Port Augusta City Council v Barry - [2021] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
PORT AUGUSTA CITY COUNCIL v BARRY
[2021] SADC 60
Judgment of his Honour Judge Dart
27 May 2021
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
Applicant amended pleadings - respondent claimed did not give fair notice - strike out - Master declined to strike out the amendment - transitional provisions for Uniform Civil Rules 2020 - amendment sufficiently complies with rules as to pleadings.
Held:
1. Appeal dismissed.
2. Respondent to pay applicant's costs of and incidental to the appeal.
Uniform Civil Rules 2020 (SA) r 1.4(1), r 1.5, r 67.2(2)(c); District Court Civil Rules 2006 (SA) r 98, referred to.
Arthur Young & Anor v Tieco International and Ors [1995] SASC 5173; Warren v District Council of the Lower Eyre Peninsula [2020] SASDC 87; Williams v Australian Telecommunications Commission (1988) 52 SASR 215; Wunda Joinery Pty Ltd (In liq) & Anor v Wunda Projects Australia Pty Ltd & Ors [2007] SASC 301; McLean v D.I.D Piling Pty Ltd [2010] SASC 33, considered.

PORT AUGUSTA CITY COUNCIL v BARRY
[2021] SADC 60

This is an appeal from a decision of a Master. The respondent (appellant) made application to strike out several paragraphs of the applicant’s Third Statement of Claim (“the SOC”). The Master found that the SOC adequately complied with the rules as to pleadings and dismissed the application. The appeal should also be dismissed.
The applicant’s case
The plaintiff alleges that, as a three year-old child, she was sexually assaulted at a day care centre in Port Augusta. The respondent conducts the day care centre and is being sued, inter alia, for negligence. The allegation of the applicant is that a son of an employee at the day care centre assaulted her.
The paragraph, which the respondent complains of, is as follows:
8.On a day in May 2000 the Plaintiff, aged three years, was sexually abused while at the Day Care Centre by Dylan Keneally (the Sexual Abuse).
Particulars of Sexual Abuse
a.On a day in May 2000, whilst the Plaintiff was at the Day Care Centre, Dylan Keneally was in the equipment shed of the Day Care Centre with the Plaintiff and another young ~~girl~~ boy named Cassius.
b.Dylan Keneally closed the door of the equipment shed and stood near the door. Dylan Keneally, the Plaintiff and Cassius were the only persons inside the equipment shed.
c.Dylan Keneally exposed his penis to the Plaintiff and to Cassius.
d.Dylan Keneally pulled the Plaintiff’s pants and diaper down.
e.Dylan Keneally picked the Plaintiff up and;
i.turned the Plaintiff so that the Plaintiff had her back towards Dylan Keneally; and
ii.sexually assaulted the Plaintiff, by causing force sexually assaulted the Plaintiff, by causing force by penis, body part or other object against the area of the labia majora and labia minora;
f.after the sexual assault the Plaintiff experienced pain in her genital area.
In particular, it is sub-paragraphs 8e and 8f that the respondent says do not comply with the rules as to pleadings.
The grounds of appeals
The respondent has three grounds of appeal, which are as follows:
1.   The Master erred in holding (at [13]) that the District Court Civil Rules 2006 applied to the Respondent’s Application FDN 30 when she ought to have held (in conformity with the decision of Judge Burnett in Warren v District Council of Lower Eyre Peninsula [2020] SADC 87) that the Uniform Civil Rules 2020 applied;
2.   The Master erred in any event in failing to hold that the Statement of Claim in sub-paragraphs 8e(i), 8e(ii) and 8(f) did not comply with Rule 98(2) and because it was evasive or ambiguous and should therefore have been struck out pursuant to Rule 104;
3.   The Master erred in holding (at [42], [51] and [53]) that sub-paragraphs 8e(i), 83(ii), and 8(f) gave the Respondent fair notice of the case it has to meet and that any further detail of what was comprised in the alleged sexual assault was a matter of evidence and not material fact (at [54]).
