Dunstan v Human Rights and Equal Opportunity Commission

Federal Court of Australia|2004-03-19|Before: Mansfield J

THE COURT ORDERS THAT:

The applicant by no later than 30 April 2004 file and serve a document which: (1) in respect of the statement published by the third respondent to an officer of the sixth respondent in or about March 1994 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, including the name of the officer of the sixth respondent referred to, and (ii) if in writing, identifies as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (2) in respect of the statement published by the third respondent to the second respondent on or about 28 November 1994 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, and (ii) if in writing, identifies as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the second respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (3) in respect of the statement published by the third respondent to an officer of the sixth respondent on or about 27 February 1995 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, including the name of the officer of the sixth respondent referred to, (ii) if in writing, identify as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (4) in respect of the letter dated 18 September 1995 published by the third respondent to an officer of the sixth respondent - (a) states (i) the author of the letter, (ii) when the letter was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (5) in respect of the letter dated 4 January 1996 published by the third respondent to an officer of the sixth respondent (a) states - (i) the author of the letter, (ii) when the letter was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (6) in respect of the submission made on or about 23 January 1996 by the third respondent to the first respondent - (a) states (i) the author of the submission, (ii) when the submission was published to the first respondent, (iii) the name or description of the status of the officer of the first respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the first respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (7) in respect of the letters dated on or about 24 January 1996 published by the third respondent to the second respondent - (a) states the author(s) of the letters, (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the second respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (8) in respect of the submission made on or about 4 July 1996 by the third respondent to an officer of the sixth respondent - (a) states (i) the author of the submission, (ii) when the submission was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (9) in respect of the letter dated 27 November 1996 published by the third respondent to an officer of the sixth respondent - (a) states (i) the author of the letter, (ii) when the letter was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (10) in respect of the minute dated 24 April 1996 published by the fourth respondent to an officer of the sixth respondent - (a) states the author of the minute, (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words; (11) in respect of the statement published by the fifth respondent to an officer of the sixth respondent on or about 9 September 1993 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, including the name of the officer of the sixth respondent referred to, (ii) if in writing, identifies as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (12) in respect of the submission made on or about 18 January 1996 by the fifth respondent to the first respondent - (a) states (i) the author of the submission, (ii) when the submission was made to the first respondent, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the fifth respondent, (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words. 2. Leave to amend the amended statement of claim filed on 13 November 1998 in terms of the document called 'amended statement of claim' filed on 8 September 1999 is refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 30 OF 1997

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

INTRODUCTION 1 On 22 April 1997, the applicant instituted this application against the first five respondents. The sixth respondent was subsequently added. 2 As against the first respondent, he claimed orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act): (1) to review its conduct 'whereby steps required by the Sex Discrimination Act 1984 have not been taken', and to direct it to conduct an inquiry into a complaint of sexual discrimination made by the applicant; (2) to review and quash its decision not to inquire into certain acts, as a period of 12 months had elapsed since the alleged acts were done; and (3) to review and quash its decisions not to continue to inquire into certain complaints, as it regarded them as lacking in substance.

He also sought a direction apparently under the then s 115 of the Sex Discrimination Act 1984 (Cth) (the SD Act) as to how a complaint made under the SD Act should be pursued where the acting Sex Discrimination Commissioner is a 'respondent' to a complaint under the SD Act, and there is an alleged conflict between certain provisions of the SD Act concerning the rights of a respondent to such a complaint and the duty of the Sex Discrimination Commissioner to inquire into such a complaint. 3 The focus for the applicant's concerns against the first respondent is a letter of 2 April 1997 from the first respondent to the applicant. It notified the applicant of a decision of a delegate of the Sex Discrimination Commissioner that, in respect of complaints he had made against the Australian Taxation Office (ATO) and a named female officer (Ms X) and others under the SD Act and under the Racial Discrimination Act 1976 (Cth) (the RD Act), she had decided not to continue to inquire into his allegations. She gave reasons for her decision. The letter informed the applicant of his right to have the Sex Discrimination Commissioner's decision referred to the President of the first respondent for review within 21 days of receipt of notification. 4 The applicant on 5 April 1997 responded seeking 'clarification' of two asserted mistakes by the Sex Discrimination Commissioner in her reasons. He requested an extension of time to seek review of her decision following a response to his letter. On 16 April 1997, he received a response to his letter. He was also informed that the Sex Discrimination Commissioner had no power to extend the 21 day period within which he might seek review of her decision, so that any request for review of her decision by the President of the first respondent had to be made by 26 April 1997. The applicant did not seek review of the Sex Discrimination Commissioner's decision notified by letter of 2 April 1997 by the President of the first respondent within that time or at all.

