Federal Court of Australia

Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to submit short minutes of order in accordance with the reasons for judgment which accompany these orders.

2.    Subject to orders 3 to 5, costs of the interlocutory applications the subject of the reasons for judgment be costs in the cause.

3.    Any party seeking to be heard on an alternative costs order to that in order 2 is to file and serve short written submissions of no more than 2 pages within 7 days of these orders.

4.    Any party who wishes to be heard in opposition to an alternative costs order sought pursuant to order 3 is to file and serve short written submissions of no more than 2 pages within 14 days of these orders.

5.    Any application for an alternative costs order pursuant to order 2 is to be determined on the papers.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

introduction

1    There are two interrelated interlocutory applications before the Court.

2    The first interlocutory application is brought by the State of New South Wales and the New South Wales Land and Housing Corporation, the first and second respondents respectively, seeking summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a), (c) and/or (d) of the Federal Court Rules 2011 (Cth) and, further or alternatively, an order that the applicant’s concise statement be struck out in part pursuant to r 16.21 of the Rules (the summary judgment application).

3    The second interlocutory application is brought by the applicant, Ms Sandra-Anne Ngaone (Noni) Chadwick, for leave to rely on a document titled “points of claim” in lieu of the existing concise statement (the points of claim application).

BACKGROUND

4    A summary of the substantive proceedings and the relief sought by Ms Chadwick is included in Chadwick v State of New South Wales [2022] FCA 918 at [6]–[15].

5    At the time Ms Chadwick filed and served the originating process and the concise statement she was self-represented. The respondents filed and served a concise statement in response.

6    The listing of the summary judgment application was delayed for a number of reasons, not least because Ms Chadwick was in the process of applying for and obtaining funding from the Attorney-General’s Department for legal representation. Ms Chadwick is presently represented by Ms Dulhunty of counsel.

7    The respondents’ summary judgment application was initially listed for hearing on 22 March 2022. By that time Ms Chadwick had secured Ms Dulhunty’s services. On that occasion the hearing of the summary judgment application was adjourned at the parties’ request to enable the proposed points of claim (PPOC) to be prepared on behalf of Ms Chadwick with a view to that document replacing the existing concise statement. Orders were made allowing Ms Chadwick to serve the PPOC on which she foreshadowed she intended to seek to rely in lieu of the concise statement. Further orders were made requiring the respondents to consider the PPOC when served and to indicate whether they consented to the PPOC being filed to supersede the existing concise statement.

8    In the events that transpired the respondents did not consent to the filing of the PPOC. As a result, Ms Chadwick now seeks leave to file the PPOC and to rely on it as superseding her concise statement, as well as related relief. In doing so, her counsel makes it plain that Ms Chadwick no longer seeks to rely on the concise statement, which, as noted above, was prepared at a time when she was not represented. She contends that for this reason parts at least of the respondents’ application are now “otiose”.

9    Ms Chadwick’s application is to substitute the document styled as “points of claim” for the existing concise statement. In substance, Ms Chadwick’s application to rely on the PPOC is in the nature of an amendment application, where the amendment is a complete redraft of the existing concise statement.

10    The respondents opposed leave being granted for Ms Chadwick to rely on the PPOC and pressed their application for summary dismissal and/or strike out. The respondents updated their submissions directed to summary dismissal and strike out to frame their contentions by reference to the PPOC. The respondents contended that the points of claim could not be filed in the current form and raised specific complaints in relation to the document.

11    Consistently with the modern approach to case management, the respondents’ application in these proceedings has been brought in advance of the respondents filing their evidence and with a view to facilitating the efficient conduct of the substantive hearing.

Interlocutory hearing

12    At the hearing on 20 September 2022, the parties’ arguments were framed by reference to the PPOC. In order to determine the interlocutory disputes in a way that best promotes the overarching purpose, I have also used the PPOC as the point of reference rather than the concise statement, on which Ms Chadwick no longer seeks to rely.

13    At the hearing, after hearing argument, I indicated those paragraphs of the PPOC which I was inclined to strike out and/or give leave to re-plead. The parties have submitted short minutes of order that reflect that process. The hearing ran overtime and a number of the paragraphs of the PPOC were not resolved. Accordingly, I requested that the parties confer to deal with the remaining paragraphs in issue, and provide to the Court the following for my consideration:

(1)    agreed short minutes of order reflecting the indicative rulings given during the course of the hearing;

(2)     a list of the paragraphs of the PPOC which remained in dispute, or were no longer disputed after consideration of the rulings given in the hearing; and

(3)    in respect the respondents’ submission that certain paragraphs should be struck out on the basis that they have an absolute immunity from suit in respect of the claims therein, any further paragraphs the respondents did not so identify at the hearing.

