ISW v State of New South Wales
[2013] NSWSC 1472
•10 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: ISW v State of New South Wales [2013] NSWSC 1472 Hearing dates: 03/10/2013 Decision date: 10 October 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:
(1) Paragraphs [33], [70], [81], [85](a) and (d), [94](e) and (f) and [100] of the amended statement of claim are struck out.
(2) Paragraphs [33], [70], [81], [85](a) and (d), [94](e) and (f) and [100] of the amended statement of claim are to be repleaded in a further amended statement of claim. Such further amended statement of claim to be filed and served by 14 November 2013.
(3) The balance of the second defendant's notice of motion filed on 1 August 3013 is stood over for directions before the Registrar at 9.00 am on 21 November 2013.
(4) Costs are reserved.
Catchwords: PROCEDURE - requirement of pleadings - whether amended statement of claim should be struck out - whether amended statement of claim should be repleaded Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 179 CLR 269
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642
Geagea v New South Wales Insurance Ministerial Corporation [2004] NSWSC 118
Harrigan v Jones [2000] NSWSC 814
McGuirk v The University of New South Wales [2009] NSWSC 1424Category: Interlocutory applications Parties: ISW (First Plaintiff)
ASW (Second Plaintiff)
State of New South Wales (First Defendant)
Gerard Philip Webster (Second Defendant)Representation: Counsel:
D L Del Monte (First and Second Plaintiffs)
M Hutchings (First Defendant)
D Lloyd (Second Defendant)
Solicitors:
Grays Legal (First and Second Plaintiffs)
Crown Solicitor's Office (First Defendant)
Kennedys (Second Defendant)
File Number(s): 2013/67573 Publication restriction: Nil
Judgment
HER HONOUR: In these proceedings the first plaintiff "ISW" and the second plaintiff "ASW". They are mother and son. The first defendant is the State of New South Wales. The State of New South Wales is sued pursuant to s 5 of the Crown Proceeding Act 1988 and is liable to be sued as the Crown in right of Community Services, formerly the Department of Community Services. The second defendant is Gerard Philip Webster, a registered psychologist.
By notice of motion filed 1 August 2013, the second defendant now seeks an order that paragraphs [70], [81], [85](a), [85](d), [91], [94] and [100] of the amended statement of claim ("ASC") be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 ("UCPR") but accepts that those paragraphs can be repleaded.
I shall briefly set out the relevant allegations set out in the ASC.
Initially, Community Services had engaged Ms Emma Collins a psychologist, to prepare a written report (ASC [61]). After two consultations, Ms Collins considered that the allegations of sibling sexual abuse by the second plaintiff were unsubstantiated, the second plaintiff did not pose an appreciable risk towards his siblings and he ought to be restored to his mother's care. Ms Collins also advised Community Services the second plaintiff ought to receive further counselling in order to assist with his reintegration into the family. On 21 December 2007, the second plaintiff was restored to the first plaintiff's care (ASC [62]).
An officer of Community Services then instructed Mr Webster to prepare a psychological report in relation to the second plaintiff for use in the Children's Court proceedings. In the Children's Court, Community Services was seeking orders that the second plaintiff and two other siblings be removed from their mother's care. Mr Webster provided a report. He recorded that the second plaintiff had made admissions of the occurrence of sexual assault. The plaintiffs allege that Mr Webster wrote a report knowing that some of its contents were false. The plaintiffs seek compensatory, exemplary and aggravated damages for alleged misfeasance in public office, collateral abuse of process, infringement of absolute rights and intentional infliction of harm. I emphasise, while these allegations are serious, at this stage, they remain merely allegations that may or may not be substantiated at trial.
After hearing argument, I made orders that paragraphs [70], [81], [85](a) and (d) and [91] of the ASC be struck out and leave was given to replead them.
This leaves paragraphs [94] and [100] of the ASC in dispute.
The requirements of pleadings generally
UCPR 14.14 provides:
"14.14 General rule as to matters to be pleaded specifically
(cf SCR Part 15, rule 13; DCR Part 9, rule 9)
(1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.
(2) In a defence or subsequent pleading, a party must plead specifically any matter:
(a) that, if not pleaded specifically, may take the opposite party by surprise, or
(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
(c) that raises matters of fact not arising out of the preceding pleading.
(3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality."
UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.
In McGuirk v The University of New South Wales [2009] NSWSC 1424, Johnson J set out the function of pleadings. His Honour at [21] - [35] stated:
Principles Concerning Pleadings
[21] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 296 and 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] 148 CLR 658 at 664; Banque Commerciale at 296.
[22] In Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are "the servants of the interests of justice", with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.
[23] Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071 at [100]-[103].
