The GEO Group Australia Pty Ltd v Clarke

Court of Appeal (NSW)|2024-02-22|Before: Rothman J, Health J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT - ex tempore

GRIFFITHS AJA: The applicant (The GEO Group Australia Pty Ltd) seeks leave to appeal from orders made by Rothman J on 27 June 2023 (see Clarke v GEO Australia Pty Ltd [2023] NSWSC 716). His Honour dismissed the applicant's motion which sought summary dismissal of the proceedings or the striking out of the further amended statement of claim filed on 19 September 2022. His Honour granted the plaintiff leave to file and serve a second further amended statement of claim regarding one identified deficiency in the pleading.

The primary judge's reasons for judgment summarised

After summarising the procedural history, including noting GEO's delay in raising its pleading objections, the primary judge addressed those objections with reference to the parts of the further amended statement of claim which were directed to the following matters: 1. duty of care and breach; 2. risk of harm; 3. foreseeability of risk; 4. risk not insignificant; 5. whether a reasonable person would take precautions; 6. breach and precautions; 7. circumstances leading to harm; and 8. causation.
The primary judge noted that a proceeding should be summarily dismissed only if the Court was satisfied that it is plainly and irreparably hopeless. The primary judge was not satisfied that GEO had met this stringent test.
The primary judge then identified well-known principles relating to striking out proceedings (see at [86]ff). His Honour was satisfied that the further amended statement of claim contained a reasonable cause of action against GEO.
The primary judge rejected GEO's individual pleading objections concerning the various matters described above, with one exception. That exception related to [16] of the further amended statement of claim, which simply pleaded that the risk of the work injury to persons in Mr Clarke's position "was in the circumstances foreseeable". The primary judge described this pleading as a mere "assertion". It needed to be developed, with particular reference to whether Mr Clarke claimed that the risk of harm was actually within GEO's knowledge or was a risk which it ought to have known about. Since this deficiency could be cured by an amendment, the primary judge granted leave to file and serve a second further amended statement of claim within four weeks.
The second further amended statement of claim was then filed on 13 July 2023. Paragraph 16 was amended pursuant to the grant of leave so as to add the following particulars to the claim that the risk of the work injury to persons in the position of Mr Clarke was in the circumstances foreseeable: (i) The first defendant knew of the foreseeable risk(s) of violence and threats of violence by inmates towards staff at the PCC, and thereby injury, including the plaintiff. (ii) Alternatively, the defendant ought to have known of the foreseeable risk(s) of violence and threats of violence by inmates towards staff at the PCC, and thereby injury, including the plaintiff. (iii) The first defendant knew of the foreseeable risk of the work injury if persons in the position of the plaintiff working at the PCC were exposed to a workplace environment attended with fear and anxiety regarding personal safety. (iv) Alternatively, the first defendant ought to have known of the foreseeable risk of the work injury if persons in the position of the plaintiff working at the PCC were exposed to a workplace environment attended with fear and anxiety regarding personal safety. (v) Actual or imputed knowledge of such risks arose by: (a) the nature of the PCC operation and the activities thereon, (b) the OA [Operating Agreement], (c) various policies and procedures specifically directed to addressing such risks.

Consideration and disposition

The draft notice of appeal contains the following three proposed appeal grounds: 1 His Honour erred in failing to strike out the Further Amended Statement of Claim filed on 19 September 2022. 2 His Honour erred in finding that the First Respondent's case was adequately pleaded in relation to the relevant risk of harm; the circumstances leading to the harm and the mechanism of the injury; breach of duty and the precautions that ought to have been taken; and causation. 3 His Honour proceeded (in whole or in part) on an incorrect basis, being that the First Respondent had not yet served his lay and expert evidence.
GEO requires leave to appeal because the orders dated 27 June 2023 are interlocutory (see s 101(2)(e) of the Supreme Court Act 1970 (NSW)). As is well settled, leave to appeal will generally not be granted unless the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice going beyond something that is merely arguable.
For the following reasons, I am not persuaded that leave to appeal should be granted. GEO has failed to identify any issue of principle or question of public importance which warrants the grant of leave. Rather, it simply repeats many of the pleading complaints which it made below said to cause it prejudice in defending the claim in the particular circumstances of the case. I am not persuaded that GEO has demonstrated any sufficiently arguable error concerning any of the four matters identified by it. I will address each in turn.