Applicable principles

14    There was no dispute of substance between the parties in relation to the applicable principles, which are well established. The present application is in proceedings that have utilised the concise statement method of articulating the relevant claims. Ms Chadwick’s application is to substitute the PPOC for the existing concise statement. For that reason, it is apposite to note at the outset that the function served by the exchange of concise statements is distinct from that of traditional pleadings: Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 287 FCR 388 at [140]–[154] (McKerracher and Colvin JJ). The purpose of a concise statement, in contrast to pleadings, is to enable the applicant to raise the key issues and key facts at the heart of the dispute and the essential relief sought from the Court (at [140]). A concise statement allows the Court to facilitate case management of proceedings from an early stage, and determine whether pleadings are necessary, such as to ensure the efficient conduct and disposition of the application (at [141]). Where a matter proceeds on a concise statement and concise response, issues are to be refined as the interlocutory processes of a matter progress, and are to be disclosed by other means and to the extent considered to be appropriate in the interests of fairness (at [144]). The role of a concise statement is not to be treated by pleading rules “unaffected by the new context and character of the concise statement” (at [148]). That context is, namely, the modern approach of Australian courts in emphasising case management to limit the use of courts for unfairness (at [146]). The Court is obliged to conduct proceedings in a manner consistent with the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: FCA Act, s 37M. Parties must conduct proceedings consistently with the overarching purpose, and their lawyers must, in civil proceedings, assist their client to comply with their duty to do so: FCA Act, s 37N (at [147]). A concise statement may require amendment. For example, where a claim which is central to a party’s case is not included or not adequately exposed in the concise statement. However, where a concise statement broadly expresses an issue, clarification may be sought, such as where the other party considers it unfair to its forensic preparation for the issue to remain stated broadly. Earlier disclosure may be required on the basis of fairness, such that orders will be made by way of case management (at [149]). A concise statement should not be expressed vaguely or imprecisely (at [153]). Similarly, a concise statement should not include material that is extraneous in terms of supporting a claim for relief capable of being made in the proceedings.

15    In the present context, where the substantive proceedings include claims under the Racial Discrimination Act 1975 (Cth) (RDA) and Sex Discrimination Act 1984 (Cth) (SDA), the observations made in respect of the pleading of a claim under the Disability Discrimination Act 1992 (Cth) (the DDA) in Varasdi v State of Victoria [2018] FCA 1655 at [5]–[10], adapted as necessary to the concise statement context, are informative:

5.     A pleading must ensure that the opposing party can know, with sufficient clarity, the case which it is required to meet; it must state all the material facts to establish a reasonable cause of action; and it must be in intelligible form. It cannot be vague, ambiguous, inconsistent or lacking in coherence.

6.     Further, a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background or a factual matrix which does not lead to the making out of any defined cause of action, particularly if the offending paragraphs tend to obfuscate the issues to be determined. Nor is it appropriate to plead evidence, or the means by which a matter is said to be proved.

7.     The DDA is not an adequate vehicle for addressing all complaints that a student’s parent might have about the manner in which educational services have been provided to a child: Walker v State of Victoria [2012] FCAFC 38 at [72] (Gray J with whom Reeves J agreed); Kiefel v State of Victoria [2013] FCA 1398 at [4]-[6] (Tracey J). It does not empower the Court to undertake a general inquiry into the best interests or the vulnerabilities of a child with disabilities: Walker v State of Victoria [2012] FCAFC 38 at [73] (Gray J, with whom Reeves J agreed).

8.     “[T]he legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the [DDA] are not pursued, and that those that are pursued are related clearly and directly to the provisions of the [DDA]”: Walker v State of Victoria [2012] FCAFC 38 at [114], cited in Kiefel v State of Victoria [2013] FCA 1398 at [2]

9.     A pleading under the DDA must put the respondent on notice of the case it is required to meet, rather than asking the respondent or the court to identify a case for it. The pleading must do “more than scope out the nature of the problem, and leave it to the trial of the action for the content of the respondent’s omissions to become apparent”: Sievwright v State of Victoria [2013] FCA 964 at [48] (Jessup J).

