Jones v University of Canberra (No 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jones v University of Canberra (No 3)
Citation:	[2016] ACTSC 186
Hearing Dates:	5 July 2015
DecisionDate:	5 July 2016
Reasons Date: Before:	27 July 2016 Refshauge J
Decision:	1. The strike out applications be listed for hearing on 1 and 2 August 2016 at 10:00am. 2. Leave is granted to the plaintiff to file (in a sealed envelope) and serve a document entitled ‘Provisional Further Amended Statement of Claim’ on or before 15 July 2016. 3. It is directed that the document referred to in Order 2 not be made accessible other than to parties to the proceedings and their legal representatives. 4. The defendants are not required to file any defence until further order. 5. The application by the plaintiff for orders under s 111 of the Evidence (Miscellaneous Provisions) Act 2011 (ACT) dated 12 May 2016, filed on 13 May 2016, be dismissed with no order as to costs. 6. If the plaintiff, upon review of the orders, is of the opinion that he is inhibited from showing the affidavits of Mr Walshe and Mr Lamont to any person from whom he wishes to obtain an affidavit for use in the strike out proceedings, he may apply to his Honour, on notice to the other parties, to make orders in chambers granting access to any such document by such prospective witnesses, unless any party, having been given that notice, objects. 7. That the plaintiff have leave, in so far as such leave is necessary, and be directed to serve any Notice to Produce he wishes to issue under r 6748 of the Court Procedures Rules 2006 (ACT) to any active party in accordance with the following conditions: a. That the Notice be limited to requiring production of any document that is relevant to the proof of an allegation in any pleading or any facts alleged in any affidavit filed in support of the applications by the defendants to strike out the Statement of Claim; b. A draft of the Notice be circulated by the plaintiff to each active defendant no later than 15 July 2016, inviting any comment as to the width or content of the documents sought to be produced by the Notice; c. The Notice be served on or before 20 July 2016, returnable on 27 July 2016; d. If any defendant applies to strike out the Notice to Produce, that application be filed on or before 26 July 2016 and returnable 1 August 2016 and, upon filing, that defendant is relieved of any obligation to produce any such document referred to in the Notice to Produce until 1 August 2016. 8. The subpoenas lodged on 4 April 2016 need not be answered until further order. 9. The plaintiff, on or before 15 July 2016, file and serve an affidavit setting out any facts on which he proposes to rely to assert that the privilege otherwise attaching to any allegations made in the Provisional Further Amended Statement of Claim, to be filed that day, has been lost or waived. 10. The plaintiff advise the fourth defendant, on or before 15 July, whether he is required for cross-examination on his affidavit. 11. The defendants have leave to amend their application to strike out the Statement of Claim, on or before 20 July 2016. 12. The defendants have leave to file and serve any affidavits on which he/she/it intends to rely in support of their applications to strike out the Statement of Claim on or before 1:00pm on 25 July 2015. 13. The plaintiff has leave to file and serve any further affidavits in response to any affidavits filed by the defendants on or before 1:00pm on 29 July 2016. 14. The former sixth defendant have leave to appear at the hearing on 1-2 August 2016 if it wishes to attend. 15. As to the request by the fourth defendant of the plaintiff for particulars of the Statement of Claim requested by letter dated 1 June 2016: (a) In relation to 2.1(a), the plaintiff is not required to provide further names but may do so after discovery. (b) In relation to 2.1(d), the plaintiff is to make further answer which deletes the word ‘included’; (c) In relation to 2.1(f) of the letter of 1 June, the plaintiff is not required to provide further particulars; (d) In relation to 4.1(e) and 4(f), the plaintiff must provide a better answer to explain what is meant by ‘support’; (e) In relation to 4.1(g), if the pleading is amended, this information will need to be particularised; (f) In relation to 5.1(c), leave is granted to the fifth defendant to reformulate the request for further and better particulars; (g) In relation to 5.1(f), leave is granted to the fifth defendant to reformulate the request for further and better particulars; (h) In relation to 6.1(a), if the plaintiff is seeking financial compensation for the termination of the current or immediately past contract, the loss must be particularised and quantified; (i) In relation to 6.3, if the plaintiff is seeking financial compensation for the termination of the current/immediately past contract, the loss must be particularised and quantified. 16. The costs of the application for the production of further and better particulars are reserved.
Catchwords:	PRACTICE AND PROCEDURE – DIRECTIONS – case management CIVIL LAW – PRACTICE AND PROCEDURE – Leave to amend Statement of Claim – details in Statement of Claim subject to claim of privilege – Statement of Claim filed as provisional document until privilege claim determined PRACTICE AND PROCEDURE – Judge knows witness – credit of witness in issue – recuse from hearing PRACTICE AND PROCEDURE – Non-publication order – scope of order – inspection of documents on court file – preparation of case using information subject to non-publication order – provision of confidential statements to potential witness – affidavit not evidence until read PRACTICE AND PROCEDURE – PARTICULARS – principles governing particulars – further and better particulars– names of witnesses are evidence – party not required to provide names of witnesses unless essential element in case – party must provide best particulars it can – particulars not to fill gap in pleading – leave to reformulate pleading – particulars must show details of special damage claimed - EVIDENCE – PRACTICE AND PROCEDURE – SUBPOENA – application to amend subpoena – Notice to Produce
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 2011 (ACT), ss 111, 112 Public Interest Disclosure Act 2012 (ACT) Court Procedures Rules 2006 (ACT), rr 39(2)(a), 500, 2903, 2903(2), 2903(2)(b), 4053, 4053(2), 6601A, 6603A, 6607, 6718, 6748, 6906, Pt 2.7, Dictionary
Cases Cited:	Bishop v Bishop [1901] P 325 Bruce v Odhams Press Ltd [1936] 1 KB 697 Calvert v Tomkies [1963] 3 All ER 610 Cyril Leonard & Co v Simo Securities Trust Ltd [1971] 3 All ER 1313 Dare v Pulham (1982) 148 CLR 658 Ex Parte Blume; Re Osborn [1958] SR (NSW) 334 Financial Integrity Group Ltd v Farmer [2009] ACTSC 143 Fried v National Australia Bank Ltd [2000] FCA 787 Higgins v Weekes (1889) 5 TLR 238 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 Jones v University of Canberra [2016] ACTSC 78 Manson v Ponninghaus [1911] VLR 239 Marshall v Inter-Oceanic Steam Yachting Company (1885) 1 TLR 394 McColley v Commonwealth [2014] ACTCA 21 National Starch Co v Robert Harper and Co Pty Ltd [1906] VLR 8 Perpetual Trustees of Australia Ltd v Brenton (1985) 35 NTR 44 Phillips v Phillips (1878) 4 QBD 127 Ratcliffe v Evans [1892] 2 QB 524 R v Associated Northern Colleries (1910) 11 CLR 738 R v Jovanovic (2014) 285 FLR 108 Seven Network Ltd v News Ltd (2005) 225 ALR 256 Sims v Wran [1984] 1 NSWLR 317 Territory Insurance Office v Kouimanis Enterprises Pty Ltd (2002) 171 FLR 425 Victims Compensation Board v Brown (2002) 54 NSWLR 668 Western Australia v Watson [1990] WAR 248 White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 Wootton v Sievier [1913] 3 KB 499
Parties:	Michael Jones (Plaintiff) University of Canberra (First Defendant) University of Canberra Union Ltd (Second Defendant) Joe Roff (Third Defendant) Stephen Parker (Fourth Defendant) David Lamont (Fifth Defendant) Australian Capital Territory and Southern New South Wales Rugby Union Ltd (Former Sixth Defendant)
Representation:	Counsel Mr R Markham (Plaintiff) Mr S Whybrow (First, Second, Third and Fourth Defendant) Mr J Pappas (Fifth Defendant) Mr M Karam (Former Sixth Defendant)
Solicitors Chamberlains (Plaintiff) King & Wood Mallesons (First, Second, Third and Fourth Defendant) Meyer Vandenberg (Fifth Defendant) McInnes Wilson Lawyers (Former Sixth Defendant)
File Number:	SC 108 of 2016

