Dahler v Australian Capital Territory
[2014] FCCA 1675
•31 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAHLER v AUSTRALIAN CAPITAL TERRITORY & ANOR | [2014] FCCA 1675 |
| Catchwords: INDUSTRIAL LAW – Oral recusal Application – other interlocutory Applications for (a) costs, (b) re-joinder of party previously ordered to be removed, and (c) strike-out of large parts of statement of claim and Reply – application of Federal Court of Australia Rules in relation to pleading – outline of general law principles in relation to pleading – failure to comply with Court orders to file submissions. |
| Legislation: Fair Work Act 2009, s.342, 362, 550, 570 Federal Circuit Court Act 1999, s.43(2) |
| Antoun v The Queen (2006) ALJR 497; (2006) ALR 51 Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 Dahler v ACT Government t/as Community Services Directorate [2014] FCA 210 Re JRL; ex parte CJL (1986) 161 CLR 342 Smits v Roach (2006) 227 CLR 423 Vakauta v Kelly (1989) 167 CLR 568 |
| Applicant: | CLINTON DAHLER |
| First Respondent: | AUSTRALIAN CAPITAL TERRITORY |
| Second Respondent: | MINISTER FOR DISABILITY & YOUNG PEOPLE |
| File Number: | CAG 46 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 21 July 2014 |
| Date of Last Submission: | 22 July 2014 |
| Delivered at: | Canberra |
| Delivered on: | 31 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Keys |
| Solicitors for the Applicant: | N/A |
| Counsel for the First Respondent: | Dr D Jarvis |
| Solicitors for the First Respondent: | ACT Government Solicitor |
Counsel for the Second Respondent: | Dr D Jarvis |
| Solicitors for the Second Respondent: | ACT Government Solicitor |
ORDERS
The Applicant’s oral recusal Application, made on 21st July 2014, be dismissed.
The Application for Costs filed by the Applicant on 14th March 2014 is dismissed.
The Application to add CPM Reviews Pty Ltd as the Third Respondent, filed by the Applicant on 1st July 2014, be dismissed.
The Applicant pay the costs of CPM Reviews Pty Limited fixed in the sum of $1661.00.
Paragraphs 1-6, 10-15, 18, and 21-28 of the Applicant’s Statement of Claim, filed 13th March 2014, be struck out.
The Statement of Claim is to be re-pleaded to comply with Rule 16.02 of the Federal Court Rules and filed and served within 14 days.
The Respondents have 14 days after service of the Statement of Claim within which to file an amended Defence.
At the time of filing an amended Statement of Claim, the Applicant is to file an affidavit which sets out the evidence on which he intends to rely at trial.
The Applicant’s Reply, filed 7th April 2014, be struck out.
The Applicant is to file and serve any Reply to the Respondents’ Defence (filed 1st April 2014) within 14 days. The Amended Reply is to comply with Rule 16.02 of the Federal Court Rules.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 46 of 2013
| CLINTON DAHLER |
Applicant
And
| AUSTRALIAN CAPITAL TERRITORY |
First Respondent
| MINISTER FOR DISABILITY & YOUNG PEOPLE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Consequent upon the filing of various interlocutory Applications, on 13th June 2014 the Court made orders in Chambers (a) fixing the matter for final hearing for two days commencing on 10th September, (b) fixing the hearing of the interlocutory Applications for 21st July, and (c) setting a time-table for the filing of limited written submissions in relation to each of the interlocutory Applications.
Summarily stated in the orders of 13th June (but taking into account later matters), the interlocutory Applications to be determined are as follows:
(a)[The Applicant’s] Application in a Case filed 14 March 2014 (costs);
(b)[The Respondents’] Application in a Case filed 18 March 2014 (to strike-out of parts of Applicant’s Statement of Claim and [by oral application] Reply);
(c)[The Applicant’s] Application, dated 7 April (and Application in a Case dated 1 July 2014) (to re-join CPM Reviews Pty Ltd as a party to the proceeding – [“CPM Reviews”])
Written submissions were duly filed by the Respondents, and by CPM Reviews, in accordance with the time-table prescribed by the Court. Unfortunately, the Applicant filed no written submissions in relation to any of the interlocutory Applications. Counsel for the Applicant, Ms Keys (who is briefed directly by Mr Dahler), said that (a) the Applicant only received a copy of the 13th June orders on 2nd July, and (b) since that time, she has been “busy” such that she could not file submissions as ordered.
Respectfully, such a response by Counsel was and is unacceptable. It is, on its face, open disregard of Court orders. Ms Keys (a) never offered an apology to the Court for failing to comply with Court orders, and (b) never made an application to seek an extension of time within which to file submissions. Such conduct was and is contemptuous of the Court’s orders. It was and is discourteous to the Court, as well as to the other parties who complied with the orders, including CPM Reviews, which is not even a party. It still filed written submissions in circumstances where the person who did them, Ms Brennan (a legal practitioner), was travelling overseas. Doubtless all others were “busy”, but submissions were still filed, and on time.
