Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 2)

Case •

[2021] FCA 1103

•

13 September 2021

FEDERAL COURT OF AUSTRALIA

Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1103

File number(s): VID 106 of 2019
Judgment of: O'CALLAGHAN J
Date of judgment: 13 September 2021
Catchwords: PRACTICE AND PROCEDURE – application to strike out part of pleading – application allowed
Legislation: Federal Court Rules 2011 (Cth) r 16.21
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 5
Date of last submission/s: 11 September 2020
Date of hearing: Determined on the papers
Counsel for the Applicant: Mr DJ Hancock
Solicitor for the Applicant: Starnet Legal
Counsel for the Respondent: Mr AG Manos
Solicitor for the Respondent: Wotton + Kearney

ORDERS

VID 106 of 2019
BETWEEN:

JAELAH MILKINS (BY HER NEXT FRIEND MELINDA MILKINS)

Applicant
AND:

DIOCESES OF SALE CATHOLIC EDUCATION LTD (ST JOSEPH'S PRIMARY SCHOOL WONTHAGGI)

Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

13 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.Paragraphs 13-19 and 32-45 of the Amended Statement of Claim filed on 19 November 2019 be struck out.

2.The applicant be refused leave to re-plead those paragraphs.

3.The legal representatives for the applicant file and serve any submissions or evidence in relation to the question of whether they should personally bear the costs of the respondent’s application by 4:00pm on 4 October 2021.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J:

  1. This proceeding is related to VID 107 of 2019.  Like that proceeding, it concerns alleged breaches of the Disability Discrimination Act 1992 (Cth) by the respondent, a school (St Joseph’s).  The applicant in this proceeding is also a former student at St Joseph’s.

  2. As in VID 107 of 2019, the respondent again seeks orders striking out an Amended Statement of Claim (also dated 19 November 2019) (ASOC) pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

  3. These reasons should be read together with the reasons in VID 107 of 2019, Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102, and will be published simultaneously.

  4. The paragraphs of the ASOC the subject of this strike out application, and the written submissions filed by both sides, are “cookie cutter” versions of the paragraphs impugned, and the submissions made, in Harvey (No 2).  The impugned paragraphs will be struck out for the same reasons I gave in Harvey (No 2). 

  5. As to costs, I will make the same order I made in Harvey (No 2), namely, that the legal practitioners for the applicant file and serve within 21 days a written submission as to why they should not bear those costs personally.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

Associate:

Dated:       13 September 2021

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