Federal Court of Australia

EIX20 v State of Western Australia [2022] FCA 1357

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file and serve the further amended statement of claim (FASC), and the FASC is taken to have been filed on 8 March 2022.

2.    The respondent has leave to file and serve its amended interlocutory application seeking to strike out paragraphs of the FASC, and the interlocutory application is taken to have been filed on 29 March 2022.

3.    The respondent's application for the striking out of paragraphs 4, 6, 7(d), 9, 16, 17, 19, 24, 26(a), 27, 28, 37, 38, 57, 66, 68, 69(a), 69(b), 69(c), 69(d), 69(e), 70, 71, 72, 73, 74 and 75 of the FASC is allowed and those paragraphs are struck out.

4.    The applicant has leave to file and serve a second further amended statement of claim.

5.    The proceeding be listed for a case management hearing on a date to be fixed.

6.    The question of the costs of the application be reserved to the case management hearing.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    This proceeding relates to the treatment of a young Noongar Aboriginal man whilst he was detained at Rangeview Detention Centre and Banksia Hill Detention Centre.

2    The present application is of a procedural nature. The State of Western Australia originally sought to strike out the applicant's amended statement of claim. Having received the State's submissions, the applicant provided a proposed further amended statement of claim (FASC). The State accepts that the FASC addresses some of its complaints. This course has narrowed the issues somewhat, although many remain. The State's reply submissions and the parties respective oral submissions addressed the case as pleaded in the FASC. Following the hearing of the application, the State provided a proposed amended interlocutory application that reduces the number of impugned paragraphs, having regard to the FASC. Accordingly, these reasons proceed on the basis that the applicant relies on the FASC and the State relies on the amended interlocutory application. From a case management perspective, the simplest course is to grant leave to both parties to file their respective documents. The FASC will be taken to have been filed on 8 March 2022. The grant of leave does not prejudice the right of the State to pursue its strike out application, modified in accordance with the amended interlocutory application. That application will be taken to have been filed on 29 March 2022.

3    Before embarking on a consideration of the detailed submissions, it is appropriate to provide a general overview of the claims pleaded in the FASC.

Disability and racial discrimination claims

4    The applicant's claims were initially brought under the Disability Discrimination Act 1992 (Cth) (DDA) and the Racial Discrimination Act 1975 (Cth) (RDA) against the State, the relevant department being the Department of Justice. In short, the applicant complains that during his detention he was discriminated against by the State on the basis of his disabilities and what he describes as his Aboriginal race.

5    He pleads that prior to and during the time he was in detention he suffered from certain psychological disorders, including attention deficit hyperactivity disorder, antisocial personality disorder, complex post-traumatic stress disorder and was treated in a manner consistent with a diagnosis of bipolar disorder and schizophrenia.

6    The applicant pleads, amongst other things, that: he was detained on multiple occasions at Banksia Hill; while there, officers retained by the State to carry out functions were not properly trained to deal with his disadvantages; that he was punished including by long periods of isolation and by use of force and restraint; that he was placed in circumstances where he was exposed to the risk of sexual abuse; that after he was an instigator of a disturbance on 4 and 5 May 2017, which he considered was the best means by which he might be moved elsewhere, he was sprayed with a pepper or other chemical spray and offered no medical treatment; and he was then kept for a period in isolation and denied access to support staff such as Aboriginal Welfare Officers.

7    The applicant pleads that the State discriminated against him on the basis of his disabilities in contravention of the DDA by denying him access to teaching or support staff; by developing training courses that had content that excluded him; by failing to make reasonable adjustments for the applicant and so treating him less favourably due to his disabilities; by detaining him under behaviour management regimes that denied him access to other people and restricted his access to meaningful education and to exercise, food and mental stimulation; and by failing to make reasonable adjustments to his health care services. An alternative claim is made for indirect discrimination.

8    The applicant pleads that under the Young Offenders Act 1994 (WA) (YOA) the State was obliged to deal with the applicant in a manner that was culturally appropriate, to exercise reasonable care for his safety, including by providing privacy and dignity, programs and services that met his educational, vocational, gender and age-related needs, and to acknowledge the complexities of cultural diversity.

9    The applicant contends that the State denied his access to NAIDOC week celebrations and denied or gave limited access to an Aboriginal Welfare Officer whilst in detention, conduct that involved distinctions in his treatment based on his Aboriginality, and had the purpose or effect of impairing his human rights, in breach of the RDA.

10    The applicant complained to the Australian Human Rights Commission in relation to the alleged infringements of the DDA and the RDA by the relevant detention centre officers. That complaint was terminated pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (no reasonable prospect of the matter being settled by conciliation). The Australian Human Rights Commission Act provides that if a complaint has been terminated in those circumstances, an applicant may bring proceedings relevantly in this Court.

