Wade v State of Victoria [2012] FCA 400 | Case summary

Judgment (16 paragraphs)

[1]

In this order: (i) "school year" means each of the 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 and 2009 school years; (ii) "Contentions" refers to the applicant's Second Further Amended Contentions of Fact and Law dated 2 December 2011. THE COURT ORDERS THAT:

On or before 4 May 2012, the applicant file and serve a document headed "Applicant's Response to Order for Further and Better Contentions of Fact and Law" which provides further contentions responsive to the following orders directed at the applicant: (a) In relation to paragraph 9U of the Contentions, specify by reference to each school year, what further specialist expertise and or advice the applicant alleges should have been sought by the respondent including: • the type of specialist that should have been consulted; and • the nature of the additional advice or assistance that should have been obtained from each type of specialist. (b) In relation to each occasion the term "reasonable adjustments" or "reasonable adjustment" is referred to in paragraphs 13, 20, 21, 22(a), 23, 26(a), 26(g)(iii) and 26(m)(iii) of the Contentions, specify in relation to each such paragraph and in relation to each school year dealt with in the paragraph: (i) which of the seven categories of adjustments alleged to have been required by the applicant and identified at paragraphs 7.1, 7.2, 7.3, 7.4, 7.5, 7.6 or 7.7 of the Contentions are alleged not to have been provided by the respondent; (ii) in relation to each such category of adjustments, specify whether the things or matters required by the adjustment were not provided at all or alternatively were only partially provided; and (iii) if only partially provided, specify what part or parts thereof were not provided and, if it is alleged that the partial failure to provide an adjustment is constituted by the failure to provide the adjustment to a particular level or standard, specify what step or steps should have been taken by the respondent to properly provide the adjustment or part thereof. (c) In relation to each of documents identified in paragraphs 24(i),(l),(r),(s),(t),(u), and (w) of the Contentions specify what part, parts or provisions contained in the document, the applicant alleges the respondent has breached or failed to comply with. (d) In relation to paragraph 24(v) of the Contentions, specify which policy, procedure or guideline of the respondent the applicant relies upon and which part or parts of the documents relied upon, the applicant alleges the respondent has breached or failed to comply with. (e) In relation to paragraph 26(b) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific adjustment alleged to have been made by the Respondent in that school year: (i) who (by name or type of expert associate) the applicant alleges should have been consulted in relation to that adjustment; and (ii) the nature of any failure by the respondent to engage in such consultation including the step or steps the respondent should have taken. (f) In relation to paragraph 26(c) of the Contentions and the failure there alleged, specify in relation to each school year and each specific adjustment alleged to have been made by the respondent in that year, the failure of the respondent to assess whether the specific adjustment required change or modification, including by stating when the assessment should have occurred and what matter or matters the assessment should have addressed. (g) In relation to paragraph 26(d) of the Contentions and the failure there alleged, in relation to each school year and each specific adjustment that the applicant asserts was required to be made, specify what reasonable step or steps the respondent should have but failed to take to ensure that the adjustment which was required was made within a reasonable time. (h) In relation to paragraph 26(f) of the Contentions and the failure there alleged, by reference to each school year and the particular course, program, facility or service in question, specify what reasonable step or steps the respondent failed to take to ensure that the applicant was able to participate in the course, programs, facilities or services provided by the respondent. (i) In relation to paragraph 26(g)(i) of the Contentions and the failure there alleged, by reference to each school year, specify each failure to consult including by identifying when and by reference to what specific issue there was a failure to consult and, if it is alleged that the consultation should have occurred with an expert associate of the applicant, specify which associate or type of associate was not but should have been consulted. (j) In relation to paragraph 26(g)(ii) of the Contentions and the failure there alleged, by reference to each school year, specify each failure of the respondent to decide including by identifying when and by reference to what specific issue there was such a failure. (k) In relation to paragraph 26(m)(i) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific specialised support service: (i) who the applicant alleges should have been consulted in relation to that specific specialised support service; and (ii) if it is alleged that the consultation should have occurred with an associate of the applicant, specify which associate or type of associate should have been but was not consulted. (l) In relation to paragraph 26(m)(ii) of the Contentions and the failure there alleged, by reference to each school year, specify each failure of the respondent to decide including by identifying the particular adjustment the failure to decide related to. (m) In relation to paragraph 26(m)(iv) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific adjustment alleged to have been decided upon by the respondent in that school year: (i) who (by name or type of specialist) the applicant alleges professional specialist expertise should have been sought from; and (ii) the nature of the professional specialist expertise that should have been but was not sought. (n) In relation to paragraph 26(n) of the Contentions and the failure there alleged, by reference to each school year and the particular specialised support service in question, specify what step or steps the respondent failed to take to implement measures to ensure that the applicant was able to access the specialised support service.