5 As against the second to fifth respondents, the applicant claimed damages at common law for 'defamatory publications and gestures made and distributed, with express malice' by each of them. 6 As against the third, fourth and fifth respondents, the applicant further claimed damages at common law for misfeasance in public office. 7 The application contains grounds for each of those claims. As against the first respondent, the grounds invoke in terms each of the grounds of review available under s 5(1) of the ADJR Act. As fraud or bad faith is alleged, the application contains extensive 'particulars of fraud or bad faith' which are partly a chronological description of events asserted by the applicant and partly, along with the chronology, assertive of matters which are said to have been fraudulent or malicious. 8 The application was supported by an affidavit of the applicant of 22 April 1997 and extensive annexures. 9 As is apparent from the elapse of time, this matter has not proceeded with normal expedition. It is not necessary to refer fully to the course of the proceedings to date to understand the present issues. However, it is necessary to refer to those events in a little detail. 10 Initially, the claims against the first respondent and against the second to fifth respondents proceeded on a different course. 11 On 13 June 1997 directions were given for the applicant and the first respondent to agree to a chronology and a bundle of documents upon which the claims against the first respondent were to be heard, and for a timetable within which the applicant should seek any further discovery from the first respondent. On 11 July 1997, each of the applicant and the first respondent filed separate chronologies. In the meantime on 30 June 1997 the applicant had given to the first respondent notice of further discovery which he sought. The first respondent did not give the further discovery sought, but on 24 July 1997 applied by motion to set aside the notice for further discovery. In essence that was because the first respondent had either discovered and made available for inspection all discoverable material, including much of what was specified in the applicant's request for further discovery, or did not have the other documents which he sought because they did not exist. The first respondent also applied to summarily strike out the application made under the ADJR Act. In the events which happened that application was not pursued. On 19 August 1997, the sixth respondent was added. It was to act as the contradictor to the applicant's claims against the first respondent. The first respondent was excused from further participation in the proceedings, on the basis that it would abide by any order of the Court. 12 The applicant's claim against the first respondent then ceased to follow a separate course from his claims against the other respondents. On 14 September 1998 directions were given for all issues in the application to be dealt with together and a timetable set for their hearing. 13 In the meantime, on 13 June 1997, the third, fourth and fifth respondents applied by motion to have the claims against them for defamation and for misfeasance in public office summarily dismissed, and alternatively for the claim against them for defamation transferred to the Supreme Court of the Australian Capital Territory. That motion was listed for hearing on 12 September 1997 (later altered to 5 November 1997). The hearing was not then completed. The second respondent had not by then filed an appearance. Directions were given for the exchange of statements of issues and contentions for the hearing of the motion. Subsequently, the application to transfer the defamation proceedings was not pursued, and the application to strike out the defamation proceedings also was not pursued. 14 On 19 August 1997, the applicant was ordered to file and serve a statement of claim dealing with the claims of defamation and misfeasance in public office. Further directions were given with a view to having the issues on the motion heard and determined. The sixth respondent was added. On 19 September 1997, the applicant filed and served a document entitled 'draft statement of claim'. 15 As noted, on 14 September 1998 directions were given which brought the claims against each of the respondents to be heard together. Directions were given for the action to continue on pleadings. The applicant was to file and serve by 10 October 1998 a properly particularised statement of claim dealing separately with his claims for judicial review, for defamation and for misfeasance in public office. Defences were to be filed by 2 November 1998. The action was listed for hearing on 16 March 1999. 16 On 15 October 1998 the applicant filed a statement of claim. On 26 October 1998 he was given leave to file an amended statement of claim by 4 November 1998. He did so. At a directions hearing on 6 November 1998, the applicant, through his counsel, indicated that he did not rely upon the facts alleged in pars 7, 8 and 9 of the statement of claim filed on 4 November 1998, or the words after 'complaint' in par 32 of that document. The sixth respondent on behalf of the first respondent acknowledged that the applicant is a 'person aggrieved' under the ADJR Act. Directions were given for the exchange of witness statements prior to the hearing, and for the exchange of statements of issues and contentions. 17 On 13 November 1998 the applicant filed a further 'amended statement of claim'. It was in the same terms as the document filed on 4 November 1998, but excluded the words proposed to be struck out from par 32. I shall call the amended statement of claim filed on 13 November 1998 hereafter 'the statement of claim'. It is the last document filed with leave of the Court to reflect the claims proposed to be made by the applicant against the respondents. 18 Defences were filed by the third to sixth respondents on 27 January 1999, and by the second respondent on 26 May 1999. Although filed belatedly, in the events which have happened the belated nature of those defences has caused no embarrassment and I shall allow them to stand. 19 It appears that in late 1998 the applicant became the subject of a criminal investigation. He was subsequently charged, remanded in custody, and later convicted of certain charges. On 16 December 1998, in the circumstances, the trial date of 16 March 1999 was vacated. 20 On 10 May 1999 the applicant was directed to provide to the respondents particulars of the claim of misfeasance in public office as requested by letter of 10 November 1998. Those particulars were directed to be provided by 15 June 1999. By letter of 9 June 1999 the applicant asked that further action in the proceedings be deferred until the criminal proceedings against him were completed.

