Federal Court of Australia

Milkins v Diocese of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 4) [2022] FCA 1181

ORDERS

THE COURT ORDERS THAT:

1.    The amended application for leave to appeal dated 12 October 2021 be dismissed.

2.    The applicant pay the respondent’s costs of the application in an amount to be assessed in default of agreement in accordance with the court’s costs practice note (GPN-Costs).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is a former student of a school operated by the respondent (“St Joseph’s”). She is presently embarked upon litigation in this court concerning the education that St Joseph’s provided to her.

2    By the original form of her amended statement of claim dated 19 November 2019, the applicant sought relief under the Disability Discrimination Act 1992 (Cth) and the Australian Consumer Law (comprising Schedule 2 of the Competition and Consumer Act 2010 (Cth)). Substantial parts of that document were struck out by means of orders made on 13 September 2021: Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1103 (O’Callaghan J). By those same orders, the applicant was refused leave to re-plead. By an amended application dated 12 October 2021, she now seeks leave to appeal from that judgment (the “Primary Judgment”).

3    That application was run and heard concurrently with an equivalent application that was advanced in a related case: VID 555 of 2021 (the “Harvey Application”). The Harvey Application concerned, as this one does, strike out orders made in relation to a pleading in a related proceeding brought against St Joseph’s by two other students and their mother. Although not identical, that pleading made substantially the same allegations as those that, by the Primary Judgment, were struck out in this matter. They, too, were the subject of equivalent orders: Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102 (O’Callaghan J).

4    The Harvey Application was dismissed with costs: Harvey v Diocese of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 4) [2022] FCA 1185 (the “Harvey Judgment”). This application will be too and the reasons underpinning the Harvey Judgment also apply to the present matter. For the purposes of this application, those reasons should be read:

(1)    as though the references therein to the applicants (or subsets of them) were references to the applicant in this matter;

(2)    as though the references therein to the application for leave to appeal were references to the present application for leave to appeal;

(3)    on the basis that evidence equivalent to that that was led in that matter was also led in this one;

(4)    on the basis that the written and oral submissions that were supplied and made in that matter were supplied and made in the same terms (indeed, were the same submissions as were supplied and made) in this one;

(5)    as though the references therein to paragraphs 11-19 of the amended statement of claim in that matter were references to paragraphs 13-19 of the amended statement of claim in this one;

(6)    as though the references therein to paragraphs 34-35 of the amended statement of claim in that matter were references to paragraphs 32-33 of the amended statement of claim in this one;

(7)    as though the references therein to paragraphs 36 of the amended statement of claim in that matter were references to paragraphs 34-37 of the amended statement of claim in this one;

(8)    as though the references therein to paragraphs 37-44 of the amended statement of claim in that matter were references to paragraphs 38-45 of the amended statement of claim in this one; and

(9)    appreciating that the observations of the learned primary judge recorded therein were observations that applied to both amended statements of claim, including the one in respect of which the orders that are the subject of this application were made.

Associate:

Dated:    6 October 2022