Haile-Michael v Konstantinidis

Solicitor for the First to Seventh Respondents: Maddocks

Counsel for the Eighth and Ninth Respondents: Mr P Hanks QC with Ms R Orr

Solicitor for the Eighth and Ninth Respondents: Norton Rose Australia

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 969 of 2010

JUDGE: MARSHALL J DATE OF ORDER: 1 MARCH 2012 WHERE MADE: MELBOURNE

1. The interlocutory application of the first to seventh respondents dated 18 November 2011 is adjourned to trial. 2. Liberty to apply. 3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 969 of 2010

JUDGE: MARSHALL J DATE OF ORDER: 1 MARCH 2012 WHERE MADE: MELBOURNE

1. The eighth and ninth respondents' interlocutory application of 11 November 2011, insofar as it seeks to strike out paragraph 14 of the annexure to the statement of claim, is adjourned to trial.
2. The interlocutory application is otherwise dismissed.
3. Liberty to apply in respect of order 1 above.
4. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 969 of 2010

JUDGE: MARSHALL J DATE: 1 MARCH 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 These reasons for judgment deal with two interlocutory applications to strike out the applicants' statement of claim in this proceeding. The proceeding is made pursuant to s 46PO of the Australian Human Rights Act 1986 (Cth) ("the Act"). An earlier interlocutory application in the same proceeding was dealt with by the Court on 14 February 2012; see Haile-Michael v Konstantinidis [2012] FCA 108. That judgment should be read in conjunction with these reasons as it gives context to the current interlocutory applications.

The interlocutory application of the first to seventh respondents 2 In the current interlocutory applications the respondents complain about the lack of specificity in the applicants' current and proposed pleading. The first to seventh respondents, who are individual police officers, complain, in particular, that serious allegations are made against them by the applicants without identifying precisely the conduct which they are alleged to have engaged in. 3 In response the applicants contend that the alleged deficiency in the pleading is in some instances a product of the reality that the applicants are not in a position to name or identify police officers who they say approached them in public places on several occasions. The applicants say that an overly technical approach to pleadings should not be applied in a matter including complaints made under the Racial Discrimination Act 1975 (Cth) ("the RD Act"); being beneficial legislation. 4 Pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), this Court is obliged to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 5 Disputes as to the adequacy of pleadings are frequently sterile debates which do not advance the resolution of matters before the Court in the manner suggested by s 37M. The current applications, with the exception of a submission as to the proper ambit of s 46PO of the Act, echo the same sterile debates of the past. 6 The most important function of a pleading is that it provides the party against whom allegations are made with sufficient detail of those allegations to enable that party to respond to those allegations in a meaningful way. 7 In a far-sighted way, in advance of the development of case management techniques, the insertion of s 37M into the Federal Court Act and the High Court's judgment in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, Lockhart J dealt with the question of how one may legitimately approach pleading motions with a view to the efficient conduct of a matter before the Court. In Australian Competition and Consumer Competition v Golden West Network Pty Ltd (Fed C of A, 19 August 1997, unreported) his Honour said: It is important that I say something about motions to strike out statements of claim in the conduct of modern litigation. Today, courts are playing an increasingly active role in case management. Motions to strike out pleadings are matters of practice and procedure. In its role of case management, courts devise various procedures to overcome deficiencies in pleadings other than by simply ordering that the offending paragraphs be struck out. Sometimes it is appropriate to strike them out, sometimes not. On some occasions it is better for the court to direct the applicant, whose statement of claim is under challenge, to furnish particulars or to file and serve affidavits to show that there really are facts which can be proved and which, if proved, would support the general statements made in the statement of claim. This is not, of course, intended to be a substitute for a defective pleading in every case because, as is well known, pleadings must assert basic or constitutive facts, not the evidence by which they are to be proved. But case management is a sensible and flexible thing. It must not be unduly circumscribed. In McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [31], Weinberg J cited with approval the above observations of Lockhart J by also citing with approval the views expressed by Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9 where Drummond J cited with approval the above observations of Lockhart J. 8 Insofar as the first to seventh respondents complain about the lack of specificity in the claims made against them, in the interests of efficiency and a timely resolution of this matter, it is appropriate to adopt the course suggested by Lockhart J in Golden West. 9 It is proposed by the applicants that in due course programming orders should be made for the filing and serving of outlines of the evidence which it is intended that witnesses called by them will give. Some or all of the applicants are likely to be called as witnesses, and so will prepare outlines of evidence. If that occurs and an applicant specifically alleges matters against a named respondent in the proposed amended statement of claim, such allegations should be developed in full in the applicant's outline of evidence. In such cases the outline will require further development than what one would ordinarily see in a 'pure outline'. 10 For example, in the further amended statement of claim the eighth applicant refers to an alleged incident on a basketball court in early 2008. If the eighth applicant is able to give a full account that incident, including a more specific time frame, then he should do so in his outline of evidence. Another example of where specificity is required in the "outlines" includes the details of interactions between the third and fourth respondents and any applicants as referred to in Annexure A of the applicants' pleading, in respect of the conducting of "person checks". Indeed, where any specific allegation is made by any applicant against any named respondent, such applicant must in his "outline" give as much detail as is possible about what precisely is alleged against that particular respondent. Failure to do so, doubtless, will have adverse consequences for the applicants at trial. 11 If that process is followed in regard events described in the proposed amended statement of claim the first to seventh respondents can be in no doubt about what is alleged against them. Then the Court can deal with the real issues in dispute instead of wasting time reciting principles applied previously to the arid discourse of pleading disputes. The first to the seventh named respondents' pleading motion will be adjourned to the trial of the proceeding. It may be brought on by way of liberty to apply should those parties be in any doubt about what is alleged against them after receiving the "outlines" of evidence of the applicants, especially those more expansive points that give them as much detail as possible of the allegations they are faced with, as individuals, in this proceeding. 12 The formal order with respect to the interlocutory application of the first to seventh respondents is as follows: 1. The interlocutory application of the first to seventh respondents dated 18 November 2011 is adjourned to trial. 2. Liberty to apply. 3. Costs reserved.

