Federal Court of Australia

Harvey v Diocese of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 4) [2022] FCA 1185

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicants 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 second and third applicants are former students of a school operated by the respondent (“St Joseph’s”). The first applicant is their mother. The applicants are presently embarked upon litigation in this court concerning the education that St Joseph’s provided to the second and third applicants.

2    By the original form of their amended statement of claim dated 19 November 2019, the applicants moved the court for relief under the Disability Discrimination Act 1992 (Cth) (the “DD Act”) and the Australian Consumer Law (comprising Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (the “ACL”). Substantial parts of that document were struck out by means of orders made on 13 September 2021: Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102 (O’Callaghan J). By those same orders, the applicants were refused leave to re-plead. By an amended application dated 12 October 2021, they now seek leave to appeal from that judgment (the “Primary Judgment”).

3    For the reasons that follow, leave to appeal will be refused, with the usual order as to costs.

Background

4    The present matter has, to date, been run alongside a related matter brought on behalf of another former student of St Joseph’s, Ms Milkins. That related matter also involved an amended statement of claim that sought to prosecute the same (or materially similar) allegations as those that are the subject of the Primary Judgment. They, too, were struck out and leave to re-plead was refused: Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1103 (O’Callaghan J). That judgment is the subject of a related application for leave to appeal. Judgment on that application is to be given at the same time as this one and will involve the publication of much shorter reasons substantially based upon those that follow.

5    The procedural history of the present matter is uncontroversial. In written submissions advanced in support of their application for leave to appeal, the applicants recited it as follows:

1.    Mrs Kerry Harvey (Mrs Harvey), the first applicant in VID 555 (the Harvey proceeding), brought proceedings under the Disability Discrimination Act 1992 (Cth) (the DD Act) and the Competition and Consumer Act 2010 (Cth), Schedule 2 (the Australian Consumer Law or ACL) against St Joseph's Primary School Wonthaggi (the Respondent or St Joseph's). Mrs Harvey is the mother of the second and third applicants, who were students at St Joseph's for a number of years. The proceedings were commenced on 6 May 2019.

2.     Jaelah Milkins brought similar (but separate) proceedings against the Respondent by her next friend Mrs Melinda Milkins (Mrs Milkins). The Milkins proceedings were also commenced on 6 May 2019. These submissions refer to Mrs Harvey, her children and Jaelah Milkins as the Applicants.

3.    By interlocutory applications dated 13 August 2019, the Respondent sought an order that the Applicants’ Statements of Claim (SOC) be struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) (the FCR), on the grounds that they were evasive and ambiguous, and likely to cause prejudice, embarrassment and delay.

4.     The interlocutory applications were successful, and on 18 October 2019 O'Callaghan J made orders striking out the SOC in each proceeding, but granted leave to re-plead.

5.     On 19 November 2019 the Applicants filed Amended Statements of Claim (ASOC) in both proceedings.

6.     On 1 July 2020, the Respondent again made applications to strike out parts of each ASOC pursuant to r 16.21(1).

7.     O'Callaghan J acceded to the Respondents’ request to deal with the application on the papers and on 13 September 2021 made orders to strike out parts of the ASOC without leave to re-plead (the Strike-Out Orders).

8.     On 28 September 2021, the Applicants filed applications for leave to appeal from the Strike-Out Orders. On 12 October 2021 the Applicants filed an amended application for leave to appeal. The only amendment was an application to stay order 3 of the Strike-Out Orders, which dealt with submissions on costs. That issue is no longer relevant. Costs orders were made in both proceedings on 17 November 2021.

6    The application for leave to appeal was scheduled for hearing on 8 April 2022. That hearing date was vacated by consent, as were a number of subsequent dates to which the hearing of the application was variously adjourned. Eventually, the application came before the court for hearing on 29 September 2022, after the applicants were able to secure pro bono representation.

7    At that hearing, Mr Hall SC, on behalf of the applicants, read an affidavit affirmed on 27 September 2021 by the applicants’ former solicitor, Mr Qureshi. A further document was tendered into evidence without objection.

8    As the Federal Court Rules 2011 (Cth) (the “Rules”) contemplate, the applicants’ application for leave was accompanied by a draft notice of appeal (to be filed in the event that their application succeeded).

Relevant principles

9    The principles governing applications for leave to appeal are not presently in dispute. They were helpfully summarised in the applicants’ written submissions as follows:

11.     As for the principles relevant to the question of leave to appeal, "…generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court…": Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373; [2004] FCAFC 270 per Black CJ and Stone J (Brilliant Digital), citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 (emphasis added). The application is of summary nature: Pfizer Ireland Pharmaceuticals v Samsung Bioepis (2017) 257 FCR 62, [2017] FCAFC 193 at [2].

12.     The issues of substantial injustice and sufficiency of doubt are not independent (Tyne v UBS AG [2016] FCA 241 at [44]); and, in general, leave to appeal will be granted "where there is a reasonably arguable case that the decision below is affected by appealable error, and a grant of leave is necessary to remedy a substantial injustice" (In Re CSR Ltd (2010) 183 FCR 358, [2010] FCAFC 34 at [5] per Keane CJ and Jacobson J).

…

15.     When considering the issue of whether to grant leave or not "… it is neither necessary nor appropriate that [the single Judge] should examine the merits of the proposed appeal in the way that a Full Court might choose to do": Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908.

10    The principles applicable to strike-out applications are similarly uncontroversial. The learned primary judge set them out in the Primary Judgment as follows (at [7]-[12]):

Rule 16.02 relevantly provides:

16.02 Content of pleadings—general

(1)    A pleading must:

(a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b)    be as brief as the nature of the case permits; and

(c)    identify the issues that the party wants the Court to resolve; and

(d)    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; and

(e)    state the provisions of any statute relied on; and

(f)    state the specific relief sought or claimed.

(2)    A pleading must not:

(a)    contain any scandalous material; or

(b)    contain any frivolous or vexatious material; or

(c)    be evasive or ambiguous; or

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

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

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

…

Rule 16.21(1) relevantly provides:

16.21 Application to strike out pleadings

(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:

…

(c)    is evasive or ambiguous; or

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

…

The following propositions are derived from the joint reasons of French CJ, Gummow, Hayne and Kiefel JJ in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486, 502-503 and they are axiomatic:

(a)    it is a fundamental requirement for a fair trial of allegations of contravention of law that the party making those allegations identify the case which it seeks to make and to do that clearly and distinctly;

(b)    the task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief;

(c)    a pleader is not entitled to “plant[] a forest of forensic contingencies and wait[] until final address or perhaps even an appeal hearing to map a path through it”.

