Commonwealth v Australasian Correctional Services Pty Ltd - [2013] ACTSC 37

COMMONWEALTH OF AUSTRALIA v AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD (ACN 050 054 389)
[2013] ACTSC 37 (8 March 2013)

PROCEDURE – Miscellaneous procedural matters – application for strike-out for want of prosecution – application for plaintiff to put on its evidence – application for order that plaintiff provide particulars – principles for determining strike-out applications – relevance of defendant’s conduct – plaintiff’s delays in providing particulars – prejudice not established by defendant – strikeout application refused – plaintiff ordered to put on its evidence – no orders made for provision of particulars.

Limitation Act 1985 (ACT), s 11
Court Procedures Rules 2006 (ACT), rr 21, 75, 425(1)(d), 430, 431, 433, 435, 1110, 1404, 1452

Judiciary Act 1903 (Cth), s 55ZG(3)
Civil Procedure Act 2005 (NSW), ss 56 to 59

Aon Risk Services Aust Ltd v ANU
Bellgrove v Eldridge (1954) 90 CLR 613
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283
Caterina Raso & Anor v Mark Ronald Bayliss & Ors [2005] ACTSC 94
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 81 ALJR 1107
McKanna v Aspect Homes Pty Ltd (1983) 51 ALR 603
Ulowski v Miller [1968] SASR 277
Vidler v Merit Engineering Pty Ltd (1987) 86 FLR 213
Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433

No. SC 656 of 2006

Judge: Penfold J
Supreme Court of the ACT

Date: 8 March 2013

IN THE SUPREME COURT OF THE )
) No. SC 656 of 2006
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:
COMMONWEALTH OF AUSTRALIA Plaintiff
AND:

AUSTRALASIAN CORRECTIONAL SERVICES
PTY LTD (ACN 050 054 389) Defendant

ORDER

Judge:  Penfold J
Date:  19 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

The defendant’s application for the plaintiff’s originating claim and statement of claim to be struck out is refused.

By 9 November 2012, the parties are to prepare and file short minutes of orders setting out timelines for the plaintiff to put on its evidence and for discovery by the parties.

The defendant’s application for orders requiring the plaintiff to provide further particulars is refused.

The costs of the applications are reserved.

The parties have liberty to apply on five days notice.

IN THE SUPREME COURT OF THE )
) No. SC 656 of 2006
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:
COMMONWEALTH OF AUSTRALIA Plaintiff
AND:

AUSTRALASIAN CORRECTIONAL SERVICES
PTY LTD (ACN 050 054 389) Defendant

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  8 March 3013
Place:  Canberra

Introduction

In the period between August 2000 and December 2002 there were a number of disturbances at detention centres used by the plaintiff in this matter, the Commonwealth of Australia (the Commonwealth), to house people who had arrived in Australia without appropriate immigration papers or visas, including those commonly referred to at that time as boat people or asylum seekers.

Those detention centres were managed, under several contracts with the Commonwealth, by Australasian Correctional Services Pty Ltd (ACN 050 054 389) (

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] ACTSC 37
Decision Date: 19 October 2012

CaseChat Overview and Summary

In the matter of Commonwealth v Australasian Correctional Services Pty Ltd, the Federal Court was tasked with resolving several procedural matters raised by the defendant in the context of an originating claim. The defendant sought a strike-out of the plaintiff’s claims for want of prosecution, requested that the plaintiff be ordered to provide further particulars, and asked that the plaintiff be compelled to present its evidence. The plaintiff, in turn, opposed these applications and argued that they should be dismissed. The court was required to determine the appropriate principles for assessing a strike-out application, consider the relevance of the defendant’s conduct and the plaintiff’s delays in providing particulars, and evaluate whether the defendant had demonstrated sufficient prejudice to warrant a strike-out.

The court began by examining the principles for determining strike-out applications, emphasising the importance of the defendant’s conduct and the plaintiff’s delays. It noted that the defendant’s conduct had been less than exemplary, but this alone was not sufficient to warrant a strike-out. The court also considered the plaintiff’s delays in providing particulars but found that the defendant had not established sufficient prejudice resulting from these delays to justify a strike-out. The court then turned to the plaintiff’s application to put on its evidence and the defendant’s application for further particulars. The court concluded that the plaintiff should be ordered to present its evidence but found no grounds to compel the plaintiff to provide additional particulars.

Accordingly, the court dismissed the defendant’s applications for a strike-out and for further particulars. The plaintiff was ordered to put on its evidence by a specified date, and timelines for this were to be included in the minutes of orders to be filed by both parties. The costs of the applications were reserved, and the parties were granted liberty to apply further on short notice.

Orders

Orders of the court

1. The defendant’s application for the plaintiff’s originating claim and statement of claim to be struck out is refused.

2. By 9 November 2012, the parties are to prepare and file short minutes of orders setting out timelines for the plaintiff to put on its evidence and for discovery by the parties.

3. The defendant’s application for orders requiring the plaintiff to provide further particulars is refused.

4. The costs of the applications are reserved.

5. The parties have liberty to apply on five days notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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