The eighth and ninth respondents' interlocutory application

(i) the s 46PO Point 13 The interlocutory application of the eighth and ninth respondents attacks the ambit of the applicants' pleading. Mr Hanks QC, who appears for the eighth and ninth respondents, refers to s 46PO(3) of the Act. He submits that paragraph 32 of the pleading contains allegations that were not the subject of a complaint terminated by the President of the Australian Human Rights Commission ("the AHRC") and therefore do not satisfy the requirements of s 46PO(3). That subsection provides (3) The unlawful discrimination alleged in the application: (a) must be the same (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. 14 Mr Hanks submits that the claims made by the third, fifth, sixth and thirteenth applicants in paragraph 32 of the pleading and in paragraphs 1, 6, 7 and 15 of the annexure to it concerning incidents of "stopping and questioning" by police officers were not the subject of the terminated complaint before AHRC. 15 The terminated complaint is constituted by the Amended Complaint dated 29 July 2010. Just prior to paragraph 44 of the Amended Complaint, the heading "Stopping and questioning" appears. 16 Mr Hanks submits that no complaint is made in these paragraphs by the third, fifth, sixth and thirteenth applicants. He contends that these applicants should not be permitted to raise new allegations in the proceeding that were not the subject of the Amended Complaint. 17 That submission is rejected. The allegations made by these applicants in respect to "stopping and questioning" are of the same nature as the allegations made by other applicants in the Amended Complaint. The terms of s 46PO(3) do not require complete symmetry between allegations made in an application before the Court and those raised in a terminated complaint. Further examples of "stopping and questioning" by some applicants of a similar nature to those raised by others will be readily seen as arising out of substantially the same acts or practices the subject of the terminated complaint. It does not appear from the face of the two relevant documents that the facts alleged are different in substance; see Katz J in Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at [38] to [42]. 18 Further as the Full Court said in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43] to [47]: The purpose of s 46PO is to define and filter the cause of action it creates so that it will correspond, within the limits set in ss 46PO(1) and (3), with the complaint terminated by the President of the Commission: cp Grigor-Scott v Jones (2008) 168 FCR 450 at 454 [18]-[20] per Emmett, Lander and Tracey JJ. However, in construing how far s 46PO(3) defines and limits a complaint it is important to bear in mind that s 46PO itself contemplates that a complaint, and proceedings based on it, can be made by a representative party on behalf of persons entitled to proceed, after the complaint has been terminated by the President, in representative proceedings under Pt IVA of the Federal Court of Australia Act. The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission. That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission. Thus, a complaint can be made by a person seeking to represent, for example, aged, blind or deaf persons or persons suffering from a particular disability, and allege unlawful discrimination by the provider of a public service such as transport or education. Such a complaint is unlikely to describe every instance of unlawful discrimination that may have occurred to many group members the subject of the complaint. It is of the nature of representative proceedings that individual group members may only be informed of the existence of those proceedings well after their commencement. Their individual experiences may fall within a more general or inclusory description in a complaint to the Commission. However, the dates, times, places and precise circumstances each group member may instance in giving evidence in representative proceedings would almost never be given in any detail or at all, in a complaint to the Commission. But, a person entitled to seek relief as a group member under ss 46PO(4) and (5) cannot be prevented from establishing that he or she is in fact a group member by relying on his or her experience, the exact detail of which was not given in a complaint of which he or she had no knowledge. Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court "should not be used to launch an application … effectively bypassing the procedures provided by the legislation": Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act). As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39]. 19 Applying Dye, I consider that the claims made by the particular applicants identified by Mr Hanks are within the ambit of the dispute created by the terminated complaint or at least so in substance, and may be properly the subject of the pleading of the applicants.

