Federal Court of Australia

Kaplan v State of Victoria (No 2) [2022] FCA 679

ORDERS

THE COURT ORDERS THAT:

1.    The respondents have leave to file an amended defence pursuant to rule 16.53 of the Federal Court Rules 2011 (Cth) in the form that is contained in annexure CI-1 to the affidavit of Caitlin Ible, affirmed 25 May 2022.

2.    The applicants’ interlocutory application dated 1 June 2022 for leave to amend their statement of claim be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore and revised)

MORTIMER J:

1    I set out the applicable principles in relation to amendment of pleadings in Bellou v Victoria University [2018] FCA 1794 at [29] and the authorities there referred to. At [38] to [39] of that judgment, I also emphasised that the effects on other litigants and on the Court’s resources in general are relevant considerations, where proposed amendments may lead to adjournment of a trial that is fixed for hearing. I also emphasised that the Court’s obligation to conduct a fair trial is one that operates in relation to a trial that is fair to all parties, not just the moving party in a proceeding. I adopt those principles in my rulings on both the respondents’ interlocutory application and the applicants’ interlocutory application.

The respondents’ interlocutory application to amend their defence

2    I turn first to the respondents’ interlocutory application for leave to amend their defence. In my opinion, leave should be granted to the respondents to amend their defence in the manner proposed. It is not ideal that the application came as late as it did in a complex and resource-intensive trial such as this. Neither Ms Caitlin Ible’s affidavit, dated 25 May 2022, nor the correspondence it annexes really explain the delay in informing the applicants of the proposed amendments. The gap between 15 November 2021, when the defence and concise response were filed, and the correspondence on 17 May 2022 is not explained, nor does the 17 May 2022 correspondence itself explain it. There are some explanations in the 24 May 2022 correspondence from the respondents, but none of the explanations given clearly demonstrate why the timing of this interlocutory application is so late. However, it might be inferred that as the case was being prepared by the respondents, the matters now subject to the amendments were identified sequentially, and the respondents decided to wait until they were certain they had a complete list of all the proposed amendments. There is some efficiency and rationality in that approach, and I have taken that into account.

3    Nevertheless, the applicants were given effectively only two weeks’ notice before trial of the amendments. I have weighed those factors in considering what is the appropriate outcome for the interlocutory application, but I am not persuaded these factors demonstrate a level of prejudice which means the interlocutory application should be refused. The proposed amendments are relatively minor. There are no new defences. Some matters are no more than factual corrections. Where there are factual matters added to make the respondents’ case clear, such as [228], these have been covered in the witness outline of Mr Michael Stuart Lyons. Other matters, such as the amendments to [376], are essentially pleadings on matters of law and are no more than clarifications of the respondents’ case.

4    The other amendments proposed concern pleadings about the existence of other policies not previously mentioned in the defence. They are earlier iterations of policies already pleaded but governing different timeframes of the eight-year period in issue in this proceeding. This was a focus of the applicants’ objections to the proposed amendments; however, I accept the respondents’ submissions about these policy documents and the role they play in the respondents’ case. I reject the applicants’ submissions that they are seriously prejudiced because of reliance on new policy documents. These documents were discovered in December 2021, and the applicants have had access to them. I accept a very large number of documents were discovered, but the point here is that these are not new documents.

5    The more critical point, in my opinion, is that the applicants’ whole case is based around what they contend actually happened, not whether a policy did or did not exist about conduct or complaint handling. The applicants’ case does not expressly involve an allegation that the respondents failed to have adequate policies in place to deal with the bullying and harassment said to have occurred. Their complaint is about what was done and not done in fact. The amendments will not result in the respondents calling any additional witness evidence. I do not accept that there is any serious prejudice to the applicants in granting leave for these amendments, recognising that any amendment by one party always requires some additional work by other parties. That is the nature of an amendment.

