FEDERAL COURT OF AUSTRALIA
Campbell v Northern Territory of Australia [2018] FCA 85
ORDERS
Applicant | ||
AND: | NORTHERN TERRITORY OF AUSTRALIA Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for summary judgment is refused.
2. The whole of the following paragraphs be struck out from the Amended Statement of Claim: [6], [14A], [14B], [26], [28B], [29], [30], [31], [32], [33], [35], [36], [39], [40] and [41].
3. The Applicant have leave to file a Second Amended Statement of Claim, with that leave limited to re-pleading the claims contemplated by the paragraphs of the Amended Statement of Claim listed in Order 2, [27] and [34].
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WHITE J:
1 The Applicant is an Aboriginal man born in August 1994. Between 22 May 2009 and 25 August 2012, he was, during three distinct periods, detained in youth detention centres in the Northern Territory and there were some periods when he was transferred to the Darwin Correctional Centre at Berrimah (the DCC).
2 The Applicant alleges that during the periods of detention he suffered batteries or assaults, unlawful imprisonment, harm as a result of breaches by the Territory of a common law duty of care and its deceit, underpayment of the “wages” to which he was entitled, and that he was a victim of racial discrimination. He seeks damages and, in addition, orders pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth).
3 The proceedings were commenced on 26 May 2017 and were supported by a statement of claim. The Applicant recognised that the statement of claim would have to be amended but sought wide ranging discovery from the Territory before doing so. The Court refused to make an order to that effect.
4 The Applicant filed his Amended Statement of Claim (the ASoC) on 10 November 2017. The Territory has now applied for summary judgment in relation to the majority of the Applicant’s claims. In the alternative, it seeks the striking out of substantial portions of the ASoC.
5 The Territory seeks the summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) which provides (relevantly):
…
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
6 The principles which the Court applies in relation to applications under s 31A are well established: see Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 at [60]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60, (2008) 167 FCR 372 at [123]-[134]. It is not necessary for present purposes to repeat those principles.
7 The Territory bears a persuasive onus of establishing that each challenged claim in the ASoC has no reasonable prospect of success. However, if the Territory does establish a prima facie case to that effect, it is for the Applicant to point to specific factual or evidentiary disputes making a trial appropriate: Jefferson v Ford at [127].
8 The Territory seeks the striking out of the pleadings pursuant to r 16.21(1)(d) and (e) of the Federal Court Rules 2011 (Cth) (the FCR).
9 The two-fold purpose of pleadings remains that stated by Mason CJ and Gaudron J in Banque Commerciale S.A., en Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286:
The function of pleadings is to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.
(Citations omitted)
10 Rule 16.02(d) requires a pleading to “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved”.
11 With all respect to those responsible for the preparation of the ASoC, I think it fair to say that it is not well drafted. It does not contain a plea of many of the material facts bearing on the claims which the Applicant wishes to pursue. The shortcomings in the ASoC are extensive, such as to make difficult the assessment of whether the claims have no reasonable prospect of being prosecuted successfully. In part, this is a consequence of the rolled-up nature of many of the pleas in the ASoC, with it not differentiating between the separate claims, or even the several matters giving rise to those separate claims. In many respects, the ASoC fails to achieve the purpose of a pleading as stated in Bank Commerciale.
12 I have concluded that much of the ASoC should be struck out and the Applicant given a further opportunity to plead his claims. I have done so because of the nature of the claims which the Applicant wishes to pursue (some of which would be difficult to plead in any circumstances), the evident difficulties which his solicitors have in formulating an adequate pleading and because, despite the Territory’s submissions, I am not satisfied at this stage, especially having regard to the inadequacies in the ASoC, that the Applicant can have no prospects of successfully pursuing at least some of his claims. That is to say, before being satisfied that a claim has no reasonable prospects of success, the claim should be properly articulated (or at least as best as the Applicant can), having regard to this Court’s pleading rules. If the Applicant cannot articulate them properly, this may be an indication that they lack a reasonable prospect of success.
The false imprisonment claims
13 The Applicant’s claims relate to his detention at the Alice Springs Youth Detention Centre (the ASYDC) and at the Don Dale Youth Detention Centre in Darwin (the DDYDC). He pleads positively that his detentions were under orders which authorised his detention in accordance with the terms and conditions of the Youth Justice Act (NT) (the YJ Act) and the Youth Justice Regulations (NT) made under that Act (the Regulations). The ASoC does not identify the particular orders for the Applicant’s detention, although it seems that they were either remands in custody or sentences. Given the claims of false imprisonment, the fact that the Applicant accepts that he was lawfully detained is an important starting point.
First plea of false imprisonment
14 The Applicant’s first plea of false imprisonment is made in two paragraphs. He pleads in [6] that from time to time, he was placed in “back cells” and that at one stage he was taken to Berrimah Gaol:
[6] While the applicant was in detention in the ASYJC and Don Dale the applicant was placed in isolation in cramped, unfurnished, ill equipped, poorly lit and ventilated and unhygienic cells for up to two weeks at a time (“the back cell imprisonments”).
Particulars
a. During 2011 whilst he was at ASYJC, the applicant was placed in the back cells for about a week after being accused of damaging a fan in his room.
b. Shortly after the completion of his detention in the back cells for allegedly damaging a fan, the applicant was found in possession of a mobile phone and returned to the back cells for about another week.
c. After an incident at Don Dale which occurred on Christmas night in 2011, the applicant was placed in the back cells at Don Dale and kept there for about four weeks.
d. Later during his detention at Don Dale, the applicant complained that he was not allowed to have a shower and was again placed in the back cells for some days.
e. After Christmas 2011, the applicant was taken from Don Dale to Berrimah gaol and kept in isolation there until he was returned to Don Dale.
Further particulars will be provided following discovery.
15 The pleading that the placement in the back cells and the keeping in isolation at the Berrimah gaol constituted false imprisonment is contained in [30] of the ASoC, as follows:
The back cell imprisonments and in isolation at Berrimah gaol were unlawful and constituted false imprisonments.
