Rainsford v State of Victoria

[2004] FMCA 620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAINSFORD v STATE OF VICTORIA & ANOR [2004] FMCA 620

PRACTICE & PROCEDURE – HUMAN RIGHTS – Application to re-open case some weeks after hearing concluded.

Federal Court Rules 1979
Federal Magistrates Court Rules 2001

State of Queensland and Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146

Applicant: JAMES RAINSFORD

First Respondent:	STATE OF VICTORIA
Second Respondent:	GROUP 4 CORRECTIONS SERVICES PTY LTD  (ACN 050 069 255)

File No: MZ 869 of 2002 and MZ 590 of 2003

Delivered on: 14 September 2004

Delivered at: Sydney

Hearing date: 14 September 2004 by telephone conference

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr J Gray

Counsel for the First Respondent: Mr Niall

Counsel for the Second Respondent:	Ms D Mortimer QC
Solicitors for the First Respondent:	Corrections Victoria

Solicitors for the Second Respondent: Allens Arthur Robinson

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents costs to be assessed pursuant to Part 21 Rule 21.02(2)(b) in Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 869 of 2002

MZ 590 of 2003

JAMES RAINSFORD

Applicant

And

STATE OF VICTORIA

First Respondent

GROUP 4 CORRECTIONS SERVICES PTY LTD
(ACN 050 069 255)

Second Respondent

REASONS FOR JUDGMENT

1. I have before me today a very unusual application.  Notwithstanding that this case was heard by me in Melbourne on 26 and 27 August 2004 and I had reserved my decision, the applicant seeks to amend a document entitled “Final Contentions” in which he had articulated the manner in which he alleges he was discriminated against by the two respondents.  The form of amendment is contained in the document headed “Notice of Motion”.  It adds a contention in relation to both grounds of alleged discrimination, one of which relates to the transport of the applicant between prisons and the other to the applicant having been placed in a particular unit in one of the prisons in which he was lodged.

2. The history of these proceedings is not a fortunate one.  They were commenced in about 2001 as two separate proceedings which were eventually consolidated and heard together by the Chief Federal Magistrate in September 2003.  That hearing took place after some preliminary hearings including one in which her Honour, now the Chief Justice of the Family Court, made orders allowing amendments and extending time on 20 November 2002.

3. Her Honour's elevation came at a time prior to her having completed her judgment in the case and it was therefore necessary for the case to be re-heard before another Federal Magistrate; the lot fell upon me. When that occurred I immediately contacted the parties and held a directions hearing so that the matter could be determined as soon as possible. As counsel for the respondents have said today; I agreed to a hearing of separate issues pursuant to rule 17 of the Federal Magistrates Court rules.

4. But I also agreed to an application made by counsel for the applicant to further amend the contentions which form the basis of his client's claim.  I did that over the objection of both respondents.  The purpose of agreeing to the amendments was to hear the case that the applicant said raised the real issues between the parties.  The matter then proceeded before me over one and a half days.  The applicant took me to the relevant evidence which supported the contentions that were being made on his behalf.  The respondents answered that evidence and made their submissions.  They had conducted themselves on the basis that those contentions which had been agreed to by me were the matter in dispute.  The case then closed.

5. I am now provided with an affidavit from Mr Rainsford himself, which Ms Mortimer describes as being no more than a cover for the failings that Mr Gray believes have occurred in his presentation of the case.  Mr Gray has been quite open that he now believes he has made a mistake in the way in which he presented his case and he wishes to rectify the situation.  As Ms Mortimer says, the frequency with which Counsel on returning to chambers realise that there was a better way in which to approach the case that he or she has just argued must be innumerable.  I can say as a solicitor for some 30 years prior to my taking this position that it happens to solicitors as well.

6. What the applicant wishes me now to do is to re-open the case and, presumably, start all over again.  He says to me in his submissions that it is just a legal matter not requiring any further evidence with which the respondents can deal without any real prejudice but I do not think that is the case at all.  I believe that in order to properly argue that there was a requirement or condition that Mr Rainsford be transported without access to conditions which would protect his back from injury and to argue that Mr Rainsford was required to be in the Charlotte Unit cell without access to conditions which would protect his back from injury, is an entirely different case to that which came before me.  I have little doubt that the whole matter would have to be re-opened, the previous arguments abandoned and the new case heard.  That simply is not appropriate at this stage.

7. It is not a matter where costs would cover the problem.  If I allowed this amendment it would mean that any case that came before a court could be re-considered in the comfort of Counsel's chambers and re-opened when a new way of bringing it was realised.  Mr Gray has pointed to the learning on amendment of pleadings found in the services in relation to Order 13 of the Federal Court Rules and Ms Mortimer has appropriately referred me to the seminal discussion of these matters in State of Queensland and Another v J.L. Holdings Pty Limited (1997) 189 CLR 146 and particularly to the discussion by Kirby J between [169] and [175]. Although his Honour says at [169]:

   “ Amongst considerations which may tend to favour the extension of an indulgence to a party applying for it are the following: that is the only way in which the true issues and real merits, factual and legal, can be litigated and artificiality avoided; that the oversight which occurred is adequately explained as, for example, that it arose out of sudden and unexpected events; that the proposed amendment is of considerable importance to the rights of a party particularly where it provides a complete answer to a claim; that any fault is that of the party's legal representative.”

   I have the distinct feeling that his Honour was referring to amendments being made in the course of a trial.  The generosity with which the High Court deals with the question of amendments in those circumstances may not have been quite so large if it was being asked to consider the possibility of re-defining a case some four weeks after it had been heard and, to be frank, some very few days before judgment was to be delivered.

8. Mr Gray seeks comfort in the words of Kirby J and argues that this is the only way the real merits, factual and legal, can be litigated and artificiality avoided. But Mr Gray has had several years in which to articulate the way in which the true issues and real merits of the case can be litigated.  A set of facts exists; Mr Rainsford was lodged in a particular cell for a particular period of time.  Mr Rainsford was transported from time to time in a particular method between prisons. If Mr Rainsford believed that he was discriminated against unlawfully as a result of those things he must say in what way that occurred.  He did so. He did so on a number of occasions.   He changed his mind on a number of occasions and eventually he came to some finality and that finality resided in the proceedings that came before me.  If he now thinks that he could have done it better or suggested a different way that is not really deciding the real issues between the parties because it is Mr Rainsford who decides what the issues are.  He decided; the case was heard and should now be allowed to proceed to judgment.  If Mr Rainsford is unhappy with the judgment that he obtains and finds some legal error in it, he may appeal.

9. The application is dismissed. The applicant is to pay the respondents costs of the motion to be assessed pursuant to Part 21 Rule 21.02(2)(b) in Schedule 1 of the Federal Magistrates Court Rules 2001 noting that this is an appropriate case for counsel to have been briefed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  17 September 2004