(ii) the attack on paragraphs 65 to 69, 71 to 75 and 87 to 89A of the pleading 20 Mr Hanks submits that to the extent the above paragraphs allege acts of unlawful discrimination against members of the African community they should be struck out. The first complaint is that the persons against whom police officers are alleged to have engaged in discriminatory acts are not identified with sufficient precision. Mr Hanks claims the above paragraphs do not give his clients fair notice of the case they have to meet. 21 The second complaint is that the applicants lack the standing to bring complaints on behalf of unidentified members of the African community. 22 In response, counsel for the applicants, Ms Doyle SC, submits that the fourth applicant has standing to raise the allegations in paragraph 65 of the pleading as he was present on the relevant day and witnessed the events said to make out the pleading. I agree with that submission. The fourth applicant is not making a claim on behalf of the African community in paragraph 65. He is describing what he says was the effect of the behaviour he complains about. Paragraphs 66 to 69 are ancillary to paragraph 65. All these paragraphs are permitted to stand in the proceeding. 23 Next, Mr Hanks submits that paragraphs 71 to 75 should be struck out as alleging unlawful discrimination in the form of acts done to members of the African community who are not applicants. 24 The heading to paragraphs 70 to 75 is "Racial taunts and abuse". Paragraph 70 refers to such conduct being directed at named applicants. No objection is made to it but to those paragraphs in the section of the pleading which follow it. 25 Paragraph 71 relates to the events referred to in paragraph 70. In it several applicants named in paragraph 70 assert that the respondents engaged in racial taunts and abuse directed at them and at other members of their community, including the mother of the thirteenth applicant. Ms Doyle submits that it is not the intention of the pleading to seek a finding or remedy in respect of anyone other than named applicants. She submits, and the Court accepts, that the allegations are intended to be relied on …to submit that the presence of other members of the African community during a number of the events pleaded, including women and children, is evidence which may be relevant to matters including: (a) the reason for which such taunts were uttered; and (b) evidence of aggravation in relation to the manner and circumstances in which such taunts were uttered. 26 The complaints by the eighth and ninth respondents in respect of paragraphs 87 to 89A of the pleading are in the same category as the complaints regarding paragraphs 71 to 75. They are rejected for the same reasons as discussed above at [25]. As Ms Doyle submits the allegation that there were members of the African community also present during the events pleaded is not intended to indicate that those members of the community directly seek a finding or a remedy in relation to the allegation on their own behalf. Rather, the pleading is intending to enliven the requirements for "offensive behaviour" in contravention of s 18C of the RDA.