The appeal is by way of re-hearing. The Court is to consider the matter in light of the evidence before it on the appeal. The respondent needs to identify some error made by the Master.[1]
[1] McLean v Did Piling Pty Ltd [2010] SASC 33
The first ground is technical. It deals with the question of whether the District Court Civil Rules 2006 applied to the hearing before the Master, or the Uniform Civil Rules 2020. I am not sure that too much ink should be spilt on this issue because, in my opinion, nothing really turns on it.
The transitional provision of the Uniform Civil Rules 2020 (“UCR”) is found in rule 1.4(1):
1.4—Transition
(1)Unless the Court otherwise orders—
(a)     these Rules apply to—
(i)    a proceeding commenced; and
(ii)     a step in a proceeding taken,
on or after the commencement date; and
(b)     the Previous Rules continue to govern a step in a proceeding taken before the commencement date.
The word “step” is defined in the interpretation provision in rule 2.1:
step in a proceeding or appellate proceeding includes a document filed, process issued, action taken or order made in the proceeding;
It is perhaps relevant to also consider the objects of the rules, which are as follows:
1.5—Object
The object of these Rules is to facilitate the just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings governed by these Rules.
Notes—
Section 14A of the Acts Interpretation Act 1915 generally applies the provisions of the Act to “statutory instruments” such that a reference to an “Act” extends to a “statutory instrument”.
These Rules are a “statutory instrument” within the meaning of the Acts Interpretation Act 1915.
Section 22 of the Acts Interpretation Act 1915 provides that, where a provision of a statute is reasonably open to more than one construction, a construction that would promote the purpose or object of the statute must be preferred to a construction that would not promote that purpose or object.
The issue arises in this matter because the interlocutory application filed by the respondent seeking to strike out the disputed paragraphs of the Second SOC was filed on 1 April 2020. That was before the commencement of the Uniform Civil Rules. The Master determined that the rules applicable at the time of the institution of the interlocutory application should be utilised. The filing of an interlocutory application is a step in a proceeding. I prefer the Master’s interpretation, which is based on UCR 1.4(1)(b), being that the institution of the interlocutory application was a step taken before the commencement of the UCR. Accordingly, the previous rules continue to apply.
The respondent refers to a decision of Warren v District Council of the Lower Eyre Peninsula[2] where Judge Burnett held that the hearing of an application after the commencement date brought the new rules in to effect. The Master distinguished that decision. Having regard to the object set out in UCR 1.5 to facilitate a just and cost effective determination of issues, I think that points to the Master being correct. The relevant taking of the step was the filing of the interlocutory application. That having occurred before the commencement of the new rules, it should be dealt with and finalised under the rules that were in place at the time it was commenced.
[2] [2020] SASDC 87.
The reason I said that not too much ink should be spilt on the matter is because I do not think anything really turns on the issue. Under the District Court Civil Rules 2006 the relevant pleadings rule is rule 98(2)(d):
98—General rules of pleading
…
(2) A pleading—
…
(d)must plead such facts and matters as give fair notice of the party’s case at trial.
Under the UCR the relevant provision is rule 67.2(2)(c):
67.2—Pleading rules
…
(2)A pleading must—
…
(c) give fair notice of the party’s case to the opposing party so as to avoid the opposing party being taken by surprise at or in preparation for trial.
Both pleadings rules require the giving of fair notice. The new rule makes explicit the reason for giving fair notice. Nothing has changed in that regard under the new rules. The outcome of the respondent’s application to strike out or obtain further particulars of the Second SOC would be the same under either rule.
Regardless of which rules should apply, the transitional provisions allow the Court to order that the previous rules apply to a step in a proceeding in circumstances where the new rules would otherwise apply. The Master did so. There is no appeal from that order. That is the end of the issue.