6    These are the first set of amendments the respondents have sought to make; in other words, the respondents have not engaged in a pattern of changing their case from time to time. These amendments do not change the nature of the respondents’ defence and simply, as I have said, correct some factual matters and indicate with more particularity the policies on which they propose to rely. I consider the applicants will have ample time to deal with these matters, especially since any witness evidence from the respondents is weeks away. The applicants’ experts are not scheduled to give evidence in the first two weeks of the trial, according to the parties’ timetable. Further, if the applicants contend that their experts have not been provided with policies now pleaded, the experts’ oral evidence is a sufficient time away for those experts to be apprised of the newly-pleaded documents and to consider them.

7    Counsel for the applicants did not direct the Court to any specific evidence of the experts which would be affected by these proposed amendments, but, rather, made a general submission of prejudice. If it is only at the level of general assertion, then I consider the time before the experts are scheduled to give evidence allows for any real prejudice to be overcome, and, of course, consideration will be given to whether leave should be granted to the applicants to adduce supplementary oral evidence-in-chief from their experts, directed at the respondents’ amendments and the reliance on these extra policies.

8    Accordingly, there will be orders the respondents have leave to file an amended defence pursuant to rule 16.53 of the Federal Court Rules 2011 (Cth) in the form that is contained in annexure CI-1 to the affidavit of Caitlin Ible, affirmed 25 May 2022.

The applicants’ interlocutory application to amend their statement of claim

9    I turn now to the application for leave to amend the statement of claim. In contrast to the interlocutory application on behalf of the respondents, the interlocutory application on behalf of the applicants seeks to plead a new issue not expressed in their statement of claim and concise statement to this point; namely, reliance on the exception in s 28LC(2)(a) of the Wrongs Act 1958 (Vic). It is true that the ability of the applicants to recover damages for the alleged negligence of the respondents and thus to meet the hurdles set in the Wrongs Act has always been an issue between the parties. The respondents’ defence pleaded, for example, at [388] about Joel Kaplan, that by reason of s 28LE of the Wrongs Act, the applicants had not established any entitlement to non-economic loss. Section 28LE of the Wrongs Act is the provision which sets up a prohibition on the recovery of non-economic loss in respect of an injury caused by the fault of another person, which includes negligence, unless the applicant or plaintiff has suffered significant injury.

10    The applicants’ reply contains no more than bare rejection of the respondents’ pleading: see [55] of the reply. The applicants’ concise statement does not refer to the Wrongs Act at all, but in [18] the applicants summarise their claims for damages, including damages resulting from the respondents’ alleged negligence, in a way which plainly seeks to include damages for non-economic loss. In other words, the issue of the application of the prohibition in s 28LE and how the applicants would surmount it, at a general level, clearly remained in dispute between the parties, but, I emphasise, only in the most general of terms. In my opinion, it was reasonable for the respondents to understand that the only basis on which the applicants sought to circumvent the prohibition was by proving significant injury. As the respondents submit, when the applicants provided further and better particulars in March 2022, those particulars did not refer to the Wrongs Act, let alone to any exception to the prohibition in s 28LE.

11    It is clear on the authorities that the intentional act to which s 28LC(2)(a) refers may be done by a person who is not a respondent so long as the fault concerned relates to that act, being an act done with intent to cause death or serious injury: see State of Victoria v Thompson [2019] VSCA 237 at [38], Snell v State of Victoria (Department of Education and Training) [2022] FCA 5 at [33]-[35]. In that sense, at a general level, it is permissible for the applicants to frame the allegation as they now seek to do, namely, that proof of the intention of the perpetrators of the alleged anti-Semitic bullying and other conduct can be sufficient to engage the provision against the State as the alleged tortfeasor in negligence. The State did not dispute this proposition.

12    The difficulty is the applicants have not framed their case that way until yesterday. Their case is to be ascertained from their statement of claim and concise statement. Relevantly, that is the location for the articulation of how the moving party in this proceeding puts their case to the Court. It is those documents which articulate the case the respondents must answer. Neither the statement of claim nor the concise statement rely on s 28LC(2)(a). Hence the amendment application. I accept the respondents’ contention that there is no authority to support the proposition that pleadings of the kind in the present statement of claim can be said fairly to raise the exception in 28LC(2)(a) as a matter of inference. The application of that exception is a contention which needs to be pleaded, or at least expressly raised in the concise statement, as the applicants have belatedly recognised.

