Di v Chief Executive of Department of Disability, Housing and Community Services
[2015] ACTSC 418
•10 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DI & Ors v Chief Executive of Department of Disability, Housing and Community Services |
Citation: | [2015] ACTSC 418 |
Hearing Dates: | 9, 10 December 2015 |
DecisionDate: | 10 December 2015 |
Before: | Mossop AsJ |
Decision: | See [42] |
Catchwords: | PRACTICE AND PROCEDURE – Application to dismiss proceedings where pleadings closed – whether reasonable cause of action disclosed in pleadings and other court documents – previous strike out application –orders previously made for trial without further pleading – rule 425 not applicable – not appropriate to strike out under inherent jurisdiction - application dismissed PRACTICE AND PROCEDURE – Application for leave to amend court documents – consideration of utility of amendment to documents in light of procedural history of proceedings – consideration of further directions to facilitate preparation for procedurally fair trial – application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 21, 425, 426 |
Cases Cited: | Barrett v Enfield London Borough Council [2001] 2 AC 550 C, J and D v Australian Capital Territory [2014] ACTSC 65 W v Essex County Council [2001] 2 AC 592 |
Parties: | DI (First Plaintiff – SC 693 of 2006) KI (Second Plaintiff – SC 693 of 2006) EI (Third Plaintiff – SC 693 of 2006) LI (Plaintiff – SC 38 of 2007) Chief Executive of Department of Disability, Housing and Community Services (Defendant – SC 693 of 2006, SC 38 of 2007) |
Representation: | Counsel Mr R Clynes and Mr B Buckland (Plaintiffs) Mr D Higgs SC and Mr E Pike (Defendant) |
| Solicitors Blumers Personal Injury Lawyers (Plaintiffs) ACT Government Solicitor (Defendant) | |
File Numbers: | SC 693 of 2006, SC 38 of 2007 |
Introduction
The defendant has applied by application in proceeding dated 26 May 2015 for an order that the plaintiffs’ claims be dismissed. The order is sought on the grounds that the pleadings and court documents filed pursuant to orders of the Court do not disclose a reasonable cause of action and that the plaintiffs have not provided adequate particulars of their claims.
The plaintiffs have also filed applications dated 30 October 2015 seeking leave to amend documents filed pursuant to the directions of the Court entitled “Statement of Allegations of Breach of Duty of Care by Defendant”. Those applications arise out of further disclosure by the defendant of certain documents.
The defendant’s application is supported by the affidavit of Russell Thomas Bayliss sworn 20 November 2015. Annexed to the defendant’s written submissions were 881 pages of documents that were referred to in those submissions as well as an additional volume containing expert reports and voluntary care agreements.
A number of other exhibits were tendered for the purposes of these applications which are not necessary to describe in detail. I treated evidence tendered or read as being evidence on both sets of applications.
History of the proceedings
There are in fact two proceedings on foot. Proceedings SC 693 of 2006 were commenced by originating claim on 8 September 2006. The plaintiffs in that case are DI and her two children KI and EI. Her daughter LI commenced proceedings SC 38 of 2007 on 16 January 2007.
While KI and EI were minors when the proceedings were commenced and were represented by their litigation guardian DI, they are now adults and the litigation guardian was removed by an order of the Court made in 2012.
It is significant for the present applications to understand a little of the lengthy and tortured history of these cases. While the First World War took four years to conclude and the Second World War six, these cases have been on foot for nine years and are nowhere close to being ready for a trial. Prior to the present hearing, proceedings SC 693 of 2006 have been before the Court on at least 53 occasions and proceedings SC 38 of 2007 have been before the Court on at least 36 occasions. In addition to directions made by the registrar and deputy registrar, the proceedings have been subject to directions made by Master Harper, Nield AJ, Refshauge J and myself.
The factual background to the proceedings and the history of the proceedings up until 2014 are summarised in the decision of Nield AJ given on 17 April 2014: C, J and D v Australian Capital Territory [2014] ACTSC 65 (‘C, J and D’). I adopt, but do not here repeat, the summary of the procedural steps taken in the proceedings which is set out at paragraphs [8]-[30] of his Honour’s decision. It is important to note that as a result of an application to strike out proceedings SC 693 of 2006, Master Harper made an order on 17 June 2009 that the plaintiffs have leave to file a further amended statement of claim and that a further amended statement of claim was also filed in proceedings SC 38 of 2007 by an order made by consent in October 2012. Prior to the hearing of the application before Nield AJ there were three requests for particulars in each of the proceedings, the last of which was made on 1 February 2013 and answered on 19 February 2013. Defences have been filed in both of the proceedings.