In Response to further questions from the Bench, Ms Keys also said that no one (including the Court) was disadvantaged or prejudiced by the Applicant not filing written submissions essentially because they were straight-forward and simple Applications, which were spelt out in the material before the Court. I reject these submissions. They are unacceptable from Counsel; they disregard Court orders; they were and are disrespectful of the Court more generally; they do not fulfil Counsel’s duty to assist the Court.
Failing to provide written submissions in accordance with Court orders meant that none of the other parties (current and potential), nor the Court, were apprised of Mr Dahler’s position (e.g. if there had been any change or variation in his position) and why, from a legal stand-point, he sought the orders he did. The so-called material before the Court, as suggested by Ms Keys, does not detail or refer to any relevant legal authority upon which the Applicant relied. Written submissions are a proper and efficient tool to assist all parties and the Court (a) to know (or to confirm) the parameters of the issues to be determined, (b) to know the legal principles to be relied upon by each of the parties, and (c) in providing the information in (a) and (b) to deal with the matters before it in the most efficient manner possible. The Court is acutely conscious of its limited resources; it is also conscious that the resources are ‘public resources;’ the Court is also very conscious of the instruction by the High Court regarding matters of efficient case management of which the timely provision of written submissions is an important part.[1] Each and all of these things were thwarted to varying degrees by the Applicant’s failure to comply with Court orders and file written submissions. Mr Dahler should be clear about the problems caused by this significant omission to provide written submissions and the failure to comply with orders.
[1] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
At the outset of the hearing on 21st July, Ms Keys made an oral Application that I recuse myself from (a) the final hearing, and (b) the determination of the interlocutory Applications. She confirmed that she had given no prior notice of her intention to make such an Application either to the Court or to the other parties. As a matter of basic courtesy, she should have done so.
The sole basis of the recusal Application arises out remarks I made in a judgment in 2011, Keys v Department of Disability, Housing and Community Services & Ors.[2] The “Keys” referred to in that judgment is Counsel’s (Ms Keys’) brother.
[2] Keys v Department of Disability, Housing and Community Services & Ors [2011] FMCA 35. The appeal against this decision was dismissed: Keys v Department of Disability, Housing and Community Services & Ors [2011] FCA 1424.
In order, the reasons that follow deal with (a) the recusal Application, (b) the Applicant’s costs Application, (c) the Applicant’s re-joining of CPM Reviews Application, and (d) the Respondents’ strike out Application.
The Recusal Application
As with many of her submissions, unfortunately Ms Keys referred to no legal principle in relation to the recusal Application. As indicated, she relied simply on remarks made by me in an earlier judgment in which she appeared as Counsel on behalf of her brother. In her submissions, she said that I had defamed her and that, because the comments were made in a judgment, I was formally ‘protected’ in relation to their defamatory content or import. I cautioned her in the use of her language.[3]
[3] I advised both parties, on 21st July in Court, that I would not be the trial Judge to determine the substantive Application.
I set out in full the remarks from that earlier judgment that I understand form the basis for the recusal Application. Thus, the footnotes included here were in the original judgment:
[24] First, save for the written submissions (in relation to which directions were given by the Court as to layout and presentation, which should have been unnecessary had the Rules of this Court been complied with[4]), the Applicant’s material was often needlessly prolix.[5] It was densely typed, often-times poorly presented, and very poorly ‘paragraphed’,[6] all of which made its digestion and appreciation more arduous than it should have been or needed to be. In other courts, there is every likelihood that the materials filed in this Court on behalf of the Applicant (save for the submissions) would have been rejected. If materials are intended (as they should be) to assist the Court, and to aid clients in the prosecution of their cases, unfortunately much of the material presented on behalf of the Applicant did little of either.
[25] Secondly, although no formal objection was taken by any of the Respondents, the Applicant was represented throughout the proceedings by his sister, of Counsel. There are sufficient Bar Rules which confirm and warn of the difficulties that come from acting for a member of one’s family.[7] I had the impression at different times during the trial (specific reference is given later in these reasons) that the degree of objectivity properly expected of Counsel was not always present. And, as I note below, I had very significant concerns at the genuine risk that Counsel for Mr Keys could easily have become a witness in the proceedings on the basis that, among other things, she attended a not insignificant number of meetings with her brother. However, notwithstanding my own disquiet, because no objection was taken by any of the Respondents to Mr Keys’ familial Counsel, and because it seemed to me that he suffered no undue prejudice as a result of his relational proximity to Counsel, I say nothing more about this matter.
[26] Thirdly, by way of general observation, whatever else might be said and evidence accepted or rejected, and wherever the responsibility falls, it is alarming in the extreme the number of people who have been involved in, and the amount of time consumed by, matters relating to the Applicant, Mr Keys. I fear that a ‘cost-benefit’ analysis would not produce a very positive picture – for anyone.
[4] See Federal Magistrates Court Rules 2001, rr.2.01 & 15.25; Transcript (26th March 2010) p.264.
[5] Not by way of formal “admission”, Counsel for Mr Keys specifically referred (in my view, with much understatement) to his affidavit of November 2009 as “a bit prolix.” See Transcript (24th March 2010) p.87.
