On 17 April 2019, which is now 16 months ago, I fixed the proceedings involving Plaintiffs A, B and C for a final hearing to commence on 7 September 2020. Plaintiff D's proceedings were later added to that hearing. This final hearing was to continue for an estimated period of four weeks.
On 17 April 2019, I also made orders (with the consent of the parties) enabling the plaintiffs to complete service of their evidence by 16 August 2019. The defendants were ordered to serve their evidence by 27 September 2019.
This directions hearing, and others over which I have presided, have taken place against a background of judicial management by Lonergan J. On three occasions, between March 2018 and 11 December 2018, Lonergan J made orders providing for the service of evidence by the plaintiff. Prior to that, on five occasions between 2015 and February 2018, the Registrar of the Common Law Division made orders requiring the service of any further evidentiary statements by the plaintiff.
Notwithstanding this careful case management over at least four (if not nearly five) years, a Notice of Motion was made returnable before me on 21 August 2020, in which the plaintiff sought leave to adduce further evidence. This was approximately two weeks before the trial was fixed to commence.
The plaintiffs filed the Notice of Motion on 14 August 2020, seeking leave to serve evidentiary statements, or outlines of evidence, from three categories of witnesses:
1. Plaintiffs B and D;
2. a number of police officers and a child protection worker; and
3. the mothers of two other children who attended, at the relevant times, the childcare centre run by the second and third defendants.
The grants of leave to adduce these statements were opposed by all defendants. Leave was required to serve and rely on the statements of evidence or outlines of proposed evidence because time for compliance with previous directions of the Court had well and truly passed. Latitude in compliance with the orders by the plaintiff had been extended on many occasions.
The only explanation offered by senior counsel for the plaintiff for the making of the application at this late stage was that he had been briefed about 14 days previously, and that he took a different view to the senior counsel previously briefed as to what was necessary to prove the cases for the plaintiffs.
It is trite to say that this is a wholly inadequate explanation. The Court fixed these proceedings on the basis of an assurance that the evidence had been (or would be) served within time; that the plaintiffs, represented by senior and junior counsel, had carefully considered and formulated their cases; and that a proper estimate for the hearing of those cases was, together with the cases to be brought by the defendants, four weeks. An explanation that someone different takes a different view in circumstances where that explanation is not addressed in any detail is, without more, completely inadequate.
However, it is necessary that I consider what is in the interests of justice by having regard to the entirety of the circumstances. As will be apparent, I have been asked to deal with these interlocutory orders in circumstances where little time is left before the hearing, and where it is not possible in the course of an oral judgment being delivered urgently, to articulate every reason why the orders which I propose to make will follow.
[2]
Application for Leave to Serve Statements of Plaintiffs B and D
I turn to consider the order sought in the Notice of Motion by first considering the application for leave to serve statements of Plaintiffs B and D. Argument in support of the late service of these statements concentrated on a single purpose. Namely, this purpose was to record the fact that Plaintiffs B and D have no present recollection of the matters of substance which were reported to police, and which were the subject of recorded interviews with police officers and a childcare worker. These are the individuals in the next category of additional evidence sought to be led by the plaintiffs.
The plaintiffs seek to rely upon the absence of present recollection in proof not directly, or at all of, their substantive claims, but rather to establish the exception to the hearsay rule contained in s 63 of the Evidence Act 1995. In particular, it was submitted that the evidence is being led to prove that the makers of the original statements contained in the recorded interviews given to police officers and a child protection worker, are "not available to give evidence about an asserted fact". Whether or not this evidence is admissible, and whether or not it is probative of that asserted factual conclusion, is not a matter for me, but for the trial Judge. I express no view on those matters at all.
Ultimately it seems to me that this evidence could have been called on a voir dire going to the admissibility of the underlying recorded interviews, and that it was at least arguable that such evidence was not caught by the original directions. However, ultimately, no real objection was taken to the late service of the statements providing that they were constrained to the single topic of the exception to the hearsay rule. The balance of the statements, which were seemingly addressed to other issues, were not pressed. Had they been pressed, they would not have been allowed.
I grant leave to the plaintiff to serve the evidentiary statements as follows;
1. statement of Plaintiff B in so far as it contains paragraphs 1 to 4 inclusive but not otherwise; and
2. statement of Plaintiff D in so far as it contains paragraphs 1 to 14 inclusive, but not otherwise.
[3]
Police Officers and a Child Support Worker
The second group of proposed outlines of evidence relate to identified police officers and a child support worker. The principal reason for the reliance on these outlines of evidence is, I am told, to formally prove the conduct of, and the contents of, various electronically recorded interviews with the plaintiffs. These interviews were conducted as part of a police investigation into the events, now the subject of these proceedings.