21 On 9 July 1999, the applicant applied by notice of motion for leave to file and serve an amended statement of claim and for additional discovery from the first and sixth respondents regarding the new paragraphs in the proposed amended statement of claim. The proposed amended statement of claim did not alter the allegations already in the statement of claim, but added new pars 54-72. The applicant subsequently filed a document on 8 September 1999 called 'amended statement of claim'. It included the new paragraphs, but not in the same terms as the proposed new paragraphs in the document annexed to his affidavit of 9 July 1999. As it is the later expression of his proposed claims, I shall treat the document filed on 8 September 1999 under the heading 'amended statement of claim' as the expression of his case as he wishes it to be put forward. I shall call it 'the proposed statement of claim'. The application for leave to amend the statement of claim in terms of the proposed statement of claim has not yet been dealt with. 22 On 23 August 1999 the applicant filed a document entitled 'draft index of proposed bundle of documents' and an affidavit of his proposed evidence, to be in addition to the affidavits he had already filed of 14 May 1997, 8 October 1997, and 3 November 1997. 23 Thereafter the application generally was adjourned to a date to be fixed whilst the applicant was attending to matters concerning his criminal trial. He has since requested from time to time that the application then not proceed while he has addressed matters concerning his criminal trial, his appeal, and a range of issues concerning the circumstances in which, and the terms upon which, he remains in custody. The applications variously have therefore not progressed much beyond that point.

the present position and interlocutory issues 24 The present position is that the pleadings have been completed, subject to the applicant's motion for leave to file and serve the proposed statement of claim. The applicant has filed affidavits indicating much (if not all) of the evidence which he proposes to adduce at the hearing. 25 At the directions hearing of 4 August 2003, the applicant was given the opportunity to give notice of any changes to the proposed statement of claim, and the Court indicated it would determine whether to give leave to amend the statement of claim in terms of the proposed statement of claim or any variation of it. 26 The third to sixth respondents gave notice in accordance with the directions of 4 August 2003 for orders that pars 7-9 and 34-39 of the statement of claim be struck out. Paragraphs 34-39 of the statement of claim are those relating to the misfeasance in public office claims. They also oppose the applicant being given leave to amend the statement of claim in terms of the proposed statement of claim. 27 The third to sixth respondents also resist any order for further discovery against them. They also pursue orders for further and better particulars of the statement of claim, requested on 10 November 1998 and 28 July 2003 if the applicant is given leave to file and serve the proposed statement of claim. By written contentions, the applicant has claimed that there is an outstanding obligation on the first respondent to give discovery. 28 It is those issues which are presently contentious and which are the subject of this present judgment.

the statement of claim 29 To address those issues, it is necessary to consider the terms of the statement of claim and the proposed statement of claim in a little detail. It is not necessary for present purposes to refer to the defences. The following represents a summary of the applicant's allegations.

(a) Background 30 The applicant is a member of the Commonwealth Public Service (the Service). The third, fourth and fifth respondents were at material times also employed by the Service, and were the applicant's superior officers. Each of the applicant and the third, fourth and fifth respondents were employed by the sixth respondent. From 1987 until February 1993, the applicant was employed as Assistant Director, Database Administration Subsection of the ATO.

