PRACTICE AND PROCEDURE – application to strike out pleadings pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) – applicable principles for striking out a pleading for not disclosing a reasonable cause of action discussed – applicable principles on the grant of leave to re‑plead discussed – requirement that material facts be stated – circumstances where pleading may be struck out as evasive, ambiguous or embarrassing discussed – particulars not a substitute for the requirement to plead material facts
HIGH COURT AND FEDERAL COURT – whether given the terms of s 49B of the Australian Human Rights Commission Act 1986 (Cth) (“AHRCA”), the Federal Court has jurisdiction under s 46PO(1) in relation to conduct which is an offence – where a pleading alleges victimisation pursuant to s 51 of the Age Discrimination Act 2004 (Cth) or s 94 of the Sex Discrimination Act 1984 (Cth) – where such conduct is the subject of a complaint of unlawful discrimination to the Australian Human Rights Commission and terminated by its President in accordance with s 46PH of the AHRCA
HIGH COURT AND FEDERAL COURT – where a pleading alleges accessorial liability pursuant to s 122 of the Disability Discrimination Act 1992 (Cth) (“DDA”) in relation to alleged principal contraventions by a mediator appointed by the Court pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) (“FCCA”) – whether the immunity conferred on mediators by s 53C of that Act precludes a finding of principal contravention – consideration of the scope and policy rationale of the common law judicial immunity on which s 53C is based – the purpose of the immunity would be undermined if the immunity allowed curial examination of the conduct of mediators for the purpose of determining whether the conduct constituted civil unlawfulness – the conduct of a mediator, in the course of mediating, is not justiciable – there can be no finding of a principal contravention and thus accessorial liability could not be established – pleading struck out for disclosing no reasonable cause of action –leave to re-plead refused – scope and operation of s 53B of the FCCA discussed
HUMAN RIGHTS – where a pleading alleges discrimination in the provision of a service pursuant to s 24 of the DDA in relation to the conduct of opposing parties, including opposing lawyers, in a mediation – whether services provided by those persons “to” the alleged victim within the meaning of s 24(c) of DDA – proper construction of s 24 of DDA discussed – the existence of a legal obligation is not required, however a sufficient nexus between the provider of services and the recipient is required for the provision to be made “to” the recipient – that a person may be assisted, advantaged or take…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Winters v Fogarty [2017] FCA 51
Case
[2017] FCA 51
Decision Date
CaseChat Overview and Summary
In the case of Winters v Fogarty, the plaintiff, Ms Winters, sought to bring claims of discrimination and victimisation against several defendants, including Mr Fogarty, based on events that occurred during a mediation process. The defendants, in response, applied to strike out certain parts of the plaintiff's statements of claim on various grounds, including the lack of a reasonable cause of action and ambiguity. The Federal Court was tasked with deciding whether the plaintiff's claims disclosed a reasonable cause of action, whether certain pleadings were evasive, ambiguous, or embarrassing, and if the court had jurisdiction over certain conduct.
The court examined whether the Federal Court had jurisdiction to hear claims of victimisation and accessorial liability under specific statutes, finding that certain claims were not justiciable due to the nature of the mediation process and the immunity afforded to mediators. The court further held that some claims were struck out because they failed to state material facts or did not sufficiently allege the necessary elements of discrimination and indirect discrimination. Additionally, the court found that certain claims were scandalous or embarrassing due to the nature of the allegations and the lack of specific facts to substantiate them.
The court ultimately struck out several parts of the plaintiff's statements of claim, finding that they did not disclose a reasonable cause of action and were either ambiguous, scandalous, or embarrassing. The court refused leave to re-plead for certain claims, as the material facts required to establish those claims were not pleaded and could not be reasonably supplemented. The court also noted that many of the introductory and background allegations were irrelevant and would likely be redrawn in any re-pleaded statement of claim.
In conclusion, the court ordered that certain claims be struck out with no leave to re-plead, resulting in the dismissal of the proceeding against certain respondents. The court directed the parties to confer to attempt an amicable resolution of the proceeding or to file orders reflecting the court's reasons. If the parties could not agree, they were to file their proposed orders and submissions by a specified date. The court's decision focused on ensuring that the plaintiff's claims were clear, specific, and legally sound, while also considering the relevance and necessity of the various allegations made.
Orders
Orders of the court
1. The parties are directed to confer with a view to agreeing to an amicable resolution of the proceeding or, in the alternative, on orders to give effect to the Court’s reasons.
2. If there is agreement, the parties shall on or before 2 March 2017, file minutes of the orders which they consider should be made.
3. In the absence of agreement or complete agreement, each party shall on or before 2 March 2017, file and serve minutes of the orders the party contends should be made, together with short submissions on those matters which remain not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
There are also challenges made to other paragraphs of the statements of claim in each proceeding ([2], [7]–[9], [12]–[16], [20]–[24], [28]–[32], [34]–[43], [47]–[52], [57]–[59], [62], [65], [68], [70]–[71], and [75]) which deal with what may be categorised as introductory and background matters. There is some force in the criticism made by the respondents that many of the allegations there made are irrelevant or extraneous to the claims thereafter made in each statement of claim. As most of those claims are to be struck out, many of the allegations in question will now also be irrelevant because they are linked to those claims and not relevant to the claims that remain. I assume that, in the circumstances, any re-pleading for which leave may be sought (in either VID 114, VID 323 or both) will involve a wholesale redrawing of the statement of claim including the matters addressed at [1]–[77]. In the light of that, I consider the best course is to defer consideration of these challenges on the basis that the paragraphs in question are likely to be reviewed and redrawn in any proposed pleading that Ms Winter’s may hereafter seek leave to file. CONCLUSION I have determined that in VID 323, [78]–[133] and [156]–[167] of the statement of claim should be struck out with no leave to re-plead those matters. That has the consequence that the only remaining claims in that proceeding are the victimisation claims and the first Deed claim made against Mr Fogarty. On that basis, the proceeding should be dismissed in relation to the other respondents. I have determined that in VID 114, the victimisation claims contained in [134–[148] of the statement of claim should be struck out. Further, I have determined that [97]–[113] of the statement of claim should be struck out. That has the consequence that the disability discrimination claims made against the first, second and third respondents are to be struck out and, for the reasons earlier indicated, I would refuse leave for Ms Winters to re-plead those claims. I have also determined that [114]–[133] should be struck out. Those paragraphs deal with the claims of accessorial liability made against the first, second and third respondents. I have determined to refuse leave to re-plead in relation to those claims. As that would leave no remaining claims against the second and third respondents, proceeding VID 114 should be dismissed so far as those respondents are concerned. In VID 114 I will also strike out [78]–[89] which deal with direct discrimination claims made against the fourth and fifth respondents. I have indicated that I will consider the grant of leave to re-plead those claims. I have also determined that [90]–[96] should be struck out. Those paragraphs deal with claims of indirect discrimination made against those respondents. Leave to re-plead those claims is refused. Issues that remain to be considered are the costs orders that should be made and the programming and other directions that need to be made if Ms Winters seeks to agitate the grant of leave to re-plead those claims in relation to which such leave has not already been refused.