to a conventional pleading, and highlight some of the further procedural measures that the regulator might properly be expected to employ in order to afford the alleged contravenor the degree of procedural fairness that is required in circumstances of such heightened sensitivity. As pointed out by Thomas J in Australian Communications and Media Authority v Jones (No 3) [2023] FCA 511 at [68], the potential imposition of civil penalties is a “serious” matter, and there is no doubt that procedural fairness in that context requires the respondent to be made fully aware of the case that they must meet, but “the entitlement to procedural fairness does not mean that a statement of claim is required in lieu of a concise statement”.
While a concise statement is different from a pleading, it still performs part of the same role of disclosing to another party the case to be made against them. In a concise statement, such disclosure will usually be broader and less comprehensive than in a conventional pleading, so that “other documents and case management techniques might be called upon to complete the picture”: NAB (No 2) at [26], [28] (Derrington J); see also ASIC v Westpac Securities Administration Ltd (2019) 272 FCR 170 at [185] (Allsop CJ); Delor Vue Apartments at [141], [144] (McKerracher and Colvin JJ). In addition to the provision of particulars, this might encompass the delivery of affidavits or witness statements, statements of issues, or written outlines of opening submissions. As McKerracher and Colvin JJ stated in Delor Vue Apartments at [144], “[t]he concise statement process recognises that issues may be refined as the conduct of the interlocutory stages progress and that there are often benefits to be obtained in bespoke case management orders”.
In any civil penalty proceeding using the concise statement method, one of the touchstones for case management is the requirement to afford procedural fairness, that is, to ensure that the proceeding is conducted fairly and not just efficiently. In some cases, an insistence on procedural fairness might mean that it is appropriate to order that a statement of claim be provided: see e.g. ASIC v Bettles [2020] FCA 1568 at [130] (Greenwood ACJ); NAB (No 2) at [37]–[38] (Derrington J). This will inevitably turn on the facts of each case, including the breadth and level of complexity of the circumstances and transactions that are likely to be in dispute between the parties: cf. ASIC v Australia and New Zealand Banking Group Ltd [2023] FCA 1150; (2023) 169 ACSR 649 (ASIC v ANZ) at [15]–[17] (Beach J); ASIC v Ryan [2024] FCA 1267 at [306]–[307] (O’Callaghan J). In cases involving substantial complexity or arising from a large volume of material, the constraints on the length and detail of a concise statement may render it unsuitable to convey the critical features of the allegations made against the respondent. Much the same may be said in relation to the use of a concise statement in response to set out the key facts on which a respondent joins issue.
The use of a concise statement by an applicant can nevertheless perform a “valuable triaging function” (ASIC v ANZ at [16]) or constitute “a preliminary step in the commencement of civil penalty proceedings” (NAB (No 2) at [36]), leading to an assessment of what further procedural measures are required so that the respondent can be made fully aware of the case against them, and the factual and legal issues for determination can be properly identified well in advance of the trial. It might be sufficient to require the provision of particulars, outlines of evidence or statements of issues. The parties might be open to procedures with a view to facilitating a statement of agreed facts. The aim of the concise statement method is “to facilitate effective case management and preparation for trial or mediation” (Westpac Securities at [185] (Allsop CJ)), including by avoiding unduly technical contests over pleadings. Nevertheless, the court may order that the matter proceed by way of statement of claim whenever this is considered necessary or appropriate in order to achieve the overarching purpose of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see s 37M of the FCA Act).
Turning to the facts of the present case, the respondents’ first complaint is that the central aspects of the Commissioner’s case have been disclosed “iteratively” in a number of different documents, which is said to be both inefficient and procedurally unfair. As has been recognised in the authorities discussed above, a concise statement will rarely be exhaustive and will usually need to be supplemented by additional documents or procedures in order to articulate the applicant’s case more fully. The fact that it is necessary to read such documents together with the concise statement does not itself cause any confusion, if the applicant’s case is otherwise fairly disclosed by the particulars or other material filed in the proceeding. Even in a case conducted on traditional pleadings, it is not uncommon for the parties to request further and better particulars of allegations set out in a statement or claim or defence, which may be read together with the pleadings without being formally incorporated in an amended statement of claim or defence. In the absence of any intractable ambiguity or unresolved inconsistencies between the concise statement and the particulars that have subsequently been provided, there is no inherent unfairness in the Commissioner’s case being disclosed in multiple documents. Accordingly, I do not consider that it is necessary for the particulars given by the Commissioner to be consolidated into a “single comprehensive statement of claim” in order to place the respondents on notice of the case they are required to meet.