REFSHAUGE J:

The plaintiff, Michael Jones, has commenced proceedings under the Public Interest Disclosure Act 2012 (ACT) for injunctive relief and damages.

Initially, I made ex parte injunctions which I later continued, over the opposition of the defendants. See Jones v University of Canberra [2016] ACTSC 78. The background to these proceedings is set out at [1]-[16] of that decision and I do not need to repeat them.

Though the proceedings were commenced by Originating Application, it was appropriate that they be conducted on pleadings. This was especially so since the injunction was principally directed towards the sixth defendant, the Australian Capital Territory and Southern New South Wales Rugby Union Ltd (the Club), Mr Jones’ employer, who settled with Mr Jones, with Mr Jones filing a Notice of Discontinuance against the Club on 5 May 2016, so that the substantial issue became one of damages. Thus, the Club became, within the meaning of the Court Procedures Rules 2006 (ACT) an inactive party: see the Dictionary to those Rules.

I ordered, under r 39(2)(a) of the Court Procedures Rules, that the proceedings continue as if they had been commenced by Originating Claim. I ordered Mr Jones to file a Statement of Claim and later gave leave to amend it.

A Statement of Claim was filed on 29 April 2016. An Amended Statement of Claim was filed on 20 May 2016. It reflected, inter alia, the fact that Mr Jones was then no longer seeking relief against the Club.

Some of the material filed, especially an exhibit to Mr Jones’ first affidavit being a report prepared by accountants KPMG Australia, (the KPMG Report), was of a confidential nature and I made non-publication orders under s 111 of the Evidence (Miscellaneous Provisions) Act 2011 (ACT), about that material.

On 5 July 2016, I gave certain directions and made certain orders about the future conduct of the proceedings. These are my reasons for doing so.

Strike out application

David Lamont, the fifth defendant, applied by Application in Proceedings dated 12 May 2016 to strike out the Statement of Claim as disclosing no cause of action against him. In the alternative, he sought to strike out certain paragraphs, being those that pleaded any cause of action against him. It was asserted that these paragraphs were scandalous, unnecessary and vexatious or otherwise an abuse of the process of the courts.

Ordinarily, an argument about the adequacy of pleadings would not require evidence for, as pointed out in McColley v Commonwealth [2014] ACTCA 21 at [29], the question of whether a Statement of Claim discloses a reasonable cause of action is a matter of law.

In this case, however, Mr Lamont also relies on his assertion that the proceedings are an abuse of process and this will require some evidence. Indeed, affidavits have been filed by both him and Mr Jones as to matters which go to the question of whether the proceedings, as pleaded in the Statement of Claim, are an abuse of process.