Particulars
a. The orders for the applicant to undergo the back cell imprisonments and the isolation at Berrimah gaol were not authorised by the Act or the Regulations.
b. The orders for the applicant to serve the back cell imprisonments and the isolation at Berrimah gaol were otherwise unlawful as involving invalid, arbitrary and/or disproportionate assertion of authority.
c. The conditions of the back cell imprisonments and the isolation at Berrimah gaol did not constitute a form of detention or discipline authorised by the Act.
d. The confinement of the applicant in the back cells and at Berrimah gaol, both in total duration and as a proportion of each day spent there, threatened the health and welfare of the applicant and was a disproportionate response to any alleged misconduct.
16 By its Defence, the Territory denies the allegations in [6] and pleads four occasions when the Applicant was removed from his cell and accommodated elsewhere. It says variously that these occasions did not involve the Applicant being placed in isolation and were authorised by one or other of ss 151(3)(c) and (d), 152(1) or 153(5) of the YJ Act. They provide as follows:
151 Superintendent of detention centre
…
(3) The superintendent of a detention centre:
…
(c) must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise; and
(d) is responsible for the maintenance and efficient conduct of the detention centre; and
…
(1) The superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions.
…
…
(5) If the superintendent is of the opinion that a detainee should be isolated from other detainees:
(a) to protect the safety of another person; or
(b) for the good order or security of the detention centre,
the superintendent may isolate the detainee for a period not exceeding 24 hours or, with the approval of the CEO, not exceeding 72 hours.
17 The Territory’s submissions concerning [6] and [30] of the ASoC were based on its understanding that the Applicant was alleging that his detention in the “back cells” was unlawful because of the conditions of those cells. It contended that the conditions of a person’s detention are not relevant to the legality of the detention, and in this respect referred to Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 at [21], [53] and to Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622.
18 It is not necessary presently to consider that submission because, despite the chapeau to [6] and the terms of [30(c) and (d)] of the ASoC, the Applicant’s counsel submitted that his claim is not based on the conditions in which he was detained. The submission was surprising because, in my view, [6] and [30(c) and (d)] of the ASoC cannot reasonably be understood as conveying any other meaning. The plea in [35(h)] confirms that conclusion. Some amendment to the pleadings will be necessary to give effect to this change in approach by the Applicant.
19 Counsel said that the Applicant wished to rely on s 153(5) of the YJ Act which limits the time during which a detainee may be held in isolation. The ASoC does not refer at all to that provision, let alone plead material facts supporting a claim that a breach of it could constitute the tort of false imprisonment or otherwise support a private cause of action. Nor does the Applicant plead particulars of the allegations contained in the ASoC [30(b), (c) and (d)].
20 A claim that a person who is lawfully detained may be falsely imprisoned by the detention authorities within the place of lawful detention appears to face difficulties of the kind discussed in R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 162-3, 165-6, to which Sheller JA referred in Prisoner A-XX Inclusive v State of NSW at 628-9. These matters cannot be ignored and the claim presented as though the Applicant had freedom of movement in the community. Given that contraventions of s 153(5) have not been pleaded, I consider it inappropriate to consider whether they could give rise to an actionable form of false imprisonment.
21 Counsel submitted that [6] also supports a later plea of breach by the Territory of a duty of care. I understand counsel to be referring in this respect to [35] of the ASoC which contains a rolled-up allegation of multiple breaches by the Territory of the non-delegable duty of care said to be owed to the Applicant. The alleged breaches include allegations that the Territory subjected the Applicant to sub-standard living conditions ([35](h)]), unreasonably isolated and confined the Applicant using unlawful, unreasonable and inappropriate force and restraint upon him ([35(j)]), and held the Applicant in isolation ([35(z)]). The difficulty with this submission is that none of these alleged breaches are tied to the allegations concerning the “back cell imprisonments”. Again, if a claim of that kind is to be pursued, amendment of the pleadings will be required.
22 After the plea that the orders for the Applicant to undergo the back cell imprisonment and the isolation at Berrimah gaol were not authorised by the Act or Regulations, the ASoC then pleads that those orders were “otherwise unlawful” as involving “invalid, arbitrary and/or disproportionate assertion of authority”. The Applicant does not particularise the plea of invalidity.
23 Accordingly, I am satisfied that [6] and [30] of the ASoC should be struck out but, as indicated earlier, with liberty to the Applicant to re-plead his claim of false imprisonment if so advised.
Second plea of false imprisonment
24 Paragraph [33] of the ASoC contains a second plea of false imprisonment. It pleads that the Applicant’s detention at the DDYDC, in whole or in part, was unlawful and constituted false imprisonment. No material facts or particulars are provided in respect of that allegation. It is possible that the Applicant is referring to periods in which he was held in isolation at the DDYDC. Another possibility is that the Applicant relies upon the circumstances in which he came to be transferred to the DDYDC which are the subject of his pleas in [8]-[22]. Perhaps the Applicant relies on other matters. Until the Applicant pleads the material facts to support this allegation, it is not possible for the Court to determine whether it lacks a reasonable prospect of success. Accordingly, [33] should also be struck out but with liberty to the Applicant to re-plead.
The underpayment and appropriation of wages claims
25 In [26] of ASoC, the Applicant pleads:
While the applicant was held at Don Dale, he was subjected to the use of unlawful and inappropriate physical force, further deprivation of liberty, humiliating and intimidating treatment, forced labour, the appropriation of his property and the withdrawal of amenities which had been available to him at ASJYC including by being:
…
(m) directed to work instead of going to school;
(n) paid inadequate wages for the work that he was required to do;
(o) denied his wage for the work that he did.
…
26 The Applicant then pleads:
[31] The underpayment by the respondent to the applicant for his work was unlawful.
[32] The appropriation of the applicant’s wages by the respondent was unlawful and constituted conversion, breach of bailment and/or was in [sic] undertaken in breach of the duty of care.
Particulars
(a) At all material times, the respondent was bound to comply with Regulation 37 of the Regulations.
(b) The respondent was, and is, obliged to account to the applicant for his property.
(c) The respondent had no lawful authority to withhold the applicant’s wages, in whole or in part.
(d) In retaining the applicant’s wages, the respondent is liable to the applicant for conversion, breach of bailment and/or in negligence.
