EIY20 v State of Western Australia

Disability discrimination claims 5 The applicant pleads that during his detention he was discriminated against by the State on the basis of his disabilities, which are described as impaired literacy skills, impulsivity, resistance to authority, propensity for violence, propensity for self-harm, symptoms of anxiety and a major depressive disorder. 6 The applicant pleads, amongst other things, that: he was detained on multiple occasions at Banksia Hill; whilst there, officers retained by the State to carry out functions were not properly trained to deal with his disadvantages; that he was punished including by long periods of isolation and by use of force and restraint; that he was detained in the Intensive Support Unit on 4 May 2017 but was aware of a disturbance where officers sprayed detainees with a pepper or other chemical spray and denied detainees treatment to alleviate pain; that after he was a participant of a disturbance on 5 May 2017, he was restrained and then detained in the Intensive Support Unit; and that he was then kept for a period of isolation and denied access to support staff such as educators. 7 The applicant pleads that the State discriminated against him on the basis of his disabilities in contravention of the DDA: by denying him access to teaching or support staff; by developing training courses that had content that excluded him; by failing to make reasonable adjustments for the applicant and so treating him less favourably due to his disabilities; by detaining him under behaviour management regimes that denied him access to other people and restricted his access to meaningful education and to exercise, food and mental stimulation; and by failing to make reasonable adjustments to his health care services. An alternative claim is made for indirect discrimination. 8 The applicant pleads that under the Young Offenders Act 1994 (WA) (YOA) the State was obliged to deal with the applicant by exercising reasonable care for his safety, including by providing privacy and dignity, and programs and services that met his educational, vocational, gender and age-related needs. 9 The applicant complained to the Australian Human Rights Commission in relation to the alleged infringements of the DDA by the State. That complaint was terminated pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (no reasonable prospect of the matter being settled by conciliation). The Australian Human Rights Commission Act provides that if a complaint has been terminated in those circumstances, an applicant may bring proceedings relevantly in this Court. 10 As to the discrimination claim the applicant seeks compensation for hurt, humiliation, distress, anxiety and loss of rights, and an apology from the State. He also seeks certain orders that the State give public undertakings to revise the behaviours of those working for the Department of Justice and to ensure access to independent mental health professionals, and education supports, amongst other things.

Claims in negligence and other torts 11 As was the case in EIX20, the applicant pursues a claim in negligence relating to the manner in which he was detained and treated. The applicant also brings other common law claims in tort. He contends that the periods of confinement constituted unlawful assault and battery, and unlawful imprisonment. The applicant seeks compensatory, exemplary and aggravated damages for these claims.

Cross-claim 12 For completeness, I note that as is the case in EIX20, the State has brought a cross-claim against the applicant in trespass to land and goods, seeking damages by way of repair costs in the sum of $346,838.34 for 'causing fires and substantial damage' during a disturbance at Banksia Hill. The applicant's involvement is said to have occurred on 5 May 2017.

Procedural history, case management, strike out principles, structure of the FASC 13 I refer to and adopt the matters set out in EIX20 at [14]-[36]. It is not necessary to repeat them and, more generally, familiarity with those reasons is assumed for the balance of these reasons.

Adoption of reasoning from EIX20 for corresponding pleadings in this matter 14 In the following sections I address paragraphs of the FASC that are similar to those impugned in EIX20. I cross-refer to and adopt the identified paragraphs from the reasons from EIX20 with respect to the corresponding paragraphs in EIY20, without setting them out again.

Factual background - impugned paragraphs 15 Paragraphs 4-12 plead under the heading 'Factual Background' the following matters that reveal a number of issues relevant to the strike out application more broadly: The Applicant's disabilities and the disadvantages in his childhood 4. The Applicant had disadvantages in his childhood and had disabilities which manifested themselves in several ways (the Applicant's disadvantages, disabilities and propensities). 5. The Applicant was raised in a complicated and dysfunctional family. 6. From an early age the Applicant manifested a resistance to learning and learning disabilities (learning disabilities). 7. From an early age the Applicant misused drugs and alcohol. 8. From an early age, and during the period he was detained by the Respondent, the Applicant manifested impulsivity, a tendency to react quickly to provocation including an assertion of control by authority figures. 9. From an early age and during the period he was detained by the Respondent, the Applicant manifested a resentment of and resistance to authority and towards persons in the position of authority. 10. From an early age and during the period he was detained by the Respondent, the Applicant manifested the propensity to become violent in resistance to authority and persons in authority. 11. During the period he was detained by the Respondent, the Applicant developed psychological vulnerabilities: a. From 2016 the Applicant manifested a propensity toward self-harm; b. From 2016 the Applicant manifested symptoms of anxiety; c. From 2017 the Applicant was diagnosed to suffer from Major Depressive Disorder; 12. Each of the psychological vulnerabilities would have presented before formal diagnosis. 16 Of these paragraphs, the State seeks orders striking out paras 4 and 6.