(iii) the attack on paragraph 76 27 Paragraph 76 is headed, "Practice of racial profiling". It says The conduct alleged in paragraphs 6 to 20 and 27 to 41 and 69 was done or performed by officers of Victoria Police (including the first to seventh respondents) in the Flemington, Kensington and North Melbourne areas, for reasons including that officers engaged in a practice of racial profiling, such practice having been engaged in by officers of Victoria Police, including the first to seventh respondents in the course of their employment and in the exercise or purported exercise of police powers. 28 Mr Hanks submits that to the extent it alleges that officers of the Victoria Police have engaged in a practice of "racial profiling", paragraph 76 is vague and embarrassing. He notes that it fails to identify the officers said to be engaged in racial profiling. He observes that the particulars to paragraph 76 simply assert the types of conduct that fit within the concept of "racial profiling". In their written submissions counsel for the eighth and ninth respondents say The paragraph fails to identify the material factual allegations that are necessary to establish a cause of action in respect of unlawful discrimination, including when such practice has been engaged in, how and by whom it has been engaged in, and which officers of Victoria Police who are not named as respondents in the proceeding are said to have engaged in the practice. 29 Ms Doyle counters by submitting that paragraph 76 alleges that conduct referred to in paragraphs 6 to 20, 27, 41 and 69 was engaged in by the individual respondents for reasons including the reason that those officers engaged in racial profiling. In so doing she identifies the material facts relied on which relate to an allegation of breach of s 9 of the RD Act. 30 In respect of the broader complaint about racial profiling raised by the eighth and ninth respondents, Ms Doyle submits that paragraph 76 must be read together with each allegation made against each named respondent who is said to have engaged in these acts for reasons including the reason that he engaged in such conduct in the course of his exercise of his power as a policeman. In their written submissions the applicants say This is also alleged to be a reason for the acts alleged to have been performed by police officers other than the Individual Respondents, for which it is said, in paragraphs 4 and 5, the eighth and ninth respondents are vicariously liable. 31 The applicants wish to assert that Victoria Police as an institution engages in racial profiling, or at least did so at the material times. They also wish to assert that one of the reasons that the individual respondents acted towards the applicants as alleged is because of the practice of racial profiling. A submission will be made to the effect that the individual respondents have engaged in conduct which was an institutional practice. Understood that way, paragraph 76 is not vague or embarrassing and nor does it fail to identify those who engage in the conduct alleged. The whole point of the applicants allegation in this aspect of their case is that racial profiling was an endemic practice within the Victoria Police. The actions of the individual respondents are, in part, said to be explainable because of this institutionalised, endemic practice which is alleged against Victoria Police members and for which the eighth and ninth respondents are said to be vicariously liable. Paragraph 76 is permitted to stand.

(iv) paragraphs 93 and Annexure at paragraph 14 32 Paragraph 93 of the pleading says Unless restrained, or otherwise ordered to cease such conduct, officers of Victoria Police stationed in and around the Flemington, Kensington and North Melbourne areas are likely to continue to commit acts of unlawful discrimination of the type alleged in paragraphs 32 and 90. 33 Paragraph 14 of the Annexure says From time to time, the same police officer would ask for the twelfth applicant's name within two hours of having already asked for it. One on occasion, the twelfth applicant was asked for his name five times in the one day by police. The twelfth applicant estimates that in this two year period he was asked at least 100 times for his name and address. On one occasion Sergeant Sharp approached the twelfth applicant and told him to move on and that he should, "go back to your own country." On another occasion a police officer told the twelfth applicant that he and his friends were "dogs". 34 These paragraphs are attacked by Mr Hanks as conveying no material allegation of fact and being vague and embarrassing. He contends that his clients are not sufficiently informed by them to understand what is alleged. 35 Ms Doyle responds by claiming that the point of paragraph 93 is to assert that the conduct referred to earlier in the pleading will continue unless restrained. There is much force in this submission. Paragraph 93 does not raise any new allegation beyond those raised previously in the pleading but asserts a fear of continuing like conduct with a view to seeking an appropriate remedy. To strike out such a pleading would be to act with over-technical zeal and contrary to the spirit of s 37M of the Federal Court Act. 36 The lack of specificity in paragraph 14 is an issue for the twelfth applicant to develop further when preparing his "outline" of evidence. Such an approach is consistent with the approach taken to the interlocutory application of the individual respondents.

(v) further and better particulars 37 The eighth and ninth respondents seek further and better particulars concerning several paragraphs of the pleading. The applicants resist these claims. Like pleading disputes in general, disputes about further and better particulars are often arid and time wasting. The applicants will or will not make out their case on the evidence before the Court. Any facts that require further elucidation can be teased out by cross-examination. In the event that any particular issue raised by the eighth and ninth respondents on their present interlocutory application causes them any real prejudice at trial any application for an adjournment to address such prejudice will receive sympathetic treatment from the bench.

(vi) order on the eighth and ninth respondents' interlocutory application 38 The Court will order that:

1. The eighth and ninth respondents' interlocutory application of 11 November 2011, insofar as it seeks to strike out paragraph 14 of the annexure to the statement of claim, is adjourned to trial.
2. The interlocutory application is otherwise dismissed.
3. Liberty to apply in respect of order 1 above.
4. Costs reserved. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.