A pleading that ignores those axiomatic propositions risks being embarrassing to a fair trial.

That said, the power to strike out pleadings is not lightly to be exercised. As the Full Court said in Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 at 540 [6]:

Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial.

The power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency. See eg Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236.

11    The orders that are the subject of the present application were made by way of disposition of an application that St Joseph’s made under r 16.21 of the Rules. The court’s power to grant relief on such an application exists as an incident of its implied power to prevent abuses of process: Rana v Commonwealth of Australia [2008] FCA 907, [55]-[56] (Lander J). It was not in dispute that the exercise of that power—and the related power to grant or refuse leave to re-plead—involves an exercise of judicial discretion: Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191, 193 (Bowen CJ); Radisich v McDonald (2010) 198 IR 244, 251 [20] (Gilmour J).

12    The circumstances in which an appellate court might review the exercise of such a discretion are set out in the following (and well-known) passage of House v R (1936) 55 CLR 499, 504-505 (hereafter, “House v R”; Dixon, Evatt and McTiernan JJ):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

The present application

13    The Primary Judgment struck out passages of the applicants’ amended statement of claim by which four discrete causes of action were sought to be agitated. They were as follows:

(1)    paragraphs 11-19 of the amended statement of claim, by which it was pleaded that St Joseph’s had subjected the second and third applicants to indirect discrimination within the meaning given to that concept by s 6 of the DD Act;

(2)    paragraphs 34-35 of the amended statement of claim, which alleged that St Joseph’s had contravened identified provisions of the Disability Standards for Education 2005;

(3)    paragraph 36 of the amended statement of claim, which alleged that St Joseph’s had victimised the applicants (or certain of them) in breach of s 42 of the DD Act; and

(4)    paragraphs 37-44 of the amended statement of claim, which made various claims under the ACL.

14    Both the learned primary judge (in the reasons published in support his judgment) and the parties in the present application addressed each in turn, and I shall do the same.

The Indirect Discrimination pleas

15    Paragraphs 11-19 of the amended statement of claim sought to prosecute the applicants’ indirect discrimination cause. Paragraph 11 was centrally relevant to that cause and read as follows:

11.    The Respondent required students at St Joseph’s, including Max and Jack, to comply with the requirement or condition as defined in s 6(1) that in order to obtain education by classroom instruction or teaching, students must access the curriculum without evidence-based remedial and numeracy programs, implemented with fidelity (the requirement).

PARTICULARS

(a)    “evidence-based” means based on the most contemporaneous scientific research at each point in time;

(b)    “fidelity” means application with accuracy/exactness, being as per the manufacturer’s instructions;

(c)    the subjects in the curriculum that Max and Jack could not access on the same basis as others due to the imposition of the requirement, included;

i.    English;

ii.    Mathematics;

iii.    Languages Other Than English;

iv.    Religious Education

v.    General studies;

vi.    Information and Communications Technology;

vii.    Design, Creativity and Technology;

viii.    Personal Learning;

ix.    Civics and Citizenship;

x.    Thinking Process;

xi.    Integrated Study;

xii.    Geography;

xiii.    History;

xiv.    Ethical Capability;

xv.    Intercultural Capability;

xvi.    Science;

xvii.    Library;

xviii.    Interpersonal Development;

xix.    Music.

16    After reciting that passage, the learned primary judge proceeded to identify a number of “insuperable difficulties” by which he found it to be plagued: Primary Judgment, [15]-[18] (O’Callaghan J). It is unnecessary here to recite them. It suffices to observe that they were said to manifest in a profound want of clarity. His Honour struck out paragraphs 12-19 of the amended statement of claim on the basis that they were founded upon and inextricably related to paragraph 11. That was plainly so and there is no challenge to that observation.

17    Presently, the applicants maintain that paragraph 11 of their amended statement of claim was, in truth, sufficiently clear that the respondent could, in its defence, sensibly respond to it. At the least, they maintain that that submission is arguable to a point that his Honour’s conclusion is attended by doubt sufficient to warrant a grant of leave to appeal.

18    With respect, I do not agree. Although it is unnecessary to decide the point, paragraph 11 strikes, on its face and very clearly, as vague to a point that warrants its striking out. It posits that St Joseph’s educational services (or some of them) were available only on the condition that they be accessed without the benefit or application of certain kinds of programs. In order to answer that allegation, St Joseph’s would need to know what species of program or programs it was said, by that requirement, to have eschewed. The plea contemplates, in answer to that inquiry, that it eschewed remedial and numeracy programs that were based on the most contemporaneous scientific research at each point in time, and that were implemented with accuracy/exactness as per the manufacturer’s instructions. Whether St Joseph’s had—that is to say, gave effect to—any such requirement would turn upon whether such “remedial and numeracy programs” (whatever that loose language might contemplate) as it did have in place (if any) answered or did not answer the descriptions identified. That, in turn, would depend upon what was meant by “based on the most contemporaneous scientific research at each point in time” and by “implemented with…accuracy/exactness, being as per the manufacturer’s instructions”.

19    Again, I need not decide the point now; but I am quite unable to see how a respondent might ever sensibly respond to an allegation as self-evidently unclear as that contained within paragraph 11 of the amended statement of claim. What, it might rhetorically be asked, is contemplated by “scientific research” that is “the most contemporaneous”? At what points in time? When will implementation qualify as “exact” or “accurate”? What instructions are contemplated? St Joseph’s could not possibly know with any sense of precision whether the remedial and numeracy programs that feature in its operation are of the kind that it is said to have eschewed.

20    I consider that the prospects that an appeal court might see what I very much cannot are poor, if they exist at all. But that is not the test that I must here apply. The proposed appeal (if leave to commence it were granted) would challenge the learned primary judge’s orders not on the basis that alternative conclusions ought to have been preferred; but on the basis that his discretion somehow miscarried. I am unable to see how it might have. His Honour was plainly alive to the matters of relevant principle; he turned his mind to the right question (namely, whether the plea was vague or embarrassing to a point warranting its strike out) and he arrived at a conclusion that was open to him (if it wasn’t the only conclusion that was open to him).

21    The applicants submitted that his Honour’s conclusion was outside the bounds of what was reasonable, such that it must have been attended by some other, not apparent discretionary error. Respectfully, that submission seems most unlikely to be accepted. Although other judges might not have been minded to do so, it was (or very much appears to have been) open to his Honour to conclude that the impugned passages were sufficiently lacking in clarity as to warrant their being struck out.

