The Father (a pseudonym) v Trustees of Edmund Rice Education Australia t/as Parade College
[2025] VSC 17
•31 January 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2022 00560
| THE FATHER (a pseudonym) | First Plaintiff |
| THE MOTHER (a pseudonym) | Second Plaintiff |
| STUDENT A (a pseudonym) (by his litigation guardian, The Father (a pseudonym)) | Third Plaintiff |
| v | |
| TRUSTEES OF EDMUND RICE EDUCATION AUSTRALIA T/AS PARADE COLLEGE | First Defendant |
| ANDREW KUPPE | Second Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 October 2024 |
DATE OF RULING: | 31 January 2025 |
CASE MAY BE CITED AS: | The Father (a pseudonym) v Trustees of Edmund Rice Education Australia t/as Parade College |
MEDIUM NEUTRAL CITATION: | [2025] VSC 17 |
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PRACTICE AND PROCEDURE —Application to strike out amended defence — Application for summary dismissal — Application for an injunction restraining the defendants’ legal representatives —Application for orders pursuant to the Civil Procedure Act 2010 (Vic) — Whether amended defence without proper basis — Whether pleadings sufficiently disclose non-admission, denial and positive allegations of material facts — Whether there is conflict of interest between defendants’ and their solicitors and counsel on the facts in issue — Whether certification filed pursuant to the Civil Procedure Act 2010 (Vic) — Whether defendants required to disclose identity of insurers — Adequacy of defendants discovery — Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | G Marra (solicitor) | SGM Legal |
| For the Second Plaintiff | Self-represented | |
| For the Defendants | D Bongiorno with S Weinberg | McInnes Wilson Lawyers |
HIS HONOUR:
Introduction
The third plaintiff in this proceeding (‘Student A’) is the son of the first plaintiff (‘the Father’) and second plaintiff (‘the Mother’). The proceeding concerns Student A’s attendance as a Year 7 student at Parade College Bundoora (‘Parade College’), which is operated by the first defendant, in 2021. The second defendant was the principal of Parade College at that time. The plaintiffs allege that Student A was subject to bullying and physically violent behaviour by another college student, and that his enrolment at the college was unlawfully terminated by the second defendant.
By summons filed on 31 July 2024, the Mother principally seeks:
(a) an order striking out the amended defence filed 14 August 2023 (‘strikeout application’);
(b) summary judgment (‘summary judgment application’);
(c) an injunction restraining the defendants’ solicitors McInnes Wilson Lawyers (‘MWL’) and counsel from continuing to act in the proceeding (‘injunction application’);
(d) an order that the first defendant certify, file and serve an Overarching Obligations Certification pursuant to the Civil Procedure Act 2010 (Vic) (‘CPA’) before any further steps are taken in the proceeding (‘OOC application’);
(e) an order that the defendants advise the plaintiffs as to the identity of any insurers with a direct or indirect interest in the outcome of the case and other matters, and that any such insurers also file and serve an Overarching Obligations Certification (‘insurer application’); and
(f) certain interlocutory orders should the strikeout and summary judgment applications fail.
For the following reasons I will dismiss the Mother’s applications.
Materials
In support of the summons, the Mother relies on affidavits sworn by her on 1 August and 23 September 2024, and an affidavit of the Father sworn on 8 October 2024.
The defendants rely on four affidavits of solicitor Katherine Whalan sworn on 17 July 2023 and 30 August, 6 September and 14 October 2024.
Pleaded case
The plaintiffs plead that on 21 February 2020, the Mother entered into a contract with the first defendant for enrolment of Student A in Year 7 at Parade College for the 2021 school year (‘enrolment agreement’). The defendants plead the following further allegations in relation to the enrolment agreement, all of which are in issue:
(a) The Mother accepted Student A’s offer of enrolment at Parade College for and on behalf of herself and the Father;
(b) In June 2020, the Parade College council approved its ‘Enrolment Policy’, which incorporated the ‘Enrolment Terms and Conditions – Parade College’ and the ‘Parent Code of Conduct – Parade College’;
(c) The Enrolment Policy and the Parent Code of Conduct were published by Parade College in mid-2020;
(d) In August 2021, the Father and the Mother indicated that they had read and acknowledged the Enrolment Policy and Parent Code of Conduct; and
(e) The enrolment agreement with the Father and the Mother incorporated the Enrolment Policy, including the Enrolment Terms and Conditions and the Parent Code of Conduct.
The defendants plead in the alternative that it was an implied term of Student A’s enrolment at Parade College that the Father and Mother would act reasonably and with reasonable co-operation and courtesy in their dealings with Parade College staff, and that any breach of this term would entitle Parade College to terminate Student A’s enrolment.
The plaintiffs allege that while Student A was a student at Parade College, he was the victim of intentional acts of bullying and physically violent behaviour perpetrated against him by ‘Student B’, a fellow Year 7 student. The plaintiffs particularise 18 incidents of alleged bullying and physically violent behaviour in the statement of claim. The defendants deny those allegations.
