Chadwick v State of New South Wales

Procedural history 4 For various reasons, the case has not proceeded quickly. 5 Following the first case management hearing, on 9 February 2021, Griffiths J ordered the filing of concise statements not exceeding five pages by the applicant and the respondents. A month later his Honour extended the deadlines for these steps. The applicant filed a Concise Statement (of seven pages) on 12 April 2021 (the Concise Statement). Like the originating application, it appears to have been drafted by the applicant herself. She then filed an affidavit of some 82 pages (not including annexures) on 3 May 2021. The respondents filed a Concise Statement in Response on 18 May 2021. The applicant filed a second affidavit, of 45 pages, the following day. 6 On 31 May 2021 Cheeseman J, who had become the docket judge following the retirement of Griffiths J, granted further extensions of time and referred the matter to mediation (to be conducted after 29 June 2021). Her Honour granted two further extensions of time in June 2021. 7 The mediation was scheduled for 30 August 2021. On 20 August Cheeseman J referred the applicant for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth) (the Rules). The mediation was not successful. In September and October 2021 her Honour granted (by consent) further extensions of time for the applicant to complete the filing of her affidavit evidence. 8 On 25 November 2021, the respondents filed an interlocutory application seeking summary dismissal of "the whole of the claim, or, in the alternative, parts of it", or alternatively an order striking out the Concise Statement (the summary dismissal application). The hearing of that application was listed for 4 February 2022 but was delayed because of slippage in the timetable, including a failure by the respondents to file their submissions on time. 9 The summary dismissal application came before Cheeseman J on 22 March 2022. It was stood over to a date to be fixed, with the applicant ordered to file "a proposed Points of Claim (which is to supersede the Applicant's Concise Statement)" by 1 April 2022 and to complete the filing of her evidence on the substantive issues by 15 April 2022. The respondents were ordered to notify the applicant whether they consented to the filing of the Points of Claim. 10 More extensions of time were granted by consent in April and June 2022. The deadline for completion of the applicant's affidavit evidence was extended to 13 May 2022 and, so far as I am aware, has not been extended further. On 16 May 2022 the applicant filed an affidavit entitled "main affidavit", dated 13 May and running to 28 pages with a significant body of material annexed. Orders made by consent on 2 June 2022 included an order that the applicant advise the respondents which paragraphs of her earlier affidavits were to be relied upon. 11 On 15 July 2022 Cheesman J made orders requiring any application by the applicant to rely on the document entitled "Applicant's points of claim" to be filed and served by 22 July and to be listed for hearing, concurrently with the summary dismissal application, on 20 September 2022. 12 On 10 August 2022, in Chadwick v NSW, Cheeseman J dismissed a separate interlocutory application (filed on 15 July) by which the applicant sought interim orders preventing any attempt to evict her from the public housing property where she was living. By this stage the applicant was represented by counsel (Ms Dulhunty) apparently acting on a direct access basis. 13 Following the hearing on 20 September 2022, Cheeseman J published the reasons concerning the proposed points of claim (PPOC): Chadwick v New South Wales [2022] FCA 1138 (Chadwick v NSW No 2). Her Honour directed the parties to provide short minutes of order to give effect to those reasons. Orders were then made on 14 October 2022, to the following effect. (a) Leave was granted to file an amended Concise Statement, substantially in the form of the PPOC, but with 20 specified words or passages struck out and further specified amendments required or permitted. (b) Provision was made for further particulars to be requested by the respondents and provided within 14 days of the request. (c) The amended Concise Statement was to be filed by 31 October 2022. 14 The Amended Concise Statement (ACS) was filed on 1 November 2022. 15 On 17 November 2022 Cheeseman J made further orders. Her Honour extended the time for the applicant to provide particulars of the ACS and fixed dates by which: (a) the respondents were to indicate their position on the ACS (8 December 2022); (b) the applicant was to respond to that indication (12 January 2023); (c) the respondents were to file their Concise Statement in response (6 February 2023); and (d) the parties were to confer and submit proposed short minutes of order in relation to the filing of evidence. 