On or before 4 May 2012, the applicant file and serve a document headed "Applicant's Response to Order for Further and Better Contentions of Fact and Law" which provides further contentions responsive to the following orders directed at the applicant: (a) In relation to paragraph 9U of the Contentions, specify by reference to each school year, what further specialist expertise and or advice the applicant alleges should have been sought by the respondent including: • the type of specialist that should have been consulted; and • the nature of the additional advice or assistance that should have been obtained from each type of specialist. (b) In relation to each occasion the term "reasonable adjustments" or "reasonable adjustment" is referred to in paragraphs 13, 20, 21, 22(a), 23, 26(a), 26(g)(iii) and 26(m)(iii) of the Contentions, specify in relation to each such paragraph and in relation to each school year dealt with in the paragraph: (i) which of the seven categories of adjustments alleged to have been required by the applicant and identified at paragraphs 7.1, 7.2, 7.3, 7.4, 7.5, 7.6 or 7.7 of the Contentions are alleged not to have been provided by the respondent; (ii) in relation to each such category of adjustments, specify whether the things or matters required by the adjustment were not provided at all or alternatively were only partially provided; and (iii) if only partially provided, specify what part or parts thereof were not provided and, if it is alleged that the partial failure to provide an adjustment is constituted by the failure to provide the adjustment to a particular level or standard, specify what step or steps should have been taken by the respondent to properly provide the adjustment or part thereof. (c) In relation to each of documents identified in paragraphs 24(i),(l),(r),(s),(t),(u), and (w) of the Contentions specify what part, parts or provisions contained in the document, the applicant alleges the respondent has breached or failed to comply with. (d) In relation to paragraph 24(v) of the Contentions, specify which policy, procedure or guideline of the respondent the applicant relies upon and which part or parts of the documents relied upon, the applicant alleges the respondent has breached or failed to comply with. (e) In relation to paragraph 26(b) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific adjustment alleged to have been made by the Respondent in that school year: (i) who (by name or type of expert associate) the applicant alleges should have been consulted in relation to that adjustment; and (ii) the nature of any failure by the respondent to engage in such consultation including the step or steps the respondent should have taken. (f) In relation to paragraph 26(c) of the Contentions and the failure there alleged, specify in relation to each school year and each specific adjustment alleged to have been made by the respondent in that year, the failure of the respondent to assess whether the specific adjustment required change or modification, including by stating when the assessment should have occurred and what matter or matters the assessment should have addressed. (g) In relation to paragraph 26(d) of the Contentions and the failure there alleged, in relation to each school year and each specific adjustment that the applicant asserts was required to be made, specify what reasonable step or steps the respondent should have but failed to take to ensure that the adjustment which was required was made within a reasonable time. (h) In relation to paragraph 26(f) of the Contentions and the failure there alleged, by reference to each school year and the particular course, program, facility or service in question, specify what reasonable step or steps the respondent failed to take to ensure that the applicant was able to participate in the course, programs, facilities or services provided by the respondent. (i) In relation to paragraph 26(g)(i) of the Contentions and the failure there alleged, by reference to each school year, specify each failure to consult including by identifying when and by reference to what specific issue there was a failure to consult and, if it is alleged that the consultation should have occurred with an expert associate of the applicant, specify which associate or type of associate was not but should have been consulted. (j) In relation to paragraph 26(g)(ii) of the Contentions and the failure there alleged, by reference to each school year, specify each failure of the respondent to decide including by identifying when and by reference to what specific issue there was such a failure. (k) In relation to paragraph 26(m)(i) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific specialised support service: (i) who the applicant alleges should have been consulted in relation to that specific specialised support service; and (ii) if it is alleged that the consultation should have occurred with an associate of the applicant, specify which associate or type of associate should have been but was not consulted. (l) In