The defendants do not put in issue that the interviews were conducted. They also do not put in issue that they were conducted by the identified police officers, on the dates that the recorded interviews bear, or at the locations at which the recorded interviews occurred. Nor do the defendants put in issue that the recorded interviews are accurate recordings of what was said at the time. The defendants also accept that the written transcripts of the interviews are largely accurate, although they contend that, by reference to the recordings, there are a number of errors in those written transcripts. I note, however, that the principal evidence comprises the electronic recordings. The transcripts are used as an aide memoire to that evidence.
The defendants do object to the admission into evidence of the statements made during the recordings, either in whole or in part, on various bases. These bases relate to the hearsay nature of the recordings, the contents of the recordings, whether unfair prejudice arises from the nature of the recordings, the ages of the plaintiffs at the time and a number of other factors. These are all matters for the determination of the trial Judge, and are not for me to decide.
I am of the view that the plaintiffs have not made out any good reason why it is necessary for these outlines of evidence to be served late. This is particularly in light of the concessions by the defendants (to which I have earlier referred) and the absence of any challenge to the authenticity and accuracy of the electronic recordings.
I refuse leave to the plaintiffs to serve the outlines of evidence set out in orders 1(c) to 1(f) inclusive in the Notice of Motion filed 14 August 2020.
[4]
Supplementary Statements from Two Mothers
The remaining statements are the supplementary statements of two mothers of other children at the childcare centre. Principal statements have been served setting out the evidence to be called from those individuals. The purpose of these additional or supplementary statements seems to be principally the same as the statements which I have already discussed from Plaintiffs B and D: namely, that they are to be used in support of proving the exception to the hearsay rule in s 63 of the Evidence Act 1995 with respect to any electronic interviews conducted with the children of these two additional witnesses.
There is, however, a significant difference between the statements from Plaintiffs B and D as to their recollections, and the contents of the statements of the two mothers with respect to the recollections of their children. In these proposed statements, the two mothers set out their opinion as to whether their children have any recollection or not of what happened either at the childcare centre or when they were questioned by the police. Those statements, of course, are themselves hearsay.
Each of these witnesses also sets out that they would not permit their respective daughters to give evidence. It seems to me that, even though the weight of these statements may be regarded as slight, and the admissibility of them in grave doubt, these are matters which again are for the trial Judge and about which I do not make any finding.
However, there is other material in these statements which, in my view, coming as they do at a very late stage, would be highly prejudicial to the defendants and ought not be permitted to be served.
I would grant leave to the plaintiff to rely upon these statements as follows:
1. supplementary statement of the mother of child 1 insofar as it contains paragraphs 1 to 4 inclusive and paragraph 7 but not otherwise, and
2. supplementary statement of the mother of child 2 insofar as it contains paragraphs 1 to 4 inclusive, the second sentence of paragraph 5 and paragraph 7, but not otherwise.
[5]
Amended Statement of Claim
The Court has also been asked to grant leave to the plaintiffs to file an Amended Statement of Claim containing what I regard to be significant amendments. These amendments were all opposed by the second and third defendants. The first defendant also opposed some of the amendments.
In considering whether to allow the amendments which were ultimately pressed (not being all of those which were initially sought), I have exercised my discretion on the bases I will shortly outline. I have necessarily put these bases briefly because time simply does not permit me the luxury of reserving on this application and preparing a comprehensive set of written reasons. The parties are entitled to know as soon as is possible what amendments are to be permitted and what amendments are not to be permitted.
I have exercised my discretion having regard to the following factors.
First, the prejudice identified by the defendants if the amendments were allowed. This is particularly so when one has regard to the proximity of the hearing and the need to undertake significant further investigations, whether by requesting particulars, by issuing subpoenas or otherwise seeking to identify and interview various individuals.
Secondly, the inappropriateness, to put it globally, of the Court vacating the hearing dates, which would result in the trial not being able to take place for at least another 12 months, in proceedings commenced in 2013 and where a four week hearing has been fixed for over 16 months. I use inappropriateness in this context to include the following:
1. that such adjournment would be contrary to the overriding purpose of s 56 of the Civil Procedure Act 2005;
2. that such an adjournment would be detrimental to, and cause prejudice to, other litigants in the Court whose cases would inevitably be delayed;
3. that such adjournment would be a burden on the defendants requiring further investigation of claims which include facts which are now many years old; and
4. the absence of any identified prejudice to the plaintiffs if the proposed amendment were not allowed.