The other active defendants, the first defendant, the University of Canberra, the second defendant, the University of Canberra Union Ltd, the third defendant, Joseph Ward Roff, and the fourth defendant Professor Stephen Parker, also applied by Application in Proceedings, to have the Statement of Claim struck out as frivolous and vexatious, as an abuse of process and as disclosing no reasonable cause of action or, in the alternative, to have certain paragraphs of the Statement of Claim struck out. Again, this application was supported by affidavits of Mr Roff and Professor Parker.

These affidavits put in issue certain allegations in the Statement of Claim apparently in support of the ground that it is an abuse of process.

That is relevant for the future conduct of the action for, although I have been responsible for the case management of the proceedings, and it is appropriate for a judge to maintain control over proceedings where they are complex with many discretionary decisions having been made, such as the extent of non-publication orders, which may need to be revisited from time to time, now that evidence is to be adduced and the credibility of witnesses may be relevant, the circumstances have changed.

I know Mr Lamont, as well as the fourth defendant, Professor Parker. While the doctrine of necessity required me to deal with the initial ex parte application, especially as it impacted relatively minimally on Mr Lamont and Professor Parker, and while no application was subsequently made by either of them that I should disqualify myself from the proceedings, that changed with the making of the applications to strike out the Statement of Claim.

Mere association with a party or a witness is not sufficient to justify a judge disqualifying himself or herself, especially in Canberra where the size of the city makes it likely that a judge will have had some association with a large number of people who may be litigants or witnesses. See Ex Parte Blume; Re Osborn [1958] SR (NSW) 334 at 338; Western Australia v Watson [1990] WAR 248 at 264-5.

Where the credit of a person as a witness, whether a party or not, is in question, the situation is different. Unless the association is so fleeting that it could not be suggested that a fair-minded reasonable observer might think that it was impossible to avoid being subconsciously influenced by the association, disqualification is unavoidable: Fried v National Australia Bank Ltd [2000] FCA 787 at [61]-[62].

Counsel for Mr Lamont and for Professor Parker raised the issue with me and I considered that I should not hear the applications.

The applications have, however, been able to be listed for two days commencing on 1 August 2016. I will arrange for the matter to be transferred to another judge and do my best to retain the dates, though that may not be possible.

Some of the challenges to the Statement of Claim, however, have been directed towards the adequacy of the pleadings on what might be said to be technical grounds, such as whether an element of the cause of action has been pleaded. The threshold test for such a finding is high, as explained in Financial Integrity Group Ltd v Farmer [2009] ACTSC 143 at [12].

Sometimes that is because there is a dispute between the parties as to whether the asserted absent fact in the pleading is a material fact or not. If the court decides that the absence of the alleged material fact does mean that no reasonable cause of action is pleaded, the plaintiff will usually be permitted to re-plead, as explained by Lindgren J, in White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at 309; [47].

In the many interlocutory hearings already conducted in this matter, the parties have informally agitated some issues as to the adequacy of the Statement of Claim and, as a result, an Amended Statement of Claim was filed by Mr Jones, by direction, dated 13 May 2016. It addressed some of the criticisms that had been made in the way I have noted.

Some further objections to the Statement of Claim have been foreshadowed in the applications or otherwise and Mr Jones sought leave to file a Further Amended Statement of Claim. It was expressed to be required to deal with some of those kinds of issues where Mr Jones accepted that there was a deficit in the pleadings. These did not, however, concern issues between Mr Jones and Mr Lamont, but only against the other, and more active, defendants.

Mr S Whybrow, counsel for those defendants, however, submitted that there was an issue because one of the proposed amendments would constitute a disclosure of information that was the subject of a claim for privilege by them, though Mr Jones disputed the claimed privilege or submitted that it had been waived. The matter said to be the subject of the privilege should, of course, not be disclosed until a decision had been made as to the existence of the privilege or the maintenance of the claim.

Mr Lamont’s counsel, Mr J Pappas, also orally raised some further alleged lacunae in the Statement of Claim and I indicated that Mr Jones may wish to address those.

It seemed to me that Mr Jones should not have unlimited opportunities in which he might adequately plead his causes of action against the active defendants. On the other hand, inadequacies in the pleading that have been identified and which can be addressed without irremediable prejudice should be addressed.

That is to say, the application for leave to file the Further Amended Statement of Claim can conveniently be dealt with at the same time as the applications that the current Amended Statement of Claim be struck out. This has an advantage of efficiency for, if the strike out applications are successful but the Further Amended Statement of Claim adequately addresses the issues on which such an order is made, then, ordinarily, leave to amend the Statement of Claim to do so would be granted.

In order, however, that the parties and the court are aware of the alternative pleading, it seemed to me desirable that the Further Amended Statement of Claim be filed as a provisional document. That is to say, it be filed so that the parties and the court know what Mr Jones says is, in the face of the challenges currently being made to his pleadings, the final version of the Statement of Claim would be were some of those challenges to be accepted by Mr Jones as valid or upheld by the court.

This also has the virtue that, if Mr Jones can successfully resist any criticism of the adequacy of the pleading of the Further Amended Statement of Claim, the proceedings can proceed immediately without the need for a delay while the Statement of Claim is further amended, should any of the challenges by the active defendants be successful.

In order to protect the privilege, I directed that the Further Amended Statement of Claim be filed in a sealed envelope but a copy of the document served on each of the active parties.