The real complaint of the respondent is that it says that the amended pleading is vague or ambiguous and, further, does not comply with rules as to pleadings because it does not give fair notice of the case that the respondent has to meet at trial. The source of the concern of the respondent about the pleadings was set out by the Master in the judgment:[3]
28Counsel for the respondent argues that the statement of claim does not comply with rule 98 and the respondent is substantially prejudiced because the allegation of penetration of the applicant by Keneally’s penis and therefore, rape, has been withdrawn and replaced with a non-specific general plea of sexual assault causing force to be applied to the applicant’s labia majora and minora, causing pain in the genital area.
29The respondent also complains that because there is specificity in the pleading of para.8e(ii) by reference to a specific area of the external genitals and a more general pleading in 8f. It alleges that the pleadings are inconsistent in that “genital area” is far more general in pleading as opposed to “labia majora and labia minora”.
[3] Vanessa Mariah Barry v Port Augusta City Council, decision of Master Olsson, 12 February 2021, Decision No 1 of 2021.
The purpose of a statement of claim was set out by Judge Lunn in Wunda Joinery Pty Ltd (In liq) & Anor v Wunda Projects Australia Pty Ltd & Ors, where his Honour said: [4]
The fundamental object of a pleading is to tell the reader enough about the pleaders’ case so that in the instance of the SOC a reader can see the essential steps which establish the nominated cause of action and can understand the case that the plaintiff will be making for relief in the action. The readers for this purpose are not only the other parties in the action but also the members of the Court who have to deal with interlocutory proceedings, the trial and any subsequent arguments about res judicata or issue estoppel.
The Master referred to the decision of King CJ in Williams v Australian Telecommunications Commission, where the Chief Justice said:[5]
The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the Rules as to res judicata and issue estoppel. The second function is to give the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise. These fundamentals remain unaltered by the new Rules.
As can be seen from the judgment, and from the relevant rules, one of the two principal purposes of pleadings is to provide fair notice to your opponent of the case that is being made. I note that the allegations in paragraph 8 are denied.
The approach to a matter such as this was referred to in Arthur Young & Anor v Tieco International and Ors where Lander J said as follows:[6]
The rules do require that the pleading will contain particulars of the claim, and particulars under the Rules must be understood to be part of the pleadings. However, the rules make it plain that what is required is that there be sufficient particulars of the claim. It follows therefore, as well, that the rules contemplate that not all particulars which may be identified by a party need be pleaded.
When the Court considers a pleading it will not consider the pleading with the same degree of scrutiny which the courts are required to give to an Act of Parliament. With the complexities of modern litigation, a pleader can usually point to some deficiency in the opponent's pleadings. One can usually, if one approaches the matter with a critical eye, identify some failing in a pleading. But that is not the approach that in this age ought to be adopted. A court would not sit down in the manner of a nineteenth century pleader seeking to find an error capable of sending a party away to re-plead his claim or defence. Such a technical approach is inconsistent with modern litigation and inconsistent with the court's function which is to try to arrive at a just result. A successful result, if arrived at, after too great an expense may not be considered by even the successful party to be a just result. A court ought to approach a consideration of the adequacy of a pleading seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise.
[4] [2007] SASC 301 at [8].
[5] Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216.
[6] [1995] SASC 5173 at [18] and [21].
The real complaint of the respondent seems to be that the applicant has gone from a very specific pleading of penile penetration to a less specific plea of sexual assault. In a civil dispute, usually during the course of interlocutory stages, the pleadings become further particularised and more specific over time. In this matter the reverse of the usual situation applies. That fact of itself does not give rise to any issue.
As Lander J noted, it is not appropriate to read a pleading in an overly technical manner. All that is called for is a reading of a pleading according to its ordinary meaning.
The issue remains simply whether, when one reads sub-paragraphs 8 e and 8 f, is the respondent given fair notice of the claim made against it? I think on any fair reading, the answer is yes. It follows that the pleading is not evasive or ambiguous. The appeal should be dismissed.