11    In respect of the discrimination claim the applicant seeks compensation for hurt, humiliation, distress, anxiety and loss of rights, and an apology from the State. He also seeks certain orders that the State give public undertakings to revise the behaviours of those working for the Department of Justice and to ensure access to independent mental health professionals, and education and cultural supports, amongst other things.

Claims in negligence and other torts

12    The applicant pursues a claim in negligence relating to the manner in which he was detained and treated. The applicant also brings other common law claims in tort. He contends that the periods of confinement constituted unlawful assault and battery, and unlawful imprisonment. The applicant seeks compensatory, exemplary and aggravated damages for these claims.

Cross-claim

13    For completeness I note that the State has brought a cross-claim against the applicant in trespass to land and goods, seeking damages by way of repair costs in the sum of $346,838.34 for 'causing fires and substantial damage' during a disturbance at Banksia Hill on 4 and 5 May 2017.

Procedural history

14    At the time the applicant filed his action in this Court regarding his disability and racial discrimination claims, he also had ongoing proceedings in the District Court of Western Australia regarding common law claims in negligence and other torts. By letters dated 29 January 2021 and 26 February 2021, the State requested that the applicant consolidate these claims in one court, as well as foreshadowing a request for further and better particulars and setting out the State's particular issues with the applicant's pleadings. It follows that there have been issues raised by the State as to the applicant's pleading for some time. The issues were not resolved or minimised by the State's request for further and better particulars, mainly because the applicant contends that it is the State that holds the knowledge relevant to many of the questions and also because many of the matters raised were said to be matters for evidence.

15    In March 2021 the applicant filed an amended statement of claim that incorporated the District Court claims, thereby consolidating the proceedings.

16    Attempts to subsequently mediate or otherwise agree issues relating to the request for further and better particulars were unsuccessful.

17    The State proceeded to file an amended defence and cross-claim, and filed this strike out application. The amended defence pleads many factual matters. For example, in the amended defence the State: provides particulars of the applicant's periods of detention at Rangeview and Banksia Hill; provides details of self-harm incidents within Banksia Hill, presumably taken from internal records; lists medical reports, identifying dates and diagnoses relating to the applicant, in the context of addressing the claims made about its knowledge of the applicant's disabilities; lists reports as to drug use; provides details of psychiatric and psychological treatment; provides details of internal reports relating to the alleged sexual offending against the applicant; lists episodes when the applicant was physically and mechanically restrained in Banksia Hill, restraints that it contends were lawful under the YOA; provides particulars of dates when the applicant was held in the Harding Unit; provides particulars of the suppliers and content of education available to all detainees at Banksia Hill; provides particulars of the individual management plans to which the applicant was subject at various times; supplies details of meal plans in the Harding Unit and in general detention; and provides particulars of dates when the applicant was seen by a psychologist.

18    According to senior counsel for the State, many of those matters were pleaded and the particulars were given in anticipation of what it perceived was the case against it, without certainty. A reply might have identified some of the parameters of the claims, but in the circumstances it was open to the State to pursue its strike out application. Senior counsel for the applicant sought to make something of the fact that the State had filed an amended defence, submitting that self-evidently the State had in fact been able to plead to many of the allegations made by the applicant. I reject this submission. The point is not whether or not it is possible to plead any defence to a statement of claim, but the content of the defence. As the amended defence indicates, there are many parts of the statement of claim that the State asserts it cannot adequately plead to without proper particulars or material facts. The State should not be prejudiced in bringing this application by its attempt to plead a defence.

Some introductory remarks about pleadings, case management and the role of counsel

19    The use of pleadings in the context of case management in this Court has been the subject of a number of frequently cited decisions, one of which is Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15, in which Greenwood, McKerracher and Reeves JJ wrote:

[13]    It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham (1982) 148 CLR 658 (at 664-665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 (at 517). For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach: see the observations of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82 (at [4]-[8]). Even before the widespread use of case management, the High Court reflected this approach in decisions such as Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 (at 668-669) per Stephen, Mason and Jacobs JJ and Water Board v Maustakas (1988) 180 CLR 491 (at 497) per Mason CJ and Wilson, Brennan and Dawson JJ.

20    It is worth repeating the comments of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, as referred to by the Full Court:

[4]    It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.

[5]    In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.

[6]    Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and appraising the parties to the proceedings of the case that has to be met.

[7]    In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.

[8]    Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.

21    Also of note is the earlier observation of O'Loughlin J in Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 that:

[10]    … The modern system of pleading requires only that the material facts on which a party's claim is based be stated; the claim is not expected to be formulated as an elegant model of legal purity: Carr v McDonald's Australia Ltd (1994) 63 FCR 358 at 367 and there is now a tendency against taking a pedantic approach to a pleading: Coshott v Kam Tou Mak (Wilcox J, 3 March 1998, unreported).