10.     In a proceeding alleging direct discrimination, it is necessary to identify with particularity the matters said to give rise to the claim of direct discrimination under the DDA: Kirk v Industrial Court of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531 at [28] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wade v State of Victoria [2012] FCA 400 at [6] (Bromberg J).

16    Ms Chadwick’s application falls to be determined in accordance with established procedural principles in relation to amendment. Leave to amend pleadings may be granted pursuant to r 16.53 of the Rules. The onus is on the party seeking leave to amend to persuade the court that such leave should be granted as a matter of discretion: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [17]. The factors to be taken into account in considering an application to amend include the effect of the delay in raising the proposed amendments, wasted costs, and the efficient conduct of legal proceedings: see, for example, Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [19]-[21]; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175; Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098. Leave to amend will not be granted where the amendment would be futile: see Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [21]. Each case turns on its own facts.

Summary dismissal principles

17    Section 31A of the FCA Act relevantly provides that:

…     

(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.

…

18    Rule 26.01(1) relevantly provides:

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

…

19    In Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ said in relation to s 31A of the FCA Act that:

[52]     … effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail” ... [T]he combined effect of sub-ss (2) and (3) is that the inquiry required … is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

. . .

[60]     … full weight must be given to the expression [no reasonable prospect] as a whole. … it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly.

20    The applicable principles were recently summarised by Griffiths J in Houston v State of New South Wales (No 2) [2021] FCA 637 at [5] as follows:

5     There was no significant dispute between the parties concerning the relevant legal principles applying to s 31A(2) of the FCA Act. They may be summarised as follows:

(a)     As the terms of s 31A make clear, a claim need not be hopeless or bound to fail for it to have no reasonable prospects of success.

(b)     The [moving party on the application under s 31A] has the onus of persuading the Court that the proceeding has no reasonable prospects of success. The assessment of whether the proceeding has no reasonable prospects of success requires the making of a value judgment in the absence of full and complete factual matrix and argument, with the result that the Court is vested with a discretion (Kimber v The Owners Strata Plan No. 48216 [2017] FCAFC 226; 258 FCR 575 at [62] per Logan, Kerr and Farrell JJ).

(c)     The Court is required to make a practical judgment as to whether the applicant has more than a “fanciful” prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 (Spencer High Court) at [25] per French CJ and Gummow J).

(d)     Where there are factual issues capable of being disputed which are in dispute, summary dismissal should not occur “simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue” (Spencer High Court at [25] per French CJ and Gummow J). Particular caution must be exercised in determining whether summary judgment should be granted where there are factual disputes and the evidence is not in its final form (see Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45] per Rares J).

(e)     Generally speaking, where an applicant’s success in the proceeding relies upon a question of law, the moving party on a s 31A application will likely succeed if it is able to demonstrate that the question is well settled on authority (Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [48] per Reeves J). Appropriate account needs to be taken, however, of the possibility that existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify development of the law. Where success of the proceeding “is critically dependent upon a proposition of law which would contradict a binding decision of the High Court, it is reasonable to conclude that a proceeding has no reasonable prospects of success” (Spencer High Court at [25] per French CJ and Gummow J).

(f)     If a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues which make a trial necessary (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J).

(g)     Although it is pre-Spencer High Court, I respectfully agree with the observation of the Full Court in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [31] that a Judge hearing a summary dismissal application should exercise some caution in determining whether questions of law that have been raised “are so difficult that they ought not to be decided summarily”. Having said that, however, there is no reason to doubt the ongoing force of Barwick CJ’s observations in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 130, where he said that summary dismissal should not be confined to “cases where argument is unnecessary to evoke the futility of the plaintiff’s claim”. He added that:

Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

(h)     The following passage from Reeves J’s judgment in Cassimatis at [46] is also apposite:

It is apparent from these authorities that s 31A has lowered the bar, or softened the test, for summary judgment, or summary dismissal, as compared to that set by earlier summary judgment or summary dismissal regimes. At the same time, it sets a different inquiry from that required under those regimes. The critical question under s 31A in a summary dismissal application such as the present one is whether ASIC, the applicant, has “reasonable” prospects of successfully prosecuting these proceedings. As the moving party in this summary dismissal application, the Cassimatises bear the onus of persuading the Court of this criterion. These authorities reveal that the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(i)     The Court retains a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially (Cassimatis at [50] per Reeves J).