I also indicated that, other than in special or exceptional circumstances, Mr Jones would not be permitted to amend the Statement of Claim further. That was not to be an absolute refusal; that would be inappropriate. For example, typographical errors or slips could not reasonably be prevented from being amended. Consent would also permit further amendment. Other than that, however, it seemed to me that Mr Jones had now had sufficient opportunity to formulate his case and that it would require some special or exceptional circumstances before he should be permitted to make any further amendments to the Statement of Claim after that opportunity.

Thus, I directed that the plaintiff have leave to file and serve a Further Amended Statement of Claim provisionally, that is until further order of the court. It is not the Statement of Claim on which the proceedings can be conducted. Because of the issue of privilege, it was directed to be filed in a sealed envelope, that is, subject to the further direction mentioned below, not to be opened except by order of a judge, though service of the document was directed to be effected of the document on the active defendants who would also have access to the document in the sealed envelope.

Because of the likelihood that there will be some amendments in this further document not pleaded in the current Amended Statement of Claim, I gave the active defendants leave to amend their applications so as to address any such amendments.

In order to manage the issue of privilege in the Further Amended Statement of Claim, I gave directions for Mr Jones to file an affidavit setting out the facts on which he proposed to rely to assert that the privilege, otherwise attaching to any allegations made in the pleadings, has been lost or waived.

Thus, until the issue of privilege is resolved, the Further Amended Statement of Claim provisionally filed in a sealed envelope can only be filed and inspected by direction of a judge.

Next, I was informed that Professor Parker, who has filed an affidavit in support of the strike out application of the first to fourth defendants, will be overseas on 1 August 2016.

I directed that Mr Jones give notice if he requires Professor Parker to be available for cross-examination.

I then gave directions about the filing of any further affidavits in support of or opposition to the strike out applications.

Finally, despite no longer being an active party, I am satisfied that the Club has an interest in the non-publication orders, particularly to protect the confidentiality of the KPMG Report. The validity and continuation of these orders may arise in the further hearing. Accordingly, I gave the Club leave to appear at the hearing of the strike out application, if it wished to do so, as issues may arise as to the question of publication of material subject to the non-publication order.

Because the Statement of Claim has not yet found its final form, it was obvious that the active defendants should not be required to file a defence. Accordingly, I also directed that the active defendants not be required to file a defence until further order.

Application for confidentiality

As noted above (at [6]), some material filed was subject to orders prohibiting persons accessing the material on the court file, even though, for example, the material had been read by the court and the parties: cf r 2903(2)(b) of the Court Procedures Rules.

This had even led to the court having, at stages, to conduct some of the proceedings in closed court to preserve the confidentiality of, in particular, the, KPMG Report. See Jones v University of Canberra at [6]-[7]. In other cases, it necessitated that the debate in the court be conducted in a rather elliptical way.

On 12 May 2016, Mr Jones applied for orders dissolving the non-publication orders made in respect of certain affidavits and substituting a more limited non-publication order.

Since that application had been filed, I gave some further directions on 13 May 2016, as to what might be published without breaching the non-publication orders. This was to ameliorate the problem for Mr Jones who, as a result of the settlement with the Club of his claim, was now seeking other employment and was handicapped by being unable to explain the now publicly ventilated circumstances of his employment with the Club and its termination.

Given that modification to the extent of the non-publication orders, it was agreed that the application should be dismissed. By consent, I did so and, also by consent, made no order as to costs of the application.

An issue arose, however, as to the reach of the non-publication orders already in existence, so far as the possible interference with preparation for the hearing might be concerned. That is to say, it was suggested that the affidavits filed were subject to non-publication orders.

Mr Jones was concerned that he wanted to show those affidavits to other persons who may be able to respond to statements in them so as to adduce relevant evidence in opposition to the strike out applications.

An inspection of the non-publication orders did not disclose that any of the affidavits to which reference was made were subject to non-publication orders.

It is important, where non-publication orders have been made, for the parties to proceedings to know the terms of those orders quite precisely and to understand the reach of them.

To facilitate that in this case, I had authorised my associate to circulate to the parties a copy of the bench sheet she had prepared of the orders I had made so that the precise terms are clear. Before doing so, my associate consulted with me so that I could settle the orders recorded and, if necessary, listen to the recording of the proceedings to ensure that the orders so recorded are accurate.

Breaches of non-publication orders are serious matters, though the court has no mechanism to investigate them. A breach of an order made under s 111 of the Evidence (Miscellaneous Provisions) Act is an offence under s 112 of that Act. A breach of such an order made under the inherent jurisdiction of the court is contempt of court. The court, of course, does not have an investigative function and has no staff qualified or with powers to undertake any investigation. Indeed, it cannot act on a breach without evidence. It relies on the parties whose interests are affected to bring such matters to its attention in the proper way, by evidence, and then the appropriate authorities can be requested to conduct appropriate inquiries and, if necessary, take appropriate action.

It appears, however, that, in complaining of the possible restriction on his preparation to oppose the strike out applications, Mr Jones was actually referring to the rule in the Court Procedures Rules which prohibits inspection on a court file of any affidavit that has not been read in court: r 2903(2)(b).

That rule has abrogated the common law which provided that there was no general right of inspection of documents filed in court. See John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 521; [31].