[24] Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005.
[25] Where application is made by a party for leave to amend pleadings, the court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [111]-[112]; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon, in determining an application such as this.
[26] The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].
[27] For a Statement of Claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: r 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: r 14.8 UCPR.
[28] In Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) said at 142-143 [20]-[21], with respect to the requirement for a pleading to state material facts:
It might appear that these rules [the Supreme Court Rules] do not require that causes of action be stated in pleadings; the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - "Material" means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action.
Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a Plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specific causes of action.
[29] In Gunns Ltd v Marr [2005] VSC 251, Bongiorno J observed at [57]:
Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly.
Embarrassing Pleadings
[30] A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 at 70; Gunns Ltd v Marr at [14]-[15].
[31] In Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings:
Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.
[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, BC9504276 at 5-6).
[33] Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Ltd v Shop Distributive and Allied Employees Assn (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109 at 112-114.
[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Ltd [1960] VR 473 at 476; H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186.
[35] It is not the function of the court to draw or settle a party's pleading. The court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72, 87-88 and 97-98; Gunns Ltd v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [55]."
Overall, the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendants. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that is, a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 179 CLR 269 at 286-296 and 302-3.
I turn now to deal with the two remaining disputed paragraphs in the ASC.
Paragraph [94]
Paragraph [94], in particular (e) and (f), of the ASC pleads:
"[94] Further, or in the alternative, the conduct of the first and second defendants was calculated to intentionally, wilfully and knowingly cause, or was likely to cause harm to the first and second plaintiff, or was done with reckless indifference to the harm likely to be occasioned to each plaintiff by reason of the aforepleaded conduct.
Particulars
a. The first defendant's employed servants or agents misstated the nature of the complaint made by A2SW to the first and second plaintiff, as recounted to them, by A2SW, during the interview process;
b. The first defendant's employed servants or agents deliberately removed the second plaintiff from the care of Ms Collins when Ms Collins refused to capitulate with the first defendant by supporting the applications for care;
d. The first defendant's employed servants or agents and the second defendant contrived and/or deliberately and untruthfully suggested that the second plaintiff had made full admissions to the allegation that he had sexually assaulted A2SW, in circumstances in which they knew this to be false, in order to give efficacy to the care application;
e. The first defendant's employed servants or agents and the second defendant gave false evidence before the Children's Court regarding the second plaintiff's alleged admissions, knowing this evidence to be false and with the sole purpose of giving efficacy to the care application. Further particulars as to the precise dates on which this occurred will be provided following receipt of all transcripts relevant to these proceedings;
f. Alternatively, the second defendant suggested that the second plaintiff has made full admissions to him concerning A2SW's allegations with reckless indifference, namely without seeking to further clarify what was said by the second plaintiff, which the second defendant considered to amount to full admissions, and without further seeking to clarify, beyond the verbal briefing pleaded at paragraph 89(a) above, the nature of previous court findings and other matters considered relevant by the second defendant."
(my emphasis added)
It is only paragraph [94] (e) and (f) that involve Mr Webster, the second defendant.
Counsel for Mr Webster submitted that the plaintiffs are required to properly particularise such an allegation and referred to Harrigan v Jones [2000] NSWSC 814, where Levine J stated at [26] to [29]:
"[26] There are some general observations that need to be made. First, in this action the defendant is Mr Jones personally, otherwise the allegations of malice must be directed to identified servants and agents of a corporate defendant. Secondly, that which is alleged to constitute malice must be malice that actuates the publication (Waterhouse/2GB at 72F).
[27] It is thus of critical importance that the defendant, by proper particulars supplied by the plaintiff, be informed of the case he will have to meet. Neither of these particulars are satisfactory in this regard.
[28] In relation to the first, the defendant is entitled to know the facts, matters and circumstances upon which the plaintiff relies in asserting that the imputations were false "to the knowledge" of Mr Jones.
[29] In respect of the second particular, the defendant is entitled to know of the matters upon which the plaintiff relies to establish by evidence or otherwise to legitimately assert the reckless indifference with which it is said Mr Jones published what he did."
The above passages were cited with approval by McCallum J in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642 at [33]. In Born Brands v Nine Network, McCallum J stated, "A bare assertion of "gross recklessness or reckless indifference" ... tells the defendants nothing as to the case they have to meet."
Counsel for the plaintiffs referred to the difficulty their solicitor faced obtaining access to relevant documentation. While their solicitor has the Ombudsman's report in her possession, some of the supporting documentation is incomplete. However, it appears that the solicitor has not yet obtained copies of the Children's Court and District Court transcripts. Nevertheless, counsel for the plaintiffs submitted that the particulars provided in [94] (a) to (f) are sufficient as they clearly identify the facts, matters and circumstances upon which the plaintiffs rely in asserting that the allegations were false and within the knowledge of the second defendant, particularly when read in context to the preceding paragraphs in the narrative pleading.