The plaintiffs allege that the second defendant terminated the enrolment agreement by expelling Student A from Parade College on 15 September 2021. They allege that the act of expelling Student A was a breach of the enrolment agreement. The plaintiffs also make claims against the defendants in negligence and for engaging in unconscionable conduct contrary to s 21 of the Australian Consumer Law.
The defendants deny that Student A was expelled. They allege that Student A’s enrolment at Parade College was terminated pursuant to the first defendant’s rights under the enrolment agreement. The defendants rely on two grounds for the termination of Student A’s enrolment. First, they allege that between May and September 2021, the Mother and the Father engaged in numerous, lengthy and argumentative communications with Parade College staff and thereby acted in a manner that was likely to cause, and did cause, distress and anguish. The particulars of this allegation include alleged communications set out in Appendix A to the amended defence. The appendix lists 44 communications, most of which are by email, and specifies the words of each communication relied on to make out the pleaded allegation.
Second, the defendants allege that the Mother made repeated complaints to Parade College staff concerning Student B’s mental health and behaviour. The defendants allege that in so doing, she evinced a preoccupation with Student B and with monitoring Student B’s behaviour in a manner that placed or was likely to place Student B at risk of harm. The particulars of this allegation include 15 communications allegedly made by the Mother set out in Appendix B to the amended defence. The appendix again provides details of each communication and specifies the words of the communication relied on to make out the pleaded allegation.
The statement of claim is over 40 pages in length and is prolix in parts. The amended defence is 29 pages long. The Mother filed a 57-page reply to the amended defence. Schedule A to the reply is headed as follows:
(Thirty five (35)) Admissions and deemed admissions via the Amended Defence
(Rules 13.12(1) and 13.12(2) of the Supreme Court (General Civil Procedure) Rules 2015)
The Mother alleges in the reply that by reason of the defendants’ bare denial of certain matters in the amended defence, they are deemed to have admitted those matters.
Some of the 35 items in Schedule A to the reply do reflect a bare denial by the defendants in the amended defence. An example is the bare denial of the alleged incidents of bullying and physical violence towards Student A by Student B. In other cases, what is said to be a bare denial in fact reflects a pleading of material facts by the defendants. An example is the allegation that Student A was expelled from Parade College. The defendants deny this allegation, and plead in considerable detail that Student A’s enrolment at Parade College was terminated in accordance with the enrolment agreement.
The Mother alleges in the reply that the first defendant did not have the right under the enrolment agreement to terminate Student A’s enrolment, for reasons including that:
The College’s governing/regulatory body does not permit a student to be expelled in such circumstances (in line with Ministerial Order 1125 and Government Schools) as pleaded via the Statement of Claim in Schedule A at sub-paragraphs 1(w), 1(x) and 2(e) and in Schedule B at sub-paragraph (dd), and in the Plaintiffs Reply dated 3 June 2022 at sub-paragraph 3(e).
The statement of claim does not refer to Ministerial Order 1125, but Schedule A to the document does refer to the following:
Pastoral Care of Students, Procedures for Student Behaviour Management, Melbourne Archdiocese Catholic Schools Policy 2.26, Catholic Education Melbourne (June 2016 revised).
The plaintiffs also plead in the statement of claim, in what may be a related allegation, that the first defendant was at all relevant times:
Operating under enforceable undertakings detailing its seven Victorian schools (including Parade College) with the Victorian Registration and Qualifications Authority (VRQA) since May 2020 arising from the VRQA finding non-compliance with the governance minimum standard and the care, safety and welfare standard, including Ministerial Order 870 Child Safe Standards as a consequence of systemic child safety issues, including policies and welfare which were out of date, inconsistent or inaccurate.
The defendants deny this allegation.
In response to a request by the plaintiffs, the defendants provided further particulars of the alleged grounds for termination of the enrolment agreement. The defendants identified four staff members of the first defendant who they allege were placed in distress and anguish by the Father and the Mother’s communications listed in Appendix A to the amended defence. The defendants also identified certain general characteristics of the communications which they say caused or resulted in the alleged effect on staff members.
The defendants also provided further particulars of an investigation which they allege was undertaken by the second defendant about whether the Father or the Mother had breached the Parent Code of Conduct. The defendants particularise that the investigation involved review of the correspondence set out in Appendix A of the amended defence, review of verbal discussions between the identified staff members that occurred when the correspondence was sent, and the engagement of ‘Code Black Threat Management’. The particulars given in relation to the staff member discussions were that they broadly related to certain matters, and that the specific contents of each discussion cannot now be recalled.
Background to the summons
The proceeding came before me for directions on 6 September 2024. I ordered that the Mother file and serve any written submissions in support of her applications by 8 October 2024, and that the defendants file any submissions in response by 14 October 2024. The orders gave the Mother an opportunity to file and serve any reply submissions by 18 October 2024.
The Mother did not file primary submissions in accordance with the orders. The defendants filed and served their submissions on 14 October 2024. The Mother filed her written submissions on 21 October 2024.
It was in this context that the Mother emailed my chambers on 15 October 2024 seeking further time to respond to the defendants’ submissions. At the hearing on 22 October 2024 the Mother raised this issue again, saying that she wished to obtain legal advice about the defendants’ submissions, that she had been unable to do so in the time available, and that she sought more time to respond. The Mother did not apply to adjourn the hearing of the application from 22 October 2024. At one stage during oral submissions, she raised the prospect of being allowed a period of weeks after the hearing to make a further response in writing to the defendants’ submissions.