16 The matter was listed for further case management on 2 March 2023. Before that court date, two things happened. One is that on 1 February 2023 Ms Dulhunty filed a notice of intention to cease to act. The other is that the matter was transferred to my docket on 15 February 2023. 17 The matter therefore came before me on 2 March 2023. The respondents had been a month late in notifying their position on the Amended Concise Statement and the applicant had not yet responded. The applicant was now unrepresented. The further steps in the timetable fixed on 17 November 2022 had not occurred. I extended the time for the applicant's response to 27 March 2023. 18 I ordered any interlocutory application in respect of the ACS to be filed by 11 April 2023, failing which a concise statement in response was to be filed by 24 April 2023. 19 The matter came before me again on 10 May 2023. Neither an interlocutory application nor a concise statement in response had been filed by the respondents. I ordered the concise statement in response to be filed by 30 May. Another extension of the deadline (to 13 June 2023) was made on 31 May. The document (entitled Concise Statement in reply) was filed after that deadline, on 15 June 2023. (It will be observed that, to this point, the respondents had failed to comply with deadlines imposed by the Court on four occasions since the last set of orders made by Cheeseman J and on each occasion had not sought an extension until after the event (if at all).) 20 Between January and May 2023, while the events described at [16]-[19] above were occurring, a large number of letters and emails passed between the applicant and the solicitors for the respondents in relation to the ACS and the provision of particulars. This correspondence included the provision of a 42 page document (composed by the applicant without legal assistance) that attempted to give particulars of parts of the ACS which the respondents found unclear. 21 Further case management hearings occurred on 9 August and 9 October 2023. On each occasion the applicant informed the Court that she was making efforts to obtain legal representation and she preferred not to move the proceeding forward until that was done. The respondents did not ask for any orders to be made. 22 I listed the proceeding for further case management on 20 December 2023. By this time the applicant had obtained assistance from Ms Dulhunty, who spoke on her behalf (despite not being formally on the record). The applicant now proposed to file a Further Amended Concise Statement (the PFACS). I ordered this document to be served on the respondents by 31 January 2024 and the respondents to indicate their position by 14 February 2024. If there was consent, the PFACS was to be filed by 21 February 2024. Otherwise, the applicant was to file an interlocutory application seeking leave to file the PFACS by 21 February. 23 In keeping with the history of the proceeding, the timetable slipped again. On 8 March 2024 I extended the time for the applicant to file her interlocutory application to 21 March 2024. The interlocutory application was filed on 25 March 2024 (the amendment application). The application indicates that it was prepared by Ms Dulhunty, although it is signed by the applicant on her own behalf. 24 On 14 May 2024 I listed the matter on 7 June for hearing of the amendment application. 25 On 23 May 2024 the respondents filed the strike out application (for which no specific leave had been sought). 26 Ms Dulhunty raised (by way of an email to my chambers) a question as to whether the strike out application should be determined before the amendment application was considered. I indicated that I would hear from the parties on this question and counsel should be ready to argue either or both applications on 7 June 2024. 27 The respondents filed written submissions of 13 pages on the amendment application and 46 pages on the strike out application. Ms Dulhunty filed submissions of 11 pages opposing the strike out application, together with a bundle of documents (112 pages) sought to be relied upon. 28 After hearing briefly from counsel I decided that it was preferable to consider the strike out application first and then, to the extent it was successful, give the parties an opportunity to take that outcome into account before anything further was done with the amendment application.