…
Later, the Applicant pleads that the Territory breached the duty of care owed to him by “taking the applicant’s wage” (ASoC [35(t)]).
27 The Territory submitted that the Applicant’s wage claims were premised on him having a legal entitlement to a wage for work done by him while in detention. It contends that the Applicant did not have such an entitlement, whether under the YJ Act, the Regulations or in contract.
28 In his written outline of submissions, the Applicant’s counsel submitted that the entitlement was based on the right not to be subjected to forced labour found in Art 8 of the International Covenant on Civil and Political Rights and in subs 270.6(1) of the Criminal Code 1995 (Cth). The submissions did not indicate how either of these provisions were applicable to the Applicant whilst lawfully detained in a detention centre, let alone how they gave rise to an entitlement to payment of wages and, if so, the amount of those wages. In his oral submissions, counsel submitted instead that the entitlement arose from a “promise” made to the Applicant. He acknowledged that the ASoC did not contain a plea of such a promise, let alone a plea of the material facts said to make such a promise legally enforceable and of the matters bearing on its breach.
29 As noted, [32(a)] of the ASoC pleaded that the Territory had been bound to comply with reg 37 of the Regulations. The subject matter of that Regulation is the safekeeping of a detainee’s property. It cannot reasonably be construed as establishing a right by a detainee to payment for work performed whilst in detention.
30 The term “property of a detainee” is defined in reg 29 to include money. It is not necessary to express any view at the moment as to whether reg 37 may be engaged in relation to money which is not in physical form. I note, however, that the ASoC does not plead an allegation that money of the Applicant was held at the detention centre, let alone the material facts to support such an allegation.
31 The ASoC pleads different characterisations of the wages claim (payment of a wage which was inadequate, a denial of payment, a withholding of payment, an appropriation of payment, conversion and bailment). These terms are not interchangeable so that there should be a plea of the material facts to support each.
32 It is understandable that, without discovery from the Territory, the Applicant may not be able to particularise the periods in which he carried out the work he alleges nor the amounts which he did in fact receive. Nevertheless, the Applicant should be able to plead the matters said to give rise to the entitlement he alleges (even if he is unable to particularise matters going to the quantification of his entitlement) and the conduct of the Territory of which he complains.
33 The Applicant’s pleading of this claim is inadequate and it should accordingly be struck out, but with liberty to re-plead.
The transfer claims
34 On 15 October 2011, the Applicant was transferred from the ASYJC to the DDYDC where, apart from two short periods, he remained until 9 July 2012. Many of the Applicant’s pleas in the ASoC concern the circumstances of the transfer, and events which occurred (or did not occur) while he was at the DDYDC.
First group of transfer pleas
35 The first group of pleas under the heading “Transfer of the applicant to Don Dale” concern representations said to have been made to the Applicant (and other detainees) in relation to the transfer. He pleads that, at a time when the ASYJC was overcrowded and did not have sufficient accommodation for all detainees, detention officers sought volunteers amongst the detainees to transfer to DDYDC. The Applicant alleges that, in seeking volunteers, officers in the ASYJC made express representations at a meeting of detainees which he attended to the effect that the transfers would be for a maximum period of four weeks followed by a retransfer to the ASYJC, that volunteering would work favourably for a detainee on any application for parole, and that if there were insufficient volunteers, those serving the longest sentences would be transferred with or without their consent. The ASoC refers to these representations as “the Don Dale Representations”. The Applicant pleads that their effect led him to understand that it was in his interests to volunteer to transfer and that, given the length of the sentence he was then serving, it was likely that even if he did not volunteer, he would be transferred in any event. He pleads that he relied on the Don Dale Representations and volunteered to be transferred from the ASJYC to the DDYDC. On 15 October 2011 he was so transferred.
36 The Applicant pleads in [14A] that the Don Dale Representations were false and misleading, made intentionally, recklessly or negligently, made in the knowledge that he was vulnerable to those representations, made in the knowledge of the duties of officers under the YJ Act and the Regulations, and made without concern or apparent concern for his welfare and interests. It is apparent that these pleas were drafted without regard to the requirements in rr 16.42 and 16.43 of the FCR with respect to the pleading of states of mind.
37 The Applicant’s plea in [14B] of the ASoC is that in making the Don Dale Representations, the officers involved:
(a) failed to comply with their duties under the YJ Act and the Regulations;
(b) committed the tort of deceit; and/or
(c) breached the duty of care owed to the Applicant.
38 The ASoC does not identify the duties under the YJ Act and the Regulations said to have been contravened by the officers in making the Don Dale Representations, which gave rise to the first of these causes of action.
39 The Applicant does not plead that those responsible for the management of detention centres in the Territory did not have power to transfer him from the ASYJC to the DDYDC or that the actual transfer to the DDYDC was unauthorised, an improper exercise of the power or in breach of any duty owed to him. As I understand it, the Applicant’s counsel accepted that the decision as to placement of a detainee is within the power and discretion of the detention authorities. Nor does the Applicant plead that, had he not volunteered for transfer, he would not have been transferred. On the contrary, his plea that the ASYJC was overcrowded and did not have sufficient accommodation for all detainees seems to imply an acceptance that transfers of some detainees (and perhaps his own) would have been necessary in any event.
40 The loss alleged by the Applicant to have resulted from the Don Dale Representations appears in [36] of the ASoC. This paragraph is a rolled-up plea of the “damage, harm and loss” said to have been caused by the various torts and other wrongs alleged in the ASoC. Paragraph [36(d)] pleads that “by deceiving the applicant, the applicant suffered additional loss of liberty, anxiety, stress and distress”. The additional loss of liberty alleged is not particularised. The Applicant’s counsel seemed to accept that for “anxiety, stress and distress” to be actionable (whether as part of the tort of deceit or a breach of the duty of care), it would to have constitute a form of psychiatric harm and, as I understood it, submitted that those words in [36(d)] were to be understood as alleging harm of that kind.