The application with which Nield AJ was dealing was similar to the present application by the defendant in that it sought that the plaintiffs’ claims be dismissed or that in the alternative the plaintiffs provide further particulars of the claims by a particular date. The applications were heard on 6 June 2013 and the decision of his Honour given on 17 April 2014. The effect of his Honour’s decision was to order that the proceedings were to be tried without further pleadings. This was a course contemplated by r 426 of the Court Procedures Rules 2006 (ACT) (Rules). It is clear from his Honour’s decision that he considered that the statement of claim did not comply with the Rules insofar as it failed to clearly enough articulate the case that was to be met and failed to provide adequate particulars. At [41] his Honour said: “… I do not intend to order, pursuant to r 425(1)(a) of the Court Procedures Rules, that the plaintiffs’ Further Amended Statements of Claim be struck out, because the plaintiffs, if each of them has a reasonable cause of action, are entitled to have their claims determined by the Court without further delay”. His Honour concluded at [43]: “I consider that, notwithstanding that the plaintiffs’ Further Amended Statements of Claim do not comply with the Court Procedures Rules, each proceeding may properly be tried without further pleadings”.
His Honour then, consistently with the terms of r 426, contemplated that the parties would prepare an agreed statement of facts and issues within a short period and, if there was a failure to agree upon the statement of facts and issues, then an application could be made to the Court for the Court to settle that document. His Honour made orders to that effect.
There were subsequent directions made relating to the preparation of that document. I will refer to it as the Facts Document. Those directions encompass the period from June 2014 through to November 2014. In February 2015 Refshauge J made orders requiring the plaintiffs to file a document setting out in detail (including the date and time) the alleged breaches of duty on the part of the Australian Capital Territory. In April 2015 there was a direction requiring the plaintiffs to file a document outlining allegations of damage as well. The document outlining allegations of breach was filed on 22 April 2015. I will refer to this as the Breach Document. The next thing that happened was that the defendant filed the present application, namely an application to dismiss the proceedings. It is worth noting that the application, in form, did not challenge compliance with the orders made by Refshauge J requiring the Breach Document to be filed.
After that, there were directions made in June 2015 relating to further discovery and the filing of any application to amend the Breach Document in the light of that further discovery. In June 2015 a statement of particulars outlining the damage suffered by the plaintiffs was filed. The proceedings were then referred to me and I made directions in relation to the hearing of the present applications.
Amongst those directions was a direction made on 25 September 2015 that the Territory advise in correspondence what particulars it says were inadequate on or before 16 October 2015. On 6 October 2015 the defendant’s solicitor advised that the answers to various questions asked in a letter of 23 August 2013 and the answers to questions A.1 to A.20 of a letter of 1 February 2013 were inadequate. It should be noted that the latter letter is that which was referred to in the history recited by Nield AJ. The letter of 23 August 2013 is a letter which post dated the hearing before Nield AJ but predated his decision and orders made on 17 April 2014. The letter of 23 August 2013 was not in evidence before me.
In summary the position in the case is that:
(a)the pleadings are closed in the sense that there are a statement of claim and a defence on foot;
(b)an application in similar terms to that which is now pursued has been unsuccessful because of a finding by a judge of the Court that although the further amended statements of claim did not comply with the Rules, each proceeding may properly be tried without further pleadings: C, J and D at [43];
(c)there has been an attempt to agree on a set of facts which has produced a document of some 488 paragraphs which is not agreed;
(d)the Breach Document has been filed and an amended document has been sought to be filed;
(e)statements of particulars outlining the damage alleged to each of the plaintiffs have been filed.
I observe that although further pleadings have been abandoned as a consequence of the order made by Nield AJ, the ordering of the preparation and filing of the Breach Document and the particulars of damage has had the effect of providing at least some of the elements which would be required in a pleading in any event.