The strike out application 29 The respondents contend that the ACS is insufficiently particular in the allegations that it makes, leaving them unsure of the case that they have to meet, and that in some respects it seems to have expanded the scope of the case compared to the original Concise Statement. These submissions have been set forth in considerable detail in writing. 30 Without needing to recount that detail, I accept that the ACS is in many respects an unsatisfactory document. It may not prove to be of much assistance in identifying the facts in issue in preparation for a final hearing. However, I have come to the view that the orders sought by the respondents as a function of lack of particularity should not be granted for two interlocking sets of reasons. One concerns the nature of the concise statement procedure. The other concerns the conduct of the proceeding so far. 31 The respondents also raise a specific problem concerning paragraphs of the ACS which complain about proceedings in the New South Wales Civil and Administrative Tribunal (NCAT). I accept the submission that these complaints are not maintainable.

Concise Statements 32 The use of a concise statement as a method of commencing proceedings finds blessing in the Court's Central Practice Note: National Court Framework and Case Management (CPN-1), the current version of which was published on 10 August 2022. The relevant part of the practice note provides as follows. Concise Statement Method 6.8 A party commencing a proceeding may file a concise statement in support of an originating application. The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute, as well as the essential relief sought from the Court before incurring what might be the considerable cost of preparation of detailed pleadings. The concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, but instead should be prepared more in the nature of a pleading summons, and may be drafted in a narrative form. 6.9 If a concise statement is filed with the originating application, no further originating material in support (whether by statement of claim or affidavit) is required to be filed until the Court orders that to be done. 6.10 The concise statement must not exceed 5 pages (including formal parts) and the Court would expect that ordinarily (except in complex cases) less than 5 pages will be necessary. It will be plain, concise and direct in every regard. It will omit unnecessary repetition and will do no more than summarise: (a) the important facts giving rise to the claim; (b) the relief sought from the Court (and against whom); (c) the primary legal grounds (causes of action) for the relief sought; and (d) the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage. 33 Rule 8.05(1) and (2) of the Rules, in specifying the document that must accompany an originating application, allow that document to be an "alternative accompanying document" if a practice note issued by the Chief Justice either requires or permits such a document to be used. A concise statement thus comes within the concept of an "alternative accompanying document". 34 Division 16.1 of the Rules applies to pleadings and contains the oft-cited provision for striking out pleadings or parts thereof (r 16.21). Rule 16.13 provides that an "alternative accompanying document" is subject to r 16.01(a), (b) and (d) (which deal with formalities relating to identification of the person who prepared a pleading) and r 16.02(2). Rule 16.02(2) contains the familiar general requirement as to the contents of pleadings, as follows. (2) A pleading must not: (a) contain any scandalous material; or (b) contain any frivolous or vexatious material; or (c) be evasive or ambiguous; or (d) be likely to cause prejudice, embarrassment or delay in the proceeding; or (e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (f) otherwise be an abuse of the process of the Court. 35 Otherwise, however, Division 16.1 does not apply to an alternative accompanying document such as a concise statement. There is therefore no express power in the Rules to strike out parts of a concise statement. I accept that such a power exists by implication as part of the Court's power to control its procedures; however, that power does not demand to be exercised merely because the concise statement does not meet the standards expected of a pleading. Importantly, also, r 16.07 (which deems any allegation that is not specifically denied to be admitted) does not apply to a concise statement. This points to one specific respect in which, as has been said more than once, a concise statement is not a pleading. 