Access to justice is an important value underpinning the court system in this Territory. See R v Jovanovic (2014) 285 FLR 108 at 110-11; [9]-[16]. The Court Procedures Rules have recognised this in the provisions made in rr 2903 (civil proceedings) and 4053 (criminal proceedings) for such access. Even under those rules, however, there are limitations. Obvious ones are the denial of access to documents that the court has ordered to be confidential.

Further, as accepted by Sackville J in Seven Network Ltd v News Ltd (2005) 225 ALR 256 at 263-4; [27]:

... a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice.

This clearly justifies the restriction in r 2903(2)(b) of the Court Procedures Rules which excludes from a general right of access or inspection by persons who are not parties to documents filed in court any affidavits not read in court and, therefore, not admitted into evidence. An affidavit not read, even if filed, does not become evidence until it is read: Manson v Ponninghaus [1911] VLR 239 at 241.

That restriction, however, does not apply to parties, as the rule makes explicit. In any event, any affidavit filed by a party must be served on every other active party: r 6718 of the Court Procedures Rules. Thus, Mr Jones will or ought to have a copy of the affidavits which he wishes to answer. There is, absent any non-publication order, no reason why he or his lawyers should not show such affidavits to potential witnesses.

They should, of course, not be otherwise used, at least until admitted into evidence. That is to say, for a person other than the maker of an affidavit to publish statements from the affidavit that has not been read would undermine the restrictions inherent in r 2903(2) and 4053(2) of the Court Procedures Rules. Such use may be an abuse of process, though I do not have to make a finding on that.

It is not, however, such an abuse for a lawyer for a party to show to a potential witness an affidavit, even if not yet read, but which has been served on the lawyer by another party, so that the potential witnesses may give instructions for an answering affidavit.

Nevertheless, because there was some uncertainty in the minds of the parties, I granted the plaintiff leave to review the non-publication orders to see if any of them restricted his preparation of evidence and, if so, to approach me, through my associate, for an appropriate order in chambers.

Evidence

The parties had issued various subpoenas for production of documents. I had given leave to do so; this was required under r 6601A of the Court Procedures Rules, because a date for hearing of the proceedings had not been set.

The subpoenas had various return dates. There was some confusion about the process. It seemed to me that the addressee of a subpoena for production of documents is required by the order of the court that issued the subpoena to attend court on the return date in the subpoena unless he, she or it has used the option of lodging them with the court before the return date permitted under r 6607 of the Court Procedures Rules. The documents, when lodged, are placed in the custody of the court.

While a subpoena to give evidence binds the addressee to attend from day-to-day until excused, there is no such obligation expressly imposed on an addressee to a subpoena for production. I do not have to consider, in this case, whether it is to be implied.

The position is that a court can adjourn the calling for the documents produced under such a subpoena either by standing over the subpoena to another day or, if the documents have been produced and no challenges made by the addressee to making the document produced available to the parties, simply putting off to another day the question of access to them. The issuing party can also give the addressee notice of a different date or time when the issuing party will call on the addressee to produce the document, but to a date and time later than the date and time in the issued subpoena for attendance and production: r 6603A of the Court Procedures Rules.

In this case, the addressees were, for the most part, parties or witnesses whom a party may be likely to or is intending to call to give evidence. It was submitted that the subpoenas, save for those seeking documents required for the hearing of the strike out applications, should be adjourned until the pleadings were closed as the court may only issue a subpoena without leave if a date has been set for the hearing of the proceedings: r 6601A of the Court Procedures Rules. This is consistent with the rationale for a subpoena, that it is intended to produce evidence for the proceedings, either oral testimony by requiring the addressee to attend and give evidence, or by having documents in the possession of a person other than the issuing party available for tender. In particular, a subpoena for production is not to be used as a method of discovery against a non-party: Territory Insurance Office v Kouimanis Enterprises Pty Ltd (2002) 171 FLR 425 at 428-9; [16]-[18].

Some of the parties wished to have the subpoenas, or some of them, set aside but, as at the return date, no such application had been made. I doubt that a subpoena can be set aside after the documents sought by it to be produced have been produced when the subpoena is answered.

It seemed that Mr Jones was, for the answer he wished to make to the strike out applications using the subpoenas, in part, for a negative search; that is to say, he wished to be clear that, if no documents are produced by a party under such a subpoena, then he would not be met with damaging documents at the hearing. Alternatively, he wished to explore the documentary evidence behind some assertions. For example, it was denied that a direction had been given by the University of Canberra about matters involving Mr Jones, but he believed that documents would exist giving such an instruction, perhaps short of a direction, but that would be supportive of his answer to the applications.

There was also a suggestion that the subpoenas be amended to include a wider range of documents. There had, it appears, been some inter partes correspondence about this. I am not satisfied that there is power to amend a subpoena that has been served on the addressee other than as to the return date, for which there is express statutory remit.

A subpoena is a court order issued by the court. The power to amend a court order is under r 6906 of the Court Procedures Rules. This does not permit the kind of amendment that seemed to be contemplated. It also does not seem to me that Pt 2.7 (Amendment) of the Rules applies, for that is limited to documents that have been filed in proceedings: r 500.

On the other hand, there seems no difficulty in an issuing party advising the addressee of a subpoena that he, she or it will not call on an identified document, documents or group of documents when the subpoena is answered.

That, however, does not seem to be what was sought. The suggestion was that the scope of documents to be sought under the subpoena would be enlarged.

