GILES & Anor v COMMONWEALTH OF AUSTRALIA & Ors

Judgment 1HIS HONOUR: Nature of Proceedings The primary proceedings comprise a claim by the plaintiffs pursuant to Part 10 of the Civil Procedure Act 2005 (NSW) (UCPA) on their behalf and on behalf of members of a specified class. The represented persons are identified as children who were residents of the Fairbridge Farm School at Molong (the school) between 1938 and 1974 and who suffered injury during that period. Sixty nine persons have so far been identified as being within that class. The class remains open. 2The defendants in the primary proceedings are the Commonwealth of Australia (the first defendant), the State of New South Wales (the second defendant) and the Fairbridge Foundation (the third defendant), which ran the school at the relevant time. 3The liability of the first defendant is alleged to arise from legislation relating to the care of migrant children coming to Australia from the United Kingdom and attending the school during the period. The plaintiffs allege that as a result of this legislation, the Commonwealth was the legal guardian of the children within the class and had a non-delegable duty to exercise reasonable care for their safety and welfare. 4As against the State of New South Wales, the plaintiffs allege that there was a delegation of the guardianship of the children within the class to it so that it also became their legal guardian and had a duty to exercise reasonable care for their welfare and safety. 5As against the Fairbridge Foundation, the plaintiffs allege that it conducted the school and was vicariously liable for the actions of those running the school at the relevant time. As such it owed a duty to act reasonably for the welfare and safety of those children within the class. 6Specific allegations of negligence are not relied upon. Rather the allegations against the defendants are of systemic failures to properly look after the welfare and safety of the children within the class. 7Despite the statement of claim having been filed in December 2009, the matter has not progressed very far. Each of the defendants has sought comprehensive particulars of the plaintiffs' claim. Despite orders having been made by the court in December 2010, those particulars have not been provided. The plaintiffs say that they cannot provide the particulars until discovery has been made by the defendants. As yet the plaintiffs have not formulated the categories of discovery sought against each of the defendants. 8There are before the court a number of outstanding motions. By motion filed 17 December 2010 the plaintiffs seek an order that the limitation question be determined at trial or alternatively, after all interlocutory proceedings have been completed. The plaintiffs also seek an order that the defendants provide verified discovery by categories prior to them being required to provide the particulars of the statement of claim sought by the defendants. 9In March 2011 the defendants filed motions in substantially similar form. Those motions have been, or will be, amended. Those motions in their final form seek orders as follows: (1) That within a specified time limit, but before discovery, the plaintiffs provide the particulars sought. (2) That the Court direct that the matter not proceed as a representative action since it does not satisfy the criteria for such an action. (3) That the limitation issue be determined otherwise than at trial and before discovery and the administration of interrogatories take place. (4) That various parts of the statement of claim be struck out and that the plaintiffs' claim for equitable damages for breach of fiduciary duty be struck out. (5) That the plaintiffs provide particulars of represented persons as requested. 10Initially it was thought that some or all of the issues raised in the motions were before the court for argument. That certainly was the plaintiffs' understanding. The court was advised, however, that the defendants were not in a position to argue those issues and that the only question before the Court was the order in which the matters raised in the motions should be dealt with. In those circumstances, that became the only question before the court. Submissions 11On that limited issue, the plaintiffs submitted that while they had information from some correspondence to which they had gained access, they were not in a position to provide the particulars sought by the defendants and that the first issue to be determined was whether the defendants should give discovery before the provision of particulars and if so, under what categories should that discovery occur. 