Thirdly, I take into account the absence of any satisfactory explanation for the late amendments: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
Fourthly, I note that there were different positions taken by the defendants as to their opposition to some of the amendments. It is ultimately impractical to allow differential amendments in a case which includes, as one of its principal causes of action, a claim that the second and third defendants are vicariously liable for the first defendant's conduct. In the absence of any proposed pleading in a form which could articulate the claim against the first defendant and against the second and third defendants separately, as well as differently having regard to the stated positions of each of the defendants, I am not satisfied that the Court could allow the proposed amendments in their current form.
By reference to the pleading of Plaintiff D, which was the Amended Statement of Claim used as the basis for the argument about the amendments, I indicate as follows which amendments will and will not be allowed:
1. disallow the proposed amendment in paragraph 3C as being too vague;
2. allow the proposed amendments to paragraph 4;
3. disallow the amendments in paragraph 9(a)(vi) through to and including (xx). In my view, these amendments significantly expand the case which the defendants are called upon to meet, by adding an additional 14 new instances of tortious conduct which would require careful investigation. This is particularly because the pleadings refer not just to the plaintiffs themselves but to a wide range, or else a number of, other children who are unidentified in the pleading. In my view to allow such an expansion of the plaintiffs' case shortly before trial would be unfairly prejudicial to the defendants;
4. paragraphs 20A and 20B are not pressed, and would not have been allowed in any event;
5. allow paragraphs 24A, 24B, and 24C. In my view they do nothing more than to articulate more clearly the nature of the claims which have already been made;
6. allow the amendments to paragraph 25. In my view the plaintiffs sufficiently notified in their Statement of Particulars a claim for aggravated or exemplary damages. These amendments simply particularise those in circumstances where they ought to have been particularised earlier. I note, however, that no request for particulars was ever made by the defendants of those claims. There is no prejudice to the defendants;
7. disallow paragraph 27A as it is meaningless and vague;
8. disallow paragraphs 30(f) through to 30(n). It seems to me that these additional particulars, coming at this late stage as part of the Statement of Claim, cause irremediable prejudice to the second defendant. I note however that, in my view, the fact that these matters are disallowed as part of the pleading would not prevent cross-examination of the second defendant as to her knowledge of any of these matters. This will ultimately be a matter for the trial Judge;
9. allow the proposed amendments in paragraph 31(a)(v);
10. disallow the proposed amendments in paragraph 31(a)(xiii), which I note is not pressed;
11. allow the proposed amendment in paragraph 31(a)(xv);
12. disallow paragraph 31(a)(xvi) as being too vague;
13. allow paragraphs 31(a)(xvii), (xviii), (xix), (xxi), (xxii) and (xxiii), but disallow all other additional sub-paragraphs;
14. allow paragraph 31A and 31B; and
15. disallow proposed amendments in paragraphs 32A through to and including 32E, which I note are no longer pressed. They would not have been allowed in any event. I otherwise disallow all of the other proposed amendments.
With regard to the proposed amendments disallowed in [31] above, the allegations which raise matters of failure to comply with regulations or provisions (as forming a particular of a breach of duty at common law) in my view ought to have been raised before now. Such allegations would require specific investigation by the second and third defendants in a way which would cause prejudice to the hearing of the matter.
As well, by allowing these late amendments, the second and third defendants would be prejudiced by not being able to obtain an expert report prior to the commencement of the proceedings so as to inform themselves as to how they should conduct their defence.
I should also add that, in refusing the various amendments which would allow an expansion of the plaintiffs' case, I am conscious that in the interlocutory proceedings leading up to the hearing, each party has given careful consideration to their respective cases. On the plaintiffs' side, that constitutes what the case is that the plaintiffs wish to propound and, on the defendants' side, which matters are to be put in issue and which are not.
No doubt, based upon this analysis and consideration, I would expect that questions of settlement have been considered and either engaged in, or not, as that consideration has taken place. It is simply too late to allow, without extensive prejudice to the entirety of the proceedings, amendments which expand the plaintiffs' case two weeks before a trial, in a case that has been on foot for seven years.
For these reasons, and having regard to my rulings, I would direct that the plaintiffs file on or before midday on Thursday 27 August 2020, and serve at the same time, an Amended Statement of Claim which takes account of the rulings which I have just given.
I grant the parties liberty to apply.
[6]
Amendments
13 October 2020 - Removal of identifying names in [20] and [23(a) and (b)]
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Decision last updated: 13 October 2020