The respondents have also complained about various deficiencies in the Commissioner’s pleading of her case, and the particulars that have been provided by the Commissioner to date.
The Commissioner provided responses to detailed requests for particulars made by the respondents. For the purposes of the hearing, the Commissioner prepared an “aide-memoire” setting out the particulars dated 15 November 2024 (in response to the respondents’ request dated 1 November 2024) and the further particulars dated 13 December 2024 (in response to the respondents’ further request dated 29 November 2024), each of which was amended on 13 February 2025 in order to address points raised in the respondents’ submissions.
In broad terms, the particulars address matters such as the nature of each of the alleged restrictive practices; the basis on which such restrictive practices are alleged to be prohibited; the details of the training alleged to have been provided to staff on the use of restrictive practices; the persons who are alleged to have provided such training; the dates and times when the restrictive practices are alleged to have been used; the persons in respect of whom the restrictive practices are alleged to have been used; the occasions on which it alleged that Debra observed the use of physical restraints or encouraged other Irabina staff to do so; the occasions on which it is alleged that Rebecca directly supervised the use of restrictive practices by Irabina staff; the basis on which it is alleged that Rebecca was insufficiently experienced, knowledgeable or competent to carry out the duties required of her roles and responsibilities, and the details of objections raised by Irabina staff in this regard; the manner in which Debra permitted Irabina to employ Rebecca, and protected and promoted Rebecca to positions of influence or responsibility over the provision of supports or services; the alleged failure by Rebecca to provide supports and services in a safe and competent manner, with care and skill; the concerns allegedly raised by an Irabina staff member regarding the use of restrictive practices, and the response to those concerns; and the issues allegedly raised with Irabina by the Commissioner and by the Senior Practitioner in January 2020 about the use of restrictive practices, and the respondents’ actions in response.
It is relevant to note that the particulars provided by the Commissioner on 15 November 2024 include a schedule setting out 49 occasions on which one or more prohibited restrictive practices are alleged to have been used between 21 October 2019 and 11 June 2021. For each of those occasions, the schedule includes the date and the approximate time, a description of the prohibited restrictive practice by reference to the applicable paragraph of the VSP Prohibition, and (for some but not all occasions) the actions or knowledge of Debra or Rebecca in relation to the use of the prohibited restrictive practice.
As developed in the respondents’ written and oral submissions in support of their interlocutory application, the perceived deficiencies in the pleading and particularisation of the Commissioner’s case focus on two matters.
First, the respondents contend that it is necessary for the Commissioner to identify the staff members or other persons at Irabina who are alleged to have carried out the prohibited restrictive practices on each occasion. For example, in their further request for particulars, the respondents asked:
Please identify the individual who is alleged to have engaged in each restrictive practice. With respect, it is obviously a fact of which the respondents need to be put on notice so that they can attempt to understand the event (involving the use of the practice) that is alleged to have occurred and to have involved a prohibited restrictive practice.
The respondents also asked the Commissioner to provide the name of the person who is alleged to have carried out each instance of the prohibited restrictive practice in each item of the schedule, and to identify each staff member who she alleges oversaw or directed each of the alleged prohibited restrictive practices.
When the Commissioner declined to provide particulars of the identity of staff members, arguing that the information sought is not a material fact necessary to understand the Commissioner’s case, the respondents’ legal representative maintained that this was a significant ongoing deficiency in the Commissioner’s pleading, stating in their correspondence to the Commissioner’s legal representatives:
Despite repeated requests, your client has failed to identify the people at Irabina who are alleged to have carried out the actual incidents of physical restraint pleaded. That denies our clients procedural fairness. For example, our clients have no way of interrogating their memories of any specific, pleaded events to ascertain the truth or otherwise of allegations that lie that the centre of your client’s claim. Our clients should not be exposed to civil penalty proceedings if your client is either unwilling or unable even to identify the relevant staff members at Irabina who your client alleges used the practices that your client also alleges were prohibited. If your client is unable to identify such central particulars of the central allegation, then that should be exposed in your client’s pleading.
