The facts
9 The applicant was born on 12 August 1988. He is alleged to have Profound Autism Spectrum Disorder, Intellectual Disability and Occipital Lobe Epilepsy. In October 2009, the applicant's mother filed a complaint with the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission), pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (now the Australian Human Rights Commission Act 1986 (Cth)), ("the Human Rights Act"). The complaint alleged that the State of Victoria, through its Department of Education and Early Childhood Development and its Department of Human Services had discriminated unlawfully against the applicant in contravention of various provisions of the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"), in the provision of education and other services, including residential services.
10 On 6 August 2010, pursuant to s 46PH(1)(i) of the Human Rights Act a delegate of the President of the Australian Human Rights Commission terminated the complaint on the ground that she was satisfied that there was no reasonable prospect of the matter being settled by conciliation. By s 46PO of the Human Rights Act, this entitled the applicant to commence a proceeding in this Court alleging unlawful discrimination. The applicant commenced this proceeding on 1 October 2010, by his next friend, who is his mother. The application was filed by the firm Access Law, of which Mr Gabriel Kuek is designated as the principal. At the time of filing the application, no statement of claim was filed.
11 On 21 October 2010, I made orders by consent referring the proceeding to mediation by a Registrar of the Court. The mediation took place, but the proceeding was not settled. It therefore returned for directions on 10 March 2011.
12 In the course of that directions hearing, a discussion took place between Mr Gabriel Kuek, the solicitor from Access Law then acting on behalf of the applicant, senior counsel for the respondent and me as to the content of a proposed statement of claim. Senior counsel for the respondent emphasised the need for each allegation in the statement of claim to be related to the provisions of the Disability Discrimination Act. She also requested that the statement of claim identify the department or agency of the State of Victoria alleged to be responsible for each alleged instance of unlawful discrimination, an approach which is necessary, given that the applicant sues in respect of alleged unlawful discrimination in the provision of education services and other services as well. Mr Kuek gave every indication that he understood the need for the applicant's case to be pleaded properly in this way. Nevertheless, I made a specific order, in the following terms:
1. On or before 21 April 2011 the applicant file and serve a statement of claim setting out:
(a) All acts, omissions and practices alleged to constitute or give rise to the unlawful discrimination the subject of the application;
(b) The department or agency alleged to be responsible for each such act, omission or practice;
(c) The provision or provisions of the Disability Discrimination Act 1992 (Cth) pursuant to which each act, omission or practice is alleged to constitute unlawful discrimination; and
(d) The remedy claimed in respect of each act, omission or practice;
and containing full particulars.
13 On 27 April 2011, the first statement of claim was filed. It failed utterly to comply with the order made on 10 March 2011. It contained a catalogue of generalised complaints, accompanied by references to the numbers of sections in the Disability Discrimination Act. The elements of the definitions of discrimination in ss 5 (discrimination by less favourable treatment) and 6 (discrimination by requirement or condition) were set out. No attempt was made to plead facts that would demonstrate how each allegation was said to fit within any provision. In some cases, the definitions in ss 5 and 6 were pleaded in the alternative in relation to a particular allegation. After I had read this statement of claim, I instructed my associate to communicate with the solicitors for the respondent, to advise them that they should not file a defence to this statement of claim.
14 A further directions hearing was held on 15 June 2011. Mr Kuek again appeared for the applicant. There was a further discussion about the inadequacies of the statement of claim. I suggested to Mr Kuek that he consider engaging senior counsel with experience in the area of discrimination litigation, in order to plead the applicant's case adequately. Mr Kuek again gave every indication that he understood the need to get the statement of claim right. I warned him that, if he failed to do so, I would consider awarding costs against him personally.
15 There was a discussion about how long I should allow for the filing of an amended statement of claim. Mr Kuek requested three months, on the basis that the counsel he proposed to use to draw the statement of claim would be overseas for some time and then engaged in a long trial.
16 On 15 June 2011, I made orders in the following terms:
1. On or before 12 September 2011, the applicant file and serve an amended statement of claim.
2. To the extent to which the applicant alleges discrimination as defined in s 5 of the Disability Discrimination Act 1992 (Cth) the amended statement of claim:
(a) specify each act or omission (including any omission to make reasonable adjustments) alleged to constitute less favourable treatment of the applicant;
(b) in respect of each such act, specify when and where each such act is alleged to have occurred and by whom each such act is alleged to have been performed;
(c) in respect of each such omission, specify each measure or adjustment alleged to have been required to remedy the omission and state when, where and by whom each such measure or adjustment is alleged to have been required to be taken;
(d) in respect of each such act or omission, identify the person or persons with whom the applicant alleges comparison should be made; and
(e) set out each fact and circumstance by reference to which it is alleged that each such act or omission constituted less favourable treatment.
