Regan v Commonwealth of Australia
[2020] ACTSC 107
•1 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Regan v Commonwealth of Australia |
Citation: | [2020] ACTSC 107 |
Hearing Date: | 1 May 2020 |
DecisionDate: | 1 May 2020 |
Before: | Elkaim J |
Decision: | See [18] |
Catchwords: | CIVIL LAW – INTERLOCUTORY APPLICATION – Application to amend defence – unlawful arrest – defendant onus of proof – tradition versus asserted functionality |
Legislation cited: | Court Procedures Rules 2006 (ACT) r 440 |
Texts cited: | Bullen and Leake, Precedents on Pleadings (Sweet & Maxwell, 7th ed, 1915) |
Parties: | Erin Elizabeth Regan (Plaintiff) Commonwealth of Australia acting through the Australian Federal Police (First Defendant) Lauren Marie Gilliland (Second Defendant) Darren Stephen Pritchard (Third Defendant) David Anthony Reis (Fourth Defendant) |
Representation: | Counsel S Littlemore QC (Plaintiff) C O’Neill (Defendants) |
| Solicitors Aulich Law (Plaintiff) Ashurst (Defendants) | |
File Number: | SC 554 of 2018 |
ELKAIM J:
These proceedings were commenced in December 2018. The plaintiff seeks damages from the defendants arising from her arrest, imprisonment and prosecution following an incident that begun late on 26 January 2016.
The first defendant is, in effect, the federal police force. The balance of the defendants are police officers employed by the first defendant. The officers were said to be acting in the course of their employment during the incident.
The Defence was filed in March 2019. It is said to have been defective. The defendants now wish to file an Amended Defence. It is in the form annexed to the affidavit of Mr Andersen affirmed on 20 March 2020.
The application seeking leave to file the new Defence was filed on 20 March 2020. Except as to one matter, the application is opposed. The excepted matter concerns the defendants’ wish to withdraw the admission that they owed the plaintiff a duty of care.
The Amended Defence adopts an entirely different approach to the original document. It follows a more descriptive approach of the facts and, to some degree, might be described as containing the sort of information that would normally be found in the provision of further and better particulars.
The dispute between the parties, concerning the proposed Amended Defence, might be described as an argument between tradition and asserted functionality. In written submissions the plaintiff has pointed out a number of defects in the new pleading, many of them highlighted by their breach of the guidance and principles set out in Bullen and Leake’s Precedents of Pleadings (7th edition). Perhaps more relevantly, the plaintiff has relied on the contents of r 440(1) of the Court Procedures Rules 2006 (ACT).
The defendants’ response is to effectively shun tradition and advocate a “contemporary” approach, said to be endorsed in (relatively) recent authorities and articles. Notably the defendants do not specifically reject the plaintiff’s approach as erroneous, but rather say that in the current climate of “quick, just and cheap” litigation, their approach is to be preferred.
The affidavit of Mr Andersen, in addition to annexing the proposed pleading, also annexes the correspondence that has passed between the parties. Without attributing blame to either side this correspondence has been correctly described in the defendants’ written submissions as “a particularly florid argument”. The plaintiff, through her solicitors, has persistently insisted that the approach taken by the defendants is defective.
So insistent have been the plaintiff’s solicitors that they sought advice from Her Majesty’s Counsel as to the form the Defence should take and, presumably without an attached invoice, forwarded a suggested Amended Defence to the defendants’ solicitors.
The defendants’ solicitors, notwithstanding that they were no doubt grateful for the advice and assistance, have not taken up the suggestion and have persisted with the pleading they now wish to rely upon.
Learned senior counsel for the plaintiff described the proposed pleading as “ugly” and a “dog’s breakfast”. I disagree with these descriptions, which I regard as unnecessary. I understand the intent of the defendants in the framing of their pleading.
As explained by their counsel, the nature of the cause of action brought against them, includes an onus upon them to establish, inter alia, the lawfulness of the arrest of the plaintiff. To this end the defendants, for example in [5] of the new pleading, provide a factual background which they will presumably rely upon in discharging the onus that will rest upon them.
The question before me is whether this style of pleading is appropriate. Rule 440(1) says that “[i]n response to a pleading, a party may plead a denial, non-admission or admission”. The plaintiff says that the approach taken by the defendants is a “cobbled together” ‘mishmash’ (my word to avoid the more robust descriptions given by senior counsel) of denials and admissions.
Thus, using [5] as an example, the proposed sub-paragraphs go considerably further than answering the Statement of Claim. There are some admissions, there is a denial and there is the provision of factual assertions that fall well outside the ambit of the allegation made in [5] of the Statement of Claim.
Although I recognise the potential efficacy of the approach taken by the defendants, and I endorse the need for efficient case management and the prompt completion of litigation, I do not think the abandonment of the basic rules of pleading should be discarded in favour of an approach which may on its face appear ‘helpful’ but ultimately also has the potential to complicate the proceedings.
The defendants submitted that the use of the word “may” in r 440(1) suggests that the prescribed contents of the pleading are optional. I disagree. My understanding of the word “may” is to allow a choice between “a denial, non-admission or admission”, but not to suggest permission to rely on a hybrid or alternate form of pleading.
I therefore think that the Amended Defence should be re-pleaded in accordance with the requirements of r 440 (1), but with this qualification. It will of course be a matter for the defendants whether or not they take up the suggestions made by the plaintiff, but in respect of an overarching response to the plaintiff’s claim I specifically do not restrict the defendants to a pleading of the type suggested in [6] of the plaintiff’s suggested Defence. I think the defendants may, even should, include the factual matrix upon which they rely, in answer to the whole of the Statement of Claim, in order to meet the onus which is upon them.
I make the following orders:
(a)The defendants have leave to withdraw the admission that they owed a duty of care to the plaintiff.
(b)The defendants are not permitted to rely upon the proposed Amended Defence annexed to the affidavit of Mr Robert Andersen affirmed on 20 March 2020.
(c)The defendants have leave to file and serve an Amended Defence in accordance with r 440(1) of the Court Procedures Rules 2006 (ACT), but subject to the following order, within 21 days of these orders.
(d)To the extent that the Amended Defence might fall outside of r 440(1) the defendants have leave, in answer to the whole of the plaintiff’s Statement of Claim, to plead matters of fact upon which they intend to rely on to discharge any onus that rests upon them as a consequence of the nature of the causes of action included in the Statement of Claim.
(e)The defendants are to pay the plaintiff’s costs thrown away by reason of the amendment of their defence, such costs not to be recoverable until the conclusion of the substantive proceedings.
(f)In addition the defendants are to pay the plaintiff’s costs of and incidental to the hearing of the application, such costs not to be recoverable until the conclusion of the substantive proceedings.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 4 May 2020 |
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