(j)     Notwithstanding that s 31A of the FCA Act sets a lower bar than previously for the summary determination of a proceeding, the power to dismiss an action summarily is not to be exercised lightly (Spencer High Court at [60] per Hayne, Crennan, Kiefel and Bell JJ and Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). …

Principles relating to strike out

21    Rule 16.21 relevantly provides:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

…

22    In the present circumstance, it is necessary to apply the rule to the context of a concise statement, taking into account the nature and function of a concise statement. The applicable principles in respect of pleadings set out by Griffiths J in Kitoko v University of Technology Sydney [2021] FCA 360 at [63]–[67] are informative:

63    In broad terms, the relevant legal principles guiding the exercise of the Court’s discretion under r 16.21 can be summarised as follows.

64    As stated by Moshinsky J in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202 at [17] (citing McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21] per Johnson J):

… the function of pleadings is to state with sufficient clarity the case that must be met by a defendant; in this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, 296, 302-303.

65    Furthermore, proper pleadings are of fundamental importance to achieve the overarching purpose of the Court under ss 37M and 37N of the FCA Act, namely the just, quick and cheap resolution of the real issues in the proceeding (Sadie Ville at [17] and Chandrasekaran at [101]).

66    While the respondent has no right to insist that the applicant plead every material fact, the applicant must plead the “material facts necessary for the purpose of formulating a complete cause of action, and … it is not sufficient simply to plead a conclusion drawn from unstated facts” (McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] per Weinberg J). The material facts must be pleaded with a sufficient degree of specificity to convey to the other party the case which that party has to meet and a bare conclusion is ordinarily not a proper allegation (Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 235 per Beaumont J).

67    As to when a pleading is “vexatious” or likely to cause prejudice or embarrassment, Wigney J provided a helpful discussion of the relevant principles in Chandrasekaran at [103] and [105]-[107]:

103     The word “vexatious” in the context of rules such as r 16.21 is an “omnibus expression” that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed at [12]) referred to with approval in Matthews v Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are “obviously untenable or manifestly groundless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491–492; see also Von Reisner v Commonwealth (2009) 177 FCR 531 at [27].

…

105     A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 638; ATPR 41-434 ; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [18]; Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; 51 ACSR 278 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.

106      A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms (2012) 247 FCR 440 at [80], [84]. A party cannot be expected to respond to mere context, commentary, history, narrative material or material of a general evidentiary nature: Fuller v Toms at [83].

107      A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd v Pearce [1996] FCA 599; 138 ALR 522 at 531 .

23    The power to strike out pleadings is discretionary and should be employed sparingly: Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 at [110] (Wigney J), citing Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175 (Sheppard J).

consideration

24    I note at the outset that the present applications are brought at a relatively early stage of the proceedings and at a time when the respondents’ evidence has not been filed and served. The PPOC is the first attempt at amending the concise statement, which, as noted above, was drafted by Ms Chadwick without legal assistance. The respondents do not point to specific prejudice as a result of the amendments. The respondents’ opposition to the PPOC is largely based on the contention that there is no utility in granting leave to amend to rely on certain parts of the PPOC because the amendments, if allowed, are liable to be summarily dismissed, or alternatively, struck out.

PPOC [14], [17], [18], [19], [21], [24.1], [27], [28], [31], [32], [33], [40], [41], [42], [43], [44], [45] and [46]

25    The respondents take issue with eighteen paragraphs of the PPOC on the basis that these paragraphs involve statements or documents made in the course of prior proceedings between the respondents and Ms Chadwick in the New South Wales Civil and Administrative Tribunal (NCAT): PPOC [14], [17], [18], [19], [21], [24.1], [27], [28], [31], [32], [33], [40], [41], [42], [43], [44], [45] and [46]. The respondents contend that these paragraphs should be struck-out on the basis that they have an absolute immunity from suit in respect of the claims articulated in these paragraphs relying on Mann v O’Neill [1997] HCA 28; 191 CLR 204.

26    Absolute privilege, or immunity, attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by a judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings: Mann v O’Neill at 211 (Brennan CJ, Dawson, Toohey and Gaudron JJ). The immunity extends to any document published on an “occasion properly incidental [to judicial proceedings], and necessary for [them]”: Mann v O’Neill at 212 (Brennan CJ, Dawson, Toohey and Gaudron JJ).