22    Similarly, his Honour’s decision to refuse the applicants leave to re-plead the cause to which paragraphs 11-19 of the amended statement of claim were directed seems, on its face (and with respect), orthodox. His Honour identified (as no shortage of authority does) that “ordinarily leave is given to re-plead”: Primary Judgment, [46] (O’Callaghan J). Nonetheless, his Honour considered that the applicants had already had that chance and that “[t]he impugned paragraphs wholly fail to plead any proper cause of action”.

23    Although they accept the former (as plainly they must), the applicants challenge the latter on the basis that the problem with paragraph 11, if there was one, was not that there was no proper cause of action; but that the cause of action had not properly been pleaded. That, they say, is something that could be addressed.

24    That submission involves a mischaracterisation of his Honour’s observation. A cause of action that is not a proper cause of action is not a cause of action. To say that a litigant has not pleaded a proper cause of action is to say that he, she or it has not properly pleaded a cause of action. His Honour is to be understood as having reasoned that the applicants’ sustained inability to plead their cause properly (in a way not susceptible to strike out) was a consideration that weighed against the grant of leave to re-plead. Reasoning in that way was, with respect, orthodox. I consider that it is unlikely that the court might, on appeal, conclude differently.

25    The applicants maintain that his Honour applied a “two-strikes rule”; and, in doing so, wrongly fettered the court’s discretion to permit leave to re-plead. The denial of such leave was described as the “nuclear option”. Although one might understand why those descriptions were advanced, it does not appear to me to be likely that the court, on appeal, might consider them sufficient to reflect discretionary error. His Honour did not, in terms, suggest that leave to re-plead should be refused simply because of the number of opportunities the applicants had had to plead their case correctly. Rather, his Honour appears simply to have taken the view that that history was a matter that should properly inform his discretion. That appears to have been an orthodox approach to the issue and I consider that it is unlikely that the court might, on appeal, come to a different view.

26    His Honour’s disinclination to grant the applicants leave to re-plead appears to have been informed by considerations that ordinarily and properly inform that discretion. His Honour does not appear to have mistaken any point of principle by which his task was to be guided, nor to have taken account of matters that ought not to have factored in his reasoning. It is suggested that his conclusion fell outside of what was reasonably available in the circumstances; but that is a notoriously high hurdle for the applicants to clear and, given the matter’s history, I have grave doubts that they will be able to clear it. Again, I consider that it is unlikely that the court might, on appeal, conclude differently.

27    I do not accept that there is sufficient reason to think that the orders made in consequence of the conclusions that his Honour reached in relation to paragraphs 11-19 of the amended statement of claim were a product of discretionary (or any other) error. I consider it very unlikely that, were leave to be granted, the court on appeal would find that his Honour’s discretion miscarried in any way, or that his orders were otherwise the product of error.

28    That suffices to address the first consideration upon which the grant of leave presently rests. The second concerns the prejudice that a refusal of leave to appeal might visit upon the applicants. They maintain that paragraphs 11-19 of their amended statement of claim sought to prosecute a discrete cause of action. In the event that the strike out of those paragraphs or the refusal of permission to re-plead them were not corrected on appeal, the applicants would not be able to prosecute it, which, they say, would visit substantial injustice sufficient to warrant the leave that is sought.

29    Whether the applicants might be subjected to substantial injustice is open to doubt. They have, to date, appeared unable to put their case in an intelligible way. That might reflect a want of diligence in the manner in which their pleading has been prepared; but, at some point, the court is entitled to assume that it more reflects that there is no case open to intelligibly be put.

30    I accept that, unless leave to appeal is granted and the applicants are given the opportunity to argue on appeal that the learned primary judge’s discretion to strike out paragraphs 11-19 of the amended statement of claim with no right to re-plead miscarried, there is a risk that the applicants will be subjected to injustice; and, possibly, substantial injustice. Regardless, given the weakness that I perceive in that argument, I do not consider that it should warrant granting leave to appeal.

The Education Standards pleas

31    The learned primary judge made the following seemingly uncontroversial observations about the subject matter to which paragraphs 34 and 35 of the amended statement of claim were directed (at [22]-[23]):

Section 5.2(1) of the Standards sets out the student’s right to enable them to participate in education. It does so by placing an obligation on the educational provider to take “reasonable steps” to ensure this participation can occur.

Sections 5.2(2) and 5.2(3) set out the reasonable steps that constitute compliance with s 5.2(1). There are four separate obligations which may be summarised as follows: consultation with the student; deciding whether a reasonable adjustment is necessary; making a reasonable adjustment; and repeating the above process over time.

32    At this juncture, it is prudent to set out what was pleaded:

Fourth Allegation: Breach of Disability Standards - Section 32

34    The Respondent is an education provider for the purpose of Part 5.2(1) and 5.2(2) of the Disability Standards for Education 2005 (“the Standards”).

35    The Respondent has breached s.5.2(1) and s.5.2.(2) of the Disability Standards for Education 2005, as follows:

35.1    The Respondent failed to take reasonable steps to ensure that Max and Jack could participate in their educational program on the same basis as students without a disability, and without experiencing discrimination, as a result of not properly undertaking its responsibilities set out in s.5.2(2), such responsibilities interpreted pursuant to the Convention on the Rights of Persons with Disabilities through which the DDA ought to be applied pursuant to s 12(8);

Particulars of the Reasonable Steps

35.1.1    following the guidelines of the Respondent, as set out in paragraph 44 hereof;

35.1.2    the formation and operation of a Program Support Group for Jack pursuant to the Respondent’s Guidelines;

35.1.3    the operation of a Program Support Group for Max pursuant to the Respondent’s Guidelines;

35.1.4    the provision of Individual Education Plans, as set out in paragraph 21 hereof.

35.2    The Applicants refer to and repeat the First to Third Allegations inclusive above, as if they were set out seriatum hereto.

35.2.1    With the requirements imposed as set out in the First to Third Allegations:

a.    Max and Jack were not able to access the curriculum on the same basis as others;

b.    Max’s anxiety required him to leave the school to remediate his mental health;

c.    Max and Jack had significant academic delays throughout their enrolment, as set out in paragraphs 14.2 to 14.8, and 16.2 to 16.4 hereof, which were not addressed during that time.

35.3    The Respondent failed to meaningfully consult, pursuant to its obligations set out in General Comment 7 of the Convention on the Rights of Persons with Disabilities, as follows:

35.3.1    The Applicants say that any attempts to consult with them were merely tokenistic, and as such did not comply with the Disability Standards for Education, as applied through s.12(8) of the DDA.