12The plaintiffs submitted that if they were required to provide particulars at this stage, those particulars of necessity would be very limited, would be subject to change after discovery had taken place and would almost certainly lead to a fruitless argument concerning the adequacy of the particulars provided which would lead to the litigation becoming bogged down and not proceeding expeditiously. Reference was made to the observations by Finkelstein J in Bright v Femcare Ltd & Anor [2002] FCA 243, (2002) 195 ALR 574 at [160] where his Honour said: "... There is however one other matter to which I wish to direct some comments. There is a disturbing trend that is emerging in representative proceedings which is best brought to an end. I refer to the numerous interlocutory applications, including interlocutory appeals, that occur in such proceedings. This case is a particularly good example. The respondents have not yet delivered their defence yet there have been approximately seven or eight contested interlocutory hearings before a single judge, one application to a Full Court and one appeal to the High Court. I would not be surprised if the applicants' legal costs are by now well in excess of $500,000. I say nothing about the respondents' costs. This is an intolerable situation, and one which the court is under a duty to prevent, if at all possible. One possible approach in these types of cases (that is product liability or mass torts claims) is to bring the action on for speedy determination. By giving appropriate directions the court can ensure that the parties get on with the litigation and do not become bogged down in what are often academic or sterile arguments about pleadings, particulars, practices and procedures. ..." 13The defendants submitted that a fundamental consideration in any litigation, whether it be a representative action or not, is that a defendant is entitled to know the case it has to meet. They submitted that until the plaintiffs provide the particulars sought, they will not know that case. 14The defendants noted the broad nature of the case which is pleaded against them. It refers, they submitted, to alleged tortious events which occurred over a period of 36 years, i.e. 1938 - 1974. It involves an examination and assessment of the conduct of many people over that lengthy period who have not been identified. Consideration 15There is a robust common sense in the observations of Finkelstein J. With due respect to his Honour, I will endeavour to follow the approach recommended by him and minimise the interlocutory sparring which is likely to occur in relation to this matter. For that purpose, I propose to allocate two hearing days during which I will receive argument on all of the matters raised in the motions. In that way, hopefully, a series of separate interlocutory disputes can be avoided and the parties should be able to focus on the real issues in the proceedings. 16In one sense, the question of which comes first - particulars or discovery - is really a chicken and egg conundrum. There is no simple answer. The defendants say they cannot move forward until they receive the particulars. The plaintiffs say that they cannot provide those particulars until the defendants have given discovery since the information which the defendants seek in their particulars is of a kind which only the defendants would know. 17As is usual in such situations, there is some force in each submission. I do not believe it is satisfactory for the plaintiffs to refuse to provide any particulars until discovery has taken place. Quite clearly they can supply some of the information requested, but not all. Some of the particulars seek very precise information which of its nature must depend upon the results of discovery. On the other hand, while the plaintiffs may not be aware of names and precise dates, they should be able to identify the position of persons in the school hierarchy and provide some general timeframe within which events occurred. As to the 69 persons who have so far been identified as members of the class, I see no reason why some information in relation to them cannot be provided, e.g. the dates of their attendance at the school and the nature of the injury suffered. 18Accordingly, I propose to order that the plaintiffs provide such particulars as they are able within a specified time. In providing those particulars, the plaintiffs are to identify any requests which they submit are not a proper request for particulars or which are otherwise objectionable. Accordingly, the first matter to be dealt with when these motions are heard will be any objections the plaintiffs have to the requests for particulars. I would expect brief written submissions from each side as to the appropriateness or otherwise of the disputed requests for particulars. 19The next issue will be the question of when and to what extent discovery should take place. In order to allow that question to be properly considered the plaintiffs should provide to the defendants well in advance of the hearing date the categories of discovery sought against each defendant. Again, I would expect written submissions from each side on that issue. 20The next issue is whether this is a suitable matter to be conducted as a representative proceeding under Pt 10 UCPA. Again, I will expect written submissions from each side. 21The next matter to be considered will be the objections to parts of the statement of claim, i.e. specific paragraphs and whether the claim for equitable damages for breach of fiduciary duty can be maintained. 22The final matter to be considered is when and how the limitation question in relation to each identified member of the class is to be dealt with. 23I will defer making orders as to the filing and service of documents such as but not limited to written submissions until a hearing date for the motions has been determined. 24I reserve the costs of this application.