For the following reasons I rejected each of the Mother’s requests for further time to respond to the defendants’ submissions. First, these are the Mother’s applications, which she had contemplated for some time before filing the summons on 31 July 2024. The Mother has been unrepresented in this proceeding for a significant period of time. She could have made arrangements to obtain advice in relation to the application at any time after she first contemplated them. She did not explain her failure to do so, or why she waited until she had received the defendants’ submissions before considering doing so. Second, there was no explanation for the Mother not filing submissions by 8 October 2024 in accordance with orders. Third, the defendants’ submissions respond clearly to the matters raised in the Mother’s application and the affidavit material on which she relies. The matters raised were not unduly complex or difficult to follow. Fourth, it is evident from the Mother’s lengthy written and oral submissions that she was in a position to prosecute her application and to respond to matters raised by the defendants.
Strikeout / summary dismissal application
Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) provides that where a pleading does not disclose a cause of action; is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the proceeding; or is otherwise an abuse of process of the Court, the Court may order that the whole or part of the pleading be struck out or amended.
I adopt without repeating the principles to be applied on a strikeout application summarised by John Dixon J in Wheelahan v City of Casey & Ors (No 12).[1]
[1][2013] VSC 316, [25].
The Mother has applied to strikeout the whole of the amended defence. In Uber Australia Pty Ltd v Andrianakis,[2] the Court of Appeal said, in relation to such an application:
Uber’s contentions on ground 1 fail to grapple with the high hurdle it must cross, and the low bar confronting the plaintiff. When a defendant contends that a statement of claim should be struck out because it does not disclose a cause of action it is necessary for a defendant in the position of Uber to establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being ‘fanciful’. It follows that, where there is a contentious or debatable point of law which arises on a pleading, it is usually inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application, particularly where the answer may depend upon the factual context.
[2][2020] VSCA 186 (‘Uber’).
The Mother has made a related application for summary judgment, relying on ss 23, 28, 29 and 30 of the CPA in relation to the conduct of the defendants, and ss 61 and 63 on grounds that the amended defence has no real prospect of success. While the test for summary judgment under s 63 is less stringent than the historical test that applied under the Rules, the discretion to order summary judgment should be exercised with great caution[3] and ‘should not be exercised unless it is clear that there is no real question to be tried’.[4]
[3]Ottedin Investments v Portbury Developments Co Pty Ltd (2011) 35 VR 1, [15]; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, [35] (Warren CJ, Nettle JA) (‘Lysaght’).
[4]Lysaght (n 3) [35] (Warren CJ, Nettle JA).
The Mother further argued that the defendants have repeatedly breached their obligations under s 18 of the CPA because parts of the amended defence do not have a proper basis.
The first matter raised by the Mother in support of her application for summary judgment was that Student A was allegedly expelled by the defendants with immediate effect on 15 September 2021. The Mother alleged that the first defendant was obliged to abide by the guidelines in Ministerial Order 1125, and that the grounds for expulsion set out in that Order had not been satisfied. As I understood it, the Mother argued that in accordance with the Ministerial Order, expulsion could only be justified by reference to the student’s conduct and not the conduct of the student’s parents. I understood the Mother’s argument to be that because the amended defence relied only on allegations about her and the Father’s conduct, the decision to expel Student A was not made in accordance with binding regulations, with the result that the defence is without foundation and there should be summary judgment for the plaintiffs.
For the following reasons, I reject the Mother’s argument. First, the defendants deny that Student A was expelled. They allege that Student A’s enrolment was terminated in accordance with the enrolment agreement because of breaches of its express or implied terms by the Mother and the Father. The amended defence is intelligible, sets out the material facts relied on to establish the defence, and defines issues to be determined at trial. The issues in dispute, including the terms of the enrolment agreement, the conduct of relevant parties, and the nature and lawfulness of the termination of the enrolment agreement, are relatively complex and should be determined after testing the evidence at trial.
Second, Ministerial Order 1125, which appears to be a foundation for the Mother’s submission, is not pleaded in the statement of claim. The plaintiffs do allege in the statement of claim that the first defendant was operating under enforceable undertakings made to the Victorian Registration and Qualifications Authority, and in that regard do refer to another Ministerial Order. The defendants deny this allegation. Ministerial Order 1125 is first mentioned in the reply. However, the basis on which it is alleged that the defendants were subject to the Ministerial Order is not set out in the pleadings. In fact, the reply pleadings suggest that the Ministerial Order applies to government schools in accordance with the Education and Training Reform Act 2006 (Vic).
The second matter raised by the Mother was her submission that summary judgment should be given in favour of the plaintiffs on the basis of 35 ‘admissions’ made by the defendants in the amended defence. For the following reasons, this submission is completely lacking in merit.
First, the Mother’s submission relies on r 13.02 of the Rules, which provides:
(1) Every pleading shall—
(a)contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;
(b)where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on; and
(c)state specifically any relief or remedy claimed.