13    The applicants submit that, through their counsel, their reliance on s 28LC(2)(a) was raised at a case management hearing on 25 March 2022. They rely on this as sufficient notice to the respondents of what is now sought to be pleaded. I reject that submission, whether one looks at what was said at the case management hearing in isolation or in combination with the next and only other attempt to raise this provision, which occurred in the applicants’ written outline of opening submissions shortly before trial. It should be recalled that at the March 2022 case management hearing the real focus, in terms of the applicants’ Wrongs Act claims, was on the incomplete provision of medical evidence by the applicants and the respondents’ concerns expressed in a letter dated 21 March 2022 to the applicants that if there were serious injury certificates provided, the respondents would not have time to exercise their rights of review to a medical panel ahead of trial. That was the real focus of the case management hearing. In answer to that concern, counsel for the applicants raised in a few lines the alternative of s 28LC(2)(a), but he did no more than announce an intention by his clients to rely on it.

14    In a proceeding such as this, only two months out from trial, the respondents are entitled to expect such a statement to be followed up promptly by notice of pleading amendments. That did not occur. When the applicants’ medical reports were eventually all filed, generally not in compliance with the Court’s orders, it became clear there were no serious injury certificates issued in relation to any of the applicants and thus the prohibition in s 28LE was engaged.

15    That is certainly what the respondents were entitled to understand. I do not accept there was any reasonable or rational basis at this point for the respondents to understand that as a true alternative to the applicants not being able to provide serious injury certificates, each of them would make the serious factual allegations against third parties and against some of the individual respondents that are necessary to satisfy s 28LC(2)(a). Informal assertions at a case management hearing provided no such reasonable and rational basis, especially because they were not followed up by any proper or adequate notification through amendments to the way the case had been put in writing to that point.

16    The respondents are correct that the proposed amendments are general and vague in their terms, doing little more than following the statutory text of s 28LC(2)(a). No additional material facts are pleaded. The exchange in argument between the Court and counsel this morning about [89] of the proposed amended statement of claim illustrates the difficulties. The applicants would bear the burden of proving the exception in s 28LC(2)(a), but they have not sought now to call any of the individual students they seek to allege acted against the applicants with an intent to cause injury. They have not even sought to plead any additional material facts, such as what those allegedly attacking students said or did which might support an allegation of a positive intent to injure.

17    The respondents have no burden of proof. It is not for them to call witnesses in relation to s 28LC(2)(a). Those students are not in the respondents’ camp, and this is not a Jones v Dunkel ((1959) 101 CLR 298) situation. As senior counsel for the respondents submitted, there are two intentions which need to be proven for the exception to be engaged: intention to do the act, and intention to cause the injury. In my opinion, inferences from the applicants’ own accounts are highly unlikely to be enough in this kind of situation, in a proceeding such as this, given what is necessary to prove. A factual account of bullying, intimidation or assault by student A of student B, even where that account asserts the reason for the conduct is race or ethnic origin of student B, does not inevitably or necessarily suggest that student A intended to do an act and intended to cause injury to student B. That proposition is very far from self-evident, in my opinion. Individuals can be thoughtless, selfish, impulsive, lacking in insight, lacking in self-control, and immature. The reasons they act as they do and their state of mind, even when their acts are harmful to others, may be highly complex.

18    As senior counsel for the respondents submitted, the personal characteristics of individuals may need to be assessed. For a Court to conclude that an individual (third party) student intended to cause injury to one of the applicants, there would need to be probative evidence of such an intention. It is important to recall the extraordinary nature of the exception in s 28LC(2)(a). It is an exception to the otherwise clear policy of the Wrongs Act designed to limit the ability to claim damages for non-economic loss. As an exception to that policy, the principal mechanism for which the Act provides is the significant injury process. The applicants expressly relied on this but did not obtain the necessary certificates.