(a) Identifying the risk of injury

GEO did not challenge the primary judge's view that, applying Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, identification of the relevant risk of injury necessarily depends on the facts of each case. As noted at [34], the level of specificity of the risk of injury "depends very much on the nature of the allegations being put as a whole". There is no force in GEO's criticism of the primary judge's approach at [35], where his Honour said that in a case such as here, where the harm is said to arise from the nature and conditions of a particular environment (as opposed to a specific incident), the only sensible way to characterise the risk of injury is by reference to the risk of a kind of injury arising from persons being subjected to the pleaded working conditions.
As noted above, the working conditions were particularised at considerable length in [13] of the further amended statement of claim. GEO had sufficient notice of the case it had to meet on this matter.
GEO claims that the additional particulars to [16] of the further amended statement of claim which were added pursuant to the primary judge's grant of leave (see at [20] above) "compound" the pleading deficiencies regarding the foreseeability of the risk of injury.
Contrary to GEO's contention, the additional particulars specify the actual or constructive knowledge which Mr Clarke contends GEO had regarding the foreseeable risk of injury. Moreover, the particulars provided GEO with adequate notice of the basis for the claims of actual or imputed knowledge, namely the nature of the PCC operation, the Operating Agreement dated 6 October 2009, and "various policies and procedures" directed to addressing such risks. It may reasonably be inferred that those policies and procedures included the specific documents identified at [12] and [18] of the further amended statement of claim.

(b) Identifying the circumstances and mechanisms of Mr Clarke's injury

These complaints are largely directed at [13] and [14] of the further amended statement of claim. GEO complains that the relevant circumstances or "working conditions" lacked any reference to material facts or proper pleading. Similar contentions were put below and rejected by the primary judge at [72]-[73]. His Honour concluded that the 20 individual particulars of the "working conditions" set out at [13] of Mr Clarke's pleading put GEO on adequate notice of the case against it. No sufficiently arguable appellable error has been demonstrated to warrant a grant of leave to appeal.
As to GEO's complaint that the pleading fails to identify which of the two defendants is said to have been responsible for each of the particulars of the working conditions and how such working responsibility arose, it is notable that the 20 individual particulars describing the working conditions and the 15 individual particulars describing the precautions are identical in the pleaded case against both defendants (see [13], [18], [31], and [35] of the further amended statement of claim). Thus these matters are relied upon in Mr Clarke's case against both defendants even though the basis for liability differs between them.
GEO also complains that the primary judge erred at [54] when he described the particulars of the working conditions set out in [13] of the pleading as "[setting] out the alterations in working conditions allegedly affected by GEO". It says that this description fails accurately to reflect alleged "failures", "requirements" or "specific incidents". Such nit-picking hardly provides a basis for the grant of leave to appeal. All the more so when GEO itself acknowledges that, at [72], the primary judge correctly described the relevant part of the pleading as "including the alterations in conditions by GEO" (emphasis added).
I respectfully agree with the primary judge's conclusion at [73] that the particulars provided in [13] are plain on their face and adequately outline the case which GEO has to meet.