(b) The ADJR claim 31 Paragraphs 6-33 of the statement of claim concern the application against the first respondent under the ADJR Act. 32 On 6 November 1998, counsel for the applicant indicated that the applicant did not rely upon the facts alleged in pars 7, 8 and 9 of the statement of claim as they were irrelevant to the applicant's claim against the first respondent. It is not necessary to refer in detail to the balance of pars 6-33 of the statement of claim. There is no present issue concerning them. It is, however, convenient briefly to describe their import and to note the foundation upon which the applicant claims relief. 33 On 17 September 1993 the applicant lodged with the first respondent a complaint alleging racial and sexual discrimination and sexual harassment in his employment by the third, fifth and sixth respondents (called 'the sex complaint') in respect of conduct between 1983 and 1993. The statement of claim then describes certain steps undertaken by the first respondent in investigating the sex complaint. 34 One feature of the allegations concerns a claim by the applicant against Comcare. It is asserted that in about April 1994, the applicant was advised by the first respondent to lodge an application to Comcare in respect of a detriment he had suffered by reason of the matters the subject of the sex complaint. He did so, but the claim was rejected in July 1994. He requested internal review. The internal review also resulted in rejection of the claim by Comcare in about June 1995. On about 1 January 1995 the applicant lodged with the first respondent an addendum to the sex complaint alleging disability discrimination (which he called 'the disability complaint') by Comcare against him arising out of Comcare's rejection of the claim. In August 1995 the applicant lodged an appeal from Comcare's rejection of his claim to the Administrative Appeals Tribunal (the AAT) in respect of his disability claim. The AAT dismissed the 'appeal' on 28 June 1996. 35 On 25 November 1996, 4 December 1996 and 21 January 1997, the applicant requested the first respondent to refer his complaint for public inquiry. It did not do so. On 5 February 1997 the first respondent received from the sixth respondent a submission concerning the applicant's complaint. The applicant claims that he was not informed of that submission prior to the decision of the first respondent. On 26 March 1997 an officer of the first respondent provided to the first respondent a report on investigations into the applicant's complaint which is alleged to contain misleading and/or false information. The applicant was not informed of that report or its contents prior to the decision of the first respondent. Particulars are given purportedly of the misleading or false information. The first respondent then decided on 2 April 1997 not to continue to inquire into the sex complaint. Reference is made to that decision earlier in these reasons at [3]. 36 On the basis of those allegations the statement of claim indicates that the applicant challenges the decision of the first respondent of 2 April 1997 on the grounds: (1) that a breach of the rules of natural justice occurred in connection with the making of the decision because - (i) he was not informed that the first respondent had received a copy of the AAT decision and did not have an opportunity to comment on it, (ii) he was not informed of the submission of the sixth respondent to the first respondent in February 1997 and was not given an opportunity to comment on it, and (iii) he was not informed of the existence or content of the report of an officer of the first respondent of March 1997 and was not given an opportunity to comment on it, (iv) independently, the first respondent took a unreasonable period of time to make its decision; (2) that procedures required by law to be followed in connection with the making of the decision were not observed in that - (i) the first respondent, having by 28 June 1996 decided that the complaint was not amenable to conciliation, was required to but did not hold a public inquiry into the complaint, contrary to s 57 of the SD Act, (ii) the first respondent's reinvestigation of the applicant's complaint after 28 June 1996 was not authorised by the enactment: s 57 of the SD Act, and (iii) the first respondent failed to refer the applicant's complaint for inquiry to the public despite his requests to do so: s 57 of the SD Act; (3) that there was no evidence or other material to justify the making of the decision because - (i) the decision was based upon the existence of facts which did not exist, namely [six facts were identified], and (ii) the determination that the application or complaint was lacking in substance was not reasonably open on the material before the first respondent; and (4) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was made because - (i) the first respondent failed to take into account two submissions made by the applicant in relation to the complaint, namely submissions of 11 September 1995 and 14 March 1996 in response to material submitted by, and submissions made by, the third and fifth respondents, and (ii) the first respondent took into account an irrelevant consideration, namely that her investigation should commence with events after April 1990.

(c) The misfeasance in public office claim 37 This claim is dealt with in pars 34-39 of the statement of claim. 38 It is alleged that between September 1993 and June 1997, the third, fourth and fifth respondents in discharge of their public duties published false and/or misleading information to the first, second and sixth respondents concerning the applicant and his employment and the sex complaint. Nine communications on the part of the third respondent are identified, one on behalf of the fourth respondent and two on behalf of the fifth respondent. 39 The information is said to be to the effect that each of the respondents had not discriminated against the applicant on the grounds of sex, race or disability and had not subjected him to any detriment on the grounds that he had made complaints under the SD Act or the RD Act or the Disability Discrimination Act 1992 (Cth) (the DD Act), that they were justified in removing the applicant from the Database Administration area, that a commitment had been given to Ms X allowing her to veto his return to the Database Administration area, (and a reciprocal commitment to the applicant), and that the applicant was denied the opportunity to transfer to the Database Administration area because other staff members in that area were afraid of him and were unable to work with him, and did not want him back. 40 It is asserted that the third, fourth and fifth respondents intended that the first and sixth respondents would rely upon those communications. It is then claimed: '37 In supplying the said information to the first and sixth respondents, the third, fourth and fifth respondents knew that the information was false and/or misleading. 38. In supplying the said information to the first and sixth respondents, the third, fourth and fifth respondents acted with malice and intended to injure the applicant or were reckless as to whether or not he would suffer injury.' 41 Finally, par 39 alleges loss and damage in that the first and sixth respondents relied upon that information leading to the decision of the first respondent not to inquire further into the sex complaint, and on the part of the sixth respondent to not permit the applicant to return to his employment in the Database Administration area. General claims of loss and damage are made without particularity.