relation to paragraph 26(m)(ii) of the Contentions and the failure there alleged, by reference to each school year, specify each failure of the respondent to decide including by identifying the particular adjustment the failure to decide related to. (m) In relation to paragraph 26(m)(iv) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific adjustment alleged to have been decided upon by the respondent in that school year: (i) who (by name or type of specialist) the applicant alleges professional specialist expertise should have been sought from; and (ii) the nature of the professional specialist expertise that should have been but was not sought. (n) In relation to paragraph 26(n) of the Contentions and the failure there alleged, by reference to each school year and the particular specialised support service in question, specify what step or steps the respondent failed to take to implement measures to ensure that the applicant was able to access the specialised support service.
Paragraph 14 of the Contentions is struck out.
The respondent's interlocutory application of 9 December 2011 be otherwise dismissed.
The respondent's costs of the interlocutory application be paid by the applicant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 By its interlocutory application, the respondent ("the Department") seeks to have various paragraphs of the applicant's Second Further Amended Contentions of Fact and Law ("the Contentions") struck out. By reason of orders made on 12 October 2011, the applicant's Contentions stand as its pleading in the case. The applicant has conceded that paragraph 14 of his Contentions should be struck out. I will make an order to that effect. As to the remainder of the paragraphs of the applicant's Contentions at issue, I have for the reasons that follow, largely but not entirely, accepted the Department's submissions as to the inadequacy of the pleading. However, instead of striking out any further parts of the applicant's Contentions, I will order that the applicant provide further and better contentions of its claims so as to give the Department a proper understanding of the case it must meet at trial. 2 By his Contentions, the applicant alleges that he has multiple disabilities, including Language Disorder/Difficulty; Expressive Language Disorder/Difficulty; Pervasive Developmental Disorder - Autism Spectrum Disorder; Major Depressive Disorder; Attention Deficit Hyperactivity Disorder; Borderline Cognitive Functioning/Learning Disability; and Adjustment Disorder. The applicant claims that in order to access the educational services provided by the Department in the various primary and secondary schools which he attended between 2000 and 2009, various adjustments (referred to in the applicant's Contentions as ("reasonable adjustments") should have been, but were not, provided by the Department. Broadly speaking, the failure of the Department to provide the reasonable adjustments is alleged by the applicant to constitute direct and indirect discrimination and victimisation in breach of various provisions of the Disability Discrimination Act 1992 (Cth) ("the Act"). 3 Unfortunately, the simplicity of the outline of the applicant's claim which I have just given, is not reflected in the applicant's Contentions. The Contentions is a long and complex document which is riddled with ambiguity and fails to fully expose the detail of the applicant's numerous complaints. It is the latest of many earlier failed attempts by the applicant's legal advisors to properly identify and adequately particularise the applicant's case. That failure has occurred in the context of significant patience from both the Department and from the Court and has continued despite many earlier demands that the applicant properly plead its case. 4 I do not wish to suggest that pleading the kind of all encompassing case which the applicant has sought to do is an easy exercise. The applicant could have (and still can) adopt a careful and targeted approach which would have limited his case to those of its elements most likely to succeed. That would have been simpler and far less burdensome. That is not however, what the applicant and his legal advisors have chosen to do. Having taken on the burden of agitating what appears to be every possible claim which may be available to the applicant, it has become necessary for the applicant to properly particularise multiple claims in relation to multiple and overlapping failures alleged against the Department. 