3. To the extent to which the applicant alleges discrimination as defined in s 6(1) of the Disability Discrimination Act 1992 (Cth) the amended statement of claim:
(a) specify each requirement or condition with which the respondent is alleged to have required the applicant to comply;
(b) in respect of each such requirement or condition, specify when, where and how the applicant was required to comply;
(c) in respect of each such requirement or condition, set out each fact and circumstance by reason of which it is alleged that the applicant did not, or was not able to, comply; and
(d) in respect of each such requirement or condition, set out each fact or circumstance by reference to which it is alleged that the requirement or condition had, or was likely to have, the effect of disadvantaging persons with the disability or disabilities the applicant is alleged to have.
4. To the extent to which the applicant alleges discrimination as defined in s 6(2) of the Disability Discrimination Act 1992 (Cth) the amended statement of claim:
(a) specify each requirement or condition with which the respondent is alleged to have required the applicant to comply;
(b) in respect of each such requirement or condition, specify when, where and how the applicant was required to comply;
(c) in respect of each such requirement or condition, set out each adjustment it is alleged the respondent could have made in order that the applicant complied, or would have been able to comply, and which is alleged not to have been made by the respondent; and
(d) in respect of each such requirement or condition, set out each fact or circumstance by reference to which it is alleged that the requirement or condition had, or was likely to have, the effect of disadvantaging persons with the disability or disabilities the applicant is alleged to have.
5. To the extent to which the applicant alleges breach of duty or trespass, the amended statement of claim:
(a) specify each act or omission alleged to constitute breach of duty and each act alleged to constitute trespass;
(b) in respect of each such act, specify when and where each such act is alleged to have occurred and by whom each such act is alleged to have been performed; and
(c) in respect of each such omission specify each act required for compliance with the duty and state when, where and by whom each such act is alleged to have been required to be performed.
6. The amended statement of claim contain all necessary particulars.
I adjourned the directions hearing to 19 September 2011 and reserved costs.
17 By letter dated 9 September 2011 the solicitors for the respondent advised me that they had learned that Mr Kuek had engaged senior counsel to assist in the preparation of an amended statement of claim, but that the counsel in question required additional time. On this basis, the parties had consented to a two-week extension of the time for filing the amended statement of claim and an adjournment of the directions hearing. On 12 September 2011, I made orders by consent, varying paragraph 1 of the order of 15 June 2011 so as to extend the time by which the applicant was to file and serve an amended statement of claim to 26 September 2011, and adjourning the directions hearing to a date to be fixed after 3 October 2011.
18 An amended statement of claim was not filed until 17 October 2011. Although a substantial improvement on the original statement of claim, the amended statement of claim did not comply with the orders made on 15 June 2011. The most serious omission was the failure to provide particulars. Attached to the amended statement of claim were two documents marked as annexures "A" and "B" respectively. They consist of lists of dates and summaries of incidents involving the applicant over two overlapping periods between 17 February 2003 and 16 October 2009. Paragraph 73 of the amended statement of claim contains an allegation that, in 2003 and 2004, the Department of Education & Early Childhood Development on numerous occasions subjected the applicant to physical force causing him injury. The particulars to this allegation are "The Applicant refers to DEECD's incident reports set out in Annexure A hereto." The summaries in Annexure A appear to be mostly of incidents in which the respondent's staff restrained the applicant on the ground for some minutes, after he had acted violently towards staff members, or had attempted to escape from where he was supposed to be. Three of those incidents are said to have occurred in 2005. In respect of one incident on 12 August 2003, the summary includes the report "Restraint not used." One summary dated 20 August 2003 indicates that the applicant scaled a courtyard fence, tried to hit a staff member with a stick, threw the stick at another and kept running. Staff talked him into returning to the courtyard for lunch. There is no indication that any violence was used. In essence, the matters found in Annexure A are not particulars. If anything, some of the incident reports may be evidence, by way of admissions made on behalf of the respondent.