Admissions and denials are dealt with in r 13.12, which relevantly provides:
(1)Except as provided in paragraph (3), every allegation of fact in any pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party, or unless a joinder of issue under Rule 13.13 operates as a denial of it, and a general denial of the allegations, or a general statement that they are not admitted, shall not be sufficient.
(2)Where the party pleading intends to prove facts which are different to those pleaded by the opposite party, it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but the party shall plead the facts the party intends to prove.
The amended defence specifically addresses each allegation pleaded in the statement of claim. The CPA requires that there be a proper basis for non-admission or denial of each pleaded material fact.[5] However, there is nothing in the Rules or the CPA that has the effect of converting a pleaded non-admission or denial which specifically addresses a pleaded material fact into an implied admission of that fact.
[5]Civil Procedure Act 2010 (Vic) s 18 (‘CPA’).
Second, some of the denials identified and relied on by the Mother are not bare denials. Rather, the defendants have pleaded material facts that they wish to establish as an answer to the material allegations made by the plaintiffs. An example is the defendants’ response to the expulsion allegation, which I have addressed above.
Third, on a strikeout or summary dismissal application, the Court should consider the impugned pleading as a whole to determine whether it gives clear notice of the case to be met at trial, rather than proceeding on the basis of technical pleading objections.[6] Even if there was merit to the Mother’s technical objections, read as a whole, the amended defence puts the plaintiffs on notice of the pleaded material facts that they will be required to prove because of non-admission or denial, and of the positive allegations of material facts pleaded against them by the defendants in defence of the claim.
[6]Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Ltd (No 2) [2017] VSC 556, [15]; Uber (n 2) [53]–[54].
Fourth, the material facts admitted in the amended defence cannot, without more, make out the plaintiffs’ alleged claims. What has been admitted amounts to no more than uncontroversial contextual facts. The defendants have fundamentally denied the plaintiffs’ characterisation of what occurred on 15 September 2021, and have advanced positive pleadings as to the terms of the enrolment agreement and the basis for termination of Student A’s enrolment. The defendants have positively denied allegations that they breached the enrolment agreement or any duty owed to the plaintiffs, or that they engaged in unconscionable conduct under s 21 of the Australian Consumer Law. The defendants have positively denied the allegations of bullying and violence by Student B.
The third matter raised by the Mother was that certain contested relevant facts on the pleadings allegedly showed that the amended defence was unmeritorious. An example is the defendants’ pleading that the Mother and the Father were parties to the enrolment agreement. This allegation is based on a series of interactions between the parties over a period of time, including that the Mother accepted the first defendant’s offer of enrolment of Student A by completing and executing an ‘Acceptance Form for Year 7, 2021’ in February 2020. In their reply, the Father and Student A deny the defendants’ allegation that the Mother was empowered to act or actually acted for the Father in completing and executing the acceptance form and entering into any agreement with the first defendant. The Mother’s submissions rely on her execution of the acceptance form, and the Father’s denial in reply that he was a party to the enrolment agreement, to conclude that it is beyond contest that the Father was not a party to the agreement. The Mother submitted:
When you go to the defendants’ material relied upon in the defence, that material proves that the first plaintiff was not a part to the contract. …
And then you go to the counsel, plaintiff’s counsel with 13 years’ experience, she’s also pleaded the same thing. So I’ve pleaded it and they – and she’s pleaded it as well. The – the – the first plaintiff was never a party. Now, we can go to a trial and argue, but basically, it’s one sentence. ‘Your material says this, which then deems that that person wasn’t a party. Your material says this, which deems that person wasn’t a party’. Again, it’s not a grey contest, there’s no contest. It’s – it’s black and white, he wasn’t a party.
So if he’s not a party, then he can’t be held accountable for the expulsion of Student A.
There is no merit in the Mother’s submissions. The material facts pleaded by the defendants clearly put in issue the question of who were the parties to the enrolment agreement, and the relevance of the Father’s conduct to the termination of the agreement. Determination of these matters can only occur after hearing the evidence at trial. Further, a determination that the defendants have no real prospect of establishing that the Father was a party to the enrolment agreement would not be sufficient to justify a strikeout of the whole of the amended defence or summary judgment. The defendants also rely on conduct by the Mother as justification for termination of the enrolment agreement.
A second example relates to the Mother’s pleading in reply that the Parent Code of Conduct relied on by the defendants was replaced by a different version before the termination decision, and hence could not be the basis for defence of the claim. The Mother submitted:
[The Parent Code of Conduct] [w]asn’t in place at the time either and, again, that’s undeniable. By their own material, it was superseded by their own July version. So I’m talking about the June code – parent code of conduct.
So they – in their defence, they rely upon the June parent code of conduct by their own material again. So this is not me just saying that this is their own material. This is why I say it’s undefendable. It was superseded by the July version. So therefore their whole defence goes out the window because it’s – it’s the policy that wasn’t even active at the time and they can’t defend that because their own document superseded it.