41 The Territory submits that the YJ Act and the Regulations do not contain any provision which would operate to impose a duty on detention officers not to make false or misleading representations to detainees about transfers. Even if there was, the breach of such a duty would only be actionable at the instigation of a detainee if either the Act or the Regulations clearly evinced an intention that a private cause of action should be available. The Territory submits that there is no indication to that effect in the YJ Act or in the Regulations. At the very least, the Applicant has not pleaded any matter giving rise to such an indication. Further still, it contends that the Applicant does not plead any matters which could constitute actionable loss.
42 The claim which the Applicant wishes to advance with respect to the Don Dale Representations seems to be narrowly based and of an unusual kind, namely, that loss resulted from the alleged misrepresentations even though he seems to accept that his transfer could (and perhaps would) have occurred even in the absence of his consent. The Applicant may well face some difficulties with proof of loss in that circumstance. However, I do not think it can be said at this stage that such a claim has no reasonable prospects of success and I decline this claim for summary judgment.
43 It is obvious, however, that aspects of the claims are not adequately pleaded. They should be struck out and the Applicant given the opportunity to re-plead.
Second group of transfer pleas
44 The Applicant’s second complaint concerning the transfers is that, while at the DDYDC, he was treated by the Respondent as a detainee who had been transferred because of behavioural issues rather than because of the pressure on accommodation at the ASYJC (ASoC [18]). However, the ASoC does not particularise the difference in treatment said to result from this misunderstanding by the officers at the DDYDC.
45 Three of the Applicant’s rolled-up allegations of the breach of duty of care concern this claim. In particular, the Applicant alleges in various ways that his (unparticularised) treatment in the DDYDC on the basis that he had been transferred for behavioural reasons constituted a breach of the duty of care. That duty pleaded in [34] is said to be a duty to take reasonable care for the Applicant’s safety and welfare and to take reasonable action to prevent the Applicant from suffering foreseeable harm. I will refer later to authorities indicating that those in charge of prisons and detention centres have a duty to exercise reasonable care for the safety of prisoners during their detention in custody. Whether such a duty extends to requiring those responsible for the detention to understand, and give effect to, the basis upon which a detainee has been transferred from one detention centre to another and whether a failure to do so may constitute a breach of a general duty of care were not agitated in the submissions, and need not be addressed presently.
46 Another shortcoming in the ASoC is that the Applicant does not plead, other than in a very general and unhelpful way, any loss resulting from this aspect of the alleged breach of duty. The plea in [36] is (relevantly):
As a result of the respondent’s breaches of the duty of care … the applicant has suffered damage, harm and loss.
Particulars
...
(c) in breaching the duty of care, the applicant suffered loss of statutory rights, additional loss of liberty, mental harm, financial loss and loss of educational opportunity.
…
47 This plea does not serve to identify any loss of statutory rights, additional loss of liberty, mental harm, financial loss and loss of educational opportunity said to result from the fact that the Applicant was treated as a detainee who had been transferred for behavioural reasons.
48 The shortcomings in the pleadings make difficult an assessment of whether the Applicant has reasonable prospects of success in establishing the claims. The pleading should be struck out with liberty to re-plead.
Third group of transfer pleas
49 The next group of pleas in the ASoC under the heading “Transfer of the applicant to Don Dale” concerns requests made by the Applicant and his family that he be transferred back to ASYJC. The Applicant pleads that he was told that he would not be returned until he had achieved a lower security classification (defined in the ASoC as “the ASYJC Representations”), and that statements of a like kind were made to his family. In [22] of the ASoC, the Applicant pleads:
22. The ASYJC representations were:
a. without any lawful basis in either the Act, the Regulations or any other statutory provision;
b. made in the knowledge that there was no basis in the Act or the Regulations to detain the applicant in Don Dale on the basis claimed or, alternatively, recklessly indifferent as to whether, or not. any such lawful basis existed;
c. made in the knowledge of the making of the Don Dale representations;
d. made in response to the applicant's stated reliance upon the Don Dale representations;
e. made in a manner so as to profess to the applicant that they were founded on lawful authority;
f. intended to impose an unlawful discipline measure upon the applicant; and
g. made in the knowledge that the continuing detention of the applicant at Don Dale caused anxiety and distress to the applicant.
50 As already noted, the Applicant seems to accept that it was within the power of the Director of Correctional Services to determine the detention centre in which he was to be detained from time to time. It may be implicit that in exercising the power the responsible officers could decide that the Applicant should not be re-transferred until his security classification was at a certain level. Perhaps that is why [22] of the ASoC is a plea only about the making of the representations and not about the decision not to return him to the ASYJC.
51 The ASoC does not allege that the ASYJC Representations were false or constituted a breach of the duty of care. I am not overlooking [35(g)] which alleges a breach by the officers “miscommunicating … the reasons why [the Applicant] could not be transferred back from Don Dale to ASYJC”. This plea seems to imply a mistake in the reasons given to the Applicant, but nowhere does he plead, let alone particularise, the mistake alleged.
52 Finally, with the possible exception of ASoC [33] to which I referred earlier, the ASoC does not contain any plea of loss resulting from the ASYJC Representations or from the statements to the Applicant’s family.
Fourth group of transfer pleas
53 The final plea of the Applicant under the heading “Transfer of the Applicant to Don Dale” is contained in [26] of the ASoC. That paragraph commences:
While the applicant was held at Don Dale, he was subjected to the use of unlawful and inappropriate physical force, further deprivation of liberty, humiliating and intimidating treatment, forced labour, the appropriation of his property and the withdrawal of amenities which had been available to him at ASYJC including by being:
There then follows 25 particulars.
54 The Territory seeks summary judgment on two of those particulars, being:
(s) denied access to family visits;
…
(x) ignored when complaining about his continuing detention at Don Dale `…
55 I did not understand the Territory to advance any particular submissions in support of its summary judgment application with respect to those paragraphs. It may well be that further particulars of these allegations will be required but I do not think that that can be reasonably expected of the Applicant at this stage, at least without discovery from the Territory. I decline the application for summary judgment in respect of those subparagraphs. However, as will be seen later, I am striking out the whole of [35] for other reasons, so that if these claims are to be pursued, they should be pleaded as discrete claims.