36 The nature of a concise statement was discussed by McKerracher and Colvin JJ in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 287 FCR 388 at [140]-[154] (Delor Vue). The whole of that discussion merits attention. I set out only the most directly relevant aspects. [140] The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute and the essential relief sought from the Court before any detailed pleadings. It is not intended to substitute the traditional form of pleading with a shorter form of pleading. Rather, it is a different form of document directed to exposing the real nature of the dispute and the use of a brief narrative form is encouraged where appropriate. … [142] The role of a concise statement was described by Allsop CJ in Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187; (2019) 272 FCR 170 at [185] in the following terms: The [amended concise statement (ACS)] was, of course, not a pleading. It is a document intended by the practice note to give a concise summary of the nature of the case alleged and the central issues involved. Its primary purpose is to facilitate effective case management and preparation for trial or mediation. Here the ACS was supported by a contemporaneous Particulars of Claim (PoC) of some 68 pages providing the detail of the case asserted. The ACS and PoC are to be read together to ascertain the issues tendered for trial. … [144] Where the matter proceeds on the basis of a concise statement and concise response then, unlike pleadings, those documents are not conceived as a comprehensive statement of all the matters that must be established in order for a claim or defence to succeed. In such instances, the concise statement and response serve a broader function of providing a fair disclosure of the nature of the case to be advanced with more precise issues being disclosed by other means and to the extent considered to be appropriate in the interests of fairness. For example, particulars may be required of aspects of the case where more detail is required to fairly disclose the nature of the case being advanced so that forensic preparation may be undertaken, there may be orders for delivery of affidavits or witness statements followed by the preparation of a joint statements of issues or parties may be directed to provided written outlines of opening submissions well in advance of the hearing in order to expose the issues. The concise statement process recognises that issues may be refined as the conduct of the interlocutory stages progress and that there are often benefits to be obtained in bespoke case management orders. [145] The use of concise statements recognises that pleadings (and their attendant rules) can encourage tactical and technical disputation of a kind that is inconsistent with the modern approach of the Courts, particularly in commercial disputes. … [148] So where, as here, a decision is made for the case to proceed on the basis of a concise statement and for the filing of a concise statement in response, the concise statement should not be viewed as if it were a de facto pleading to which the old pleading rules apply unaffected by the new context and character of the concise statement. Nor should the concise statement be seen to serve the same role in the conduct of the proceedings as was (and in appropriate cases still is) served by pleadings. The concise statement and any concise response still serve a role in ensuring the fair disclosure of the nature of the case being advanced by a party, but that role is not confined to the concise statement. (Emphasis in original.) 37 Two essential points arise from this. One is that the concise statement procedure is intended to achieve speed, economy and simplicity (in keeping with the overarching purpose in s 37N of the Federal Court of Australia Act 1976 (Cth)). That purpose is undermined by repeated applications seeking to amend or refine the contents (or expression) of a concise statement. 38 The other (probably more important) point is that a concise statement does not establish the boundaries of a party's case in the definitive way that a pleading does. One aspect of this is the inapplicability of r 16.07, mentioned earlier: a respondent is not precluded from denying a point raised against it merely by having failed to traverse the point in its response. The other side of the coin is that having allegations struck out of a concise statement does not necessarily prevent them from resurfacing, because there is no "pleaded case" to which the party can be held. Further, concise statements do not ordinarily provide the level of particularity expected from a pleading. If the problem faced by a respondent is a lack of clarity or particularity, it should generally be addressed by ordering pleadings or by other procedures (as envisaged in Delor Vue at [141], [143]-[144], [149]). Use of the concise statement procedure brings with it a need for some degree of agility on the part of the parties and the Court. If a case is advanced that takes the opposing party by surprise, it may become necessary to grant leave to re-open or make other orders in order to ensure procedural fairness.