19 There are references to Annexure B in the particulars to paras 86 and 91. These paragraphs relate to allegations about what occurred during two separate periods at two separate places of accommodation. In the case of the period from late February 2004 until July 2005, at a place called Greenock it is alleged that the applicant was confined to certain parts of the house and denied access to the backyard and other parts of the house, including the bathroom, toilet and kitchen; was denied access to his possessions and toys or equipment; and was regularly subjected to physical violence, causing him injuries. The second period, from July 2005 until 28 February 2010 is said to relate to accommodation at The Crescent. Again, it is alleged that the applicant was confined to part of the house, separated from other residents; prevented from going into the backyard; given food on a tray passed through a locked door; denied furniture, toys and equipment except the television behind a perspex screen; and regularly subjected to physical violence, causing him injuries. It is necessary for the reader to go to the summaries in Annexure B (which cover only the period between 1 March 2004 and 16 October 2009) and attempt to determine which of them are said to relate to the various allegations they purport to particularise. In some cases, it is impossible to do so. For instance, in relation to 4 June 2004 it is reported that the applicant smashed his fist into a toilet bowl, opening an existing cut to his left hand. There are several records of occasions on which the applicant is said to have been hitting himself, making threats to people and banging his head on windows. Again, this is not particulars. To the extent to which it relates to allegations against the respondent, it is, if anything, evidence.
20 Finally, there are numerous paragraphs alleging that the applicant has suffered loss and damage. In each case, the particulars refer to physical injuries, psychological injury, pain and suffering and medical expenses, and state that full particulars will be provided before trial. Even if it would be necessary to update particulars prior to the trial, the complete failure to provide any indication of any loss or damage related to any particular allegations against the respondent is a serious omission.
21 The respondent's solicitors wrote to Mr Kuek in a letter dated 2 November 2011, sent by email. In the course of that letter, they made the following statements about the amended statement of claim (abbreviated in the letter to "ASOC"):
3. General comments about ASOC
3.1 We are currently considering our position in relation to the ASOC and have not yet made any final decisions about our response, including whether to apply to strike out parts of the pleading. We are particularly concerned that the following four deficiencies in the ASOC mean that any trial of the allegations contained in the ASOC will not be inexpensive or efficient.
3.2 First, the allegations in paragraphs 37, 50, 51, 81, 82, 88, 92, 93, 94, 95, 96(e), 98, 99, 100 and 104 are new allegations that do not arise from the Human Rights and Equal Opportunity Commission (HREOC) (now Australian Human Rights Commission) complaint. The Federal Court does not have jurisdiction to hear and determine these allegations (Australian Human Rights Commission Act 1986 (Cth), s 46PO(3), as applied in Robinson v NSW Police Force [2011] FCA 1081). Please confirm those paragraphs will be deleted from the ASOC.
3.3 Secondly, the HREOC complaint is dated 22 December 2009 and it is impermissible for the applicant to make allegations about events that occurred after that date (Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; Crvenkovic v La Trobe University [2009] FCA 374). Please confirm that all references to events that occurred after 22 December 2009, such as in paragraphs 90 and 94, will be deleted from the ASOC.
3.4 Thirdly, the form of the pleading in paragraphs 73, 86 and 91, which operate by reference to Annexures A and B, is wholly deficient and incapable of meaningfully being pleaded to by the respondent. It is not at all clear how it can sensibly be said that Luke was required to comply with a condition or requirement that he be subjected to "the regular application of physical force" (paragraph 74) or to "assault, injury or abuse" (paragraph 96). It is even less clear how it can sensibly be said that the "conditions" alleged in paragraph 104 caused Luke to be treated in the way alleged in Annexure B. We also note that the Annexures have been prepared without regard to reg 22 of the Education Regulations 2000 and section 44 of the Intellectually Disabled Persons Services Act 1986 (Vic) and Part 7 of the Disability Act 2006 (Vic) (from 1 July 2007). These provisions provide clear support and statutory authority for the approach adopted by both Respondents to restrain and seclude Luke Modra on occasions when he posed a risk of harm to himself and others.
22 Access Law replied to this letter by letter dated 4 November 2011. The letter made no response to the points made in paras 3.1 - 3.4 of the respondent's letter. All that Access Law said was:
We refer to your remark that your client is considering its position in relation to the ASOC. This case is listed for Directions Hearing on 9 November 2011.
