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

Case [2021] FCA 1103

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

Details
AGLC
Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 2) [2021] FCA 1103
Case
[2021] FCA 1103
Decision Date

CaseChat Overview and Summary

In the Federal Court, Milkins brought a claim against the Diocese of Sale Catholic Education Ltd, which operates St Joseph’s Primary School in Wonthaggi, for personal injury and loss arising from the defendant's alleged negligence. The defendant applied to strike out certain parts of the amended statement of claim, arguing that they were irrelevant and misleading. The court was required to determine whether the content in question should be removed and whether the plaintiff should be allowed to re-plead those parts.

The court examined the relevant pleadings and found that the content in paragraphs 13-19 and 32-45 of the amended statement of claim did not pertain to the cause of action. Instead, it was considered extraneous, potentially misleading, and not relevant to the proceedings. The court ruled that striking out these paragraphs was appropriate and denied the plaintiff leave to re-plead them. The plaintiff's legal representatives were instructed to submit any relevant submissions or evidence on whether they should bear the costs of the defendant’s application by a specified deadline.

The court made orders to strike out the identified paragraphs from the amended statement of claim. The plaintiff was not granted leave to re-plead the struck-out content. The plaintiff’s legal representatives were instructed to file and serve any relevant submissions or evidence regarding whether they should bear the costs of the defendant’s application by a specified time. The orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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