The present case 39 Perusal of the ACS reveals that a significant number of acts or omissions are alleged to have occurred and to have breached provisions of Commonwealth anti-discrimination laws (and in some cases other legislative provisions or legal principles as well). At 20 pages the ACS is much longer than what is envisaged by the practice note, although that length is partly attributable to abandoned paragraphs of the original Concise Statement still appearing (struck through) and the document containing fairly detailed particulars of damage. The document is probably more complicated than it needs to be, partly because of unnecessary conclusory (and sometimes emotive) asides and partly because it does not proceed chronologically. In some parts there is (consistently with the respondents' complaint) a lack of precision as to who is alleged to have done what and when, and occasionally unhelpful formulations such as "numerous occasions" are employed. 40 With hindsight, it might be suggested that the case was not an appropriate one for the concise statement method (which, as expounded in Delor Vue, provides greatest benefit when all parties are sufficiently sophisticated and well-advised to work from the concise statement to a full understanding of the facts in issue). However, the decision to employ the concise statement method was made very early in the case and I would be unwilling to revisit it even if asked to do so. Starting from scratch with traditional pleadings would be unconscionably wasteful. 41 Having reached this point, and keeping in mind the nature and function of concise statements (discussed above), the utility of striking out portions of the ACS for want of particularity or clarity is far from clear. So too is the appropriateness of subjecting the ACS to this form of scrutiny. (a) As to appropriateness, it bears repeating that the ACS is not a pleading and should not be held to the standards, or expected to perform the functions, of a pleading. (b) As to utility, an opportunity would ordinarily be given to reformulate the aspects that were struck out and there is no guarantee that this would improve the position. Further iterations of requests for particulars and complaints about lack of clarity could result. Other approaches might usefully be taken instead: for example, the parties might be directed to confer with a registrar and endeavour to produce an agreed list of issues; or the applicant could be directed to produce a chronological list of the specific events about which she complains and the duties or obligations breached in each event. (c) It is also to be borne in mind that, if the proceeding continues, the applicant will eventually have to prove her case. Although the Court is not bound by technicalities (by force of s 46PR of the Australian Human Rights Commission Act 1986 (Cth)), the applicant will have to establish that breaches of identified legal standards occurred by reference to evidence that is admissible. Indeed, the matters referred to at [10] above suggest that, subject to any applications to file further material, the applicant's evidence has been filed and served. A review of that evidence is likely to go a long way to confirming what the case is really about. 42 Another factor that is of some significance is the respondents' conduct of the case so far. 43 The ACS was filed by leave following detailed argument on its progenitor, the PPOC. Provision was made for the respondents to seek particulars and to indicate their position on the document. Later, orders were made calling for any interlocutory application in respect of the ACS to be made by a certain date or, if no such application was made, a concise statement in response to be filed. No interlocutory application was filed at that time and the respondents (eventually, after two extensions of time) filed the Concise Statement in Reply. At that time, it would seem, the view was being taken that the ACS was capable of being the subject of a response and that case could go ahead on that basis. 44 I was informed from the bar table that at this time (mid 2023), after lengthy correspondence and with the applicant unrepresented, a judgment was reached that the ACS was likely to be the best statement of the case that could be achieved. Accepting that that this was the respondents' thinking at that time, I do not think it justifies a change of position now that the applicant appears to have (at least for the time being) regained the assistance of Ms Dulhunty. The latter has not so far filed any formal notice of acting and the extent to which she is able and willing to assist is not known. In any event, there was a time allocated for the respondents to make a decision and they made that decision. More is needed than a change of representation on the other side of the record to justify revisiting interlocutory questions that the applicant and the Court were entitled to consider resolved. 45 For this combination of reasons, save in one respect which I discuss below, it is not appropriate for the sufficiency of the ACS to be reopened. To this extent the strike out application is to be dismissed.