The defendant’s application
Rule 425
The defendant’s application is identified on its face as being an application under r 425 of the Rules. In his submissions, senior counsel for the defendant identified that he also relied upon the inherent jurisdiction of the Court. Three observations can be made about the reliance upon r 425. First, insofar as the rule refers to a pleading being struck out, that rule has little relevance in circumstances where there has been a previous order of the Court dispensing with the requirement for further pleading. Second, insofar as the basis for the present application is the same as that which was before Nield AJ then, notwithstanding that his Honour’s order was an interlocutory one, it would not, in my view, be appropriate to permit the defendant to rerun the arguments before Nield AJ on a further interlocutory application. I note in that respect that exhibit 5 indicates a position on the part of the Territory consistent with it seeking to re-agitate the adequacy of the particularisation identified in its correspondence from February and August 2013. At least the former of those was before Nield AJ and the latter, which is not in evidence, was prior to the decision of his Honour. Third, many of the submissions made by the defendant were in fact directed to the adequacy of the Breach Document even though it had not asserted any non-compliance with Refshauge J’s order and any such complaints might have been appropriately addressed before his Honour without seeking dismissal of the proceedings.
In summary I do not consider that it is appropriate to dismiss the proceedings pursuant to r 425 in the circumstances that I have outlined.
Inherent power of the Court
That leaves reliance upon the inherent power of the Court. I should point out that this is not identified in the application in proceeding as the source of power relied upon by the defendant and hence is not a basis upon which the plaintiffs were obliged to approach the application. However, because the capacity of the Court to dismiss proceedings pursuant to its inherent power was raised and relied upon by senior counsel for the defendant I will address it.
Any power to dismiss the proceedings must be exercised in the context of the orders relating to case management made in the course of the proceedings. Most particularly in the present case it must be exercised in the light of the decision of Nield AJ to dispense with the requirement for further pleadings. As paragraph 43 of the reasons makes clear his Honour considered that the matter could properly be tried without further pleadings.
The difficulty arising from dispensing with further pleadings in a case like this is that it has sent the Court and the parties off on a procedural adventure into territory not often visited. Like Siberian ponies in the Antarctic it may be that it is only once irrevocably committed to the journey that it becomes apparent that the process of an agreed statement of facts is unsuited for the terrain involved in this case. Nevertheless it is an historical fact that the parties have invested significant time and resources in attempting to prepare such a document consistently with the orders of Nield AJ. Similarly, in accordance with the subsequent orders of Refshauge J the Breach Document and statements of particulars in relation to damage have been prepared. The parties are reluctant to abandon them. The interests of justice lie in achieving a procedurally fair trial having regard to the historical facts surrounding the preparation of the case to date and not ending up in the litigation equivalent of Scott of the Antarctic. Having commenced on the procedural adventure of proceeding without further pleadings the challenge is now to ensure that a procedurally fair hearing can take place in the absence of properly particularised pleadings. As I indicated above, the filing of other documents to fulfil some aspects of the role of pleadings goes some way towards that end.
So far as the defendant’s application is concerned I am not satisfied that I should dismiss the proceedings pursuant to the inherent power of the Court. The written submissions of the defendant ranged far and wide across the factual detail of the case. A range of criticisms were made of the extent to which a case had been clearly pleaded and particularised. Further, the submissions extended to the proposition that no duties could be owed to the plaintiffs in the circumstances. Many of these submissions were not elaborated upon in oral submissions, which focused on particular deficiencies in the Breach Document and the failure of the Breach Document to accommodate with any precision that which appeared in the documents annexed to the defendant’s written submissions and tendered for the purposes of the application by the defendant.
There seem to me to be two fundamental issues:
(a)whether the allegations of a breach of duty to persons in the position of the plaintiffs are so manifestly hopeless that the proceedings should be dismissed; and
(b)whether or not the documents filed pursuant to the directions of Nield AJ and Refshauge J were so defective that the proceedings should be dismissed.
As to the first issue, while the written submissions of the defendant ranged across the general authorities relating to breach of duty and, in particular, breach of duty by statutory authorities summarised in Hunter and New England Local Health District v McKenna (2014) 253 CLR 270, the three particular authorities relied upon by the plaintiffs, Barrett v Enfield London Borough Council [2001] 2 AC 550, SB v New South Wales [2004] VSC 514 and Trevorrow v South Australia (No 5) (2007) 98 SASR 136, demonstrate, in my view, that the claims made by the plaintiffs cannot at this stage be said to be so manifestly hopeless as to warrant them being struck out: see in particular Trevorrow at [1012]-[1070] and SB at [291]-[308]. Unusually, notwithstanding that by letter dated 16 June 2015 the plaintiffs had notified the defendant of their reliance upon each of Barrett, SB and Trevorrow, the defendant’s lengthy written submissions in chief make no reference to those authorities. While I accept the defendant’s submission that the cases are merely illustrations in particular factual and statutory contexts of the existence of duties of care between statutory authorities and persons in positions analogous to that of the plaintiffs, the occasion on which to consider on a final basis whether or not such a duty exists in the present case is at the conclusion of the trial rather than on the basis of a summary review of documentary material and factual allegations which have not been agreed.