Particulars

a)    Correspondence on the subject of Max and Jack’s education was often not responded to, as set out in paragraphs 36.1 and 36.2 hereof.

b)    Concerns expressed by Mr and Mrs Harvey about the failure by St Joseph’s staff to improve the significant academic lag that Jack and Max experienced were often not acted upon, as set out in paragraphs 36.1 and 36.2 hereof.

c)    Requests for particular supports to ameliorate the effects of Max and Jack’s disabilities as set out in paragraphs 36.1 and 36.2 hereof, were not properly considered or provided.

d)    The Applicants rely upon correspondence and meeting minutes, which may be inspected at the offices of the Applicants’ solicitors by prior appointment, as well as an absence of meetings/meeting minutes.

33    The learned primary judge’s analysis of those pleas was as follows (Primary Judgment [24]-[26]):

As counsel for the respondent submitted, and as his instructing solicitor has repeatedly told the solicitors for the applicants, in order properly to understand an allegation of contravention of the Standards, the pleading should clearly identify: which of the obligations set out in s 5.2 of the Standards are relied on; the relevant conduct; why the conduct contravened the obligation; and the provision of the Act relied on.

Paragraph 34 of the ASOC does none of those things. The failure properly to plead those matters means that the whole of paragraph 35, which is founded on and inextricably related to paragraph 34, must also be struck out.

I have not overlooked the submissions made in the respondent’s written submissions at paragraphs 48-62. They make the further points that: the allegation in paragraph 35.1.1 that the respondent breached s 5.2 by “following the Guidelines of the Respondent, as set out in paragraph 44 hereof” is nonsensical because paragraph 44 does not refer to any guidelines; and that paragraph 35 suffers from various different types of incomprehensibility. I agree with those submissions, but it is not necessary to recite them in detail because, as I say, paragraph 35 falls away entirely because it is founded on the manifestly inadequate paragraph 34.

34    It may be accepted that his Honour’s references to paragraphs 34 and 35 of the amended statement of claim should, instead, have been references to paragraphs 35 and 34, respectively. That was an obvious slip and I do not consider that much can (or would, if leave were granted) be made of it.

35    By their written submissions, the applicants did not seek to challenge the striking out of paragraphs 34 and 35 of the amended statement of claim. Instead, they seek to challenge only his Honour’s decision to refuse them leave to re-plead those paragraphs (or the cause of action said to be inherent in them). In so submitting, it was put that the acknowledged infelicities by which those paragraphs are (or were) plagued were easily remedied; and that the applicants ought properly to have had an opportunity to remedy them.

36    For reasons equivalent to those outlined above (at [22]-[27]), I do not consider that there is sufficient reason to think that the learned primary judge’s decision to refuse the applicants leave to re-plead the matters addressed in paragraphs 34 and 35 of the amended statement of claim was a product of discretionary error.

37    The applicants submit that, if leave to appeal is not granted, they face subjection to substantial injustice (in that they will be precluded from prosecuting the cause of action to which paragraphs 34 and 35 were directed). That submission is equivalent to what is put with respect to paragraphs 11-19 of the amended statement of claim (above, [28]). For reasons equivalent to those outlined above (at [29]-[30]), I do not consider that such injustice as might be visited suffices to warrant the granting of leave to appeal.

The Victimisation plea

38    Paragraph 36 of the amended statement of claim purported to allege that St Joseph’s victimised two of the applicants. Although lengthy, it is convenient to replicate it in full:

Sixth Allegation: Breach of s 42 of the DDA

36    In breach of s.42(2)(f), Mrs Harvey and Max have been victimised as a result of asserting Max and Jack’s rights as a student with a disability, by reason of the following events, occurring after Mrs Harvey began asserting those rights:

36.1    St Joseph’s staff refused to provide evidence of documentation supporting the effectiveness of their educational strategies for Max and Jack. The First Applicant refers to:

36.1.1    her email to teacher Ms Joanne Coldebella dated 17 August 2018 requesting evidence of claimed achievements for the year for Max and Jack, which documentation was not provided;

36.1.2    her email to teacher Mr Leigh Granger dated 26 July 2018 requesting lesson content for Max, which documentation was not provided;

36.1.3    her email to teacher Leigh Granger dated 8 June 2018 requesting the scope and sequence for spelling for the remainder of that term, which was not provided;

36.1.4    her email to Principal Mr Ronan O’Mahony and Mr Leigh Granger dated 31 May 2018 requesting the scope and sequence for the spelling word list, which was not provided;

36.1.5    her email to teacher Ms Kylee Bertacco dated 18 April 2018 asking for a copy of Jack’s report, which was not responded to or provided;

36.1.6    her correspondence to Mr Ronan O’Mahony dated 22 November 2017 requesting copies of all pre-and post testing for literacy and numeracy, and workbooks including intervention work, which were not provided;

36.2    St Joseph’s staff refused to answer most queries in writing, or at all, from Mrs Harvey or from Max’s private practitioners, instead only allowing discussions in relation to Max’s education to occur at meetings, typically of a duration of 20-30 minutes, at the school’s direction. The First Applicant refers to:

36.2.1    her emails to teacher Mr Leigh Granger dated 27 August 2018, which were not responded to;

36.2.2    her email to teacher Ms Joanne Coldebella dated 17 August 2018, which was not responded to;

36.2.3    her email to teacher Mr Leigh Granger dated 26 July 2018 requesting information about timetabling, teachers, and the structure of activities for Max, which was not responded to;

36.2.4    her email to principal Ronan O’Mahony, teacher Joanne Coldebella and teacher Ms Kylee Bertacco dated 23 July 2018 where Mrs Harvey expressed her concern about the school refusing to put anything in writing, which was not responded to;

36.2.5 her email to teacher Joanne Coldebella dated 23 July 2018 asking a number of specific questions about the National Collection of Data, requesting an individual learning plan and meeting for Jack and details of how his progress was being monitored, which Ms Coldebella did not answer;

36.2.6    her email with her husband to Principal Mr Ronan O’Mahony dated 15 June 2018, which was not responded to;

36.2.7    her email to Principal Mr Ronan O’Mahony dated 15 June 2018 complaining that as a general rule, communicating with he and teaching staff is met with constant resistance, which was not responded to;

36.2.8    her email to Principal Mr Ronan O’Mahony dated 1  June 2018, raising amongst other things Max missing from the school grounds and previous emails that had been sent and not responded to, which was not responded to;

36.2.9    her email to Principal Mr Ronan O’Mahony and Mr Leigh Granger dated 31 May 2018 in relation to Max’s anxiety and inability to access the curriculum, which was not responded to;

36.2.10    her email to Principal Mr Ronan O’Mahony and Mr Leigh Granger dated 24 May 2018 regarding the possible humiliation of Max in the classroom, and the uninformative communication coming from the school, which was not responded to;