Paragraphs 4 and 6 17 The issues raised are the same as those addressed in EIX20 at [41]-[45]. That is, the phrase 'disadvantages, disabilities and propensities' is not defined or limited, and introduces confusion and ambiguity when those words, or some of them, are used elsewhere in the pleading (for example where they are imported into paras 13 and 15(b) as conditions about which the respondent allegedly had knowledge). The paragraph should be struck out under r 16.21(1)(c) and (d) of the Federal Court Rules 2011 (Cth), with liberty to re-plead. 18 Although para 6 purports to provide a definition of 'learning disabilities', the definition is circular and does not assist in circumstances where no material facts are pleaded to provide content for those terms. It has the same issues addressed in EIX20 at [45] as to whether or not the learning disabilities are pleaded as a distinct disability or a manifestation of other recognised disabilities. It would only take relatively minor revisions to clarify the position. As it currently stands the pleading is ambiguous and should be struck out under r 16.21(1)(c).

Paragraphs 13, 14(a)-(c), 15(b)-(e) 19 In EIX20 I struck out various pleadings of the respondent's purported knowledge for reasons given at [42] and [48]-[53]. Save for one aspect, paras 13, 14(a)-(c) and 15(b)-(e) of the pleading in this matter correspond to those pleadings and are struck out under r 16.21(1)(c) and (d) for the same reasons (the relevant aspect is that in this matter the State does not seek to strike out pleas in paras 14(d) and 15(a) as to the State's knowledge of the applicant's propensity for self-harm). 20 With particular reference to para 14(b), the State refers to the generality of the pleading in this paragraph, a paragraph that includes the phrase 'psychological vulnerabilities'. However, that phrase appears to be defined at para 11, which reads: 11. During the period he was detained by the Respondent, the Applicant developed psychological vulnerabilities: a. From 2016 the Applicant manifested a propensity toward self-harm; b. From 2016 the Applicant manifested symptoms of anxiety; c. From 2017 the Applicant was diagnosed to suffer from Major Depressive Disorder … 21 I note this because although it remains the case that the pleading at 14(b) should be struck out because it does not meet the requirements of a proper pleading of knowledge, it is unclear whether the later reference to psychological vulnerabilities in pleadings for negligence (paras 58(b), 60(b), 61(b), 62(b), 63(a)) and the other common law claims (paras 65(a), 67(a)) include some or all of those vulnerabilities listed in para 11. The position should be clarified.

Paragraph 16 22 This paragraph of the pleading is under the heading 'The duties and powers of the Respondent'. The issue concerns the assertion of statutory obligations without identifying their source and is the corresponding issue to that dealt with in EIX20 at [54]. As in EIX20, the State admits in para 14 of its amended defence (cross-referencing para 13 of its defence) that the Minister and officers had obligations under certain legislative provisions, but it remains the case that the applicant must clarify the source of any statutory or other regulatory obligation it seeks to rely upon. Paragraph 16 is struck out under r 16.21(1)(c).

Paragraphs 21 and 23(a) 23 This section of the pleading is under the heading 'Banksia Hill Detention Centre'. The issues raised in para 21 are dealt with in EIX20 at [55]. The issues raised in para 23(a)-(c) are dealt with in EIX20 at [56]-[57]. Paragraphs 21 and 23(a) are struck out under r 16.21(1)(c) and (d) for those corresponding reasons. 24 Similarly to the position in EIX20, the State seeks to strike out paras 23(b) and (c) but made no submissions in that regard. Accordingly I do not address them further at this point.

Paragraph 24(a) 25 The issues raised in this paragraph arose in EIX20, and are dealt with in EIX20 at [58]. The paragraph is struck out under r 16.21(1)(d) for those corresponding reasons.

Direct discrimination in education 26 The applicant pleads direct discrimination in education by the State at para 40. The State seeks clarification of both para 40 and para 40A in its reply submissions as to which subparagraph of s 22 of the DDA it asserts has been breached, but does not seek to strike those paragraphs out in the amended interlocutory application. The issues raised are identical to those addressed in EIX20 at [75]-[77], and those reasons are similarly relevant in this case.