The defendants plead certain material facts to establish an allegation that the Parent Code of Conduct was incorporated into the enrolment agreement. Whether a further iteration of the Parent Code of Conduct came into force and if so, when and what effect this had on the terms of the enrolment agreement, are plainly matters for trial. The fact that another iteration of the Parent Code of Conduct may have come into operation before 15 September 2021 does not necessarily lead to any particular conclusion about the terms of the enrolment agreement between the parties.
In an associated submission, the Mother argued that because the amended defence alleges that she and the Father had agreed to the Parent Code of Conduct in August 2021, any allegations about their conduct before then could not be relied upon. In fact, the amended defence alleges that the Parent Code of Conduct was published in various ways in 2020, and that in August 2021 the Mother and the Father read and acknowledged the Enrolment Policy and Parent Code of Conduct. The Mother’s submission has no merit as a basis for summary dismissal.
The fourth matter was the Mother’s submission that in their further and better particulars, the defendants admitted that the first defendant’s employees who accused her and the Father of certain conduct ‘can’t remember now, what they accused us of at the time. That’s because they didn’t accuse us of it at the time’. The Mother submitted that it was relevant that the second defendant, who was principal of the first defendant at the time, cannot recall how many of the alleged accusers he spoke to. She submitted that there had been a refusal to name the accusers in the defence and that this rendered the whole defence unmeritorious.
The further particulars referred to by the Mother are in support of an allegation in the defence that the second defendant investigated whether there had been a breach of the Parent Code of Conduct by the Mother and/or the Father. The particulars identified employees of the second defendant by name who are said to have been involved in the investigation. The involvement of these staff members is said to have included discussions following each of the 44 communications that are alleged to have been in contravention of the Parent Code of Conduct. It is the case that other than in broad terms, the particulars do not set out the content of, or identity of staff members involved in, each discussion. On the other hand, the discussions are said to relate to the communications by the Mother and the Father, which have been particularised with precision. The pleadings and particulars do not leave uncertainty as to the defence that the plaintiffs will need to meet at trial. While the strength of any evidence about discussions is likely to be in question in circumstances where the parties to those discussions and the precise matters discussed cannot now be recalled, that is not a basis for summary judgment or for striking out part of the amended defence.
Finally, the Mother submitted that there was no proper basis for denials of the allegations about the conduct of Student B in circumstances where discovered CCTV footage established beyond doubt the occurrence of the alleged facts. The CCTV footage was not in evidence before me. In the statement of claim, the plaintiffs particularise a number of events or circumstances that they allege amount to bullying and physically violent behaviour by Student B. It is likely that evidence as to whether those allegations are made out will come from a number of sources. It is not clear how any of those allegations could be made out exclusively on the basis of CCTV footage. Further, it is not clear which of the events alleged by the plaintiffs were captured in whole or in part on CCTV footage.
The Mother relied, in respect of a number of her attacks on the amended defence, on the decision of Crowe AJ in Aspen Medical Pty Ltd v BA Capital Inc[7] (‘Aspen’). This case involved a claim by the plaintiff for a debt or liquidated demand on the basis of an alleged breach of contract. The plaintiff applied for summary judgment on the basis of the defendant’s repeated failure to comply with orders requiring that it provide further and better particulars of its defence. The plaintiff put on considerable evidence in support of its application. The defendant put on no evidence in reply. Crowe AJ relevantly concluded that much of the defence was contrary to the terms of the contract between the parties and was thus without substance.[8]
[7][2021] ACTSC 321.
[8]Ibid [71].
The Mother relied on the following excerpts from the judgment of Crowe AJ:
Once the plaintiff has provided that evidence, the onus moves to the defendant to demonstrate a good arguable defence as a matter of law, or, by reference to evidence, as a matter of fact and law. (In that context, I see the reference to the requirement for the defendant to satisfy the court as to a defence “on the merits”, and “sufficient facts” being disclosed, as placing an evidential onus on the defendant once step (3) has been complied with.)[9]
…
In any event, I am not satisfied that the defendant has a good defence to the plaintiff’s claim on the merits. Nor am I satisfied that the sufficient facts are disclosed to entitle the defendant to defend the claim generally. Indeed, it seems to me that the defence, as filed, is without substance. Bearing in mind the need for caution referred to above, I am satisfied that the defence does not raise issues which require determination at a full hearing. It is in the interests of justice, in my view, that the plaintiff’s claim should not be further delayed nor should the plaintiff be put to further expense in conducting this litigation. I propose to enter judgement in favour of the plaintiff pursuant to r 1146 of the CPR.[10]
[9]Ibid [69](4).
[10]Ibid [78].
The context for Crowe AJ’s decision in Aspen differs in important respects from the circumstances relevant to the Mother’s application in this case. First, the defendant in Aspen filed a defence which was fundamentally inconsistent with the terms of the contract between the parties upon which the plaintiff relied to establish the debt. Second, the defendant failed to provide further and better particulars of the defence, and did not file an affidavit in response to the application for summary judgment. Third, the claim was for a liquidated sum which could be precisely calculated by reference to the terms of the contract.
The nature of the claims and defence in this proceeding are more complex than in Aspen. The defendants have responded comprehensively to the claim made against them by detailed pleadings in the amended defence, supported by further particulars.