27    Absolute immunity also attaches to statements made in the course of quasi-judicial proceedings, that is, proceedings of tribunals recognised by law and which act in a manner similar to that in which a court of justice acts. The immunity extends to members of tribunals, advocates, litigants, and witnesses, and is no less extensive in other respects than in the case of statements made in the course of judicial proceedings: Mann v O’Neill at 212 (Brennan CJ, Dawson, Toohey and Gaudron JJ).

28    In R v Skinner (1772) Lofft 54 (at 56); 98 ER 529 (at 530), Lord Mansfield stated that “… neither party, witness, counsel, jury or Judge, can be put to answer, civilly or criminally, for words spoken in office.” Gummow J has observed that the immunity responds to two general considerations, being “to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences” and “the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment other than by pursuit of any available avenue of appeal and the invocation of the special equity jurisdiction to set aside judgments, in a suit constituted for that purpose”: Mann v O’Neill at 239.

29    The respondents must demonstrate a necessity that the NCAT proceedings be absolutely privileged. As noted in Mann v O’Neill (at 213–214 (Brennan CJ, Dawson, Toohey and Gaudron JJ)):

It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated" (47). Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.

30    A person seeking to rely upon the defence has the onus of proving that it applies to the circumstances of the case: Mann v O’Neill at 221 (McHugh J).

31    The first issue to consider is whether NCAT is a quasi-judicial body such that steps taken in, or incidental, to proceedings before it may attract the immunity. I am satisfied that NCAT is for relevant purposes a quasi-judicial body. It conducts proceedings recognised by law and in various circumstances acts in a manner similar to that in which a court acts. The overriding consideration is whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern: Mann v O’Neill at 212 (Brennan CJ, Dawson, Toohey and Gaudron JJ). It is also relevant to consider the authority under which NCAT acts, the nature of the questions into which NCAT has a duty to inquire, the procedure adopted by it in carrying out its inquiry and the legal consequences of the conclusion reached by NCAT as a result of the inquiry. The presence of a statutory scheme establishing a tribunal and regulating its procedures is an important guide in determining whether the tribunal is recognised by law for the purposes of the defence of absolute immunity: Mann v O’Neill at 225 (McHugh J).

32    The following factors indicate the NCAT is a quasi-judicial body, and operated as such in the proceedings between the parties which are in issue on the present application:

(1)    NCAT is established by the Civil and Administrative Tribunal Act 2013 (NSW) (CATA): s 7;

(2)    the guiding principle for CATA and the procedural rules, in their application in NCAT, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1);

(3)    whilst NCAT is not bound by rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, it is subject to the rules of natural justice: s 38(2);

(4)    power is relevantly granted under s 187 of the Residential Tenancies Act 2010 (NSW) to NCAT to grant various remedies, including an order restraining any action in breach of a residential tenancy agreement, an order that requires an action in performance of a residential tenancy agreement and an order directing a tenant to comply with a requirement of the Residential Tenancies Act 2010 (NSW) or the regulations. Power is also granted under s 87 of the Residential Tenancies Act 2010 (NSW) to NCAT to make a termination order in respect of a residential tenancy agreement; and

(5)    the relevant proceedings were instituted by the Housing Corporation against Ms Chadwick and resulted in orders being made by NCAT under the powers referred to above in respect the residential tenancy agreement between the Housing Corporation and Ms Chadwick as follows:

(a)    Orders made on 10 September 2018 pursuant to an application lodged on 19 August 2019; and

(b)    Orders made on 20 November 2018 pursuant to an application lodged on 31 October 2018.

33    The next issue to consider is whether the eighteen paragraphs of the PPOC which are the subject of the respondents’ application attract the immunity and should therefore be struck out.

34    Having carefully considered the eighteen paragraphs in the PPOC and having regard to the nature and function of the PPOC as a concise statement, I am not satisfied that the respondents have discharged their onus for the purpose of the present applications of establishing that the matters alleged in PPOC [14], [19], [27], [28], [31], [32], [40], [41], [42], [43], [44], and [46] necessarily attract the immunity. At this stage, I am not satisfied that these paragraphs should be summarily dismissed or struck out on the basis of the immunity. Similarly, I am not satisfied that leave to amend to make the allegations ought be refused on the ground of futility. Many of the allegations are framed at a high level of generality. The parties have accepted that for reasons of procedural fairness Ms Chadwick must provide additional details in the form of particulars in respect of some of these paragraphs. Upon the provision of particulars, the issue of whether the immunity is engaged may emerge with greater clarity. The respondents are not precluded from raising the immunity as a defence at the substantive hearing, if so advised.