36.2.11    her email to teacher Ms Joanne Coldebella dated 15 May 2018 requesting to know changes to specialist classes, which was not responded to;

36.2.12    her email to teacher Mr Leigh Granger and Ms Joanne Coldebella dated 6 May 2018 expressing a reluctance by the school to share information, requesting details of Max’s classroom program, expressing concern about Max’s academic delay, issues which were not responded to other than by an email from Ms Coldebella implying that if Mrs Harvey did not attend a Program Support Group meeting, communication would not occur;

36.2.13    her email to teacher Ms Joanne Coldebella dated 4 May 2018 requesting evidence of any positive outcomes for Max from attending meetings, and expressing concern that there had been no co-operation and collaboration around Max’s education, to which there was no response;

36.2.14    her email to teacher Ms Kylee Bertacco dated 3 May 2018, asking numerous questions about Jack’s education, to which there was no response;

36.2.15    her email to teacher Ms Kylee Bertacco dated 18 April 2018, asking numerous questions about Jack’s education, to which there was no response;

36.2.16    her email to teacher Ms Joanne Coldebella dated 2 May 2018, setting out her concern in relation to the lack of collaboration and communication from the school, the inability in a 20 minute Program Support Group meeting to adequately discuss issues, failure by the school to respond to Max’s practitioner, and the school’s failure to use evidence-based and best practice approaches in teaching Max, which was not responded to;

36.2.17    Max’s private tutor’s email, sent with the permission of Mrs Harvey, to teacher Leigh Granger dated 26 April 2018 requesting specific details about Max’s learning program in order that she could support that program in her private work with him, requesting detail about any accommodations being made, which was not responded to;

36.2.18    her email to Ms Joanne Coldebella dated 23 April 2018 referring to the feedback provided by her to the Individual Education Plan which had been ignored, which was not responded to;

36.2.19    her email to Mr Leigh Granger on 17 April 2018 which was not responded to;

36.2.20    her email dated 28 March 2018 to teacher Ms Joanna Coldebella which was not responded to;

36.2.21    her email to Principal Ronan O’Mahony which was not responded to;

36.2.22    her email to Ms Joanne Coldebella dated 28 March 2018, which was not responded to;

36.2.23    her email to Mr Ronan O’Mahony dated 19 March 2018 where amongst other things, she raised the reluctance by the school to communicate with her and the failure to respond as to whether any evidence-based remedial program was being provided, issues which were not responded to;

36.2.24    her email to Mr Ronan O’Mahony and Ms Joanne Coldebella dated 16 March 2018, to which there was no reply;

36.2.25    her email to Mr Leigh Granger requesting information about Jack’s learning, to which there was no reply;

36.2.26    her correspondence to Mr Ronan O’Mahony through Max’s advocate, on 9 March 2018, to which there was no reply;

36.2.27    her correspondence to Mr Ronan O’Mahony through Max’s advocate whereby Mr O’Mahony had responded on 13 December 2017 referring queries to Mr Martin Keogh, who when contacted, by letter dated 22 February 2018 referred queries to Mr O’Mahony;

36.2.28    her correspondence to Mr Leigh Granger dated 23 February 2018 involving another student’s physical and verbal abuse of Max, which was not responded to;

36.2.29    her correspondence to Mr Leigh Granger dated 23 February 2018 involving another student’s bullying of Max, which was not responded to;

36.2.30    her email to Mr Leigh Granger dated 13 February 2018 asking him to clarify what literacy and numeracy interventions he was planning on doing with Max, which was not responded to;

36.2.31    her email to Mr Leigh Granger and Mr Ronan O’Mahony dated 8 February 2018 raising amongst other things the difficulties Max was having accessing the curriculum, the failure by the school to share information and the psychological and academic consequences for Max, which was not responded to;

36.2.32    her email to Mr Leigh Granger dated 6 February 2018 requesting information about timetabling, which was not responded to;

36.2.33    her email to Mr Leigh Granger dated 2 February 2018, which was not responded to;

36.2.34    her email to Mr Ronan O’Mahony dated 12 December 2017 in relation to school refusal from Max and Jack, which was not responded to;

36.2.35    her correspondence to Mr Ronan O’Mahony dated 11 December 2017 setting out in detail the significant problems that Max was experiencing at the school, and the school’s failure to collaborate and provide documents to Mr and Mrs Harvey and provide supports to Max, which was not responded to;

36.2.36    her correspondence to Mr Ronan O’Mahony dated 29 November 2017 asking a number of questions about support for Max, which was not responded to;

36.2.37    her correspondence to Mr Ronan O’Mahony dated 22 November 2017, asking for a written reply, which was refused;

36.2.38    her correspondence to Mr Ronan O’Mahony raising numerous issues linked with Max’s education and confirmation of supports, which was not responded to other than to suggest a meeting;

36.2.39    her correspondence to Mr Ronan O’Mahony dated 20 April 2017 expressing significant concerns about Max’s lack of progression and indeed his academic gap widening throughout his schooling, his requirement to have equal access to the curriculum and expressing concerns that the evidence based programs provided by the College were not being run with fidelity and therefore were no longer evidence-based, which was not responded to other than to suggest a meeting;

36.3    The actions in paragraphs 36.1 and 36.2 hereof caused detriment to Max in the following ways:

36.3.1    St Joseph’s would not collaborate with, or provide the information required by Mrs Harvey, unless she attended a meeting;

36.3.2    meetings, due to their brevity and the refusal to accept Mrs Harvey’s input, did not result in positive educational or psychological outcomes for Max, as set out in paragraphs 14.2-14.8 hereof; and

36.3.3    because St Joseph’s practices did not require evidence-based teaching methods, Max’s parents wished to research any approaches suggested by the school to ensure that they were evidence-based prior to agreeing to them, however this was not possible without explicit explanation as to what such approaches were;

36.3.4    there was significant disagreement in relation to the manner in which Max was being educated, and there was insufficient time at meetings to comprehensively discuss Max’s educational plans, which were lengthy and verbose running typically from 9-12 pages; and

36.3.5    by reason of the matters set out in the subparagraphs immediately above, discussions and decision making in relation to Max’s education could not properly occur, and educational planning could not be finalised with parental input, such parental input being vital, as Max’s parents were more familiar with his emotional and academic requirements that St Joseph’s staff, and Max’s academic lag did not reduce throughout the period of his complaint.

36.4    The detriment caused to Mrs Harvey was distress, frustration and humiliation, in that:

36.4.1    she was aware that she was being treated in a manner that was contrary to the Respondent’s practices in relation to collaborative partnerships with families, and she refers to those practices and their guiding documents as set out in paragraphs 43.1, 43.2, 43.5, 43.6 and 43.7 hereof.