[6] It was lamentably complicated, not infrequently with paragraphs containing more than twenty sub-paragraphs. Likewise, the “Applicant’s ‘Statement of Points of Claim’” was similarly very poorly presented and difficult to read for similar reasons. Concerns about the nature and form of the Applicant’s material were raised at the commencement of the trial. See Transcript (24th March 2010) pp.7-8 & 12.
[7] See, for example, The Australian Capital Territory Barristers’ Rules, rr.75, 91 & 115; and generally, G.E. Dal Pont, Lawyers’ Professional Responsibility, Fourth Edition (Sydney: Lawbook Co., 2010) pp.376-77 [17.65]. Among other places, see Ms Keys’ attendance at a meeting with her brother, Mr Keys, as his “legal representative”, on 26th November 2008, and again in correspondence on behalf of Mr Keys, dated 29th January 2009. See Mr Keys’ affidavit filed on 18th November 2009, par.57(q) & 57 (ee) respectively. Further correspondence, dated 21st April 2009 from Ms Keys to Commissioner Deegan of the AIRC, is referred to in the Applicant’s Statement of Points of Claim, par.8(f). See also par.8(i). The attendance and correspondence seem more like solicitors’ work than that of Counsel, contrary to the ACT Barristers Rules. More troubling still is that, given Ms Keys’ seemingly quite frequent attendance at meetings with and on behalf of her brother, she could well have found herself as a witness in the litigation. For the sake of completeness, I note that Counsel for the Respondents, Dr Jarvis, was formerly a solicitor with the ACT Government Solicitor and had had, so it would seem, reasonably extensive experience in dealing with this particular matter involving the current Applicant, Mr Keys prior to his move to the Bar. Mr Keys had complained formally to the ACT Ombudsman about “management in the First Respondent, and the involvement of the ACT Government Solicitor (specifically the conduct of Doug Jarvis and Rebekah Knox).” See the Applicant’s Statement of Points of Claim, par.4(a) and Mr Key’s (9 page) letter addressed to Ms Knox at ACT Government Solicitor dated 20th February 2007, par.12, where he alleges dishonesty, intimidation harassment and/or adverse treatment against him for having made public interest disclosures. Such conduct, he asserted, amounted to “unlawful reprisals.” These are very serious accusations. At some appropriate stage, it may be that Ms Keys’ conduct in relation to this matter, and the accusations made, will need to be considered by relevant authorities.
Ms Keys seemed to focus her oral recusal Application on the Court’s specific reference to the ACT Barristers’ Rules. The Rules mentioned refer to or caution against (a) the risk of Counsel becoming a witness in a matter (which the Court noted in the 2011 judgment), (b) the risk of Counsel having to cross-examine a friend or relative (this, in circumstances where Counsel was acting for her brother, and detailed correspondence before the Court confirmed that she attended many meetings that involved the Department and persons who later became parties to the litigation instigated by her brother), and (c) the disclosure requirements of barristers who are briefed directly.
According to Ms Keys, these references “defamed” her to which she had no redress because of the remarks being quarantined or protected in a judgment of the Court.
In answer to questions, Ms Keys confirmed that (a) there were no formal findings made in relation to her acting for her brother in the 2011 judgment, and (b) the comments or observations by the Court in the 2011 judgment were not part of the Appeal filed with the Federal Court of Australia. As earlier noted, the Appeal against the 2011 judgment and orders was dismissed.
I referred Ms Keys to the recent High Court decision in Michael Wilson & Partners Ltd v Nicholls in relation to recusal applications.[8] She neither acknowledged, nor considered, it. And as already noted, she made no reference to any other relevant authority. The following summary of principle is sufficient for present purposes.[9]
[8] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 247.
[9] The following summary is taken from an earlier judgment of mine, but has been edited and amended. See Wight & Hedlund (No.2) [2012] FMCAfam 1045.
A convenient starting point for the consideration of principle is Kirby J’s comments in Antoun v The Queen where his Honour also referred to Mason J’s regularly cited caution in Re JRL; Ex parte CJL against acceding too readily or too quickly to applications for disqualification. At [34], Kirby J said (internal citations omitted):[10]
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[10] Antoun v The Queen (2006) ALJR 497; (2006) ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL. His Honour dissented, as did Gummow J, in the result.
Kirby J also said in Antoun v The Queen, at [32] (internal citations omitted):[11]
In this, the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the “opportunity, before judgment, to be heard to correct and to persuade.” Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[11] Antoun v The Queen (2006) 224 ALR 51. See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[12]
[12] Johnson v Johnson (2000) 201 CLR 488 at [13]. The plurality’s comments in Johnson on the attributes of the relevant bystander were set out in full in French CJ’s dissenting judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [46], and in the judgment of the majority (Heydon, Kiefel & Bell JJ) at [132].
Also in Johnson v Johnson, Kirby J noted in particular, at [46] (internal citations omitted):
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
And further, in Johnson v Johnson Kirby J outlined the expected ‘characteristics’ of the “reasonable bystander” (accepting that his Honour referred to a character or persona known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted; emphasis added):[13]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[13] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, were considered further in Smits v Roach (2006) 227 CLR 423 at [95] – [97]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson, at [13], referred to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J); Smits v Roach (2006) 227 CLR 423 at [56] (Gummow & Hayne JJ); and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [37] (French CJ), and [139] (Heydon, Kiefel & Bell JJ).