From the cases referred to, it is not sufficient that the allegation of reckless indifference leaves the second defendant to work out the context in which it appears. Further, paragraph [94](e) needs to be clarified. If Mr Webster only gave evidence in the District Court appeal, then it was Mr Webster's report that was tendered in evidence in the Local Court that is alleged to be the "false evidence" or is it alleged that he gave knowingly false evidence in both courts? Once the Court transcripts are obtained, they may assist the plaintiffs in particularising their claims of knowingly giving false evidence and reckless indifference. Both [94](e) and (f) should be struck out and leave is granted for it to be repleaded.
Paragraph [100] - exemplary and aggravated damages
Paragraph [100] pleads:
"[100] The plaintiffs have suffered serious injury, loss and damage in consequence of the aforesaid conduct.
Particulars
a. The plaintiffs rely upon the Statement of Particulars filed in respect of these proceedings, and as amended from time to time, as particulars of the plaintiffs' injury, loss and damage.
Further, the conduct of the first and second defendants was arbitrary, oppressive and in contumelious disregard for the plaintiffs' rights. The plaintiffs claim exemplary and aggravated damages accordingly.
...
Particulars of Aggravated Damages a against the second defendant
b. The plaintiffs repeat the facts and matters pleaded herein from paragraphs 67-100 inclusive, and the particulars provided within the Statement of Particulars, filed in respect of these proceedings, and as amended from time to time, as particulars of the facts and circumstances relied upon by the plaintiff to establish their claim for exemplary and compensatory aggravated damages pursuant to r 15.7 and 15.8 of the Uniform Civil Procedure Rules 2005 against the second defendant."
UCPR 15.7 provides that the particulars to be given by a pleading that claims exemplary damages must state the facts and circumstances on which the party pleading relies to establish that claim.
UCPR 15.8 provides that the particulars to be given by a pleading that claims aggravated compensatory damages must state the facts and circumstances on which the party pleading relies to establish that claim.
Counsel for Mr Webster submitted that it is not a matter for him to seek particulars in relation to the claims for exemplary and aggravated damages. Counsel for the plaintiffs submitted that the assertion that the claims for exemplary and aggravated damages are not particularised is incorrect, particularly when one has regard to paragraph [100](b) and then reference is made back to paragraphs [67] to [100]. Paragraphs [67] to [100] are pleaded to be particulars upon which the basis the claim for exemplary and aggravated damages to be asserted.
Counsel for the second defendant referred to Geagea v New South Wales Insurance Ministerial Corporation [2004] NSWSC 118 at [15], where Hislop J stated:
"[15] I agree with the Master that the particulars were deficient. Mr Kelly, the solicitor for the appellant, submitted the claim was adequately particularised and, if it was not, it was for the respondent to seek further and better particulars. I do not accept that submission. Clearly there was an obligation upon the appellant to properly assert and particularise the claims for aggravated and exemplary damages in the Statement of Claim. ..."
And in Harrigan v Jones, where Levine J stated at [67]:
"[67] The deficiency in these particulars is patent. Both particulars purport to go to matters that lie at the heart of a claim for aggravated damages by reference expressly to "conduct of the defendant" and the "manner in which the defendant" is said to have "treated the plaintiff". There is not a single clue as to what the case the plaintiff proposes to make in relation to each subject is. In respect of particulars such as these the obligation upon a plaintiff properly to inform the defendant of facts, matters and circumstances is a heavy one, not only in fairness to the defendant but in the plaintiff's own forensic interests."
Once again, it is not up to the second defendant to try and ascertain, from paragraphs [67] to [100], what constitutes the claim for exemplary and aggravated damages. The particular conduct and the cause of action that the plaintiffs allege give rise to exemplary and aggravated damages should be pleaded. It is my view that paragraph [100] of the ASC should be struck out and repleaded.
Costs are reserved.
The Court orders that:
(1) Paragraphs [33], [70], [81], [85](a) and (d), [94](e) and (f) and [100] of the amended statement of claim are struck out.
(2) Paragraphs [33], [70], [81], [85](a) and (d), [94](e) and (f) and [100] of the amended statement of claim are to be repleaded in a further amended statement of claim. Such further amended statement of claim to be filed and served by 14 November 2013.
(3) The balance of the second defendant's notice of motion filed on 1 August 3013 is stood over for directions before the Registrar at 9.00 am on 21 November 2013.
(4) Costs are reserved.
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Decision last updated: 11 October 2013
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