Given that the addressees of the relevant subpoenas were all parties, it seemed to me that the answer to the procedural tangle was to give Mr Jones leave to issue Notices to Produce under r 6748 of the Court Procedures Rules in accordance with a regime of pre-issue notice to and consultation with the other parties that was designed to minimise technical objections and arguments.

In the meantime, the calling of the subpoenas will be adjourned. In the event, depending on the outcome of the strike out applications, there may be no need for the subpoenas at all and they could then be discharged.

I declined, however, to strike out the subpoenas already issued. I noted, however, that no complaint could properly be made at the hearing of the strike out applications that they have not been answered despite the pendency of them. This was clear so that no party could claim that the failure to answer the subpoena put the party at a disadvantage because of that non-compliance. The procedure of Notices to Produce was the answer to that.

On the other hand, there may, in due course, be a need for the subpoenas to be answered for the final hearing or for preparation for that hearing and I saw no need to strike them out when, by order, the occasion for them to be called on had been deferred.

Particulars

Mr Lamont had sought particulars of the Statement of Claim. A number of the requests had not been answered or, his counsel, Mr J Pappas, submitted, had not been adequately answered. He sought a direction that further answers be given to specified requests that had not been answered or had been inadequately answered.

The general principle as to particulars of pleadings was set out by Cotton LJ in Phillips v Phillips (1878) 4 QBD 127 at 139 as follows:

What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes on for trial.

The function of particulars was set out clearly by Isaacs J in R v Associated Northern Colleries (1910) 11 CLR 738 at 740-1, where his Honour said:

I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms ‘surprise’, but he is not entitled to be told the mode by which the case is to be proved against him.

In National Starch Co v Robert Harper and Co Pty Ltd [1906] VLR 8 at 12, Hodges J said:

After a careful examination of the authorities I arrive at the conclusion that the principle the Court acts upon is this: A defendant is entitled to know every material fact upon which the plaintiff relies, so that he may know the nature and character of the charge made against him, and he is entitled to know those facts with as much precision as will enable him to prepare his brief and as will prevent his being taken by surprise at the trial.
If the plaintiff cannot give that without disclosing the names of his witnesses that cannot be helped. If he can do so without disclosing their names he must give the particulars, but need not give the names.

A review of the authorities reveals the following:

· the pleadings include the particulars;

· the function of the particulars is to limit the generality of the allegations in the pleadings and thus to define the issues which have to be tried;

· the particulars are statements of material fact and should not include evidence;

· particulars must, as pleadings, comply with the rules as to pleadings;

· particulars cannot fill a gap in a pleading by providing a material fact that should have been included in the pleading;

· although they are part of the pleadings, an opposite party should not plead to the particulars.

I will apply these principles to the questions here.

Mr Lamont’s lawyers sought particulars of the Statement of Claim by letter dated 1 June 2016. Particulars were supplied by the lawyers for Mr Jones on 16 June 2016, but the lawyers declined to supply some particulars. Mr Lamont’s lawyers responded seeking further particulars of 14 requests said to have been inadequately answered. Further answers, including an objection to answering some of the requests further pressed, were supplied. Being dissatisfied with these further answers, application was then made for the particulars sought to be supplied. Mr Lamont did not press for further answers to all 14 requests.

Three paragraphs of the Statement of Claim were the subject of the requests for further particulars and some requests were directed more generally to the question of damages. I shall deal with each in turn.

While, of course, it is necessary to have regard to the whole claim, it is possible, in this case, to limit the inquiry to the particular pleaded paragraphs and the requests.

Paragraph 25

The pleading is as follows:

25. Between December 2015 to March 2016, following the conversation between the Plaintiff and Mr Lamont in item 1 in the Confidential Schedule, Mr Lamont repeatedly briefed journalists at the Canberra Times with material attacking Mr Jones’ capacity to perform his role at the Club.

The first relevant request (2.1(a)) was “Who was briefed?”. The answer was initially:

Journalist [sic] employed by the Canberra Times were briefed, including Mr David Polinghorn and Mr Chris Dutton (the Fairfax Journalists).

When Mr Jones was pressed for a better answer, the following further answer was provided:

The allegation is that Mr Lamont attended the Offices of the Canberra Times and Journalists in the employ or engagement of that newspaper and the Fairfax Group of companies on more than one occasion between December 2015 and March 2016. The plaintiff is not aware of the identity of other individual journalist [sic] beyond the individuals named in his answer.

Ordinarily, a party is not required to provide the names of witnesses, as this is evidence: Bishop v Bishop [1901] P 325 at 326, 327. If, however, particulars are properly required to be given, then the fact that the particulars will disclose the name of persons will not prevent the particulars being required to be given: Wootton v Sievier [1913] 3 KB 499 at 503.

The test appears to be whether the name of the person is a substantial part of a fact material to an issue in the cases, or an essential element in the case. See Perpetual Trustees of Australia Ltd v Brenton (1985) 35 NTR 44 at 46.

It does not seem to me that the names of the journalists is material to the proceedings. Thus, a better answer to the request for particulars is not required.

In argument, it was submitted that the answer meant that “whether there are in fact other journalists and how many there may be is unknown”. That, however, is not the question asked. All that was asked was who was briefed. It did not require a number; indeed, “some journalists” of the Canberra Times would have been adequate.

It seemed to be conceded in argument that Mr Jones did not know the names of all the journalists who were briefed or, perhaps, precisely how many there were.

