Ives & Ors v Kilvington Girls Grammar Ltd & Anor [2008] FMCA 1414

1. Although judgment writing courses disavow recitations of interlocutory matters, it is not possible fully to appreciate the matters in issue without reference to the, thus far, protracted history of this proceeding.
2. On 5 October 2007 the Applicants filed an application, claim of unlawful discrimination and a statement of claim.
3. On 23 October 2007 by consent Connolly FM made orders for, inter alia, an amended statement of claim and further pleadings including a defence.
4. An amended statement of claim was filed on 30 November 2007. On 18 January 2008, again by consent, Connolly FM relevantly for these purposes gave leave for a further amended statement of claim and once again set a timetable for a defence, counterclaim and further pleadings.
5. On 1 April 2008 Connolly FM ordered mediation and adjourned all extant interim applications to 27 June 2008.
6. On 15 February 2008 the Respondents filed the interim application to which I have already referred, which has given rise to today's hearing.
7. It should be noted that on 23 January 2008, the Applicants filed yet a further amended statement of claim. The Applicants have therefore had three goes at achieving a statement of claim in acceptable form.
8. From an affidavit of Frances Glynn Anderson filed on 15 February 2008, it is apparent that pleadings arguments have been going on at a great rate between the parties since as early as 19 October 2007. In the ultimate, the voluminous correspondence annexed to Ms Anderson's affidavit merely shows the sort of disagreements that have given rise to the present controversy.

1. The parties' comprehensive and very helpful submissions have identified ample authority as to the approach the Court should take in respect of pleading matters.
2. There is in one sense a tension between the emphasis in this Court's Act and Rules which can be broadly said to require that matters proceed expeditiously and with as little formality as possible on the one hand and on the other hand, the requirement imposed by authority of long standing that pleadings adequately disclose the material facts alleged so as to enable the Respondents fairly to understand the case put against them.
3. It is not necessary or appropriate in this interim decision to deal in detail with those broad propositions because plainly both are well established. It is a matter of balancing the Court's obligation to proceed without undue formality and the endeavour necessary to be made pursuant to s.42 of the Federal Magistrates Court Act 1999 to ensure that proceedings are not protracted with what Burchett J said in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd & Ansett Transport Industries (Operations) Pty Ltd [1996] FCA 1758; (1996) ATPR 41-522, which was:
   • "The primary function (of a statement of claim) is to tell the defending party what the claim is that he has to meet. That is a matter of elementary and natural justice; the claim cannot be answered until it is known."
4. In the same extract to which I was referred by the Respondents, his Honour went on to point out that:
   • "A statement of claim must set out clearly, not just the bare claim that is made, but also "the material facts on which it is based"."
5. I turn to deal with the criticisms made of the statement of claim seriatim.

The alleged difficulties of discerning conduct as alleged against the First Respondent and/or the Second Respondent

1. What was put here is that a number of the matters alleged in the statement of claim cannot, for various temporal reasons, properly be sheeted home to the Second Respondent on any view. I accept that there is considerable force in that assertion.
2. Nonetheless, and following earlier correspondence between the parties, the Applicants have joined the Second Respondent and made it clear that it is alleged that until 11 December 2005 the First Respondent ran, owned and operated the Kilvington Girls' Grammar School and that thereafter the Second Respondent fulfilled that function.
3. It is also pleaded at paragraph 2(b) of the statement of claim that the Second Respondent "upon its incorporation, assumed the benefits and obligations of the First Respondent with respect to "the Kilvington Girls' Grammar School".
4. In my view the statement of claim is sufficiently clear and capable of being understood. What is alleged in substance is that the First Respondent was directly itself responsible for those things that happened up until December 2005.
5. The Second Respondent is alleged to be responsible for those things that it itself did or did not do from December 2005 onwards and is said to be responsible as the successor in law of the First Respondent for the acts and omissions of the First Respondent.
6. It should be noted that it is not likely until discovery is completed that the Applicants will be able more precisely to deal with the transmission that plainly must have taken place of the affairs of Kilvington Girls' Grammar School from the First Respondent to the Second Respondent.
7. Nonetheless in principle, the allegation is not difficult to understand and I do not think that it makes the statement of claim embarrassing or otherwise deficient.