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted; emphasis added):[14]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[14] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177], that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again, at [180], his Honour said (emphasis added): “Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.” As with the comments of Kirby and Crennan JJ, A-CJ Gummow concurred, at [4], with the remarks of Callinan J. The comments of Callinan J seem especially, but still unfortunately, apt to both the previous litigation involving Counsel’s brother, as well as the current proceeding.
The High Court’s most recent consideration of apprehended bias is the decision in Michael Wilson & Partners Limited v Nicholls.[15] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[15] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.” So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
The High Court further observed, at [69] – [70] (internal citations omitted):[16]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern.” That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[16] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
In the light of Ms Keys confirmation that (a) in the 2011 judgment involving her brother the Court’s comments were simply that, namely “comments”, (b) there were no formal findings in relation to her representation, (c) it was an undeniable fact that Ms Keys was appearing in that matter on behalf of her brother, and that she had attended a number of meetings with him and that other persons present ultimately became (in various ways – witness or party) part of the proceedings, and (d) where no objection was taken in the unsuccessful appeal to any of the comments in relation to her advocacy, I suggest that her claim that she had been “defamed” in the 2011 judgment was and is, at least, unsustainable.
I further observe that, (a) accepting that each case turns on its own facts, and (b) on a comparative basis only, if the High Court found no ground to sustain an allegation of apprehended bias in the complex factual and procedural circumstances in Michael Wilson, where there had been many interlocutory rulings in favour of one party and in the absence of the other party, the facts and circumstances in this case suggest that the oral Application for disqualification must fail. All of the comments in the earlier judgment were based on facts that were not, and could not be, disputed. To claim that a Court’s discussion in an earlier judgment, with or without any formal finding, was “defamatory” was inappropriate.
I need say nothing further about the lack of notice to the Respondents, or to the third party, CPM Reviews, about the oral Application. In any event, the recusal Application must be, and is, refused.
The Applicant’s Costs Application (filed 14th March 2014)
By Application in a Case, filed 14th March 2014, the Applicant sought orders relevantly in the following terms:
The respondents [named] pay the applicant’s costs of his Application in a Case filed 2 December 2013 in addition to the Application for extension of time and leave to appeal in the Federal Court on 3 March 2014, under section 570(2)(b) of the Fair Work Act 2009.
The factual bases of the Application in a Case were set out in Mr Dahler’s affidavit filed on the same date as the Application. Unfortunately, because Ms Keys was busy and did not file written submissions, the Court (and the parties) have no understanding of the legal basis of the Application and how the terms of s.570 of the Fair Work Act 2009 are said to be engaged or not.
In any event, summarily stated, the costs application arises out of a long-running contest regarding the proper parties to the principal matter. The Applicant said (in his affidavit filed 14th March, par.7) that if “the respondent had consented to the Chief Minister or any other appropriate ACT Minister being a respondent in November 2013, I would not have incurred the costs of and incidental to the Application in a Case filed 2 December 2013, or the application for extension of time and leave to appeal in the Federal Court on 3 March 2014.” Which “respondent” Mr Dahler intended to refer to was not identified.
Generally, I note the following.
First, having regard to the history of the matter, and in particular the detailed email from the ACT Government Solicitor to Ms Keys dated 7 November 2013 (annexure A to Mr Dahler’s affidavit filed 2nd December 2013) which refers to and sets out relevant provisions of a range of legislation (to which I need not refer in any detail), in my view the Applicant bears basic responsibility for the proper ‘naming’ of respondents. That information must necessarily be informed by the information provided by the ACT Government Solicitor.
Secondly, given the detailed information provided by the ACT Government Solicitor in early November 2013, there was no requirement or foundation for the either of the Respondents to agree to a change in name as sought by the Applicant.
Thirdly, there is no causal link between the change in name and the appeal/Application made to the Federal Court of Australia by the Applicant. He could have made such Application within time.
Fourthly, the Application seeking leave to appeal specifically sough an order in the following terms: “… from the failure of Judge Neville of the Federal Circuit Court to give judgment in chambers on 17 December 2013.” In my view, this was an astonishing Application: to seek to appeal about there not having been a judgment.[17]
[17] On 21st July, I informed the parties that the Court’s internal ‘case-track system’ records what are styled ‘Chambers listings’, by which court staff ‘diarise’ and manage files. Such ‘case-track’ entries somehow appear on the Court portal. It would appear that such an entry, without checking, was used by the Applicant to deduce that a judgment was going to be delivered on this date of 17th December 2013. This would mean that the Court, according to the Applicant, would have delivered a judgment without any formal notice to any of the parties.
Indeed, in his judgment, Foster J said of the Application regarding the change of name of the Respondents, and of the Application itself, at [4]:[18]
In this day and age, it is regrettable, to say the least, that a problem concerning the correct naming of a party to litigation has produced not only delay in the Court below but an application to this Court which is utterly misconceived.