The vision disability claim
56 In [27] to [28B] of the ASoC, the Applicant pleads that he suffered from a vision disability, that his eyesight was not assessed at any time whilst a detainee at the ASYJC or DDYDC. Accordingly, he claims that his vision disability went undiagnosed and unaddressed while he was a detainee, with the consequence that he was not able “to progress his education, including becoming functionally literate whilst in detention”. The Applicant pleads that the failure to diagnose and address his vision disability “was in breach of the duty of the respondent under the [YJ Act] and the Regulations and in breach of the duty of care” (ASoC [28B]).
57 In particularising the breach of the duty of care, the Applicant pleads that the Respondent failed “to assess the applicant’s vision capacity”, at [35(x)], and failed “to provide glasses to the applicant to enable him to participate in school lessons”, at [35(y)].
58 The first submission of the Territory was that the plea of breach of statutory duty in [28B] was inadequate because it did not identify the source of the statutory duty to examine the Applicant’s eyesight, when that duty arose, the nature of the visual disability or the diagnostic action which should have been taken and detected.
59 The first part of this submission seemed to have some force. However, despite the terms of [28B] of the ASoC, the Applicant submitted at the hearing that “no claim is made for breach of statutory duty in relation to the failure to diagnose and treat the Applicant’s vision disability”. He submitted that the claim was advanced as a claim in negligence only and that the reference in [28B] to a breach of duty under the Act and Regulations was only a plea in aid of the claim in negligence. Given this submission, it is apparent that the words “in breach of the duty of the respondent under the Act and the Regulations and” should be struck out of [28B] in any event, although the Applicant may wish to re-plead them as part of the particulars of the breach of duty of care.
60 Further, apart from the general rolled-up plea in [36(c)], the ASoC does not include any claim of damage resulting from the alleged failure of the Respondent to assess the Applicant’s vision capacity.
61 Regulations 57-60 of the Regulations contain provisions concerning the conduct of medical examinations of, and provision of medical attention to, detainees. The Regulations provide as follows:
57 Medical examination of detainees
(1) The Superintendent must ensure a comprehensive medical and health assessment is carried out on each detainee within 24 hours after the detainee's admission to the detention centre.
(2) If a medical practitioner is not available to carry out the assessment, a registered nurse may carry out an interim assessment.
(3) If an interim assessment is conducted by a registered nurse, a full examination by a medical practitioner must be carried out as soon as practicable.
(4) In this regulation:
registered nurse means a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse in the registered nurse division of that profession (other than as a student).
58 Medical attention and treatment
A detainee must be provided with the medical attention, treatment and medicine that, in the opinion of a medical practitioner, is necessary for the preservation of the health of the detainee and, if applicable, other detainees and members of staff.
59 Superintendent to be notified of illness
(1) A member of staff who notices that a detainee appears to be physically or mentally ill must bring the matter to the attention of the Superintendent without delay.
(2) The Superintendent must ensure appropriate medical attention is provided to the detainee.
In an emergency requiring that medical attention be provided to a detainee, the members of staff responsible for supervising the detainee must take action that is reasonable in the circumstances and likely to ensure that medical attention is provided to the detainee as soon as practicable.
62 The Territory’s submissions accepted that the superintendent of a detention centre is under a duty to ensure that the health assessment for which reg 57 refers does take place and then to implement the medical practitioner’s opinion. Accordingly, it may be relatively easy for the Applicant to identify at least some relevant statutory duties.
63 Independently of a duty imposed by statute, a superintendent of a detention centre does owe a common law duty to exercise reasonable care for the safety of a detainee during the detainee’s detention. Such a duty was recognised by the High Court in Howard v Jarvis (1958) 98 CLR 177 at 183:
We feel no doubt that the learned judges of the Supreme Court of Tasmania were right in holding that [the arresting police officer] was subject at common law to a duty to exercise reasonable care for the safety of [the prisoner] during his detention in custody. He had deprived [the prisoner] of his personal liberty, and assumed control of his person. In arresting and detaining [the prisoner] he was no doubt acting lawfully and properly and in the due execution of his duty, but he was depriving [the prisoner] of his liberty, and he was assuming control for the time being of his person, and it necessarily followed, in our opinion, that he came under a duty to exercise reasonable care for the safety of his person during the detention.
(Emphasis in the original)
64 In New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1 at [46], the Court approved, with apparent approval, a passage in Halsbury’s Laws of England:
The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.
(Citations omitted)
65 See also CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47, (2009) 239 CLR 390 at [38]; Price v State of New South Wales [2011] NSWCA 341 at [35]; Juric v State of Victoria [2011] VSCA 419, (2011) 34 VR 347 at [40]; Traljesic v Bosnia [2016] FCA 383, (2016) 338 ALR 637 at [96]; and Mastronardi v State of New South Wales [2007] NSWCA 54 at [3]. Whether the duty extends to requiring reasonable care with respect to the welfare of a detainee may be more problematic but does not have to be determined presently.
66 Given the present state of the pleadings, the terms of regs 57-59, and the absence of detailed submissions on this issue, I do not think that it should be concluded at this stage that the Applicant has no reasonable prospects of pursuing the vision disability claim successfully. However, there are shortcomings in the pleading. I accept the submission of the Territory that the Applicant ought to particularise the nature of the vision disability and the nature of the steps which he says should have been arranged by the Territory to address it.
67 The Territory also submitted that the pleading was deficient because there was no plea that the pleaded loss was reasonably foreseeable. To the extent that that constitutes a shortcoming in the pleading, it should be capable of being remedied reasonably readily.
68 In summary, I am satisfied that summary judgment on the vision disability claim is not appropriate but that there are deficiencies in the manner in which it is pleaded. I will not strike out the pleadings but will grant the Applicant liberty to amend them if so advised.
The tee shirt claim
69 The Applicant pleads in [5(c)] of the ASoC that throughout his detention he “was not given appropriate clothing but was compelled to wear tee shirts which were colour-coded based on security classification”. Later he pleads that the failure to provide him with appropriate clothing during the detention constituted a breach of the Respondent’s duty of care ([35(i)]).