I am satisfied, for the purposes of this application, that there is a real, as opposed to a fanciful, prospect of the defence to the claim made by the plaintiffs succeeding on the basis of the amended defence.[11]
[11]Lysaght (n 3) [29] (Warren CJ, Nettle JA).
The Mother’s applications for summary judgment and strikeout are dismissed.
Injunction application
The Mother seeks an injunction to restrain the defendants’ solicitors, MWL, and counsel briefed for the defendants from continuing to act on their behalf in the proceeding.
An order may be made in the exercise of the inherent jurisdiction of the Court to restrain solicitors from acting in a case where a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitors should be prevented from acting to protect the integrity of the judicial process and the due administration of justice.[12] The jurisdiction is exceptional and should be exercised with caution. The public interest in a litigant not being deprived of the lawyer of his or her choice without due cause is a relevant consideration.[13] The lateness of an application and the cost, inconvenience or impracticality of requiring that solicitors cease to act may provide a reason for refusing to make such an order.[14]
[12]Gangemi Pty Ltd v Luppino Pty Ltd & Anor [2012] VSC 168 (‘Gangemi’); Grimwade v Meagher [1995] 1 VR 446.
[13]Lee & Anor v MK Trading Co Aust Pty Ltd & Anor [2021] VSC 343, [60].
[14]Miller v Martin [2019] VSCA 86, [60].
Gangemi Pty Ltd v Luppino Pty Ltd & Anor[15] concerned a dispute over the terms of four contracts between the parties. The solicitors who prepared the contracts sought to appear for the plaintiff notwithstanding that the critical issue in the case was their alleged oversight in preparing the contracts in a way that did not give effect to the intention of the parties. On an application to restrain the solicitors from acting, Sifris J said:
[15][2012] VSC 168.
In Mitchell v Burrell Brereton J at [20] said:
… the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act.
His Honour continued at [21]:
The point is illustrated, in Windeyer J’s judgment in Scallan (at [10]), by his Honour’s reference to the difference between the case where the (mere) interest of a solicitor is one that arises simply in supporting the success of his or her client (for example, in connection with advice about discovery or the commencement or continuation or abandonment of proceedings), and the case where the solicitor has an interest in the result of an action ‘additional to his interest in doing his best for a client to have success in an action’.[16]
Sifris J concluded the solicitors did have a conflict because their interest in succeeding with the claim for rectification of the contracts went beyond their desire to succeed as a solicitor acting for a client, and extended to avoiding liability if the claim failed.
[16]Gangemi (n 12) [6]-[7].
The Mother submitted that the defendants’ solicitors were involved in the decision to expel Student A. The Mother submitted that the solicitors may be called upon to give evidence at trial to explain their conduct. She submitted that in the circumstances, the solicitors have a conflict of interest that cannot be resolved if they continue to act for the defendants in the proceedings.
In her affidavit of 30 August 2024, Whalan gave the following evidence about the engagement of MWL in relation to this dispute:
(a) MWL was first engaged in September 2021 by the first defendant;
(b) MWL was not engaged at the time of and did not advise on the decision to terminate the enrolment of Student A; and
(c) Whalan’s involvement, and that of her employed solicitors Laura Anderson and Jackson Evans, started after the decision to terminate Student A’s enrolment, on or around 8 November 2021.
On 15 September 2021, MWL wrote to the Mother informing her that they act on behalf of Edmund Rice Education Australia (‘EREA’). The letter states:
The Executive Director of EREA, Dr Craig Wattam, has provided us with a brief of documentation concerning allegations you make about another student at the College causing harm to your son, … (Allegations).
Specifically, we refer to your emails to Dr Wattam of Monday 13 September 2021 and today, Wednesday 15 September 2021 (copy enclosed).
Dr Wattam and the writer have carefully considered the very extensive exchange of material between yourselves and the College with respect to the Allegations you have made. We are also aware that the College has sought and obtained independent legal advice from another law firm in Melbourne.
We have only been asked to provide advice to EREA and Dr Wattam in relation to Point 5 of your email 13 September 2021, and your query of today’s date about the proposed meeting with the College Principal Mr Kuppe.
It might be appropriate to deal with the second issue first, given that we understand you are meeting with Mr Kuppe today at 4pm to address your concerns about the process adopted by the College [in] dealing with the Allegations.
Before dealing with the substantive aspect of your request of 13 September 2021, we are instructed that the College and EREA owe a non-delegable duty of care to keep all of its students safe from harm. This obligation is the paramount consideration when decisions being taken concerning the discipline and/or enrolment of any student at an EREA school.
Dr Wattam is satisfied that the College in its dealings with the Allegations has met this duty of care.
On review of all documentation provided to Dr Wattam, we can confirm that the process of dealing with your initial complaint dated 4 August 2021 has been handled in accordance with the EREA Complaints Handling Policy and that the College has responded appropriately.
Additionally, EREA and Dr Wattam are satisfied that a review of the response dated 6 September 2021, by the College Principal was appropriate.
Dr Wattam has referred the Allegations back to the College Principal and does not propose to engage in further protracted correspondence with you.
Please feel welcome to contact our offices should you have any questions or queries.
The matter in relation to which MWL had been asked to advise EREA was a decision made by the second defendant in relation to alleged offending by Student B.