(d) The defamation claim 42 The defamation claim is set out in pars 40-53 of the statement of claim. 43 The role of the second respondent is described. EASACT Australia Pty Ltd is said to have been contracted by the sixth respondent to provide services in connection with its 'employee assistance program' at least by November 1994. The third respondent then requested the second respondent, as agent for EASACT, to provide some assistance in connection with the applicant and his complaints. That led to the communications, or some of the communications, which give rise to the defamation claim. 44 The first three communications comprise three letters from the second respondent to the third respondent, republished to the first respondent, and to the sixth respondent, which are said to be defamatory. They are dated 17 February 1995, 11 May 1995, and 5 December 1995. The fourth primary communication containing defamatory material is a letter from the third respondent to the applicant dated 4 January 1996, which was also provided to the sixth respondent at the same time on 4 July 1996. It is also alleged that the fifth respondent republished that memo to the first respondent on 18 January 1996. The fifth primary communication is a communication from the fourth respondent to the sixth respondent by minute dated 24 April 1996, also published to the industrial officer of the Commonwealth Public Sector Union. The statement of claim sets out in respect of the five primary documents the contents which are said to be of concern to the applicant. It is then alleged of those communications: 'The words referred to in par 48 above in their natural and ordinary meaning were understood to mean that the applicant was: (1) managerially inept; (2) incompetent; (3) a disruptive influence within the workplace; (4) a troublemaker; (5) potentially violent.'

45 It is further asserted that the words do, and were calculated to, bear the meanings pleaded in par 49 by way of innuendo, if not by their ordinary and natural meaning, and that the words were false. No particulars of falsity are given. It is further alleged that each of the second, third, fourth and fifth respondents knew that the statements were false or were recklessly indifferent to their truth and that they published the statements for the purpose of injuring the applicant, or in circumstances where they were reckless as to whether he suffered injury as a result of the publication. Finally, in general terms, publication of each of the documents is alleged to have damaged the applicant's reputation and have caused him loss and damage.

46 The relief as sought in the statement of claim in respect of the ADJR claim is a declaration that the first respondent's decision of 2 April 1997 is null and void or that it should be quashed, an order preventing the respondents from taking any action to enforce the first respondent's decision or to rely upon it, and a further order directing the first respondent to hold a public inquiry in relation to the sex complaint lodged by the applicant with the first respondent on 17 September 1993. The relief claimed for the misfeasance in public office claim and the defamation claim is for damages 'including aggravated and exemplary damages' and for costs and interest.

the proposed statement of claim 47 The proposed statement of claim adds pars 54-79. They are under the heading 'negligence'. 48 Paragraphs 54 and 55 assert that Comcare Australia and the Merit and Protection Review Agency and their employees were at material times agents or employees of the sixth respondent, and that EASACT and Employee Assistance Service (A.C.T. Pty Ltd) and their employees were also at material times agents of the sixth respondent. 49 Paragraph 56 alleges a duty of care on the part of the sixth respondent and its employees to protect the applicant from harassment, discrimination and victimisation; to afford him equality of opportunity in employment matters; to allow him to pursue his career 'as effectively as everybody else' without discrimination; to secure his health, safety and welfare at work; and to protect him from risks to his health, safety and welfare, and to address work-related problems affecting his health, safety and welfare. 50 Paragraphs 57-76 are under the heading 'negligent acts in respect of duty of care'. Some of the allegations are general and some are specific. In respect of some there are particulars provided. It will be necessary to refer to those matters in further detail. 51 Paragraph 77 under the heading 'Reason why acts are negligent' reads as follows: 'Each of the respondents and/or their employees and agents failed to conform to the standards of a reasonable person in every act or failure to act of which the applicant complains.' 52 Paragraph 78 alleges the consequence of the respondents' negligence led to him not being protected from harassment, discrimination and victimisation (mirroring the alleged breach of duty asserted in par 56 of the proposed statement of claim). 53 Paragraph 79 alleges loss and damage in general terms and without particularity.

consideration 54 As a result of directions given from time to time since 4 August 2003, it is now appropriate to determine the interlocutory issues referred to in [25]-[27] above. The applicant and the respondents have had the opportunity to make submissions in writing in relation to each of them. In the course of giving directions, the applicant was given an opportunity to express any variations to the proposed statement of claim or to provide such further and better particulars as he considered necessary or desirable to meet the contentions of the respondents. The applicant has been granted extensions of time to express any variations to the proposed statement of claim, and to make his submissions. Most recently, on 11 February 2002, he was given leave to file and serve a reply submission by 5 March 2004. He did not do so. He sought a further (unspecified) time to do so. He has been informed that any submission received from him by way of reply by 17 March 2004 would be taken into account in addressing those matters. The other parties were provided with a copy of the communication to him. The applicant did not make a submission in reply by that time. On 17 March 2004 he submitted a further letter to the Court by way of explanation for his failure to have done so. I refer further to that letter at [81] of these reasons.