Similarly the defendant made specific submissions about the position of DI, contending that no duty could be established to her. In answer to those submissions the plaintiffs referred to [1026] of the decision in Trevorrow which refers to the decision of the House of Lords in W v Essex County Council [2001] 2 AC 592. That case was one in which the facts were slightly different. The claim by the parents was one for nervous shock against the local authority that had placed a foster child with them who then abused their children. The House of Lords held that it was arguable that there was a duty of care owed to the parents. While the case related to the placement of a foster child with the parents rather than the placement of the parents’ child in care, the case supports the plaintiffs’ contention that DI’s claim could not be characterised at this stage as manifestly hopeless so as to require the claim to be dismissed.
As to the second issue, namely the adequacy of, in particular, the Breach Document, the defendant has criticised, most clearly in oral submissions, the generality of the allegations in that document having regard to the detailed circumstances disclosed in the documentary material. In my view it is not open to the defendant to compel the plaintiffs to address the factual problems that may exist in the plaintiffs’ case by having an otherwise acceptable document equivalent to a pleading struck out and the proceedings dismissed.
Having said that, it is obviously desirable and consistent with r 21 of the Rules that a plaintiff plead (or equivalent) in a manner which confronts the real issues in the case. In my view the terms of the Breach Document suffer, in some respects, from the common vice disclosed in pleadings, that is, the pleading of generalities. There are a number of reasons why this may be done:
(a)so as to ensure that the plaintiff is not limited in the case it can run but instead able to fit any case which reasonably emerges into the scope of the existing pleadings;
(b)because the pleader either is not the person responsible for the ultimate conduct of the case or has failed to employ sufficient intellectual energy in the analysis of the case; or
(c)because the pleading is occurring prior to obtaining such essential things as proper instructions or critical expert evidence.
It is not necessary to attempt to identify whether any of these or some other cause is responsible for the defects in the document in the present case.
While the document does divide the alleged breaches into two periods:
(a)January 2001 to August 2003 during which the child plaintiffs were placed with their father; and
(b)July/August 2003 to 18 November 2005 (or in the case of LI July 2003 to October 2005) during which KI and EI were placed in alternative care;
the list of generalised allegations does not in a coherent way explain the substance of what will be alleged at trial. Certainly, the way in which counsel for the plaintiffs articulated certain aspects of the case in oral submissions was much clearer and better able to be understood than some of the generalities pleaded in the Breach Document. There is no reason why the Breach Document should not reflect accurately the case which counsel will ultimately open upon at the trial. The generalised lists of allegations make it difficult for the defendant to really assess the case that it has to meet and hence allow it to determine the approach that it should take in response to the claim. So that there is no misunderstanding, in making these comments I am looking at the matter not from a technical rule-based pleading point of view but rather addressing the substance of what is necessary to have a procedurally fair hearing consistently with the approach directed earlier by Nield AJ.
Further, the Breach Document unfortunately also seeks to pick up by reference the earlier provision of particulars which are then annexed to it. This means that, notwithstanding the apparent intention of the Breach Document to clearly articulate the plaintiffs’ claims of breach, the task of working out the content of any particular allegation is made more difficult by the necessity to hunt through a number of documents so as to piece together the further particulars relevant to the allegations made in the document.
The defendant has quite properly raised the problems that the plaintiffs face in their case of establishing that, if some other arrangements should have been made for their care, those arrangements were available and would not have resulted in the plaintiffs suffering the damage that they did. The point to be made is that as a result of the orders that have been previously made, the plaintiffs have not been required to further particularise their claim in relation to that issue. The plaintiffs contended that they have done precisely what they have been required to do as a result of the orders of the Court following Nield AJ’s decision.
In my view the difficulties in understanding causation are really reflective of the imprecision of some of the allegations of breach. If the allegations of breach are more precisely articulated then any significant issues in relation to the understanding of the case in relation to causation should fall away.