The letter from MWL to the Mother was sent on the same day but before the second defendant terminated the enrolment agreement. The Mother submitted that the letter was evidence of six decisions made by MWL:
(i)The college had met its duty of care.
(ii)The process of dealing with the Second Plaintiffs complaint dated 4 August 2021 was handled appropriately and in accordance with the First Defendant’s policies.
(iii)The college had responded to the before said complaint appropriately.
(iv)The Second Defendant responding to the Second Plaintiff’s before said complaint to the First Defendant was appropriate.
(v)The First Defendant referring the First and Second Plaintiff’ allegations back to the Second Defendant was appropriate.
(vi)The First Defendant will not engage in any further correspondence with the First and Second Plaintiffs. Via this letter MWL also advised quote “We act on behalf of Edmund Rice Education Australia (EREA), the owner and operator of the College and have been asked to give advice”. Such actions being in breach of the First Defendant’s Complaints Handling Policy and Guidelines [Approved by the EREA Board: 24 September 2018] and the regulatory/governing body policy which the Defendants were bound by, along with natural justice and procedural fairness, and all had to be abided by at all material times.
I reject the Mother’s submissions for the following reasons. First, the letter clearly states that MWL act for EREA and that another law firm had been engaged to represent Parade College and, I infer, the second defendant. There is no evidence that in September 2021, MWL were acting for the second defendant. Second, the termination decision made by the second defendant later on 15 September 2021 was not the subject of the MWL letter. Third, the MWL letter is not evidence of the six ‘decisions’ alleged by the Mother. MWL clearly stated in the letter that they were acting and communicating on the instructions of EREA and Dr Wattam. I accept Whalan’s evidence that MWL commenced acting in relation to the termination decision in November 2021.
The matters in issue in this proceeding and the evidence on this application do not establish that MWL were involved in making the termination decision, or that the conduct of the solicitors will be subject to scrutiny such that they would be required to defend their own actions in the proceeding. There is no apparent conflict between the interests of MWL and their client in respect of the facts in issue in the proceeding. The evidence does not establish that MLW have an interest in this proceeding that extends beyond simply supporting the success of their clients. The circumstances of this case do not approach the level that would be required to justify the exercise of the discretion to restrain MWL from acting for the defendants.
The second matter raised by the Mother is that the chair of Parade College shares the same surname as counsel briefed to appear for the defendants. The Mother submitted that an obvious conflict of interest would arise if the two were related. The Mother’s submission is totally without merit. There is no evidence of any familial or other relationship between the chairperson of Parade College and counsel briefed for the defendants. I reject the Mother’s submission that, with her having raised the matter, there is an onus on the defendants’ counsel to go on affidavit disclaiming a relationship. Counsel is well aware of his duties to the Court, which would extend to disclosing any issue of conflict relevant to the proceeding. I accept counsel’s response that there is nothing to disclose.
At the hearing of this application, the Mother appeared to submit that the lack of any proper basis for matters pleaded in the amended defence reflected adversely on the defendants’ lawyers to such an extent that they should be restrained from continuing to act in the proceeding. I reject this submission. For reasons set out above, the defendants’ pleading is not deficient in the ways alleged by the Mother. The Mother has not established any conduct by the defendants’ lawyers that justify any orders being made under ss 28 or 29 of the CPA to restrain the lawyers from continuing to act for the defendants, or for any other relief.
The Mother has also applied for an order that the conduct of the defendants’ legal representatives be referred to the Victorian Legal Services Commissioner for further investigation. There is no basis for making such an order.
The Mother’s injunction application is dismissed.
OOC application
The Mother further raised non-compliance with ss 10 and 41(2) of the CPA in relation to overarching obligations certification.
Overarching obligations certification must be filed with the first substantive document filed by a party in a civil proceeding.[17] A defence was filed by the defendants on 6 April 2022. On the same day, overarching obligations certification signed by the second defendant was filed. The certification was made by ‘Andrew Kuppe, Principal of the First Defendant and the named Second Defendant’. It appears to have been recognised within a short time that Kuppe was not an authorised representative of the first defendant with the ability to certify in accordance with the CPA. An overarching obligation certification signed by Wattam, as an authorised representative of the first defendant, was filed on 28 April 2022.
[17]CPA (n 5) s 41(2).
The Mother complains that Wattam left the first defendant’s employment in September 2022, and that accordingly his signed certification of 28 April 2022 is now invalid. I reject this argument. Section 41 of the CPA does not oblige a corporate party to file a further certification in circumstances where the person who made the first certification has subsequently left that party’s employment.
A proper basis certification must be filed on the filing of a party’s first substantive document in a civil proceeding and on the filing of a document such as the amended defence that ‘makes, adds or substitutes a material allegation, denial or non-admission of fact or law’.[18] A proper basis certification was filed by the defendants with the original defence, but not with the amended defence which was filed on 14 August 2023. The omission in relation to the amended defence was rectified on 14 October 2024.
[18]Ibid s 42(1).