36.4.2    she witnessed Max’s psychological deterioration due to his school experiences, and felt helpless in addressing that deterioration;

36.4.3    she was aware, from organising assessments, that Max’s academic lag was worsening, and she felt distressed that she was unable to do anything constructive to stop that deterioration, until she withdrew him;

36.4.4    In the absence of St Joseph’s staff and Mrs Harvey working collaboratively, Mrs Harvey felt that she had no option other than to withdraw Max, which was deeply upsetting to her, and required her to then travel an hour each day to take Max to school.

39    The learned primary judge made the following observations about that paragraph (Primary Judgment, [29]-[32]):

The respondent complained that the applicants failed to address any of the deficiencies it identified in correspondence. In response, the applicants’ solicitors provided an 11 page document marked “Annexure A”, which purports to contain particulars of the allegation in paragraph 36. It is annexed to these reasons as “Annexure A”. The applicants say that the matters contained in that Annexure meet the respondent’s objections.

Even assuming that these particulars were to find their way into the ASOC as allegations of material fact, thereby giving the respondent an opportunity properly to plead to the allegations, Annexure A nowhere identifies the nature of the legislative rights said to be asserted. As counsel for the respondent submitted, those sub-paragraphs do no more than summarise written correspondence and nowhere identify statutory rights being asserted. Absent such identification, the cause of action is bound to fail.

Other deficiencies are identified in paragraphs 79-85 of the respondent’s written outline, which are also telling and which I accept. It is unnecessary to deal with them in any detail because the reasons as given are manifestly sufficient to warrant the striking out of the plea.

Again, these deficiencies have been repeatedly pointed out to the solicitors for the applicants but again, to no avail.

40    The applicants accept that paragraph 36 did not identify the specific rights by reason of whose assertion St Joseph’s was said to have subjected the applicants (or two of them) to detriment. Nonetheless, they maintain that the “germ of a case” was apparent, such that they ought to have been granted leave to re-plead. No challenge is made (or sought to be made) to his Honour’s decision to strike the paragraph out.

41    For reasons equivalent to those outlined above (at [22]-[27]), I do not consider that there is sufficient reason to think that the learned primary judge’s decision to refuse the applicants leave to re-plead the matters addressed in paragraph 36 of the amended statement of claim was a product of discretionary error.

42    The applicants submit that, if leave to appeal is not granted, they face subjection to substantial injustice (in that they will be precluded from prosecuting the victimisation cause of action to which paragraph 36 was directed). That submission is equivalent to what is put with respect to the other parts of the pleading to which reference has already been made (above, [28], [37]). Again for reasons equivalent to those outlined above (at [29]-[30]), I do not consider that such injustice as might be visited suffices to warrant the granting of leave to appeal.

The ACL pleas

43    Paragraphs 37 to 44 of the amended statement of claim alleged that St Joseph’s had contravened ss 29(1)(b), 34 and 60 of the ACL. Again, the passages are lengthy but, again, there is merit in setting them out:

37    The Respondent is a supplier of educational and other services within the meaning of the Competition and Consumer Act 2010, Schedule 2, Chapter 1 (2)(1) (“the Consumer Act”) and engages in trade or commerce within the meaning of Schedule 2 Chapter 1 (2)(1).

Particulars

In relation to engaging in “trade or commerce”, the Applicants rely upon:

37.1    the definition of such terms in the Consumer Act being “trade or commerce within Australia or between Australia and places outside Australia” s4; and

37.2    the dictionary definition of the term “trade” and “commerce”, both being the buying and/or selling of services.

38    The Respondent received monies from the First Applicant, a parent of the Second and Third Applicants, who were consumers within the meaning of the Consumer Act within the meaning of Schedule 2 Chapter 1 (3)(1), to provide educational services for the Second and Third Applicants.

39    The Respondent made numerous false and misleading representations in trade/commerce, as set out in paragraph 41 hereof, that its services were of a particular standard, quality, value and grade, in breach of s.29(1)(b) of Schedule 2 of the Consumer Act.

40    Alternatively, each of the representations constituted conduct that is liable to mislead the public as to the nature, the characteristics, and the suitability for their purpose being provided through trade/commerce, in breach of s.34 of Schedule 2 of the Consumer Act. Such misleading representations included that the Respondent:

40.1    works collaboratively with parents, students and other community members to ensure a safe school environment;

40.2    personalises learning through the development of SMART goals for each child based on their developmental needs and interests, through the Program Support Group;

40.3    builds a positive learning community where students feel valued and respected;

40.4    plans reasonable adjustments for the student to access the curriculum;

40.5    monitors and evaluates the progress of the student;

40.6    holds the care, safety and wellbeing of children and young people as a central and fundamental responsibility of the school;

40.7    acts in a partnership with parents where both parties seek to achieve a common goal;

40.8    views the role parents play in their child’s schooling as vital to their school’s mission to educate each child;

40.9    undertakes honest, open and regular communication with parents;

40.10    is committed to nurturing respectful relationships and active partnerships with parents;

40.11    communicates with parents regularly regarding their child’s learning, development and wellbeing;

40.12    relates with and responds to parents in a respectful and professional manner;

40.13    ensures a timely response to any concerns raised by parents;

40.14    encourages parents to play an integral role in their children’s education;

40.15    will always act to protect students from any kind of harm;

40.16    seeks to achieve academic development as an important component for students;

40.17    strive for resolutions and outcomes that are satisfactory to all parties;

40.18    provides a learning environment that promotes independence;

40.19    supports each child’s social, emotional and intellectual growth in a caring yet stimulating environment;

40.20    provides an inclusive educational environment where every child feels important;

40.21    strives for the implementation of a curriculum that is student centred and personalised;

40.22    believes and therefore facilitates, the right of each child to learn and reach their full potential.

41    The misleading personal representations were made to Mrs Kerry Harvey:

41.1    in a meeting with then Principal of St Joseph’s, Mr Martin Keogh, in or about October 2013 wherein Mr Keogh asserted that;

41.1.1    staff at St Joseph’s would constructively communicate with Max’s practitioners in order to obtain the best outcomes for Max;

41.1.2    staff at St Joseph’s would constructively communicate with Mrs Harvey in order to obtain the best outcomes for Max;

41.1.3    staff at St Joseph’s had the expertise to provide the special interventions that would be required to meet Max’s individual needs and effectively educate him.

41.2    in a meeting on or around 22 November 2018, wherein Mr Martin Keogh asserted that:

41.2.1    Max would require a very structured learning pattern which they would provide; and

41.2.2    the school was planning on providing an evidence-based SRA program named Word Attack.