19    Satisfaction of s 28LC(2)(a) confers a significant benefit on a plaintiff or applicant otherwise not available to plaintiffs and applicants seeking damages for non-economic loss as a result of tortious conduct. It is a provision with a series of elements which have some complexity, as the authorities demonstrate. The Court should only permit a very late amendment invoking an exception such as this when there is an adequately and fully-expressed proposed pleading. That is not the nature of these proposed amendments. On the amendments as proposed, I consider the applicants’ reliance on s 28LC(2)(a) cannot be said to have any reasonable prospects of success because there are no material facts pleaded or alleged and no particulars given which provide any reasonable factual basis for an allegation of intention (of either kind) in any of the third party individuals. One of the most serious allegations at [54] of the present statement of claim is not even the subject of any proposed amendment even though it is a specific incident. In contrast, the generalised and vague allegations in [52] are the subject of the amendment. In any event, there are no material facts pleaded to support any reliance on s 28LC in [52]. This illustrates some of the flaws in the pleading as proposed.

20    It is not in the interests of the administration of justice to permit a very late amendment to a statement of claim to raise an issue not raised before in the pleadings, where that issue has no reasonable prospects of success.

21    Even if I am wrong in that conclusion, I consider the disruption to the trial caused by allowing the amendment is disproportionate to the strength of the case now sought to be put by these amendments. Even with these vague and general new allegations, without any pleading of material facts, the respondents would nevertheless need to be given a fair opportunity to deal with the amendments. The trial would need to be adjourned at least for some period of time so the respondents could consider whether they wished to adduce evidence additional to that contained in their witness outlines, including from existing individual respondents and teachers against whom some of these intention allegations are now sought to be made – see for example [203] of the proposed amendments in relation to Mr Paul Varney.

22    I also accept what senior counsel for the respondents submitted about the relevance of the personal characteristics of third party students against whom the intention allegations are sought to be made, if for no other reason than a more detailed factual investigation of those characteristics would need to be undertaken in order to put some of those matters to the applicants and their witnesses.

23    I accept fairness would dictate the respondents be given that opportunity through an adjournment, before being asked to cross-examine any of the applicants, including Mr Liam Arnold-Levy, whose evidence has commenced. That is because it appears the applicants seek to prove these new allegations of intention largely through inferences arising from the evidence of the applicants themselves. None of the alleged perpetrators are being called.

24    If the proposed amendments raised a strong case supported by clearly pleaded material facts, then the Court might consider the grant of leave was necessary to resolve a seriously and clearly advanced matter now expressly put in issue between parties, albeit that it had been raised late. The Court might consider the disruption of the trial was unfortunate but a necessary consequence. However, on the current proposal, the vagueness and generality of the proposed amendments and lack of any additional material facts means the applicants’ case can only be described as weak on these amendments. The prejudice likely to be suffered by the respondents and indeed the prejudice to the administration of justice in terms of the conduct of the trial when compared to the relative weakness of the allegations now sought to be included means in my opinion the interests of justice overall are best served by refusing leave to amend and by the trial continuing.

25    In reaching that conclusion, I have taken into account that there are cost-capping orders in place by agreement between the parties. The efficient conduct of the trial is a great imperative, since if there are to be costs orders at the end of the trial in favour of either party, they will be limited ones which will in no way reflect the real costs incurred in the conduct of the trial. Further, the Court must consider the interests of all litigants in the Court, including those waiting to have their cases heard, and it must consider the appropriate use of the finite resources of the Court so that disputes can be resolved in a manner which is proportionate to what is in issue.

26    This is already a complex and lengthy trial. In such circumstances, unless a strong case appears to justify a different course, parties should be held to their cases as they have put them to this point. Taking into account that this is a human rights proceeding, the applicants have been permitted by the Court to put their case in their statement of claim and their concise statement in ways which do involve a level of generality and vagueness. To this point, and given that there will be extensive oral evidence over a long trial and that the matters in issue have been the subject of a previous external investigation by the respondents, I have not considered the respondents are prejudiced in the presentation and preparation of their defence by the present level of generality in the applicants’ case. The detailed opening by senior counsel for the respondents yesterday confirmed that. But there is a point at which additional vagueness and generalities will not be permitted, are likely to cause prejudice, and therefore the conduct of the applicants’ case in that way must stop. That is this point.

27    Accordingly, there will be orders that the applicants’ interlocutory application dated 1 June 2022 for leave to amend their statement of claim be refused.

Associate:

Dated:    10 June 2022

SCHEDULE OF PARTIES