A failure to certify in accordance with Part 4.1 of the CPA does not prevent the filing of a substantive document by a party or invalidate any such filing.[19] A failure to certify may be taken into account by the Court in relation to costs, orders regarding procedural obligations, or in making any other orders.[20]
[19]Ibid s 45.
[20]Ibid s 46.
Each failure to certify in this case has been rectified and has had no substantive effect on the conduct of the proceeding. I conclude that no order as to costs or any other matter should be made at this stage in relation to the technical failures to certify that have since been rectified. Whether the failures to certify have any relevance to costs orders following trial can be addressed at that time.
The OOC application is dismissed.
Insurer application
The Mother seeks an order that the defendants be required to identify their insurers.
Whether the defendants are insured in respect of the claims made by the plaintiffs is not relevant to the determination of any fact in issue in the proceeding.[21] Whether they are insured is a matter confidential to the defendants which they should not be obliged to disclose unless ‘the course of justice requires’ it.[22] There is nothing in the material that the Mother relied on in relation to this application to justify requiring the defendants to disclose particulars of any insurance held by them.
[21]Agnello v Heritage Care Pty Ltd (No 2) [2023] VSC 653, [29]–[55].
[22]Ibid [57].
The overarching obligations under the CPA apply to an insurer that provides financial or other assistance to a party insofar as the insurer exercises any direct control, indirect control or influence over the conduct of the proceeding.[23] In relation to overarching obligation certification by an insurer, s 41(4) provides:
[23]CPA (n 5) s 10.
Despite subsection (1), if a party has no meaningful control over the conduct of a civil proceeding by virtue of a statute or a contract of insurance, the person in control by virtue of the statute or contract of insurance may make the overarching obligations certification.
Example
An insurer may make the certification instead of a party.
There is also no basis for the Mother’s complaint that the insurer should have certified in accordance with the CPA. Whalan said that the defendants did not have an active insurance policy in respect of the claims made in the proceeding when the overarching obligations certification was filed. There is no evidence to suggest that the defendants had no meaningful control over the proceeding in April 2022 or at any time since. Further, s 41(4) of the CPA is permissive, not prescriptive.
The insurer application is dismissed.
Further interlocutory orders application
Freedom of information request
I understand the plaintiffs have made a freedom of information request to Victoria Police for the release of documents that may be relevant to issues in the proceeding, including the alleged assaults of Student A by Student B.
The Mother applied for an order that the Court make a written request ‘that the Australian Police attend to a freedom of information request … made on behalf of the Plaintiffs on 26 July 2023, as a matter of priority if possible’. The provisions of the Freedom of Information Act 1982 (Vic) govern the procedures for the release of documents in response to a request. The plaintiffs should seek to advance the request for release of documents in accordance with their rights under that Act. The Mother also applied to adjourn the trial of the proceeding because, she said, there had been a delay in the release of important documents by police. I pointed out to the plaintiffs at the hearing that access to relevant documents could very quickly be obtained by issuing an appropriate subpoena, and that they should proceed with that course without delay. The orders sought by the Mother are neither appropriate nor necessary.
Discovery
The Mother seeks certain orders in relation to what she alleges was inadequate discovery by the defendants. The Mother complains that the first defendant has not made discovery.
The second defendant was the principal of Parade College between August 2018 and March 2023. On 5 October 2023, the second defendant swore an affidavit of documents as ‘the abovenamed Second Defendant and former Principal of the First Defendant’. At the time the second defendant swore the affidavit, he was an employee of the first defendant, having been appointed the chief executive officer of Victorian Schools trading under the trustees of EREA.
The defendants submit that the second defendant should have more accurately described himself in the affidavit of documents as the ‘former principal of Parade College, which is operated by the first defendant’, and should have said that he now worked for the first defendant.
These matters have previously been clarified with the Mother.
I reject the Mother’s submission that the second defendant has made discovery on his own behalf only. The affidavit of documents made by the second defendant is discovery by both defendants.
At the hearing of this application, the Mother made two further complaints about discovery. First, she submitted that no discovery had been made by the defendants of police records, or of notes relevant to attendance at Parade College by police on three or four occasions in response to incidents that are relevant to the proceeding. The Mother did not file any material to establish any inadequacy of discovery on this issue. This matter does not warrant any further order for discovery.
Second, the Mother complained that 15 persons had been de-identified in discovery by the use of pseudonyms. The Mother complained that the defendants should not have de-identified persons in discovery without authorisation from the Court. More relevantly, the Mother complained that the use of pseudonyms made it difficult or impossible for the plaintiffs to properly consider the discovered documents within the factual matrix of the case. The defendants clarified that pseudonyms had only been applied in the affidavit of documents and not to the discovered documents themselves. I accept that even this limited use of pseudonyms might cause some confusion in identifying discovered documents by reference to the list in the affidavit of documents. If it has not already been done, the defendants should provide the plaintiffs with a list of the documents in the affidavit of documents that identifies persons by name rather than pseudonym.
Trial
The proceeding was listed for trial on 29 January 2025. It was necessary to adjourn the trial date as a consequence of this application and by reason of the lack of progress with other interlocutory steps.
Conclusion
The Mother’s summons dated 31 July 2024 is dismissed. I will hear from the parties as to appropriate consequential orders.
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