42    The misleading public representations were made throughout 2014 and 2018 to Max’s family through the following means, Mrs Harvey being directed to the general policies by email from Principal Mr Ronan O’Mahony dated 9 July 2016, and accessing others independently at dates that cannot be recalled:

42.1    The St Joseph’s School Website including in the sections entitled:

42.1.1    Overview of Teaching and Learning;

42.1.2    Administrative Information;

42.1.3    Parent School Relationships Code of Conduct;

42.1.4    Annual Report 2016 in the School Overview and Principals Report.

42.2    The Catholic Education Commission of Victoria Program Support Group Meeting Guidelines in the Introduction, Aims, Role And Responsibilities, Practices and Processes sections.

42.3    The Effective Practices Framework for Learning Support Officers first published in 2012 and updated in 2014 Catholic Education Commission of Victoria:

42.3.1    Pages 22, 22, 23, 24 in relation to ensuring outcomes are measurable;

42.3.2    Pages iii, 2, 4, 5, 9, 10, 12, 13, 17, 25 in relation to the importance of using evidence and research in relation to the provision of education;

42.3.3    Pages 8, 9,22 and 24 in relation to the importance of fidelity when it comes to educational practices;

42.3.4    Pages 2, 4, 6, 9,11, 13, 19, 21, 22, 24, 33 in relation to the importance of monitoring and evaluation in relation to education;

42.3.5    Pages p 2, 4, 6, 14, 15, 19, 20, 21, 22 in relation to the importance of education plans.

42.4    The Whole School Approaches to Supporting Positive Student Behaviour publication published in 2016:

42.4.1    Pages 8 and 10 in relation to ensuring outcomes are measurable;

42.4.2    Pages 7 and 8 in relation to the importance of monitoring and evaluation in relation to education;

42.4.3    Pages 2, 3, 4, 6, 8 and 9 in relation to the importance of using evidence and research in relation to the provision of education;

42.4.4    Pages 1, 7 and 9 in relation to the importance of education plans.

42.5    The CECV Intervention Framework 2015:

42.5.1    Page i stating that learning and teaching inclusive of all;

42.5.2    Page 1 in terms of the commitment to provide an effective education for all students and welcoming environments for families;

42.5.3    Pages 12, 13, 21, 22 and 23 in relation to ensuring outcomes and measurable;

42.5.4    Pages 12, 21 and 23 in relation to the importance of fidelity in education;

42.5.5    Pages 2, 4, 6, 8, 9, 12, 18, 13, 19, 20, 21, 23 and 27 in relation to the importance of evaluation and monitoring in education;

42.5.6    Pages i, 2, 3, 5, 7, 12 and 24 in relation to the importance of using evidence and research in relation to the provision of education;

42.5.7    Pages 2, 4, 9, 13, 17, 18, 19, 20, 21 and 24 in relation to the importance of education plans.

42.6    In the Parent Handbook for Primary Schools on the Catholic Education Commission of Victoria website:

42.6.1    in the Welcome section claiming that Catholic schools encourage parents to be involved in their child’s learning;

42.6.2    in the Welcome section, implying that working together with parents, and timely communication are priorities;

42.6.3    in the Transition section stating that teachers and leaders aims to create safe and supportive environment for children;

42.6.4    in the Your Child’s Learning section, claiming that high standards are maximised in all areas of the curriculum, particularly in literacy and numeracy;

42.6.5    in the Your Child’s Learning section claiming that primary schools provide an environment which encourage children to be confident and excited about learning from the start of school life;

42.6.6    in the Your Child’s Learning section claiming that teachers design learning experiences that are responsive to the different ways in which students achieve their best;

42.6.7    in the section on Additional Learning Needs, in relation to the importance of monitoring and evaluation;

42.6.8    in the Our Primary School Curriculum section which states that the curriculum is designed to prepare students to be lifelong learners;

42.6.9    in the English and Literacy section where claims that primary schools devote a high level of resources to literacy programs to improve learning, and monitor literacy achievement;

42.6.10    in the Mathematics section where it is claimed that primary schools developed numeracy capabilities that all students need in their personal and work lives;

42.6.11    in the Specialised Therapy in Schools section where it states that primary schools work in collaboration with specialised organisations in developing learning programs for students with special needs and these are tailored to meet the requirements of the St Joseph’s School newsletter April 2018 which stated that “ “The respectful individual student.

42.7    working relationship between the school staff and parents is another partnership that helps develop opportunities for our students, and it is a pleasure to observe the respectful interaction between staff and the parents of our students.”

43    The representations misled the public because they were wrong.

43.1    The Program Support Group Guidelines are not followed by St Joseph’s.

43.1.1    St Joseph’s did not work in partnership or collaboration with Mrs Harvey to provide an excellent education and achieve positive outcomes for Max and Jack as set out in paragraphs 36.1 and 36.2;

43.1.2    there was no Program Support Group established for Jack;

43.1.3    there were no educational plans with SMART goals, that were monitored and evaluated for Max and Jack;

43.1.4    the most appropriate educational planning and reasonable adjustments were not provided to Max or Jack as set out in the First Allegation;

43.1.5    the relevant teachers for Max and Jack in each year the subject of the complaint did not provide evidence-based information regarding Max and Jack’s progress to assist in evaluating the goals and adjustments;

43.1.6    sufficient time was not allowed to discuss the difficulties Max and Jack were having as Program Support Group meetings (to the extent they were provided) were limited to 20-30 minutes.

43.2    St Joseph’s staff did not work collaboratively or positively with parents as set out in paragraphs 36.1 and 36.2;

43.3    St Joseph’s did not provide a safe environment as evidenced by the deterioration in Max’s mental health whilst attending referred to in paragraph 18 (h);

43.4    Mrs Harvey was not valued or respected and refers to paragraphs 36.1 and 36.2.

43.5    Max and Jack were not valued or respected as evidenced by the lack of concern expressed by St Joseph’s staff of the ongoing difficulties they were experiencing at St Joseph’s;

43.6    St Joseph’s staff did not provide timely responses to Mrs Harvey as set out in paragraphs 36.1 and 36.2.

43.7    Max and Jack:

43.7.1    did not reach their academic potential;

Particulars

The Applicant will rely on the gains they have made since leaving St Joseph’s.

43.7.2    found their school experiences distressing and anxiety provoking as set out in paragraph 18(h);

43.7.3    were not assisted to overcome their literacy and numeracy delays as set out in paragraphs 14.2-14.8 and 16.2-16.4;

43.7.4    were not provided with the educational skills they required as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;

43.7.5    left St Joseph’s years behind their peers in areas of literacy and numeracy as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;

43.7.6    did not receive evidence based programs based on research applied with fidelity;

43.7.7    did not have data taken on their progress each term to allow monitoring and evaluation.