GEO complains that no material facts are pleaded in support of the allegations of breach. It is plain from [18] of the further amended statement of claim that Mr Clarke's claim is that GEO breached its duty because it failed to implement the various precautions, steps or measures particularised therein.
The particulars to [18] comprise 15 actions which Mr Clarke claims would have been taken by a reasonable person acting in GEO's place. GEO complains that the matters are pleaded at such a level of generality that it cannot identify what it is alleged it ought to have done but did not do, or did what it ought not to have done and, "importantly, when". For example, with reference to the first two particulars (namely performing a detailed risk assessment of security arrangements and procedures, as well as of the workplace environment for the safety, protection and wellbeing of persons in the position of Mr Clarke), it says that the pleading fails to identify what would have constituted such a "risk assessment", nor what it would have revealed or the subsequent steps that would have followed.
GEO is particularly critical of what the primary judge said at [69]: The plaintiff has particularised some 15 precautions that ought to have been implemented in the circumstances pertaining to the prison as a worksite. While the plaintiff does not specify the contents of the risk assessment or security measures, for example, their contents must be the subject of evidence and possibly expert evidence. But the common understanding of the terms, which are well-known and, in the case of risk assessments, "well-litigated", is sufficient for present purposes.
GEO contends that this passage indicated that the primary judge may have proceeded on an incorrect basis, namely that "evidence and possibly expert evidence" had not been served, even though his Honour had explicitly acknowledged earlier in his reasons for judgment at [18] that such material had in fact been served.
These criticisms are misplaced. Fairly read, his Honour was saying that while the contents of the risk assessment or security measures were not specified, given the nature of those things it would be necessary for those contents to be identified by evidence, including possibly expert evidence. His Honour was plainly aware that Mr Clarke had filed his evidence (see [18]), but thought it unnecessary to analyse the evidence with a view to determining whether the "contents" of the risk assessment or security measures were adequately identified. It was unnecessary for the primary judge to embark upon such a detailed analysis in assessing the adequacy of the pleading.
None of the other criticisms levelled by GEO at the primary judge's assessment of the adequacy of the particulars in [13] of the pleading identify errors which warrant the grant of leave to appeal. GEO had adequate notice of the case being put against it.

(d) Causation

GEO complains that no material facts were pleaded in support of the assertion at [19] and [20] regarding Mr Clarke's work injury having been caused by GEO's failure to take one or more of the precautions as particularised. GEO complains that the primary judge provided no reasoning in support of his conclusion at [77] that Mr Clarke had sufficiently pleaded causation. It suggests that the conclusion may have been affected by the alleged error at [69] concerning service of Mr Clarke's lay and expert evidence.
I have already explained why I reject GEO's criticisms concerning [69]. Furthermore, contrary to GEO's submissions, it is obvious that the claims of causation are based upon the connection between the pleaded working conditions, GEO's failure to take one or more of the precautions as particularised (breach) and the injury the plaintiff claims to have suffered.

Some final observations

There are additional reasons why leave should not be granted. They include the fact that leave is sought to appeal an interlocutory judgment on a point of practice or procedure. It is not necessary in this case to address the complaint that principles relevant to discretionary decision-making are not applicable in resolving a challenge to the adequacy of a pleading. It is well settled that an appellate court should exercise particular caution and restraint in reviewing decisions of that character. As Sir Frederick Jordan observed in In re Will of F. B. Gilbert (dec.) (1946) 46 S.R. (NSW) 318 at 323 regarding appeals from rulings on practice or procedure: …if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
Secondly, the restrained approach adopted by the primary judge in this case was appropriate having regard to GEO's lengthy delay in raising its pleading grievances. GEO sought and obtained further and better particulars in respect of an earlier iteration of the pleading, filed a defence to the original statement of claim and then a further defence to the amended statement of claim and also filed a cross-claim. The letter dated 30 August 2022 was sent well after these events and also after Mr Clarke's lay and expert evidence had been filed. The letter bears all the hallmarks of a defendant seeking to take a confected procedural objection and delay the matter going to trial.
Thirdly, the need for restraint is all the more important in a case such as the present where the second defendant raises no similar pleading objections, opposes the application for leave to appeal and is content for the proceeding, including the cross-claims, to progress to trial.

Conclusion

For all these reasons, the summons seeking leave to appeal should be dismissed, with the applicant to pay the first respondent's costs. The second respondent should bear its own costs in circumstances where it was unnecessary for it to appear and was unaffected by the applicant's application.
BASTEN AJA: I agree.
The Court makes the following orders: 1. Dismiss the applicant's summons seeking leave to appeal from the judgment and orders made in the Common Law Division on 27 June 2023. 2. Order that the applicant's pay the first respondent's costs in this Court.

Amendments 22 February 2024 - Add junior counsel DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2024

Supreme Court Act 1970(NSW)s 101(2)(e)

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