The fact that the proceedings have been permitted to languish for so long and that the plaintiffs have not been compelled to have their case further advanced is an historical fact. I do not accept the defendant’s submission that it was incumbent upon the plaintiffs to put on evidence to explain their state or lack of preparation. The nature of the application in proceeding put on by the defendant was such that it went to technical issues, namely, the absence of a cause of action and the adequacy of particulars. Further, the application would necessarily have to be determined in the light of the decision of Nield AJ which both summarised the history of the case and fundamentally altered the course that it was to take. Finally, I do not consider it to be necessary in order to dispose of the present applications, or useful, to try to apportion blame for the lack of progress with the case or the length of time that it has taken to determine it.
In summary I accept the position articulated by counsel for the plaintiffs namely:
(a)the claims that have been articulated are, having regard to the authorities to which he has referred, arguable as a matter of law;
(b)the plaintiffs’ pleadings have not been struck out and an order of Nield AJ has been made providing an alternative means by which procedural fairness can be accorded to the defendant;
(c)there has been reasonable (if not ideal) compliance with the orders of Nield AJ and the subsequent orders of the registrar and Refshauge J;
(d)there are no other vitiating factors which would lead the Court to dismiss the proceedings.
In those circumstances I do not consider it appropriate to exercise the inherent power of the Court to dismiss the proceedings. Having reached these conclusions it is appropriate that I dismiss the application of the defendant dated 26 May 2015.
Application to amend the Breach Document
The amendments to the Breach Document are sought so as to incorporate additional allegations arising out of the discovery of documents which were described in submissions as “ward manuals”. Ultimately the defendant did not oppose the making of amendments to include allegations based on those documents. That was, of course, subject to its submissions in relation to the inadequacies of the document as a whole to fairly articulate the case of breach of duty which was to be made by the plaintiffs.
In my view it is not appropriate to give the plaintiffs leave to amend the Breach Document. It appears to me that the document as a whole, including those portions sought to be added, does not adequately or sufficiently articulate the plaintiffs’ case so as to afford the defendant procedural fairness. Further, it is apparent from what was said during the course of submissions that the plaintiffs intend to but have not yet obtained expert evidence as to whether or not the conduct of the defendant was in fact in breach of its duty. The fact that the plaintiffs do not yet have the benefit of expert evidence so as to inform their conduct of the case and in particular the content of documents performing the role of pleadings, is, to say the least, most unfortunate. However the combination of the inadequacies in the Breach Document in its current form and the prospect of the plaintiffs obtaining expert evidence which may require amendment of the document means that it may be inefficient to require further articulation of the plaintiffs’ claim prior to the plaintiffs obtaining that evidence.
In my view the appropriate order is that the application be dismissed. It is better to address the filing of any amended Breach Document in the context of an overall set of directions that will have the matter properly prepared for trial.
Conclusion
For the reasons I have given, each application is to be dismissed. I will hear the parties as to costs. It appears to me to be most appropriate and more consistent with r 21 of the Rules that the matters of substance underlying the two applications be dealt with by way of directions.
Directions
As indicated, I will hear the parties as to the directions that I should make in the light of the conclusions that I have reached above. In particular, while the burden ultimately lies on the plaintiffs to articulate their claims in a manner which is not defective, it is likely that the defendant will be able to formulate directions which specifically address some of its concerns in relation to the Breach Document and the relationship between that document and the Facts Document. Understandably, so long as the defendant’s application to dismiss the proceedings remained undetermined there was no forensic incentive for the defendant to clearly identify the directions that would be required to be made so as to permit the plaintiffs to remedy any defects in the Breach Document. That possible impediment to identifying the directions that should be made is now no longer present.
I propose to make directions that will permit the matter to be heard within 12 months from today.
I will also make a direction that the relevant parts of Practice Direction No 2 of 2014 apply to these proceedings.
In other directions I contemplate that it will be necessary to address:
(a)the provision of the Breach Document so that it fairly discloses the case that the plaintiffs wish to run and incorporates in a single document those of the particulars previously provided by letter that are appropriate;
(b)a process to resolve any issues relating to particulars or disclosure of the case which is to be run without delay;
(c)a process for the preparation of a combined chronological tender bundle and any additional chronological bundles;
(d)directions in relation to the status of the Facts Document in the proceedings or how it is to be amended and used;
(e)directions in relation to the service by the plaintiffs of expert evidence and, most likely, witness statements;
(f)identification of the point at which dates for a mediation and the hearing are to be set.
Orders
The formal orders of the Court are:
1. The defendant’s applications in proceeding dated 26 May 2015 in each proceeding are dismissed.
2. The plaintiffs’ applications in proceeding dated 30 October 2015 in each proceeding are dismissed.
3. The parties be heard in relation to costs and directions.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 09 February 2016 |
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