(a) Should pars 7-9 and 34-39 of the statement of claim be struck out? 55 As noted above, on 6 November 1998 counsel then appearing for the applicant accepted that pars 7-9 of the statement of claim were irrelevant to the claim under the ADJR Act, and were not relied upon. As they are acknowledged to be otiose, they will be struck out. 56 The principles upon which a pleading, or part of a pleading, should be struck out under O 11 r 16 of the Federal Court Rules are clear enough. They are discussed at some length in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; [1999] FCA 1101 by Weinberg J at 415-417, [12]-[19]. I shall not repeat them, but I respectfully agree with and adopt his Honour's reference to them and to the authorities he there refers to. In that case, Weinberg J at 417-421, [20]-[33] also discussed the requirements for pleadings in this Court. Again, I respectfully agree with and adopt his Honour's reasons without repeating them. 57 The respondents contend that pars 34-39 of the statement of claim should be struck out because they do not contain a properly detailed statement of material facts which, if proven, would give rise to the cause of action for misfeasance in public office. Order 11 r 2 of the Federal Court Rules requires a pleading to contain a statement in summary form of the material facts on which the party relies. To satisfy the requirements of the Rules the statement of claim should serve to notify the respondents of the case they have to meet and to define the issues for decision. The statement of claim thus should ensure procedural fairness to the respondents. 58 The tort of misfeasance in public office, although its precise limits may not yet be resolved, has the following elements: (1) an invalid or unauthorised act, (2) done maliciously, (3) by a public officer, (4) in the purported discharge of that officer's public duties, (5) which causes loss or harm to the applicant.

See Sanders v Snell (1998) 196 CLR 329 at 346-350; Northern Territory v Mengel (1995) 185 CLR 307 at 345, 370. 59 The statement of claim pleads that the third, fourth and fifth respondents were at material times public officers, and it pleads the acts they did in the purported discharge of their respective offices. It also pleads loss and damage to the applicant as a result. 60 The respondents do not contend that pars 36-38 of the statement of claim fail to allege material facts which encompass the elements of the cause of action requiring an invalid or unauthorised act, and that it be done maliciously. The pleadings define and limit the nature of the applicant's case. They therefore put the respondents on notice adequately for the case they must meet on those topics. 61 The nature of the invalid or unauthorised acts is set out in par 35 of the statement of claim. It identifies the provision of specified information, including identifying the communications by author and date, and the 'effect' of the information. It does not identify the particular words of each of the 12 communications, or which 'effect' each of the communications had. To that extent, it is deficient. 62 The third to sixth respondents have sought particulars of those allegations as long ago as 10 November 1998, but they have not yet been provided. It is the failure to provide those particulars which founds the respondents' application to strike out that part of the applicant's claims. 63 Rather than strike out pars 34-39 of the statement of claim, I propose to give the applicant a further opportunity to provide those particulars. I think a period of six weeks would be appropriate to be allowed for him to do so. To avoid any uncertainty, I shall direct the particulars to be provided by 30 April 2004. I direct the applicant by no later than 30 April 2004 to file and serve a document which: (1) in respect of the statement published by the third respondent to an officer of the sixth respondent in or about March 1994 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, including the name of the officer of the sixth respondent referred to, and (ii) if in writing, identifies as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (2) in respect of the statement published by the third respondent to the second respondent on or about 28 November 1994 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and (ii) if in writing, identifies as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the second respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (3) in respect of the statement published by the third respondent to an officer of the sixth respondent on or about 27 February 1995 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, including the name of the officer of the sixth respondent referred to, (ii) if in writing, identify as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (4) in respect of the letter dated 18 September 1995 published by the third respondent to an officer of the sixth respondent - (a) states (i) the author of the letter, (ii) when the letter was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (5) in respect of the letter dated 4 January 1996 published by the third respondent to an officer of the sixth respondent (a) states - (i) the author of the letter, (ii) when the letter was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (6) in respect of the submission made on or about 23 January 1996 by the third respondent to the first respondent - (a) states (i) the author of the submission, (ii) when the submission was published to the first respondent, (iii) the name or description of the status of the officer of the first respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the first respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (7) in respect of the letters dated on or about 24 January 1996 published by the third respondent to the second respondent - (a) states the author(s) of the letters, (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the second respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (8) in respect of the submission made on or about 4 July 1996 by the third respondent to an officer of the sixth respondent - (a) states (i) the author of the submission, (ii) when the submission was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (9) in respect of the letter dated 27 November 1996 published by the third respondent to an officer of the sixth respondent - (a) states (i) the author of the letter, (ii) when the letter was published to an officer of the sixth respondent, (iii) the name or description of the status of the officer of the sixth respondent to whom it was published, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (10) in respect of the minute dated 24 April 1996 published by the fourth respondent to an officer of the sixth respondent - (a) states the author of the minute, (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (11) in respect of the statement published by the fifth respondent to an officer of the sixth respondent on or about 9 September 1993 - (a) states whether the statement was oral or in writing, and (i) if oral, identifies as best as can be done the occasion, the place and the parties present, including the name of the officer of the sixth respondent referred to, (ii) if in writing, identifies as best as can be done the document by date, author and addressee (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to an officer of the sixth respondent (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words (12) in respect of the submission made on or about 18 January 1996 by the fifth respondent to the first respondent - (a) states (i) the author of the submission, (ii) when the submission was made to the first respondent, and (b) indicates separately in respect of each of the meanings which is alleged to have been conveyed to the fifth respondent, (i) the words by reason of which the particular meaning is alleged to have been communicated, and (ii) the meaning alleged to have been communicated by those words.