35    That leaves PPOC [17], [18], [21], [24.1], [33] and [45]. These paragraphs are different. They include allegations based explicitly on what was said and done in the NCAT proceedings. By these paragraphs Ms Chadwick seeks to establish that the respondents are liable for allegations made and evidence given in the NCAT proceedings. PPOC [17] and [18] refer to statements made by employees of the respondents in the course of NCAT proceedings which are alleged to have misled NCAT. PPOC [21] and [24.1] derive from PPOC [17] and [18]. PPOC [33] includes an allegation that a certain employee of the respondents attended the NCAT hearing on 20 November 2018 and gave evidence in circumstances where Ms Chadwick says that the matter was not the type of matter that he would normally attend, and that this constituted discrimination, public humiliation and intimidation. PPOC [45] is somewhat unclear in the way it is framed but it does appear to seek to attach liability to the respondents for their conduct before the NCAT which is alleged to have amounted to a withdrawal of NCAT proceedings. I am satisfied that the respondents have established that they are protected by an absolute immunity in respect of these allegations and the necessity for that immunity is evident. Accordingly, Ms Chadwick is refused leave to amend the concise statement by introducing PPOC [17], [18], [21], [24.1] (in so far as [24.1] repeats the impugned allegation of misleading and deceptive conduct based on the evidence given in the NCAT proceedings), [33] and [45].

PPOC [22]

36    PPOC [22] is in the section of the PPOC headed “Alleged Arrears of Rent”. PPOC [22] is as follows:

The conduct of the Respondents described above was unlawful racial and sex discrimination in breach of Sections 5 and 6 of the Sex Discrimination Act 1984 (SDA) and Sections 9 and 12 of the RDA. The Respondents conduct put undue and unreasonable pressure on the Applicant, was unconscionable in the circumstances and constituted bullying, intimidation and harassment of the Applicant in breach of Section 28AA of the SDA and Section 27 of the RDA

37    The Respondents press for press the strike out of the concluding words of this paragraph: “and Section 27 of the RDA”.

38    Section 27(2) of the RDA creates an offence, relevantly, in the following terms:

…

(2)     A person shall not:

…

(d)     intimidate or coerce, or impose any pecuniary or other penalty upon, another person;

by reason that the other person:

(e)     has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(f)     has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or

(g)     has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.

39    The conduct in the section of the PPOC that culminates in PPOC [22] spans the period 2011 to 25 September 2018. Ms Chadwick’s original complaint to the AHRC was first lodged on 30 May 2019. The respondents contend that Ms Chadwick has not exposed how it is that she seeks to establish the second element of the offence, namely s 27(2)(e)–(g) of the RDA. I accept that that is correct. Accordingly, Ms Chadwick does not have leave to include the words “and Section 27 of the RDA” in PPOC [22].

PPOC [25] and [32]

40    PPOC [25] is as follows:

The Respondents' conduct has also breached Sections 23, 24, 28AA and 28H of the SDA and, more particularly, Sections 9 and 12 of the RDA as the Respondents have treated the Applicant less favourably than other tenants in the same position by bullying her and threatening to evict her rather than working with her to resolve her hardship. The only difference between the Applicant and other tenants in arrears is that the Applicant is one of the few, if not the only tenant, in the area who is a strong ethnic woman (identifying as a Māori).

41    PPOC [32] is as follows:

The Respondents had several matters in NCAT against other tenants on 20 November 2018 yet the Applicant was the only tenant for whom a security guard was organised. The Applicant was the only Māori strong ethnic woman who was the subject of proceedings at NCAT on the day. Otherwise, there was nothing about the Applicant or her conduct that suggested that the attendance of a security guard was required. This was clear racial discrimination against, public humiliation and intimidation of the Applicant in breach of Sections 9, 12 and 18C of the RDA and of Sections 23 and 24 of the SDA.

42    The respondents press the strike out of the reference to s 24 of the SDA in PPOC [25] and [32]. Section 24 of the SDA provides:

(1)      It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)      by refusing or failing to dispose of an estate or interest in land to the other person; or

(b)      in the terms or conditions on which an estate or interest in land is offered to the other person.

(2)      This section does not apply in relation to a disposal of an estate or interest in land by will or by way of gift.