70 The Applicant also pleads reg 61 of the Regulations which provides:
61 Detainee clothing
(1) The Superintendent must ensure that, on admission to the detention centre, a detainee is issued with sufficient clothing:
(a) to allow the detainee to have a clean change each day; and
(b) that is appropriate for the climatic conditions prevailing in the region; and
(c) that is appropriate for participation in sporting and recreation activities; and
(d) other than for the purpose of sporting activities, that is of varying colours and styles so as not to represent a uniform.
(2) The detainee must also be issued with footwear appropriate for the various activities in which a detainee would normally participate.
71 The ASoC pleads that reg 61(1)(d) had the effect of establishing a right for the Applicant to receive clothing of varying colours and styles so as not to represent a uniform, and of imposing a corresponding duty on the Territory ([3G]).
72 There are a number of shortcomings in the Applicant’s pleading. First, the Applicant does not plead any breach of reg 61. Nor does he particularise the claim that the clothing which was provided to him was inappropriate. It is possible but not clear that his claim is only that he should not have been provided with tee shirts which were colour-coded.
73 Secondly, the Applicant does not plead any matters supporting a duty at common law by a superintendent to refrain from providing a youth detainee with colour-coded tee shirts. Nor does he plead any matters which may support the foreseeability of a risk of compensable harm as a result of his having been required to wear colour-coded tee shirts.
74 Finally, the Applicant does not claim to have suffered compensable harm from having worn colour-coded tee shirts.
75 Given the inadequacies of the pleading, I do not think that a judgment can be made at this stage that the Applicant has no reasonable prospect of successfully prosecuting this claim. I decline to enter summary judgment on the claim but will strike out [35(i)] and grant the Applicant leave to re-plead.
The rehabilitation claim
76 The Applicant pleads in [35(l)] of the ASoC that the Territory breached the duty of care owed to him by “failing to attend to [his] rehabilitation needs”. Earlier, the Applicant had pleaded that he had a right “under Regulation 69 of the Regulations to receive appropriate productive activities through education, vocational training and rehabilitation that addressed his needs”. In addition, [3E] of the ASoC pleaded that officers in a detention centre had a duty to observe and comply with the principles set out in s 4 of the YJ Act including principle (p) by providing:
[p]rograms and services established under [the YJ Act] for youth [that] should:
(i) be culturally appropriate; and
(ii) promote their health and self-respect; and
(iii) foster their sense of responsibility; and
(iv) encourage attitudes and the development of skills that will help them to develop their potential as members of society …
77 Counsel also referred to the objects stated in s 3 of YJ Act, one of which is:
(e) to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation ...
78 The ASoC does not identify the “rehabilitation needs” of the Applicant which it is said the Territory failed to meet, nor the actions required to meet those needs, nor what the Territory did (or failed to do) which constituted the alleged failure to meet those needs.
79 The absence of pleas concerning those matters stands in contrast with [15] of the ASoC which pleads that before the Applicant’s transfer to the DDYDC on 15 October 2011, the Applicant:
a. was regularly attending school lessons at the ASYJC;
b. had a positive relationship with his school teachers;
c. was a medium to low security classification detainee;
d. was participating in rehabilitation and other programs held within the ASYJC;
e. was having regular contact and receiving support from his family; and
f. was having regular contact and receiving support from the local Aboriginal community.
On their face, these pleas seem to reflect a recognition by the Applicant that his “rehabilitation needs” before October 2011 were being met and are therefore inconsistent to that extent with the plea in [35(l)].
80 However, this claim of the Applicant may face a more fundamental difficulty, namely, that the common law does not impose a duty on prison or detention authorities to rehabilitate prisoners or detainees. Counsel for the Applicant did not point to any authority in which the existence of such a duty has been recognised, despite the Territory referring to authority which is inconsistent with the existence of either a common law or statutory duty: X (Minors) v Bedford Shire County Council [1995] 2 AC 633 at 731-2; Cubillo v Commonwealth (No 2) [2000] FCA 1084, (2000) 103 FCR 1 at [1204]; Williams v Minister, Aboriginal Land Rights Act 1983 (No 2) [1999] NSWSC 843, (1999) 25 Fam LR 86 at [787]. The authorities to which reference was made earlier concerning the nature of the duty of care owed to a detainee may also be pertinent in this context.
81 The extent to which reg 69 may assist the Applicant may be limited. It provides:
69 Productive activities to be made available
(1) The Superintendent must maintain a comprehensive case management system to assess each detainee's needs in relation to education, vocational training and rehabilitation.
(2) The Superintendent must ensure an appropriate programme of productive activities that addresses the identified needs of the detainee is available to each detainee.
82 As can be seen, reg 69 imposes an obligation on a superintendent to maintain a comprehensive case management system to assess each detainee’s needs and to ensure an appropriate program of productive activities which addresses the identified needs is available to each detainee. The obligations imposed by reg 69 may not be coextensive with the duty implied by ASoC [35(l)] namely, a duty to “attend to the rehabilitation needs of the applicant”.
83 In any event, there is authority indicating that duties of the kind imposed by reg 69 should not be regarded as enacted for the benefit of detainees and therefore as not giving rise to a private cause of action: X (Minors) at 731-2; Cubillo at [1204].
84 It is apparent that those who prepared the Applicant’s written outline of submissions did not come to grips with the force of the Territory’s submissions concerning this aspect of its application. Instead, the authors appear to have been distracted by the Territory’s complaints about the more formal defects in the pleading. Those formal defects warrant the striking out of the pleading in any event. It may well be that on reflection those advising the Applicant may conclude that this is not a viable claim. In any event, given the defects in the pleading and because the Court has not been favoured with detailed submissions on the claim, I consider that it would be inappropriate to conclude at this stage that the claim lacks a reasonable prospect of success.
85 I decline to enter summary judgment on this part of the claim, but will strike out [35(l)] with liberty to re-plead.
The connection with country claim
86 In [35(m)] of the ASoC, the Applicant pleads that the Territory breached its duty of care by “failing to allow reasonable connection with his family, his community and Country”. This plea is not supported by any plea of material facts elsewhere in the ASoC. It should for that reason alone be struck out. That makes it unnecessary to consider the Territory’s summary judgment claim. The Applicant should have liberty to re-plead.