Paragraphs 33 and 34 27 At para 32 of the FASC the applicant pleads and particularises his disabilities within the meaning of the DDA as follows: 32. At all material times during the Applicant's detention by the Respondent, the Applicant had disabilities (the disabilities) within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) … Particulars a. At all material times: i. the Applicant's literacy skills were impaired and below the accepted standard for his chronological age; ii. the Applicant manifested impulsivity; iii. the Applicant manifested a resistance to authority; and iv. the Applicant manifested a propensity for violence. b. From 2016 the Applicant manifested: i. a propensity toward self-harm; and ii. symptoms of anxiety. c. From 2017 the Applicant was diagnosed to suffer from Major Depressive Disorder. 28 The State admits in its amended defence that 'Major Depressive Disorder' is a disability within the meaning of the DDA, but otherwise does not admit the allegations pleaded. 29 The State seeks to strike out paras 33 and 34 of the FASC under r 16.21(1)(c) or (d). Each is to be read in the context of para 32, extracted above, and read as follows: 33. Each of the disabilities was present and manifested itself prior to former diagnosis. 34. At all material times, the Respondent knew or ought to have known about the presence or existence of each of the Applicant's disabilities. 30 These paragraphs correspond to identical paragraphs pleaded in EIX20 in the context of pleaded disabilities under the DDA, and are dealt with at [85]-[89] of that judgment. They are to be struck out under r 16.21(1)(d) for the same reasons.

Paragraphs 48B and 52 31 By its reply submissions the State seeks to strike out para 48B and para 52 particular (aA)(v). It does not press the relief with respect to para 48B in its amended interlocutory application. The issues relating to para 48B are addressed in EIX20 at [90]-[92], where I observed that it will be readily apparent to the applicant that it is necessary to better plead some matters, such as the facts relied upon to establish the scope or meaning of 'general detention services' and a 'behavioural management regime'. I repeat those observations but do not strike out the paragraph. 32 However, the State in its amended interlocutory application seeks to strike out para 52 so far as it applies to 'food'. Relevantly this refers to the pleading in para 52 that: In the course of providing the Applicant with a behavioural management regime, health care and food, in contravention of s 24 of the DD Act, the Respondent discriminated against the Applicant on the grounds of the Applicant's disabilities … 33 Paragraph 52 particular (aA)(v) provides that the State 'failed to provide the Applicant with food that addressed the Applicant's metabolic needs'. 34 The State submits that standard 'food' is not a service within the meaning of the DDA, and while para 52 particular (aA)(v) refers to 'food that addressed the applicant's metabolic needs', there are no material facts pleaded to assert that the applicant required a special diet. Accordingly, the State submits para 52 insofar as it refers to 'food' should be struck out. In its current form the part of the pleading referring to food should be struck out under r 16.21(1)(c) and (d). I accept that as presently pleaded the State is not properly informed by the pleading of the case it is expected to meet with respect to the provision of food (see EIX20 at [91]). However, the matter should readily be addressed by an amendment. There will be leave to re-plead.

Paragraph 53 35 The applicant pleads indirect discrimination in the alternative, substantially in the same terms as is pleaded in EIX20. There are differences pertaining to particulars of the applicant's disabilities, but the same challenges with the pleadings arise. Those challenges are addressed in EIX20 at [93]-[99], and the reasons apply by analogy to para 53 in this matter. Accordingly the pleading should be struck out as a whole under r 16.21(1)(d).

Negligence 36 The pleadings of duty of care, breach and causation set out in paras 58, 60, 61, 62 and 63 are in similar terms to those pleaded in EIX20 and the reasons in EIX20 at [102]-[112] accordingly apply. Those paragraphs of the FASC should be struck out under r 16.21(1)(d). The State's alternative claim in this matter that the negligence cause of action be struck out for failing to disclose a cause of action was also made in EIX20 and the reasons in EIX20 at [113] apply.

Intentional torts 37 Paragraphs 64 and 65 are in corresponding terms to the pleading of intentional torts in EIX20 and are addressed by the reasons in EIX20 at [114]-[119]. Accordingly the paragraphs should be struck out under r 16.21(1)(d).

Unlawful imprisonment 38 Paragraphs 66 and 67 are in corresponding terms to the pleading of unlawful imprisonment in EIX20 and are addressed by the reasons in EIX20 at [120]-[128]. They should be struck out under r 16.21(1)(d).

Conclusion 39 As in EIX20, this is a proceeding of significance to both parties. It should not proceed to trial with uncertainty on the part of either party as to what is alleged. 40 There will be orders relevantly striking out paras 4, 6, 13, 14(a), 14(b), 14(c), 15(b), 15(c), 15(d), 15(e), 16, 21, 23(a), 24(a), 33, 34, 52 insofar as it refers to 'food', 53, 58, 60, 61, 62, 63, 64, 65, 66 and 67 of the FASC. In light of the determinations I have made, it has not been necessary to consider whether those paragraphs should be struck out other than under r 16.21(1)(c) and r 16.21(1)(d). The applicant has leave to file and serve a second further amended statement of claim. Any such amended pleading must properly appraise the State of the case that has to be met. I will hear the parties as to the timing of such filing. I will also hear the parties as to other procedural directions to progress the proceeding to trial, having regard to contemporary case management techniques. A further case management hearing will be convened as soon as convenient, and concurrently with the case management hearing proposed in EIX20. I will hear the parties as to the costs of this application at the same case management hearing. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.