(b) Should leave be given to amend the statement of claim? 64 The substantive amendment in the proposed statement of claim is to add the claim in negligence. It is expressed to be against all the respondents as 'tortfeasors', including the first respondent. Each of the first to fifth respondents are said to be 'employees and agents' of the sixth respondent. The general nature of the allegations is set out in [47]-[53] above. 65 The third to sixth respondents oppose the amendment on the grounds that it is not in the proper form. They contend that it lacks proper particularity, that it makes allegations against entities which are not parties to the application, and that it pleads a breach of duty of care on the basis of some unidentified statutory obligation. 66 The starting point is that the Court should grant leave to amend a pleading where that can be done without injustice to the other parties: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. However, it is clearly inappropriate to allow an amendment which is futile, or which is not in correct form, or which is inadequate so that it may cause injustice to the other parties. If the proposed amendment would be likely to be struck out if it had appeared in the original pleading, it should not be allowed: Leotta v Public Transport Commission (1976) 9 ALR 437. 67 In the light of the submissions, it is necessary to address more carefully the terms of the proposed amendment. However, as it appears to me that the amendment sought through the proposed statement of claim is clearly untenable as presently expressed, it is unnecessary to refer to its terms in great detail. 68 At common law, an employer owes to employees a duty to take reasonable care for the employees safety: see e.g. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. The proposed statement of claim however alleges a 'duty of care' in apparently absolute terms, namely (for example) 'to protect the applicant from harassment, discrimination and victimisation' (par 56.1 of the proposed statement of claim). Other allegations of the duty of care in par 56 are also expressed in absolute terms. The breaches of duty alleged in par 60 appear also to be expressed in absolute terms. Paragraph 60 alleges restrictions imposed on the areas in which the applicant could work 'without regard to due process or statutory basis for such restrictions'. 69 The proposed statement of claim elsewhere contains allegations that indicate the applicant may have recognised that his claim must be based in negligence, as they contain allegations of 'negligent' conduct. There is a heading 'Negligent Acts in Respect of Duty of Care' under which pars 57-76 appear. 70 Paragraph 77 is under the heading 'Reason Why Acts are Negligent'. It alleges that each of the respondents failed to conform to the standards of a reasonable person in every act or failure to act of which the applicant complains. It gives no particulars. It does not contain information about what the respondents, or any of them, did which they ought not to have done or which they ought to have done but did not do. To properly plead a negligence case, it is necessary that the applicant specify in other than that general way how the respondents 'failed to conform to the standards of a reasonable person'. 71 To some extent, the allegations of negligent acts in pars 57-76 do contain some such allegations: pars 58, 62, 63, 64, 65,66, 67, 68, 69, 70, 71, 72 and 73. In some cases, they do not: pars 57 (part), 59, 60, 61, 74, 75, and 76. That is, those allegations do not adequately indicate what it is that the respondents or one or other of them ought to have done, or ought not to have done, in the light of the facts alleged. 72 In respect of those paragraphs where it is possible to discern what the respondents (collectively) ought to have done or not done, the allegations do not satisfy the requirements of the pleading rules. They do not, for example, indicate in all cases which of the respondents is alleged to have been negligent. Paragraphs 58, 62 and 68 use the expression 'including' one or more of the respondents other than the sixth respondent, but do not exclude other respondents. Paragraphs 58, 62, 63, 64, 65, 66, 68, 69, 70, 71 and 73 use the expression 'employees of the sixth respondent', but do not indicate whether any of the other respondents are intended to be included. Paragraphs 67 and 72 refer to employees or agents of the sixth respondent without indicating which, if any, of the other respondents are referred to.