The Racial Discrimination Act 1975 (Cth) (the RD Act) claims
87 The Applicant pleads contravention of both s 9(1) and (1A) of RD Act. Section 9 provides (relevantly):
9 Racial discrimination to be unlawful
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
…
88 Unfortunately, there are shortcomings in the Applicant’s pleadings of these claims. The claimed contravention of s 9(1) of the RD Act is as follows:
39. The respondent engaged in acts which involved distinctions, exclusions or restrictions based on the Aboriginality of the applicant which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the applicant’s human rights and fundamental freedoms in various fields of his public life, including his economic, social and cultural interests, his personal security, accommodation [and] his rights to education and training, freedom to work or not work and to just terms for his work, freedom of opinion and expression without fear of punishment in breach of section 9(1) of the RD Act.
Particulars
a. acting to intimidate and humiliate the applicant;
b. unlawfully and inappropriately isolating and confining the applicant;
c. using unlawful, unreasonable and inappropriate force and restraint of the applicant;
d. ignoring and/or trivialising the needs and rights of the applicant;
e. subjecting the applicant to sub-standard living conditions;
f. depriving the applicant of appropriate food, water, clothing, bedding, education, personal development resources, health assessment and care, family and community support, cultural development opportunities, emotional support, counselling, complaint and grievance processes and protection from batteries, assaults, isolation and intimidation, unlawful, arbitrary and disproportionate punishment and security of his person and property;
g. acting in contravention of the human rights of the applicant;
h. ignoring the development and health needs of the applicant;
…
j. misleading the applicant; and
k. arbitrarily and unreasonably isolating the applicant from his family and Country …
89 The indirect discrimination claim is pleaded in [40] of the ASoC as follows:
40. In the alternative, or in addition, in relation to the applicant:
a. the respondent required the applicant to comply with terms, conditions or requirements;
b. the terms, conditions or requirements were not reasonable;
c. the terms, conditions or requirements were not reasonable in the circumstances of the case;
d. the applicant did not and could not comply with the terms, conditions or requirements;
e. the respondents’ requirement that the applicant comply with the terms, conditions and requirements had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise. on an equal footing, of the applicant’s human rights and fundamental freedoms in all fields of public life, including his economic, social and cultural interests, his personal security and security of his property, his right to appropriate accommodation, his rights to education and training, freedom to work or not work and to just terms for his work, freedom of opinion and expression without fear of punishment;
f. the respondent required compliance with terms, conditions or requirements as an act involving a distinction based on the applicant’s race;
g. in the alternative, or in addition to sub-paragraph (f), the respondent required compliance with terms, conditions or requirements as an act done by reason of the applicant’s Aboriginality; or
h. by reason of the terms, conditions or requirements imposed by the respondent on the applicant as set out in sub-paragraphs (a) to (g) above, the respondent was in breach of section 9(1A) of the RD Act.
Particulars
a. The “terms”, “conditions” and “requirements” included:
i. compelling the applicant to comply with unlawful, arbitrary and disproportionate conditions of detention by the threat of punishment and further restriction of his rights;
ii. preventing or restricting the applicant from being able to exercise his rights in detention by not advising, not facilitating and/or misleading the applicant as to his rights, including the residual rights;
iii. commanding the applicant to accept deprivations and discipline without complaint, contrary to his rights;
iv. maintaining the detention without proper medical assessment and treatment and without appropriate education and/or productive activities for the applicant;
v. denigrating the applicant by compelling him to wear coloured shirts to signify his security status;
vi. forcing the applicant to work for sub-standard wages and then having part of his wages appropriated without lawful authority;
vii. detaining the applicant in Don Dale rather than at ASYJC as a form of discipline and after misleading the applicant as to the purpose and length of his relocation to Don Dale; and
viii. subjecting the applicant to unauthorised arbitrary and disproportionate use of force.
b. The terms, conditions or requirements were not reasonable because they were unlawful, arbitrary, disproportionate, involved infringements of the rights of the applicant and caused the applicant to suffer harm and loss.
c. The applicant could not comply with the terms, conditions or requirements because he attempted to assert and vindicate his rights and was, at times, frustrated, angry and distressed at his inability to do so.
(“the indirect discrimination claim”)
90 A number of features of these pleas are to be noted. First, the acts of the Respondent in [39] said to be discriminatory are pleaded at a very high level of generality and are conclusionary in form. On their face, none of the acts seems intrinsically to be related to the Applicant’s Aboriginality. It is not possible for the Territory to know the particular conduct which is impugned, whether by reference to time, place or circumstance. Secondly, the substantive allegation in [39] follows almost exactly the terminology in s 9(1) of the RD Act as elaborated in Art 5 of the International Convention of the Elimination of all Forms of Racial Discrimination. This manner of formulaic pleading means that there is no plea of material facts to support the distinctions, exclusions or restrictions said to have been impaired. Given that the Applicant acknowledges in the ASoC that he was lawfully detained, the plea that there was impairment of his fundamental freedoms “in various fields of his public life” has an air of unreality about it. So also do the references to the Applicant’s freedoms in accommodation, his rights to education and training, freedom to work and so on.
91 Perhaps more fundamentally still, the plea claims that the Respondent’s conduct involved distinctions, exclusions or restrictions based on the Applicant’s Aboriginality without any plea of material facts supporting that allegation. In effect, [39] amounts to a bare pleading that the Respondent engaged in acts of unlawful racial discrimination without providing any meaningful particulars of the allegation.
92 I am conscious that the pleading of contraventions of s 9(1) and (1A) of the RD Act can be difficult. Often a conclusion that discrimination has occurred can depend on the inferences to be drawn from a wide range of circumstances, which will not lend themselves to ready identification in a formal pleading. For this reason, courts do not always apply the pleading rules with the same stringency as they do in other litigation. But at the same time, a respondent is entitled to fair notice of the claim to be made, and inadequate identification of the matters relied on can create difficulties in, and prolongation of, the litigation: Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [35].