44    By reason of the foregoing, including the matters set out in the First to the Third Allegations hereof, the Respondent failed to render the services with due care and skill in breach of s.60 of Schedule 2 of the Consumer Act.

Particulars

The services would have been rendered with care and skill had Max and Jack’s education received the benefits of the representations made by the Respondent as set out in paragraph 40 hereof.

44    Those paragraphs are self-evidently immune to any prospect of precise (or even reasonable) comprehension. It is apparent that paragraph 41 of the amended statement of claim attests to conversations in which things are alleged to have been said. Those things are identified and, in the chapeau to that plea, are described as “[t]he misleading personal representations”. That description appears to hark back to paragraph 39, which describes the representations made throughout those conversations as false and misleading (and, thereby, apt to attract liability as contravening s 29(1)(b) of the ACL). It seems that the same representations are the subject of paragraph 40, which purports to constitute them also as misleading in a way that attracts the operation of s 34 of the ACL; but that paragraph then goes on to identify 22 further characteristics that the “misleading representations” are said to have “included”. It is anything but clear how those characteristics marry with what is said in paragraph 41. To complicate matters further, paragraph 42 seems to introduce additional means by which “[t]he misleading public representations” are said to have been made. In combination, the passages are (or appear very much to me to be) unintelligible.

45    Paragraph 44 of the amended statement of claim alleged that St Joseph’s had contravened s 60 of the ACL (which creates a statutory guarantee of due care and skill in respect of the provision of services in trade or commerce). It alleges that St Joseph’s failed to educate the second and third respondents with due care and skill. That was said to be so “[b]y reason of the foregoing”. The particulars subjoined to that paragraph suggested that “due care and skill” required that the second and third respondents should have “received the benefits of the representations…set out in paragraph 40”.

46    The learned primary judge made the following observations about those impugned passages (Primary Judgment, [35]-[43]):

The courts have said time and time again that allegations of misleading or deceptive conduct must clearly identify the conduct that is said to be misleading or deceptive. See, by way of example only, Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance (2010) 241 CLR 357 at [5]. And, along similar lines, the courts have said that “it is imperative that the factual basis upon which [such claims are] alleged … must be stated with appropriate clarity” because that is “a fundamental principle of pleading”. See Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3.

In my view, the whole of the pleading with respect to the ACL allegations fails to plead the material facts necessary to constitute a cause of action and must therefore be struck out. Apart from anything else, nowhere does the pleading identify representations or explain why what is alleged was false or misleading.

Again, the applicants have been on notice about the respondent’s insistence that this statutory cause of action is improperly pleaded for a considerable period of time, but has done nothing to rectify it.

Similar criticisms apply to paragraph 40 of the ASOC, which pleads 22 instances of alleged misleading representations said to contravene s 34 of the ACL (which provided “[a] person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services”).

In his submissions on the previous application, the respondent’s counsel asked the following rhetorical questions about those pleaded instances of misleading claims, being: where were they made? When? By whom? To whom? And so on. The solicitors for the respondent have renewed their request for such detail and their insistence that the existing allegation in paragraph 40 is defective, but again, without success.

As to paragraphs 42 and 43, again as counsel for the respondent submitted, they suffer from similar deficiencies, not the least of which is that they are unintelligible.

Paragraph 44 alleges breaches of s 60 of the ACL, which provided “[i]f a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill”.

This pleading is self-evidently defective because, as the respondent submitted:

(a)    it does not identify which part of the first to third allegations are relied on;

(b)    it does not explain why any of the first to third allegations amounted to a failure to render services with due care and skill; and

(c)    the words “[b]y reason of the foregoing, including the matters set out in the [f]irst to [t]hird [a]llegations” suggest the applicants rely on other allegations in addition to the first to third allegations, without identifying what these additional allegations may be.

Again, these defects have been repeatedly pointed out to the applicants’ solicitors, to no avail.

47    The applicants do not seek leave to appeal the orders of the primary judge by which paragraphs 39 to 43 of the amended statement of claim were struck out. Nor did they intend to seek, if the matter was to proceed to appeal and they were successful, to resuscitate their allegations of breach of s 29(1)(b) or 34 of the ACL. Instead, they wish to pursue only their allegation that St Joseph’s contravened s 60 of the ACL.

48    The applicants maintain that the criticisms that the primary judge levelled against paragraph 44 of the amended statement of claim were unwarranted. In their written submissions, that suggestion was made as follows:

With respect to the matters that his Honour raised at [42](a) and (b), the First to Third Allegations are that the Respondent imposed certain requirements or conditions on the relevant Applicants, with the effect that they were indirectly discriminated under the DD Act. The allegation was that failure to implement educational support programs or individual learning plans, and the insistence on open classroom teaching for students regardless of disability, was a failure to use due care and skill.

With respect the matter raised by his Honour at paragraph [42](c) the particulars to ASOC [44] resolved any doubt. The ‘other allegations’ are the failure to deliver on the representations in [40].

49    The applicants submit that the ACL passages that his Honour struck out were clear to a point sufficient to enable a response. They point out that the passages were the subject of correspondence sent to St Joseph’s, the effect of which was to eliminate any want of clarity. They submit that his Honour was wrong to strike them out and, at the least, was wrong not to permit leave to re-plead. The preferred course, they say, was to permit them to expand upon the “germ of a case” that was, at the least, apparent.

50    With respect, those submissions do not persuasively identify any error on the part of the primary judge. Much less do they disclose discretionary error. The criticisms that his Honour catalogued (above, [46]) appear to have been open to be made; as was (for the reasons already addressed) the course that his Honour preferred in consequence of them. It is not apparent that his Honour applied any wrong principle, or failed to (or did) take account of anything that he ought (or, as the case may be, ought not) to have considered. I consider it unlikely that an appeal court would be drawn to conclude differently.

51    Further—and for reasons equivalent to those already canvassed—such prejudice as the applicants are likely to suffer if precluded from agitating this aspect of their case is insufficient, in the circumstances, to warrant the grant of leave that is sought.

Conclusion

52    The Primary Judgment is not attended by sufficient doubt to warrant reconsideration by a full court. Such injustice as might inure in the applicants’ inability to pursue the causes of action that his Honour struck out is not, in the circumstances, of a kind sufficient to warrant the grant of leave to appeal.

53    On that basis, no such leave should be granted and the application should be dismissed. The applicants should pay the respondent’s costs. There will be orders to those effects.

Associate:

Dated:    6 October 2022