A party is only obliged to supply the best particulars that he, she or it can supply. See Higgins v Weekes (1889) 5 TLR 238; Marshall v Inter-Oceanic Steam Yachting Company (1885) 1 TLR 394. Of course, a party is still required to give the best particulars they can but may, after discovery or other preparatory works, be able to give further particulars. This was held by Plowman J in Cyril Leonard & Co v Simo Securities Trust Ltd [1971] 3 All ER 1313 at 1317 to be an appropriate response.

Given that Mr Jones has provided some names, he may be able to provide further names after discovery but I did not order better particulars to be provided.

The next request (2.1(d)) was to specify:

The substance of any material, information, opinion or argument advanced during that briefing which attacked your capacity to perform your role at the Club.

Mr Jones responded, “The substance of the material briefed to the Fairfax Journalists included that:” and then set out 13 matters which are not the subject of any relevant challenge at this stage.

Mr Lamont’s complaint was that the answer was “evasive” as it referred to “the material briefed as including items (1) to (xiii)”. (emphasis added). What was of concern is that the particularising of the substance is apparently incomplete. The use of the word “including” clearly implied that there were other matters in the briefing not set out. As Mason P pointed out in Victims Compensation Board v Brown (2002) 54 NSWLR 668 at 679; [62], where a list “uses the word ‘includes’ [it] does not purport to cover the field”.

Accordingly, a better answer to the particulars was required. I was informed, however, that there were no other matters to be disclosed by Mr Jones. It appears that the proper answer will be in the same terms other than omitting the word “including”. Nevertheless, it should be provided, so that, if necessary, Mr Lamont can rely on the particulars in any hearing.

The final challenged answer to this paragraph of the pleading was in response to the request (2.1(f)) which was in the following terms:

Whether in actual or apparent consequence of that briefing anything was published in The Canberra Times newspaper or upon any electronic medium apparently controlled by Fairfax Media which was an attack on your capacity to perform your role at the Club and, if so, say when and identify any such publication with sufficient particularity to allow it to be discovered or, alternatively, supply a copy thereof at the fifth defendants [sic] expense.

Mr Jones objected to the request in that it did not seek particulars of any allegation in the relevant paragraph of the pleading.

Mr Lamont acknowledged that there was no such allegation but it was submitted by Mr Pappas that the allegation in the pleading

can only have been intended, you would think, when the pleader refers to briefing a journalist at the particular newspaper that something resulted from that. Now, it may be that the briefing itself is said to have been discriminatory in relation to employment, although that is a bit hard to see, or it may be that it is said to be harassing or intimidating. But unless the object of the harassment or intimidation knew about it, it is a bit hard to see how it could be either of those.

That may be so, but the fact remains that no allegation is made of any publication and so the request is not seeking detail of any pleading made. Indeed, any such particulars might, in the light of the submissions, be seen as filling a gap in the pleading and this is impermissible. See Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712. If this is intended, then further particulars should not be ordered.

I declined to order further particulars in response to the request.

Paragraph 26B

The pleading was as follows:

26B On or about February to March 2015, Mr Lamont approached Aquis, a major sponsor of the Club and put pressure on Acquis [sic] to withdraw support from Mr Jones by saying words to the effect in item 8.

The first relevant request (4.1(e)) was:

What was the ‘support’ of you that was urged to be withdrawn and how was it suggested that that support should be withdrawn.

The first answer to the particulars was:

The withdrawal of sponsorship support to the Union and support of Mr Jones in his performance of his role as CEO.

The final answer to the request was:

For the sake of clarity, the allegation is that your client:
(i)sough [sic] to have Aquis withdraw its sponsorship of the Brumbies;
(ii)that decision was attributable to the conduct and behaviour of Mr Jones in his performance of his role as CEO of the Brumbies.

It does not seem to me that these answers really address either the request or the pleading. The action alleged to have been the subject of the attempt is “to withdraw support from Mr Jones”. The answer does not say what support was provided by Aquis to Mr Jones or for him. It refers to support of the Club, but that may or may not be support for Mr Jones and if it is, needs to be explained.

I will order a further answer to this request for particulars.

A similar issue arose with a further request (4.1(f)) which was as follows:

Prior to any approach by the fifth defendant what support had Aquis provided to you and how was that support manifest.

This is really a recasting of the earlier request (4.1(e)). Given that a further answer is required to that earlier request, this request should also be answered, but the one answer may suffice to both requests unless, for some reason I cannot identify, there are elements of “support” provided (this request) which were not sought to be withdrawn (earlier answer).

Finally, in relation to this pleading, a further request (4.1(g)) was made as follows:

Following the alleged approach by the fifth defendant was any support of you withdrawn by Aquis and how, when and in what circumstances was it withdrawn.

The pleading does not, however, allege that there was any support actually withdrawn. Accordingly, this is not a proper request for particulars and need not be answered.

Paragraph 26C

This pleading was as follows:

26C On or about March or April 2016, Mr Lamont contacted the Treasurer of the Carbine Group, Mr Paul Walsh [sic] and requested that he intervene to stop members of the Carbine Group attending the Club’s State of the Union lunch in opposition to Mr Jones.

The first request (5.1(a)) was, “Who are the members of the Carbine Club?”.

The question was answered in a rather peculiar way, as follows:

The individuals that usually attend the functions of the Union as representatives of the Carbine Club Group.