5 That is a task that the applicant has failed to achieve. The applicant's Contentions suffer from a lack of particularisation as well as a lack of clarity. The orders which I will make identify those parts of the applicant's Contentions which I have determined to be inadequate and the extent to which further particularisation or clarity is required. I need not restate the arguments put by the parties. My conclusions in relation to each of the paragraphs of the applicant's Contentions in issue are apparent from the orders I will make. 6 Those conclusions are based on the basic proposition that the applicant's pleading should inform the Department of the case it needs to meet at trial. In particular, in a case in which the allegations made against the Department are that it has failed to provide various requirements to the applicant, it is incumbent upon the applicant to set out with sufficient particularity what step or steps it says the Department should have taken but did not take to address the needs of the applicant: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at [28] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The imperative that causes of action like those in play in this proceeding be properly pleaded has recently been highlighted by the reasons for judgment of Gray, Flick and Reeves JJ in Walker v State of Victoria [2012] FCAFC 38 and those of Gray J in Modra v State of Victoria [2012] FCA 240. 7 All of the authorities to which the applicant referred are consistent with the proposition that a basic requirement of a pleading is that it must inform the opposing party of the substance of the allegations made against it and thus the case it must meet at trial. I respectively agree with the observation of Merkel J at [12] in Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 that pleadings are only a 'means to an end'. However, as his Honour's conclusion at [12] signifies, the end to be achieved includes what the judge described as "the basic function of a pleading" - that the causes of action relied upon are pleaded in a manner that ensures a respondent understands those causes of action and the substance of the allegations made against it. 8 Despite largely accepting the inadequacies in the applicant's Contentions contended for by the Department, I am reluctant to accede to the Department's application that the challenged paragraphs of the applicant's Contentions be struck out. As Lockhart J said in Australian Competition and Consumer Commission v Golden West Network Pty Ltd [1997] FCA 792 in a passage more recently referred to by McKerracher J in Christou v Stantons International Pty Ltd (No 3) [2011] FCA 655 at [9]: 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. 9 The applicant's compliance with the orders that the Court will make, will place the Department in the position of being able to sufficiently understand the case it needs to meet. The further contentions required by those orders will, I expect, be formulated in the context of the applicant having now prepared its evidence for trial, including affidavits from its expert witnesses. 10 If, in that context, the applicant remains unable to properly and adequately provide the Department with a proper understanding of the case it must meet, further consideration will need to be given to striking out those parts of the applicant's claim which offend the basic function of a pleading to which I have referred. The decision in Modra provides fair warning to the applicant and its legal advisers that should the applicant persist with claims it is not able to properly particularise, costs consequences (including for the legal advisers involved) may follow. 11 In light of my conclusion that the applicant's Contentions is inadequate and requires substantial further particularisation, it follows that the applicant should pay the costs of the respondent's interlocutory application. 12 The Court will make the following orders: In this order: (i) "school year" means each of the 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 and 2009 school years; (ii) "Contentions" refers to the applicant's Second Further Amended Contentions of Fact and Law dated 2 December 2011. 1. On or before 4 May 2012, the applicant file and serve a document headed "Applicant's Response to Order for Further and Better Contentions of Fact and Law" which provides further contentions responsive to the following orders directed at the applicant: (a) In relation to paragraph 9U of the Contentions, specify by reference to each school year, what further specialist expertise and or advice the applicant alleges should have been sought by the respondent including: the type of specialist that should have been consulted; and the nature of the additional advice or assistance that should have been obtained from each type of specialist. (b) In relation to each occasion the term "reasonable adjustments" or "reasonable adjustment" is referred to in paragraphs 13, 20, 21, 22(a), 23, 26(a), 26(g)(iii) and 26(m)(iii) of the Contentions, specify in relation to each such paragraph and in relation to each school year dealt with in the paragraph: (i) which of the seven categories of adjustments alleged to have been required by the applicant and identified at paragraphs 7.1, 7.2, 7.3, 7.4, 7.5, 7.6 or 7.7 of the Contentions are alleged not to have been provided by the respondent; (ii) in relation to each such category of adjustments, specify whether the things or matters required by the adjustment were not provided at all or alternatively were only partially provided; and (iii) if only partially