[18] Dahler v ACT Government t/as Community Services Directorate [2014] FCA 210.
As a statement of fact only, it is an unfortunate feature of all matters in which Ms Keys is briefed directly as Counsel that there remain ongoing issues regarding “parties” and “pleadings”, as there are in the current matter. Accordingly, I share and formally adopt the concerns expressed by Foster J to which I have just referred.
Fifthly, in the 2011 judgment involving her brother, noted earlier in these reasons, I recorded my concerns about Ms Keys being involved in matters that could lead to her being called as a witness. While I do not at present apprehend there to be a similar concern in the current matter, nonetheless there is clear evidence (e.g. the email exchange to which I have referred with the ACT Government Solicitor in November 2013) in which many of the tasks she performs are more akin to those usually performed by solicitors. In my view, being retained and acting essentially in the dual role of Counsel and solicitor inevitably risks placing Ms Keys in potential jeopardy of being called as a witness. It is, of course, a matter for her if she continues to exercise such a delicate balance.
Sixthly, Ms Keys has pointed to no legal basis why the usual order that there be no order as to costs in matters brought under the Fair Work Act 2009 (s.570) should not otherwise apply in the current proceeding. In any event, the factual circumstances to which I have referred do not, in my view, warrant an order for costs.
Seventhly, in their written submissions, the Respondents point out that the amendment sought by the Applicant arose out of Counsel’s defective pleading in naming as a respondent (“ACT Government t/as Community Services Directorate”) when there is no such legal entity. The necessary implication is that Counsel did not properly check the legal identity of the [proper] respondent(s). Such an implication seems to be one of the matters to which Foster J referred, noted above, when his Honour referred to “in this day and age …”
The Respondents further submitted (written submissions: par.9)
Given that the ACT itself was a party, and that no specific act or discretion of the Minister was in issue, and given the reasons set out by the ACT Government Solicitor, and by Counsel, it was not unreasonable for the Respondent[s] to not consent to the addition of the Minister.
I accept the Respondents’ submissions. Moreover, the terms of s.570(2)(b), as well as authority, such as the Full Court in Construction, Forestry, Mining and Energy Union v Clarke and more recently in Ashby v Slipper, all confirm that ‘courts should be careful not to exercise the discretion [to award costs] with too much haste.’[19]
[19] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [29]; Ashby v Slipper [2014] FCAFC 67.
In passing, I note that there is a line of authority which confirms that failure to comply with Court directions can constitute an unreasonable act or omission.[20] In particular, I note the following comments by Tracey J, at [36] – [37] in Australian and International Pilots Association v Qantas Airways Ltd (No.3) (emphasis added):
[36] … The prosecution of any incompetent or hopeless case can be regarded as “an unreasonable act” within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant’s defence of its pleadings in the first strike-out application falls into the latter category. I take a different view of the applicant’s conduct in relation to the second strike-out application. The second further amended statement of claim contained the same major deficiencies as its predecessor insofar as it dealt with the Part XA claim. The applicant instituted but then withdrew an application for leave to appeal from my decision. It persisted with pleadings which were inconsistent with my reasons for striking-out the first amended statement of claim. In so persisting, I consider that the applicant acted unreasonably for the purposes of s 824(2). The second further amended statement of claim also sought to plead a cause of action under Part 16. That aspect of the pleading failed by reason of embarrassment, not because it was untenable. I do not consider that it was unreasonable for the applicant to pursue the Part 16 aspect of its claim. In my view it is appropriate to order that the applicant pay half the respondent’s costs of the second strike-out application.
[37] There remains the issue of whether the applicant should pay the respondent’s costs thrown away in relation to the hearing on 9 May 2007. In my view such an order should be made. The hearing did not proceed on that day because the applicant had failed to comply with the Court’s directions as to the filing and service of submissions relating to the costs issue. … Had it wished to be relieved of the obligation to file submissions, the appropriate course was to apply to the Court to vary the directions which had earlier been made. Had it done so costs would not have been thrown away on 9 May 2007, although costs of any motion to vary the orders may have been payable. In omitting to comply with the Court’s directions and not seeking, in an appropriate manner, to be relieved of its obligation the applicant acted unreasonably.
[20] See Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392.
In conclusion, for the reasons given, the Application for Costs filed by the Applicant on 14th March 2014 is dismissed. Notwithstanding Tracey J’s clear and cogent reasons for awarding costs where (as here) there was failure to comply with the Court’s orders to file submissions, and where (as here) there was no application to the Court to vary the filing directions, I propose to make no order as to costs in relation to this particular Application.
The Application to Re-join RPM Reviews Pty Ltd as a Party
Pursuant to [oral] reasons given and formal orders pronounced on 13th October 2013, the entity known as and described in the original Application filed on 8th August 2013 as CPM Reviews Pty Ltd was removed as a Respondent.
Pursuant to pars.13 and 14 of the Applicant’s Reply, filed 7th April 2014, and his Application in a Case, filed 1st July 2014, the Applicant seeks leave (pursuant to r.11.02 of this Court’s Rules) “to add CPM Reviews Pty Ltd as the Third Respondent in these proceedings.”