This seems to me to be unhelpful but further particulars of the members also seem to me to fall foul of the prohibition on providing evidence as described above (at [87]). The names of the members do not seem to me to be material facts, just as the names of the Board members of Aquis in respect of paragraph 26B would not have been material.

I declined to order further particulars in answer to this request.

The next relevant request (5.1(c)) was:

How was attendance at the Club’s State of the Union lunch by members of the Carbine Group related in any way to your performance of your role with the Club.

Mr Jones declined to answer the request on the basis that it was not a proper matter for particulars.

In the further reply, once pressed, Mr Jones stated:

The request is argumentative and irrelevant to any pleadings.
We direct you to the Amended Statement of Claim at paragraph 38(b)[sic],(f) and (g), which sets out the allegation of detrimental conduct, which relevantly concerns ‘treating or proposing to treat Mr Jones unfavourably in relation to his reputation, career and or employment; and/or was harassing or intimidating to Mr Jones’.
The plaintiff says that in respect of 5(c) – the relevant conduct consisted of treating Mr Jones unfavourably in relation to his reputation, career and was harassing and intimidating. No allegation is made of employment.

This does not address an allegation in the pleading. The pleading does not allege that the attendance was detrimental to Mr Jones’ performance of his role; it referred to the more amorphous concept of “in opposition to Mr Jones” which does not seem to me to be part of the performance of his role.

It seemed to me, however, that there was a need to show a connection between the pleaded action and the way it was to be said that it was detrimental action, as claimed in paragraph 38 of the Statement of Claim. Without that, Mr Lamont could be taken by surprise at the hearing and particulars are designed to avoid that. See Sims v Wran [1984] 1 NSWLR 317.

It seemed to me that the connection between the request for members of the Carbine Club not to attend the State of the Union lunch and the detrimental action said to have been taken against Mr Jones is a proper request for particulars. It will, however, require Mr Lamont to recast the request and I gave him that leave. I comment, too, that what Mr Jones has answered is not sufficient to disclose the connection.

The next requests (5.1(d) and (e)), can be dealt with together. They asked:

(d) When did you first learn of the alleged contact.
(e) From whom and by what means did you first learn of the alleged contact.

They ask for evidence and are not a proper request for particulars. I declined to order further particulars.

The last request of this pleading (5.1(f)) was as follows:

How is it alleged that the non-attendance of members of the Carbine Group at the Club’s State of the Union lunch was likely to be detrimental to your:
(i)Reputation.
(ii)Career.
(iii)Employment.

The final answer was:

It is not alleged that the non-attendance of members of the Carbine Group at the Club’s State of the Union Lunch was likely to be detrimental to Mr Jones.
The allegation contained in paragraph 26C of the Amended Claim concerns a request by Mr Lamont to Mr Paul Walsh [sic], that Mr Walsh [sic] intervene to stop members of the Carbine Group attending the Club’s State of the Union Lunch in opposition to Mr Jones.
The intervention directly sought to undermine Mr Jones in connection with his reputation and career, and was otherwise intimidating and harassing, as pleaded in paragraphs 38(f) and (g) of the Amended Claim.

Mr Pappas, for Mr Lamont, agreed that there was a need to reformulate that question also. It seems to me that a request, properly formulated, does come within the principle that particulars are needed to ensure that there is a sufficient statement of the plaintiff’s case to allow the defendant a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658 at 664.

Generally

There were three more general requests that went to damages.

The first request (6.1) was as follows:

How, precisely, do you say any ‘detrimental action’ engaged in by the fifth defendant has caused you loss or damage?

An answer was given in three parts. Only the first was the subject of the application that I order yet further and better particulars. It was:

The detrimental action engaged by Mr Lamont has caused Mr Jones loss and damage in that
(a)Mr Jones was unable to complete his employment contract with the Union and has suffered the loss of value of the balance of that contract, which was due to expire on 18 January 2018. The value of this contract exceeded $760,000 at the relevant time that Mr Jones resolved his claims with the Union;

This is not sufficient. I appreciate that there are issues of confidentiality in the settlement between Mr Jones and the Club. That may prove an obstacle to providing a better answer.

It is clear, however, that, where special damage is claimed, full particulars are required to show the nature and extent of the damage with relevant details. See Ratcliffe v Evans [1892] 2 QB 524 at 532; Calvert v Tomkies [1963] 3 All ER 610 at 612.

A further answer is required if special damage is to be claimed. Otherwise the claim should be abandoned.

The next request (6.2) was as follows:

Has the fifth defendant, at any time since the 29^th of January 2015, either directly, indirectly or by necessary implication, threatened or attempted to engage in other ‘detrimental action’ and, if so:
(a)Please indicate the precise nature of that ‘detrimental action’
(b)Say when it was engaged in;
(c)Say when it was threatened to be engaged in;
(d)Say when and by reference to what facts, acts or circumstances you apprehended it might be engaged in.

Mr Pappas accepted that this did not arise out of any pleaded facts and so I declined to order any further particulars as requested.

Finally, the request (6.3) was as follows:

In relation to any loss or damage suffered by you please indicate with precision the nature and the precise quantification of that loss or damage and how it has been calculated by you.

This again requires particulars in the same way as I indicated in respect of 6.1(a) and for the same reasons.

Costs

I was requested by all parties to reserve the question of costs and I did so.

Disposition

It was for these reasons that I made the orders that I did.

I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 27 July 2016

[2016] ACTSC 186

5 July 2016