provided, specify what part or parts thereof were not provided and, if it is alleged that the partial failure to provide an adjustment is constituted by the failure to provide the adjustment to a particular level or standard, specify what step or steps should have been taken by the respondent to properly provide the adjustment or part thereof. (c) In relation to each of documents identified in paragraphs 24(i),(l),(r),(s),(t),(u), and (w) of the Contentions specify what part, parts or provisions contained in the document, the applicant alleges the respondent has breached or failed to comply with. (d) In relation to paragraph 24(v) of the Contentions, specify which policy, procedure or guideline of the respondent the applicant relies upon and which part or parts of the documents relied upon, the applicant alleges the respondent has breached or failed to comply with. (e) In relation to paragraph 26(b) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific adjustment alleged to have been made by the Respondent in that school year: (i) who (by name or type of expert associate) the applicant alleges should have been consulted in relation to that adjustment; and (ii) the nature of any failure by the respondent to engage in such consultation including the step or steps the respondent should have taken. (f) In relation to paragraph 26(c) of the Contentions and the failure there alleged, specify in relation to each school year and each specific adjustment alleged to have been made by the respondent in that year, the failure of the respondent to assess whether the specific adjustment required change or modification, including by stating when the assessment should have occurred and what matter or matters the assessment should have addressed. (g) In relation to paragraph 26(d) of the Contentions and the failure there alleged, in relation to each school year and each specific adjustment that the applicant asserts was required to be made, specify what reasonable step or steps the respondent should have but failed to take to ensure that the adjustment which was required was made within a reasonable time. (h) In relation to paragraph 26(f) of the Contentions and the failure there alleged, by reference to each school year and the particular course, program, facility or service in question, specify what reasonable step or steps the respondent failed to take to ensure that the applicant was able to participate in the course, programs, facilities or services provided by the respondent. (i) In relation to paragraph 26(g)(i) of the Contentions and the failure there alleged, by reference to each school year, specify each failure to consult including by identifying when and by reference to what specific issue there was a failure to consult and, if it is alleged that the consultation should have occurred with an expert associate of the applicant, specify which associate or type of associate was not but should have been consulted. (j) In relation to paragraph 26(g)(ii) of the Contentions and the failure there alleged, by reference to each school year, specify each failure of the respondent to decide including by identifying when and by reference to what specific issue there was such a failure. (k) In relation to paragraph 26(m)(i) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific specialised support service: (i) who the applicant alleges should have been consulted in relation to that specific specialised support service; and (ii) if it is alleged that the consultation should have occurred with an associate of the applicant, specify which associate or type of associate should have been but was not consulted. (l) In relation to paragraph 26(m)(ii) of the Contentions and the failure there alleged, by reference to each school year, specify each failure of the respondent to decide including by identifying the particular adjustment the failure to decide related to. (m) In relation to paragraph 26(m)(iv) of the Contentions and the failure there alleged, specify in relation to each school year and in relation to each specific adjustment alleged to have been decided upon by the respondent in that school year: (i) who (by name or type of specialist) the applicant alleges professional specialist expertise should have been sought from; and (ii) the nature of the professional specialist expertise that should have been but was not sought. (n) In relation to paragraph 26(n) of the Contentions and the failure there alleged, by reference to each school year and the particular specialised support service in question, specify what step or steps the respondent failed to take to implement measures to ensure that the applicant was able to access the specialised support service. 2. Paragraph 14 of the Contentions is struck out. 3. The respondent's interlocutory application of 9 December 2011 be otherwise dismissed. 4. The respondent's costs of the interlocutory application be paid by the applicant. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Wade v State of Victoria

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