93 In my judgment that is so in the present case. The Applicant’s pleading seems to comprise a formulaic plea of discrimination in the terms of the statute by acts (identified at a high level of generality) about which the Applicant complains coupled with an unparticularised assertion that the acts were based on his Aboriginality. Further, there is nothing in the context pleaded in the ASoC more generally to suggest that the Applicant may have been treated in the way alleged by reason of his Aboriginality. Effectively, the Applicant pleads no more than that a series of adverse events occurred and then a bare allegation that they were based on his Aboriginality. In my view, this is not an adequate pleading.
94 A similar critique can be made of the pleading in [40]. Again, the pleading has a formulaic quality and the “terms, conditions or requirements” are pleaded at a high level of generality. Further still, the Applicant does not plead any material facts to support the allegation that the requirement to comply with the “terms, conditions or requirements” (assuming for the moment that the pleaded matters satisfy that description) impaired his enjoyment, on an equal footing, of the rights enjoyed by others. Yet, this is an essential element of conduct made unlawful by s 9(1A).
95 I consider that these shortcomings mean that the pleas in [39] and [40] should be struck out.
96 The Applicant pleads in [41] a further claim based on s 10 of the RD Act. Section 10 of the RD Act provides:
10 Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.
97 The Applicant’s plea concerning s 10 is as follows:
41. Further and in the alternative, or in addition to paragraphs 39 and 40, by reason of the Act. the Regulations and their manner of implementation by the respondent. the applicant, as an Aboriginal youth, did not enjoy a right enjoyed by non-Aboriginal youths or enjoyed that right to a lesser extent than non-Aboriginal youths when, by force of section 10 of the RD Act, the applicant was entitled to enjoy that right to the same extent as non-Aboriginal youths ("the equality claim").
Particulars
The applicant repeats the particulars in paragraphs 39 and 40.
98 As the plurality noted in the State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [106], s 10(1) operates by force of federal law to extend the enjoyment of rights enjoyed under another federal law or a Territory or State law. I accept the Territory’s submission that s 10 does not operate with reference to the manner of implementation of a State or Territory law but by reference to the law itself. This means that in order for s 10(1) to be invoked, an applicant must:
(1) identify a right enjoyed by persons of another race, colour or national ethnic origin;
(2) identify a law of (relevantly) the Territory; and
(3) establish that, by reason of the law’s term, persons of another race, colour or national or ethnic origin do not enjoy the same right, or enjoy it to a limited extent, than do the first group.
99 Paragraph [41] of the ASoC identifies (1) as rights enjoyed by “non-Aboriginal youths”. It does not particularise any right said to be enjoyed by non-Aboriginal youths. Nor does it plead any respect in which the YJ Act or the Regulations, properly construed, have the effect that the Applicant, as an Aboriginal youth, did not enjoy (the unidentified) rights enjoyed by non-Aboriginal youths, or that they were enjoyed by him to a lesser extent than by non-Aboriginal youths, so as to satisfy the requirement in (3).
100 Accordingly, I consider that all of the RD Act claims should be struck out, but with liberty to the Applicant to re-plead.
Paragraphs [26] and [29]
101 The Territory seeks the striking out of these paragraphs.
102 The chapeau to [26] of the ASoC is set out earlier in this pleading. It is followed by 25 subparagraphs each of which alleges different conduct by the detention officers. The incidents pleaded are not linked to any of the descriptive terms used in the chapeau. One is left to surmise therefore as to which of the 25 paragraphs relate to which form of conduct pleaded in the chapeau. Many of the 25 matters are pleaded at a high level of generality, for example, “pushed to the ground”; “tackled by a guard”; and “deprived of his statutory rights under the Act and the Regulations without reason or explanation”.
103 The uncertainty created by this form of pleading is exacerbated by the plea in [29] which is:
The acts described in paragraphs 7 and 26 which involved the use of force were trespasses to the person, being batteries and/or assaults of the applicant.
104 In my opinion, these pleadings are inadequate. They lack material facts and particulars and do not allow ready identification of the particular matters on which the Applicant relies for his claims. I consider that these pleadings should be struck out, but again with liberty to the Applicant to re-plead in proper form such matters as he may wish to pursue.
Paragraphs [35] and [36]
105 As already noted, [35] contains the allegation of the breach of duty of care by the Territory. It is, inappropriately, a rolled-up plea. The paragraph contains some 27 particulars. Many are pleaded at an unhelpful level of generality and those at least should be struck out. It also seems that many have been pleaded without regard to the nature of the duty of care owed by prison and detention authorities discussed in the cases to which I referred earlier. Because I consider that in the re-pleading, the Applicant should not be constrained by the existing structure of his pleading, I will strike out the whole of [35].
106 Paragraph [36] is the plea that the Applicant has, by the various torts and breaches earlier pleaded, suffered damage, harm and loss. Some attempt is made in the pleading to separate out the damage, harm and loss said to result from particular torts or breaches of duty. Some of the losses do not appear, on their face, to be detriments of a kind which could found an action in negligence. As [36] is consequential upon the earlier pleadings which I have struck out, it should be struck out. It is to be expected that the Applicant would wish to re-plead the loss from those torts, breaches of duty, and other contraventions which he does wish to pursue, and he has leave to do so.
107 Paragraph [34] is not struck out, but I intend that the Applicant have leave to amend that pleading if so advised.
Paragraph [3A]
108 In [3A], the Applicant pleads that the Territory is sued in respect of the acts and omission of a range of persons identified by reference to the position held by those persons or their classification. The Territory seeks the striking out of this plea saying that “to the extent that para 3A goes beyond the scope of the acts and omissions pleaded elsewhere in the ASOC it is embarrassing”.
109 The Territory did not seek to identify the extent to which the pleading in [3A] does go beyond the balance of the pleadings in the ASoC. I see no reason for it to be struck out.
Summary
110 In summary, the application for summary judgment is refused. However, I strike out the whole of the following paragraphs in the ASoC: [6], [14A], [14B], [26], [28B], [29], [30], [31], [32], [33], [35], [36], [39], [40] and [41].
111 Despite the Territory’s submissions, I am satisfied, for the reasons given earlier, that the Applicant should have the opportunity to re-plead. I also grant leave to the Applicant to amend the pleadings concerning the vision disability claim and the duty of care he alleges.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. |