1. The contract which forms the bedrock, as it were, of the statement of claim is pleaded at paragraph 6 of the statement of claim. The paragraph itself pleads subparagraphs (a) to (h) inclusive. Under the heading Particulars it is asserted that the agreement was partly in writing, partly oral and partly to be implied.
2. Although the particulars identify a number of documents relied on as constituting the writing by which the agreement was constituted, it is by no means clear in what way some of the documents are said to have constituted the contract. There is reference for example to "student welfare policy" and also to a number of other documents.
3. Not having seen the documents, it is not possible for me to say whether the Applicants rely upon the entirety of the documents referred to or merely parts. Nor is it possible to work out which terms of the contract the written documentation applies to.
4. The same can be said for the conversations alleged to constitute the oral elements of the contract. It is true, given what passed from the bar table in the hearing of the matter, that it is plain that only the conversations set out in placitum (ii) are alleged. There are no other conversations alleged. Once again, however, it is not plain which terms of the contract are said to have been constituted by those conversations.
5. It is also pleaded that the contract was partly to be implied. The matters pleaded in placitum (iii) as particularising the implied terms are put in a very rolled-up way and are extremely generalised. In large part, one would infer that the implications were constituted by "the implications arose by the conduct of the First and Second Applicants and representatives of the First Respondent".
6. What is not set out, however, with any precision is what conduct it was to which reference is made. Furthermore, it is not clear which of the terms of the contract were at least in part the matters of implication.
7. As a matter of first impression, I think there is considerable force in the criticism advanced by senior counsel for the Respondents as to whether or not the sort of implied terms alleged to constitute the contract could indeed survive the test in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266.
8. Counsel for the Applicants said that these were merely matters of further and better particulars and in my view that is a valid observation. Nonetheless, I think that the Applicants should provide these particulars now. Although this is not the normal course, it will remove the legitimate criticism made of the pleading in its current form and enable the matter to move forward in a sensible way.

1. Here the substantive criticism made was that in substance (and leaving aside a number of other subsidiary criticisms) the Respondents should not be made to speculate as to the extent to which it is put against them that the representations were as to present matters or as to matters that attracted the operation of s.51A of the Trade Practices Act 1974 ("Trade Practices Act").
2. Once again, I think there is considerable force in this submission. Nonetheless, in the ultimate it seems to me appropriate to require a defence to be pleaded. As counsel for the Applicants submitted, the Respondents will either admit or deny if they are clear as to their position or in the event that they are not, they will plead that they do not admit, meaning that they do not know. Whether that arises as a matter of lack of understanding or a matter of genuine lack of knowledge is not presently material.

1. Here the primary criticism made is that the material facts relied upon are not pleaded.
2. At this point it is necessary to give at least a brief overview of the way the statement of claim in its current form is put. In essence, it is asserted that the Third Applicant, Tayla Ives, was enrolled at the school in terms giving rise to a binding contract in the terms pleaded. In effect, it is pleaded that the school failed to respond properly as it became apparent that Tayla was having real learning difficulties and, as was known from April 2002, was dyslexic.
3. It is put (putting the matter admittedly very broadly) that the inadequate response of the school not only constituted breach of contract and breach of the Trade Practices Act but also gave rise to an action in negligent misrepresentation. It is also put that the conduct of the school was such as to treat Tayla less favourably than a child without her disability; or alternatively to impose upon her conditions or requirements that she was not able to meet and which were not reasonable.
4. There is once again considerable force in the submissions made by senior counsel for the Respondents that all that has been done has been to plead the statute, with the exception of two relatively small factual subsets which might or might not be said to give rise to discrimination in any event.

1. This proceeding has been in this Court for almost a year and that is too long. It needs to progress. I accept that the multiplicity of endeavours by the Applicants to plead their case, and the somewhat unsatisfactory ultimate outcome of those efforts, does tend to suggest that there may be real difficulty for the Applicants in isolating a truly arguable case.
2. Nonetheless, the way forward does not seem to me to be in what are highly likely to be endless pleading arguments.
3. In my view, the administration of justice in the context of this particular proceeding will best be met by the following steps:

1. The Applicants must file and serve further and better particulars of the terms of the contract alleged in paragraph 6 of the statement of claim. I will require to be convinced why that should take longer than 14 days. 2. The Respondents must file and serve a defence within 21 days of service upon them of the further and better particulars.

1. The Applicants must file and serve the affidavits, being the evidence-in-chief of any witnesses they presently propose to call, within 14 days of the service of the defence. The Applicants have known all about this case for a long time and ought to be in a position to put on their material rapidly.
2. I appreciate of course that there are a number of aspects of the evidence which may not yet be susceptible of final proof. Discovery has not occurred. Nonetheless, this proceeding has all the hallmarks of being capable of heading off into almost indeterminate interlocutory infighting.
3. As things presently stand, it is not possible for the Respondents to form an absolute view as to whether or not the case they are being required to respond to is or is not capable of sustaining a cause of action. The provision of the evidence upon which the Applicants propose to rely will crystallise that position.
4. In my view, the time for shadow boxing is over. The parties need to get on with what there is of this case and in the event that the Respondents form the view that the materials as disclosed by the Applicants are simply not capable of giving rise to an arguable case, then they will have their remedies readily available to them. It is quite clear from the way in which the Respondents are proceeding that they are minded to do so.
5. The matter will then be the subject of directions to deal with the further conduct of the case.
6. The costs of this interim application are to be reserved. While the Respondents have had some measure of success, in large part the approach adopted by the Respondents is to my mind unhelpful. It would have been far less expensive and far more expeditious for all concerned if a defence (albeit perhaps littered with "do not admits") had been filed at the first instance.
7. In my view, it is appropriate to reserve the question of the costs of this application until the full picture is made clear by the conduct of the parties up to and including the final trial.

I certify that the preceding 45Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-fiveforty-five (45) paragraphs are a true copy of the reasons for judgment of Burchardt FM