For the following reasons, this Application must be rejected. And pursuant to s.570(2)(b), the Applicant should pay the costs of CPM Reviews fixed in the sum of $1661.00 in accordance with Schedule 1 of this Court’s Rules.
CPM Reviews provided a report ‘on code of conduct investigation to the delegate through Senior manager Organisational Services, ACT Community Services Directorate’ on 8 July 2012. That Report was earlier admitted into evidence and became Exhibit B in the current proceeding. A draft report had also been prepared by CPM Reviews.
In the Response filed on 21st August 2013, the [First] Respondent denied (par.9) that CPM Reviews provided any advice, encouragement or incitement to take, or not to take, the adverse action complained of by the Applicant.
In its Response filed on 16th September 2013, CPM Reviews denied that it conducted ‘the workplace behaviours process under the Community Services Enterprise Agreement 2011-2013.’ It said that “it was contracted by the First Respondent to assist with the process by undertaking an investigation into the Applicant’s alleged conduct.”
CPM Reviews denied that it advised or encouraged or incited the First Respondent to dismiss the Applicant from his employment. Indeed, it stated that no recommendations “were made by the Second Respondent [CPM Reviews] regarding any action to be taken by the First Respondent.”
CPM Reviews also stated that it was not party to any conference required by s.368 of the Act.
The Final Report (Exhibit B) confirmed (at pp.3-4 of the Report) that CPM Reviews is “a company which provides ethical and professional reviews of employment decisions and actions to the public sector.” The Report also confirmed that CPM Reviews “was engaged to conduct an investigation into the allegations and Ms Gwyneth Thompson, Senior Reviewer, was nominated to undertake the investigation.”
In the ‘summary of findings’ (Report pp.2 & 3), and ‘summary of conclusions’ (Report pp.26 - 28), CPM Reviews made findings in relation to conduct but relevantly made no recommendations in relation to action against Mr Dahler.
In the absence of written submissions as ordered by the Court, the Application proceeded with brief oral submissions from Ms Keys. In short, she said that it was a necessary inference from the conclusions in the CPM Reviews Report that adverse action was intended, and would be intended to be taken, against Mr Dahler.
The Court specifically invited Ms Keys to consider authority such as CFMEU v Clarke, where the Full Court said (at [26]) that liability as an accessory for the purposes of s.550 of the Act must involve a direct link with “the purpose of the perpetrators”, there must be ‘participation in, or assent to, the contravention.’[21] She did not respond to this invitation. Indeed, she made no reference to any relevant authority to support her contentions and the Application more generally. Instead, Ms Keys simply and repeatedly referred to paragraphs 13 and 14 of the Reply.
[21] Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] (Tamberlin, Gyles & Gilmour JJ).
When invited by the Court to consider the proposition, also from Full Court authority, to the effect that the mere description of conduct in the pleadings is insufficient to warrant a party being joined, again Counsel did not comment on the proposition put to her.[22]
[22] See the comments by the Full Court in News Limited & Ors v Australian Rugby Football League Limited & ors (1996) 64 FCR 410 at p.525 (Lockhart, von Doussa & Sackville JJ).
In her brief oral submissions, Ms Keys confirmed that in neither the original Application (including the Form 2: both filed 8th August 2013), nor in the Statement of Claim (filed 13th March 2014), nor in the Reply (filed 7th April 2014), was any relief sought against CPM Reviews.
In a submission which, respectfully, was as audacious and presumptuous as it was improper, Counsel said that the Applicant would [likely] add relief against CPM Reviews.
In another submissions which should never have been made, in a most opaque way, Counsel said that ‘it was difficult’ in preparing the matter against CPM Reviews because it was a company and should have been represented by a lawyer. Not for the first time in the proceeding, Ms Brennan (from CPM Reviews) pointed out that she is a registered legal practitioner and authorised to make the submissions which she did on behalf of CPM Reviews. Counsel’s submission was improper; it was without legal or factual foundation.
In written submissions, the Respondents said that ‘CPM may … be considered a necessary party: rule 11.01.” In oral submissions, Counsel for the Respondents confirmed that the Respondents, in fact, did not support the application to re-join CPM Reviews.
In written submissions (filed 7th July 204), CPM Reviews submitted that CPM Reviews was only contracted to investigate Mr Dahler’s conduct and denies that it had any involvement with the Applicant’s workplace rights under the Act. Further, it is sufficient to note that CPM Reviews confirmed that it was independently contracted to conduct a review of Mr Dahler’s conduct. It made no recommendations; as earlier noted, such is plain on the face of the Report that is before the Court.
In written submissions, CPM Reviews also noted that it wrote to the Applicant on 27th August and again on 1st October 2013 setting out why, in its view, the joinder was misconceived. CPM Reviews again wrote to the Applicant on 4th July 2014 in relation to the current Application.
In its terms, s.342, as well ss.362 and 550, set out the pre-requisites for the persons against whom, or in relation to whom, adverse action claims may properly be taken. CPM Reviews does not fall within any of the relevant categories.