In view of the above, our client would be agreeable to the Directions Hearing being adjourned to allow your client more time to consider its position.
23 The respondent's solicitors replied by letter dated 7 November 2011, saying:
We do not require and will not be seeking an adjournment of the directions hearing scheduled for 9 November 2011.
We expect to receive a response from you in relation to the other matters raised in our 2 November 2011 letter and ask that you do so by no later than 12.00pm [sic] on 8 November 2011. Regardless of whether we receive a reply, we will be raising the issues traversed in our letter of 2 November 2011 at the directions hearing.
24 A directions hearing was held on 9 November 2011. Junior counsel whose name was on the amended statement of claim (along with that of senior counsel) appeared for the applicant. After I had raised with counsel for the applicant some deficiencies of the amended statement of claim, senior counsel for the respondent raised the matters in the letter of 2 November 2011. There was some discussion about a timetable for the filing and service of a further amended statement of claim, complying with the orders made on 15 June 2011, and subsequent pleadings. The discussion then moved to the questions of the costs thrown away and costs of the directions hearing of 9 November 2011. I raised the question whether pursuant to the warning I had given Mr Kuek on 15 June 2011, I should order Mr Kuek to pay those costs personally. Counsel for the applicant asked that the directions hearing be stood down to give Mr Kuek an opportunity to be heard on that question. I stood over the directions hearing until that afternoon.
25 That afternoon, counsel appeared on behalf of Mr Kuek. He sought an adjournment of the question whether Mr Kuek should pay costs. Counsel sought a lengthy adjournment, on the basis that Mr Kuek would wish to file a substantial affidavit, setting out all the steps he had taken to comply with my orders of 15 June 2011. I indicated that what troubled me was not what Mr Kuek had done but what he had not done. In particular, having ultimate responsibility for filing the amended statement of claim, he filed one that did not comply with the orders of 15 June 2011. Having had his attention drawn to a number of specific deficiencies in the amended statement of claim on 2 November 2011, Mr Kuek made no response to these specific allegations in the week before the directions hearing of 9 November 2011. When counsel for Mr Kuek began addressing matters that appeared to me possibly to be the subject of legal professional privilege, I raised that subject with him, and reminded him that the privilege was that of the applicant, and not that of Mr Kuek to waive.
26 The orders I made on 9 November 2011, so far as relevant, are as follows:
1. On or before 7 December 2011, the applicant file and serve a further amended statement of claim, complying with paragraphs 2 - 6 of the order made on 15 June 2011.
2. The applicant pay the costs thrown away by reason of the order in paragraph 1.
…
6. The applicant pay the costs of today.
7. The question whether the applicant's solicitor be ordered to pay the costs that the applicant has been ordered to pay by paragraph 2 and paragraph 6 of this order be adjourned to 28 November 2011 at 10.15am.
8. The applicant's solicitor have leave to file an affidavit or affidavits on the question referred to in paragraph 7 of this order.
9. Any affidavit filed in accordance with paragraph 8 of this order:
(a) be filed on or before 18 November 2011; and
(b) be served on the applicant's next friend on or before 18 November 2011; but
(c) not be served on the respondent.
Senior counsel for the respondent did not wish to play any role in the determination of the question whether Mr Kuek should pay costs personally, and sought leave to withdraw. I granted that leave.
27 On 28 November 2011, Mr Kuek was represented by counsel (other than counsel who appeared on 9 November 2011). The applicant's senior and junior counsel also appeared. Counsel for the applicant indicated to me that the applicant had filed an application for leave to appeal from the orders I made on 9 November 2011. The applicant sought an adjournment of the question whether Mr Kuek should be ordered to pay costs, pending the outcome of that leave application. I adjourned the question to a date to be fixed.
28 Senior counsel for the applicant said that he took full responsibility for any deficiencies in the amended statement of claim. He also made clear that the applicant did not waive legal professional privilege, so as to enable Mr Kuek to give any evidence as to what passed between him and the applicant through the applicant's next friend.
29 The application for leave to appeal was heard on 1 December 2011. Judgment was delivered on 2 December 2011. See Modra v State of Victoria [2011] FCA 1375. The application was dismissed. Accordingly, I fixed 12 December 2011 for the hearing of the question whether Mr Kuek should pay costs. After hearing counsel for Mr Kuek, I reserved judgment.