43    The respondents submit that s 24 of the SDA has no application to the circumstances of Ms Chadwick’s claims. Counsel for Ms Chadwick submits that s 24 of the SDA applies because Ms Chadwick has or had at the time a leasehold interest in the property at created by the original lease granted on or about 22 December 2005, which was subsequently extended. The issue of whether the respondents’ alleged conduct in relation to the refusal or failure to extend Ms Chadwick’s existing lease is a refusal or failure to dispose of an interest of land to her is not so clear cut as to warrant leave to amend being refused on the basis that if allowed it is liable to be summarily dismissed, or alternatively, struck out. Accordingly, although it is poorly framed, I will grant leave to include the reference to s 24 of the SDA in PPOC [25]. I do not consider that this issue is sufficiently clear to determine on an interlocutory basis. Accordingly, the preferable course is that the controversy and all other issues be determined at the same time in order to avoid a potential proliferation of sequential appeals that would be antithetical to the just and efficient resolution of the proceedings in a timely manner consistent with s 37M of the FCA Act: Leach v Burston [2022] FCA 87 at [147]. The respondents may seek such additional information as they need in relation to the conduct relied on to support the allegation of breach of s 24 of the SDA alleged in PPOC [25] in order to respond to the allegation. However, the conduct which is alleged in PPOC [32] is not conduct that could properly fall within the description of s 24 of the SDA and accordingly, I do not grant leave to include reference to s 24 of the SDA in PPOC [32].

PPOC [37]

44    PPOC [37] is as follows:

There is no valid basis to fail or refuse to provide the above records and no basis for failing or refusing to provide them was given. In those circumstances the failure or refusal to provide those records can only be based on the prejudice and the racial and sex discrimination shown by Joshua Sansom to the Applicant. This is a further breach of Sections 9, 12, 13 and 18C of the RDA and of Sections 22 and 24 of the SDA

45    The respondents press the strike out of the reference to s 18C of the RDA and s 24 of the SDA.

46    Section 18C relevantly provides that:

(1)      It is unlawful for a person to do an act, otherwise than in private, if:

(a)      the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)      the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

…

(2)     For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)     causes words, sounds, images or writing to be communicated to the public; or

(b)     is done in a public place; or

(c)     is done in the sight or hearing of people who are in a public place.

…

47    The respondents submit that the alleged conduct that Ms Chadwick seeks to impugn did not occur “otherwise than in private”. Ms Chadwick’s counsel contends based on an email communication between officers of the respondents and Ms Chadwick that the conduct was not in private. Having had regard to the email on which Ms Chadwick relies, the submission that the conduct occurred otherwise than in private must be rejected. Ms Chadwick’s reliance on s 18C of the RDA in PPOC [37] is not tenable and leave to amend to include that reference in PPOC [37] is refused.

48    Turning to the claim that the alleged failure to provide records in PPOC [37] is a breach s 24 of the SDA, I am unable to see how that conduct that could properly fall within the description of s 24 of the SDA and accordingly, I do not grant leave to include reference to s 24 of the SDA in PPOC [37].

PPOC [55]

49    PPOC [55] is as follows:

This conduct by the Respondents was unconscionable, bullying, discriminatory, intimidatory and threatening and breached the RDA, SDA and the objects of the Housing Act 2001.

50    The respondents press the strike out of the words 'and the objects of the Housing Act 2001'. Subsection 5(1) of the Housing Act 2001 (NSW) provides “objects of this Act”. Subsection 5(2) of the Housing Act 2001 (NSW) provides that:

In the administration of this Act, regard is to be had to the objects of this Act to the maximum extent possible taking into consideration the needs of the State and available resources, and subject to any directions of the Minister.

51    Section 5(1) does not create an independent cause of action. Ms Chadwick cannot rely on a breach of “the objects” of the Housing Act 2001 (NSW) as a separate cause of action. Leave to amend to include such an allegation in PPOC [55] is refused.

CONCLUSION

52    I will make orders that the parties update the short minutes of order previously provided to incorporate the further rulings contemplated by the reasons given above for consideration in chambers. The updated short minutes of order should include a timetable for the provision of additional information in the nature of particulars where required and for the filing and service of an Amended Concise Statement (adapted from the existing PPOC, amended to reflect the rulings made on the interlocutory applications).

53    The parties have each enjoyed some success in the interlocutory applications and accordingly, in the absence of any party making an application for a different costs order, it is appropriate that the costs of the interlocutory applications be costs in the cause.

Associate:

Dated:    27 September 2022