Similarly, s.362 refers to ‘advice, encouragement or incitement with respect to an intention to coerce.’ The CPM Reviews report does none of the relevant things proscribed by the Act. It made findings/conclusions about conduct. It made no recommendations in relation to what might (or might not) flow from those findings. I should add that the Report makes plain the various stages of its development, and the processes that engaged (or sought to do so) the Applicant.
Section 550, in terms, provides as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
The case law to which I have referred, particularly the 2007 Full Court decision in CFMEU v Clarke, confirms that ‘mere involvement’ is insufficient to attract the terms of s.550.
Further, in a slightly different context, a differently constituted Full Court (North, Logan and Robertson JJ), in the matter of Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate, considered the words “aided, abetted, counselled or procured” as those terms are used in the Building and Construction Industry Improvement Act 2005 (s.48). That section is relevantly identical to s.550 of the Fair Work Act 2009. At [38], the Full Court said (emphasis added):[23]
The relevant principle to be derived from Giorgianni; Yorke v Lucas (1985) 158 CLR 661, Handlen v The Queen (2011) 245 CLR 282 at [6] and Rafferty v Madgwicks (2012) 203 FCR 1 is that the putative accessory must intentionally participate in the contravention and to form the requisite intent he must have knowledge of the essential matters which go to make up the contravention, whether or not he knows that those matters amount to a contravention. The necessary intent is absent if the person alleged to be the accessory does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the contravention.
[23]Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate (2012) 209 FCR 448
For the reasons given, just as CPM Reviews was permitted to withdraw or otherwise be removed as a party in October 2013, other than CPM Reviews being named in the pleadings drawn by the Applicant, nothing has changed to warrant it being added as a party to the proceeding. Indeed, in the light of Full Court authority to which I have referred, to none of which the Applicant engaged or sought to distinguish when certain authorities were drawn to Counsel’s attention, the Application to seek to have CPM Reviews re-joined as a party was, and remains, mis-conceived. The detail in the CPM Reviews Report speaks for itself; there is nothing to suggest any conspiracy between CPM Reviews and any of the Respondents, or any relevant intent to be involved in any adverse action against the Applicant, or aiding and abetting the action ultimately taken by the Respondents against the Applicant. Indeed, in the words of the Full Court in CFMEU v Clarke, CPM Reviews was “merely involved” in the matter by being contracted by the Respondents to undertake a review of the Applicant’s conduct, nothing more, nothing less.
For the above reasons, the Application to re-join CPM Reviews must be dismissed.
For the same reasons, it should be dismissed with costs, pursuant to s.570 of the Act. In particular, (a) the history of the matter (including the Court’s earlier removal of CPM Reviews as a party in October 2013), (b) the specific conclusions in the CPM Reviews Final Report, (c) the pleadings upon which the Applicant relies, (d) the Full Court authorities to which I have referred, and (e) very significantly, the Applicant has never sought (and still does not seek) any relief against CPM Reviews, confirms, in my view, that the Application was made “without reasonable cause” (s.570(2)(a)) and or that the Applicant’s “unreasonable act [has] caused the other party [CPM Reviews] to incur the costs” (s.570(2)(b)).
The Strike-Out Application: Statement of Claim & Reply
Although this Application (filed on 18th March) was filed by the Respondents, because of the brevity of the Applicant’s [oral] submissions, it is convenient to outline them first.
Noting again that the Court (and the Respondents) does not have the benefit of written submissions by the Applicant, if I have understood the oral submissions of his Counsel, the substance of the Applicant’s position in resisting the strike-out application was that, the Applicant having commenced proceedings by Application, the Rules of this Court (in particular rr.4.05 and 45.06) preclude the necessity to comply with any other rules in relation to pleadings.
Put another way, the Applicant contended that the Federal Court Rules (contained in Part 16 of the Federal Court Rules 2011) have no application to the current matter, even in circumstances where (as the Court put it to Counsel) (a) the Federal Circuit Court Rules contain no rules in relation to pleading, and (b) pursuant to Rule 1.05(3), the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings. In short, Counsel said that there is no need for, or application of, any rules in relation to pleadings.
The Schedule referred to, in terms, refers to Part 16 of the Federal Court Rules in relation to pleadings.[24]
[24] See also s.43(2) of the Federal Circuit Court Act, which provides, in terms, for the Federal Court Rules to apply to general federal law matters.
For the following reasons, the Applicant’s submissions should be rejected.
In short, in my view, pursuant to Rule 1.05(3) of this Court’s Rules, Rule 16.02 of the Federal Court Rules applies, and should apply, to the pleadings in the current matter. In particular, I note that that Rule provides, summarily stated, that pleadings should be ‘as brief as the nature of the case permits’, and that (r.16.02(d)) material facts should be pleaded but that the evidence by which the material facts are to be proved should not be pleaded.
Further, Rule 16.21 of the Federal Court Rules provides as follows:
A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
Firstly, in my view, having regard to Rule 16.02, a fair reading of the statement of claim, and the reply, filed by the Applicant are replete with detailed matters of evidence. On this ground alone, the Application to strike out particular paragraphs specified therein must succeed. Further, both the statement of claim, and the reply, is prolix to a very significant degree. Such density, prolixity and evidentiary detail make it almost impossible to identify each particular fact or point of law sought to be made by the Applicant, and similarly, those same flaws make it impossible for the Respondents properly to plead a Defence.