73 The proposed statement of claim is also too general in its allegation as to the consequences of the allegedly negligent acts. Under the heading 'Consequences of Negligent Acts', it asserts only in general terms consequences to the applicant. It does not relate any particular allegedly negligent conduct to any particular consequence or to any particular alleged aspect of the duty of care alleged in par 56. Given the breadth of the allegations in pars 57-76, I think it is necessary to have done so to enable the respondents to know the case they must meet. For example, the proposed pleading does not indicate how having the applicant's 'mainframe activities audited' (par 75) led to the applicant not being protected from harassment (par 78.1), if indeed that is the applicant's case. It may be that the applicant can allege the connections in a way which is understandable, but I do not consider the proposed statement of claim does so. 74 There are other problems with the proposed statement of claim. For instance, the relationship between the sixth respondent and the first respondent is pleaded as being as 'employees and agents'. The duty of care is said to be 'enacted in a variety of legislation', but no legislation is specified (par 56). 75 Having regard to those features of the proposed statement of claim, in my view it is not possible to discern whether it presents a reasonably arguable cause of action based upon common law negligence or upon breach of statutory duty against any particular one or more of the respondents. Even if it did so, I would regard the proposed statement of claim as embarrassing and prejudicial because it does not enable any of the respondents to know clearly what is alleged against each of the respondents in terms that each could fairly understand the case to be presented and to confront it. The inadequacies in the proposed statement of claim are so extensive that, in my judgment, leave to amend the statement of claim in terms of the proposed statement of claim is refused. The applicant's contentions refer to s 30 of the Limitations Act 1985 (ACT). My decision not to allow the amendment of the statement of claim in terms of the proposed statement of claim is not based upon the proposed negligence action being out of time, so it is not necessary to address that provision.

(c) Particulars and discovery 76 In light of my conclusions regarding the proposed statement of claim, it is not necessary to address the applicant's request for further discovery from the respondents in respect of the amendments in the proposed statement of claim. Nor is it necessary to address the third to sixth respondent's request for further and better particulars of the amendments in the proposed statement of claim. 77 There remains the applicant's contention that the discovery obligations of the first and third to sixth respondents have not been fulfilled. I have reviewed the previous directions given in this matter. There is no discovery order against any of the respondents in respect of any particular documents or category or categories of documents, nor indeed any general discovery order. On 18 June 1999 the applicant indicated he sought an order for general discovery from the sixth respondent, but to date I have declined to make such an order. On 9 July 1999, the applicant sought an order for discovery from the first and sixth respondents for supplementary discovery in respect of the negligence claim in the proposed statement of claim. As I have refused leave to amend the statement of claim to allow the negligence claims as expressed to be pursued, there is no need for that further discovery. 78 It appears that the first respondent made its files available to the applicant. At the time, it was contemplated that there would be exchanged proposed indexes for an agreed bundle of documents for use at the hearing, and steps to that end were undertaken. The applicant did seek further documents from the first respondent. It indicated it either had already produced the specified documents or did not have the documents sought (if they existed). 79 The respondents have indicated in submissions that they have provided to the applicant for inspection the files of the first respondent, certain additional materials including a file of the Federal Privacy Commissioner, a file note of Nick Poynter dated 6 January 1997, the first respondent's draft referral report, the Comcare file held by the first respondent including (subsequently) two pages previously withheld on the ground of 'privilege'. There is no material which, to my mind, stands out as not having been made available to the applicant. He has not in his submissions identified particular documents which should have been made available to him, and have not been made available to him. Moreover, particularly for the claim under the ADJR Act, it is difficult at present to see how any further discovery could be necessary.

80 As the directions given from time to time have required the identification of all outstanding interlocutory issues, and those issues have been dealt with, I now propose to proceed to give directions to ensure the issues in this application are prepared for hearing and to fix a hearing date. 81 I have not overlooked the applicant's letter dated 11 March 2004 and received by facsimile on 17 March 2004. It repeats and expands upon matters the applicant has previously expressed, namely that his ability to conduct this proceeding is impaired by the restricted access to material which he experiences whilst in custody and his claim that the sixth respondent is party to actions taken from time to time by the Department of Corrective Services of New South Wales which have enhanced that disadvantage by removing documents from him for periods or by transferring him within its prison system for periods and by other means. The sixth respondent denies those claims. The Department of Corrective Services of New South Wales is not a party to the application, and has not been requested to comment on them. The Court has decided to proceed with the determination of the present interlocutory issues notwithstanding those matters put by the applicant. It has, in the light of his concerns, endeavoured to extend ample time to him to address the issues. In essence, their resolution turns upon consideration of the terms of the statement of claim and of the proposed statement of claim, and consideration of previous orders of the Court. Whilst the applicant is in custody, the Court will continue to be sensitive to the possible need to allow the applicant a longer time than is normal to comply with its directions. Nevertheless, the applicant must accept that his application should progress to hearing. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: Counsel for the First Respondent is excused from appearing

Solicitor for the First Respondent: Clayton Utz

Counsel for the Second Respondent: B McNeil

Solicitor for the Second Respondent: Phillips Fox

Counsel for the Third to Sixth Respondents: G Loughton

Solicitor for the Third to Sixth Respondents: Australian Government Solicitor

Date of Judgment: 19 March 2004

Racial Discrimination Act 1976(Cth)

Limitations Act 1985(ACT)s 30

At a glance

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Judgment (31 paragraphs)

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Legislation Cited (5)

Cases Cited (7)