The NCAT complaints 46 One of the issues agitated at the hearing in this proceeding before Cheeseman J on 20 September 2022, and dealt with in Chadwick v NSW No 2, was the extent to which it was open to the applicant to assert wrongdoing in connection with NCAT proceedings in the light of principles expounded in Mann v O'Neill (1997) 191 CLR 204. Those principles, in short, prevent collateral attack on the determination of issues in prior judicial or quasi-judicial proceedings. Her Honour dealt with this in some detail at [25]-[35], holding that in the proceedings involving the applicant NCAT was a quasi judicial body to which those principles applied (at [32]). 47 The issue had been raised in connection with 18 paragraphs of the PPOC (which was at that stage proposed to be filed as an amended Concise Statement). As to 12 of those paragraphs, her Honour held at [34] that the respondents had not established that the matters alleged necessarily attracted the relevant immunity. As to six paragraphs, however, her Honour held that immunity was attracted. At [35] her Honour said: That leaves PPOC [17], [18], [21], [24.1], [33] and [45]. These paragraphs are different. They include allegations based explicitly on what was said and done in the NCAT proceedings. By these paragraphs Ms Chadwick seeks to establish that the respondents are liable for allegations made and evidence given in the NCAT proceedings. PPOC [17] and [18] refer to statements made by employees of the respondents in the course of NCAT proceedings which are alleged to have misled NCAT. PPOC [21] and [24.1] derive from PPOC [17] and [18]. PPOC [33] includes an allegation that a certain employee of the respondents attended the NCAT hearing on 20 November 2018 and gave evidence in circumstances where Ms Chadwick says that the matter was not the type of matter that he would normally attend, and that this constituted discrimination, public humiliation and intimidation. PPOC [45] is somewhat unclear in the way it is framed but it does appear to seek to attach liability to the respondents for their conduct before the NCAT which is alleged to have amounted to a withdrawal of NCAT proceedings. I am satisfied that the respondents have established that they are protected by an absolute immunity in respect of these allegations and the necessity for that immunity is evident. Accordingly, Ms Chadwick is refused leave to amend the concise statement by introducing PPOC [17], [18], [21], [24.1] (in so far as [24.1] repeats the impugned allegation of misleading and deceptive conduct based on the evidence given in the NCAT proceedings), [33] and [45]. 48 These conclusions were not the subject of any appeal. The same reasoning is directly applicable to the following parts of the ACS (which in substance repeat the contents of PPOC [17]). (a) ACS [17]: "and in obtaining an unreasonable order without notice from NCAT"; (b) ACS [17(a)]: "in obtaining an unreasonable order"; (c) ACS [20]: "After falsely obtaining an order that the Applicant pay $215.00 per fortnight" and "only fifteen (15) days after the Respondents misled NCAT into ordering the Applicant to pay $215.00 per fortnight for the arrears rather than the agreed $90.00 per fortnight"; (d) the whole of ACS [20.1]. 49 I also consider that the same reasoning calls for the striking out of the allegation in ACS [22(a)] that the applicant was "harassed by the barrage of NCAT proceedings". Characterisation of proceedings in NCAT as a form of harassment suggests that those proceedings were commenced for improper purposes and thus an abuse of process. This would be a form of collateral attack on the orders made in those proceedings. Thus, to the extent that it is being alleged that the respondents were using NCAT proceedings as a means of harassing the applicant (rather than seeking to vindicate their legitimate interests in the matters in issue), that allegation is in my view not viable. It may be that this part of ACS [22(a)] was intended to allege something less: for example, that the number of NCAT proceedings was burdensome for the applicant. In my view it is preferable to strike out the words "the barrage of NCAT proceedings brought in breach of an existing agreement dated 5 April 2018, followed by" in order to indicate that this allegation will not be regarded as part of the case unless it is restated in a clearer and more limited form. 50 The same reasoning applies to the word "capriciously" in ACS [22(d)], the whole of ACS [27] (which alleges the commencement of proceedings in NCAT as a form of "intimidation") and the words "by bringing multiple proceedings in NCAT against the Applicant" in ACS [34(e)]. These aspects of the ACS appear to allege that orders were obtained from NCAT in proceedings that were an abuse of process. 51 Although in other respects I have come to the view that it is not appropriate to revisit the sufficiency of the ACS, it is appropriate that some action be taken to exclude from the hearing arguments that are unviable. The simplest way to do this is to order that the parts of the ACS advancing those arguments be struck out, even though the ACS is not a pleading.

Disposition 52 There will be orders that the parts of the ACS identified at [48]-[50] above be struck out. The strike out application will be otherwise dismissed. The costs of the application will be reserved. 53 My chambers will contact the parties in relation to the listing of the PFACS application. What I have said above may have the result that parts of the PFACS would be liable to be struck out and should not be pressed. The applicant should also consider the utility of pressing an application to file yet another statement of her case, in the light of the observations above concerning the function of concise statements and the filing of her substantive evidence. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.