Two examples will suffice; the first is from the statement of claim; the second from the Reply.[25]
[25] Orders were made by consent on 21st October, 2013, which provided for the filing of a statement of claim, and affidavit evidence to be relied upon.
The statement of claim, par.22 sets out in full a letter written to the Applicant, dated 2nd April 2013. It is clearly evidence that goes to the detail of a material fact.
The Reply, filed by the Applicant on 7th April 2014, is similarly prolix and replete with evidence of material facts. For example, in par.13, which goes from the bottom of page 7 to the bottom of page 10, there is recounted at length evidence which the Applicant says establishes that CPM Reviews ‘aided, abetted and or counselled’ named persons ‘in connection with the termination of the Applicant’s employment’, and later, provides the evidence in relation to CPM Reviews allegedly conspiring “with others to effect the termination of the Applicant’s employment.”
Although the Respondents did not refer to Rule 16.21, there were submissions that the pleadings filed by the Applicant were “embarrassing”.
Indeed, having regard to relevant authority the pleadings filed by the Applicant are embarrassing. I note briefly the following.
The High Court and the Federal Court of Australia (as well as the House of Lords)[26] have consistently emphasised that the function of pleadings “is to state with sufficient clarity the case that must be met.”[27]
[26] See especially the comments of Lord Millett in Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 at [185] – [186].
[27] See Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490 at p.517 (Isaacs & Rich JJ); Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at pp.286-287 (Mason CJ & Gaudron J), ant at pp.287-288 (Brennan J); McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [20] – [31]; Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) 251 ALR 166 at [21] (Tracey J); Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2011) 203 FCR 325, and at first instance (Kenny J) at (2011) 203 FCR 293.
A detailed discussion of the role and the criteria to be met in pleadings is set out in the judgment of French J (as his Honour then was; Beaumont and Finkelstein JJ agreeing) in the Full Court decision in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd.[28] It is sufficient to refer to (without setting it out in full) his Honour’s discussion which commences under the heading, “The criteria for a viable statement of claim”.
[28] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [47] – [50].
A related function of pleadings is to put the other party on [reasonable] notice of the case that is put and which will be prosecuted at trial.[29]
[29] See Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at p.238.
Referring to the Rules of the Supreme Court in England, Scott LJ said that they provided a ‘complete code of pleading’, saying also that [only] “material facts” should be pleaded.[30]
[30] Bruce v Oldhams Press Ltd [1936] 1 KB 697 at p.712.
Finally, it is sufficient to note that alleging a fact in a pleading does not constitute an admission.[31] It necessarily follows from this that the matters pleaded must properly be established by evidence.
[31] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at pp.85-86 (Mason CJ & Brennan J).
In this Court, the proper course, in the first instance, is to provide evidence by way of affidavit. In the current matter, the order for the Applicant to file an affidavit was made at the same time as the order to file the statement of claim. Unfortunately, the statement of claim as filed is pleaded essentially in the form of an affidavit. It thereby melds or otherwise combines the two separate functions of the two documents: (a) the statement of claim, which should be brief and set out only ‘material facts’, in fact sets out at length (contrary to the Rules and the general principles of pleading) the evidence to support them; (b) thus far, there is no affidavit filed in support of the statement of claim, as was ordered by the Court (by consent) on 21st October 2013.
Conclusion & Disposition
In short, for the reasons given, and because I accept generally the written submissions filed by the Respondents on 14th July, paragraphs 1-6, 10-15, 18, and 21-28 of the Applicant’s statement of claim should be struck out; the statement of claim is to be re-pleaded to comply with Rule 16.02 of the Federal Court Rules; it is to filed and served within 14 days. At the same time, as previously ordered on 21st October 2013, the Applicant is to file and serve an affidavit in which he sets out the evidence on which he intends to rely at trial.
The Respondents should properly have an opportunity to file an amended Defence to the Amended Statement of Claim. That should occur 14 days after being served with it.
Although there is no formal application before the Court in relation to the Applicant’s Reply, it was the subject of brief oral submissions from the Respondents to the same or similar effect as those made in relation to the statement of claim. As such, I imply (and accept) that an oral Application was made in relation to the Reply in similar terms to strike it out.
Summarily, the Respondents contended that the Reply, like the statement of claim, was embarrassing and improperly pleaded, inter alia, because it contains so much evidence and thereby goes significantly beyond the pleading of material facts. It too is significantly prolix. I accept these submissions. In my view also the Reply, as pleaded, like the statement of claim, is embarrassing, in the legal sense that it lacks such, or a sufficient, degree of clarity that it is (and they – the statement of claim and the Reply together – are) ‘embarrassing.’
Accordingly, primarily but not only for the same reasons of prolixity, and the improper pleading of evidence (rather than material facts), in my view, pursuant to Rule 16.21 of the Federal Court Rules, the whole of the Reply should be struck out and re-pleaded in accordance with Rule 16.02 of the same Rules; it too should be filed and served within 14 days.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 31st July 2014
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