I do not consider that the name or identity of the individual staff members who carried out the alleged restrictive practices is essential to an understanding of the Commissioner’s case against the respondents. The Commissioner has provided particulars of the date and time of each alleged incident involving the use of prohibited restrictive practices, and is prepared to provide video footage in relation to most of those incidents. It is by no means clear that the name of the particular staff members involved in each of those incidents is within the Commissioner’s knowledge. Conversely, Irabina may well have its own records from which the identity of the relevant staff members can be ascertained, and Debra and Rebecca might be able to obtain such records, if necessary by subpoena.
In any event, the dispute between the parties over whether the Commissioner should be required to provide particulars of the Irabina staff members who were involved in specific alleged incidents of prohibited restrictive practices is not itself a reason to require the Commissioner to provide a statement of claim, rather than proceeding by the concise statement method. The provision by the Commissioner of a statement of claim would not necessarily include additional particulars in relation to the identity of Irabina staff members. Any dispute about such particulars is not the product of confusion in relation to the case sought to be advanced by the Commissioner, and is capable of being addressed in the course of ongoing case management.
Secondly, the respondents contend that the Commissioner had attempted to use the concise statement method to avoid providing a complete or exhaustive set of allegations regarding the use of prohibited restrictive practices, and instead purported to provide “examples” of the relevant allegations. To a large extent, this complaint appears to have arisen or persisted as a result of the Commissioner’s response to the respondents’ further request for particulars, in which the Commissioner had objected to various requests that she provide an “exhaustive list” (as opposed to an inclusive list) of certain matters alleged in the concise statement and particulars. The Commissioner initially maintained that these were not proper requests for particulars, and reserved “the right to rely on further documents, matters and evidence to establish the material facts alleged, in accordance with ordinary pre-trial procedures”. However, shortly prior to the hearing of the interlocutory application, the Commissioner withdrew this objection and reservation, and confirmed that the matters relied upon were those particularised in response to the request for particulars. The Commissioner also amended those particulars to remove the word “including” from several of her responses, so as to make clear that her case was confined to the matters set out in the particulars. This largely disposes of the respondents’ general complaint that the Commissioner has failed to provide a complete set of allegations in the concise statement and particulars thereof.
Accordingly, the Commissioner has now provided particulars of each alleged use of prohibited restrictive practices, and the training of staff on the alleged prohibited restrictive techniques. The Commissioner has identified the relevant pages and slides within the training manuals on which she relies. The respondents have been given particulars of the dates and times when it is alleged that prohibited restrictive practices were used, the NDIS participants in relation to whom those practices were used, and the description of the relevant practices used on each occasion by reference to the applicable paragraph of the VSP Prohibition. While the descriptions employ relatively generic labels (e.g. “Forward Carry”, “Backward Carry”, “Backward Lift”, “Guide Down”, “Arm-in-Arm”), they are sufficient to identify the type of restraint and the basis on which it is alleged to be prohibited by the VSP Prohibition. Particularly in conjunction with the provision of available video footage, it cannot be said that the respondents are left in a state of confusion as to the nature of the Commissioner’s case. There is no ambiguity that needs to be clarified by the filing of a statement of claim.
To the extent that the respondents raise any separate complaint about the allegations regarding Debra’s knowledge of the prohibited restrictive practices, the Commissioner has given particulars of the incidents in respect of which it is alleged that Debra or Rebecca were physically present or in the vicinity when the practices were used, or were informed of the use of those practices, and has confirmed that those particulars are complete.
Accordingly, on a practical evaluation of the circumstances in the present case, I consider that the Commissioner’s case has been fully and fairly disclosed by the concise statement and particulars thereof, and it is not necessary for the Commissioner to file and serve a statement of claim in order to afford procedural fairness to the respondents.
The respondents should be given the opportunity to file a concise statement in response. Having regard to issues relating to penalty privilege, the respondents are not necessarily required to plead to every allegation raised against them: see e.g. NAB (No 2) at [32]–[34] (Derrington J). Nevertheless, they can articulate whatever matters they consider appropriate in response to the matters alleged in the concise statement, read together with the particulars that have been provided by the Commissioner.
I will reserve the costs of the respondents’ interlocutory application.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. Associate:
Dated: 21 March 2025
8
8