Dhillon v The Canberra Sikh Association Inc [2025] ACTSC 271

Kinds of originating process

6. The rules provide two vehicles for the commencement of a civil proceeding: either an originating application or an originating claim. The default position under the rules is that unless a territory law requires, or allows a proceeding to be started by originating application, then it should be started by originating claim: r 33(2) of the CPR. A relevant point of procedural difference between the two forms of proceeding is that where a proceeding is commenced by originating claim, a statement of claim must be filed with that proceeding: r 50(2) of the CPR. The rules go on to set out content requirements for a statement of claim with some variation depending on the nature of the cause of action underpinning the proceeding. Were proceedings appropriately commenced by originating application

7. Mr Dhillon commenced his proceeding by way of originating application because of the compulsion arising under r 34(2) of the CPR, where a territory law requires or allows a person to apply to the court for an order or another kind of relief.

8. Mr Dhillon's complaint against the Association is in essence that its past decisions in respect of retention of committee positions, and its failure to hold statutory meetings, deprived him of rights conferred upon him as a member of the Association. As such, he asserts a right to apply to the court to vary the decisions of the Association pursuant to s 49 of the Associations Incorporation Act. As that territory law allowed him to apply to the court to vary the orders made by the Association, I accept that Mr Dhillon was required to commence this proceeding by way of originating application.

Continuing proceedings as if commenced by originating claim

9. Consistent with that view, the Association does not contend that this is a matter where the proceeding was incorrectly started by originating application. Rather, they contend that the state of the proceeding is such that it is one more conveniently continued as if started by originating claim, with the consequential effect that Mr Dhillon will be required to file a statement of claim.

10. The court is empowered by r 39(2)(d) of the CPR to order the plaintiff to file and serve a statement of claim, where it considers that proceedings either should have been started by originating claim, or may more conveniently continue as if started by originating claim.

Submissions

11. Mr Dhillon’s counsel did not contend with the proposition that, in appropriate circumstances, the court is empowered in a case where a proceeding was required to be commenced by originating application, to make an order whereby the proceeding continues as if commenced by originating claim, where it is convenient to do so.

12. The reasons given for resisting such a course may be summarised as: (a) It was not only necessary but required that the proceeding be commenced by way of originating application, and the parties have now advanced some way down that path with the filing of affidavit evidence by both parties; (b) The requirement to reduce Mr Dhillon’s claim to a form of pleading would be a backward step, given the advanced state of the matter; (c) The affidavit material that has been filed already deposes to the factual issues in dispute; and (d) To continue now by way of statement of claim would be onerous, and would risk unnecessary delay and further cost.

13. Counsel for the Association’s submissions in summary were: (a) In assessing whether it was now more convenient to continue the proceedings by way of statement of claim, regard should be had to r 35(1)(a) of the CPR and its identification of circumstances in which the use of an originating application is appropriate, including where the main issue between the parties is a matter of law and a substantial dispute of fact is unlikely; (b) In this case there is a significant dispute as to fact over a range of factual matters; (c) In view of the extent of factual contention the matter will proceed in a more orderly fashion if an order is made for the filing of a statement of claim, including the requirement that would necessarily follow for the Association to file a defence; and (d) The form of the affidavits filed was such that an order to the effect that the affidavit evidence was to be treated as pleadings was likely to be very troublesome.

Applicable law

14. Rule 39 of the CPR allows the court to consider whether this proceeding, appropriately commenced by way of originating application, may more conveniently continue as if started by originating claim. Having answered that question positively the Court is empowered to do a number of things, including that which is sought by the Association, in the form of an order that Mr Dhillon now file a statement of claim.

15. The dispute confronting Elkaim J in Millard v Collins [2021] ACTSC 216 was in similar terms. Although his Honour concluded that the proceeding could have been commenced by originating application or originating claim, his Honour reached the view that the proceedings would have been better started by originating claim and associated pleadings, on the basis of an acceptance by both parties that there were likely to be factual issues in dispute in the litigation. His Honour said at [30]: While I agree that ordering the filing of the statement of claim would be to some degree a retrograde step, ultimately I think it would save a good deal of time and expense for the matter to proceed in a defined manner as required by pleadings.

16. As to the benefit of a properly pleaded claim in circumstances where there are disputes of fact, Refshauge J observed in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20 at [28]-[30]: Whatever the result of this controversy, the system of formal pleadings is currently the way each party is given notice, reasonably precisely, of the case that it has to meet. Further, however, the pleadings do more, much more, than merely give notice of the case of the other party. Secondly, and equally importantly, they apprise the court of the issues so that it can manage the trial and all pre-trial interlocutory proceedings. Sir Jack Jacob, doyen of litigation proceduralists, set out the importance of pleadings in this second sense particularly in, “The Present Importance of Pleadings” (1960) Current Legal Problems 171 (at 174-5) as follows: Pleadings do not only define the issues between the parties for the final decision of the court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars or the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making. They limit the ambit and range of the discovery of documents and the interrogatories that may be ordered. They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or of fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the court can award. They provide the basis for the defence of res judicata in subsequent proceedings by reference to the record in the earlier proceedings. I am mindful of the need to avoid arid technical disputes which do not advance any litigation but only cause delay and expense, contrary to the obligation imposed by r 21 of the Court Procedures Rules. See Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14. Nevertheless, it is important to ensure that the legitimate objectives of pleadings are met by ensuring that a cause of action is (or causes of action are) adequately pleaded and that the parties and the court can manage the litigation efficiently and cost-effectively as a result of the definition of the issues thereby achieved. Intelligibility is crucial to this. Consideration

17. It is clear from the affidavit material before me that there are significant matters of factual contention between the parties that bear directly on the court’s consideration of whether this is an appropriate matter in which to vary some of the decisions of the Association pursuant to the power given to the court under s 49 of the Associations Incorporation Act.

18. The present affidavit evidence is not in a form which enables the court to readily discern each of the factual contentions underpinning Mr Dhillon’s claim and the Association's response to each of those contentions. This is therefore a matter in which the orderly progress of the proceeding will be assisted by the filing of a statement of claim, the provision of further and better particulars and the filing of a defence. While I accept that a formal pleading process will inevitably involve some cost to the parties, I expect that process will also ultimately save time and expense in the continued conduct of the proceeding.

Orders

19. For the reasons stated above I make the following orders: (1) The applicant has leave to file an amended originating application in the form annexed to the affidavit of Jiwan Dhillon affirmed on 11 June 2025. (2) Pursuant to r 39(2)(a) of the Court Procedures Rules 2006 (ACT), the proceeding is to continue as if started by originating claim. (3) Pursuant to r 39(2)(d) of the Court Procedures Rules 2006 (ACT), the applicant is to file and serve a statement of claim on or before 5:00pm on Friday 25 July 2025. (4) The proceeding is listed for further directions before the Registrar on Friday 1 August 2025 at 9:30am. (5) The costs of each of the applications are to be costs in the cause.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller Associate: Date: 30 June 2025