22    Such an approach conforms with s 37M of the Federal Court of Australia Act 1976 (Cth), which sets out that the overarching purpose of the civil practice and procedures is to facilitate the just resolution of disputes according to law and as efficiently as possible. This includes the objective of the efficient use of judicial resources and the efficient disposal of the Court's overall caseload.

23    More recent cases which confirm the approach of this Court include Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174 at [7]-[9] (Stewart J); and Gall v Domino's Pizza Enterprises Limited (No 2) [2021] FCA 345 at [15]-[19] (Murphy J).

24    It should also be noted that s 37N of the Federal Court of Australia Act provides that parties must conduct a proceeding in a way that is consistent with the overarching purpose referred to in s 37M.

25    The Court's Central Practice Note: National Court Framework and Case Management (CPN-1) also provides relevantly that:

7.2    The parties and their lawyers are expected, and have a statutory duty, to co-operate with the Court and among themselves to assist in achieving the overarching purpose and, in particular, in identifying the real issues in dispute early and in dealing with those issues efficiently. There are no exceptions to this expectation because of the size or nature of the matter.

7.3    This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to run their cases conformably with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose. The Court's Rules should never be viewed as inflexible. The overarching purpose includes the elimination of unnecessary 'process-driven' costs. The Court expects parties and their lawyers to have in mind at all times the cost of each step in the proceeding, and whether it is necessary.

7.4    While the Court will manage the issues in dispute, the proceeding is always the parties' proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute and in ascertaining the most efficient, including cost efficient, method of its resolution.

26    I draw attention in particular to the obligation on parties under s 37N and to CPN-1, because I was told that prior to the hearing, there was an absence of any attempt by respective senior counsel for the parties to confer with respect to the strike out application or as to how areas of dispute might have been minimised. Resources of the parties and the Court are more efficiently deployed where there is sensible conferral between experienced counsel who cooperate among themselves, both during the interlocutory and trial stages of a proceeding.

Strike out principles

27    Rule 16.02 of the Federal Court Rules 2011 (Cth) provides the parameters for the content of a pleading in this Court. It relevantly provides that a pleading must be as brief as the nature of the case permits; identify the issues that the party wants the Court to resolve; state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against it at trial (but not the evidence by which the material facts are to be proved); not contain any scandalous, frivolous or vexatious material; not be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay; not fail to disclose a reasonable cause of action appropriate to the nature of the pleading; and not otherwise be an abuse of process of the Court.

28    The State seeks to have certain paragraphs of the FASC struck out under r 16.21(1) of the Federal Court Rules. That rule provides:

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.

29    The State relies on one or a number of each of paragraphs 16.21(1)(c), (d), (e) and (f) with respect to various paragraphs of the FASC. The general principles relating to the application of the rule were recently collected and summarised in KTC v David [2022] FCAFC 60 at [113]-[132] (Wigney J), [329] (Anastassiou J, in dissent on the outcome but not on the general principles), [418] (Jackson J).

30    As to r 16.21(1)(c), the terms 'evasive' or 'ambiguous' may be readily understood, but it has been observed that a pleading that falls within the terms of r 16.21(1)(d) may also be characterised as evasive or ambiguous: KTC at [120].

31    As to r 16.21(1)(d), a pleading is likely to cause prejudice or embarrassment within the meaning of the rule 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, or is infected by prolixity, irrelevancies or excessive narrative: see generally the cases usefully collected by Wigney J in Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [103], [105]-[107]. Whilst a pleading of a conclusion may in some circumstances constitute the pleading of a material fact, a pleading may be embarrassing if it simply asserts a conclusion to be drawn from facts not stated: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]-[23]; KTC at [114].

32    As to r 16.21(1)(e), it is uncontentious that the power to strike out all or part of a pleading because it discloses no reasonable cause of action is a power that should only be exercised in plain and obvious cases, and where it is apparent that no reasonable amendment can cure the alleged defect: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [42]; and KTC at [123].

33    As to r 16.21(1)(f), it is axiomatic that the categories of what might amount to abuse of process are not closed: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [9]. Relevantly, it includes where use of the Court's procedures would be unjustifiably oppressive or burdensome to a party: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [89].

34    Further, the inclusion of particulars is not a panacea for the failure to plead material facts: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [45].

Structure of the FASC

35    By way of background, the pleading was apparently created by combining a statement of claim filed in the District Court of Western Australia (under time pressure to meet a pending limitation period expiry for the tort claims) with a separate pleading of the statutory claims to be pursued in this Court. Senior counsel for the applicant frankly conceded that the pleading 'could have been better', but contended that it still revealed the applicant's claims in a manner that was not amenable to being struck out. The history does perhaps explain some of the drafting inconsistencies and difficulties.

36    A preliminary overarching complaint by the State might appear to be one of form over substance, but on analysis it infects the pleading as a whole. The applicant under the heading 'Factual Background' collects a number of facts (paras 3-35) under subheadings. A number of causes of action are then pleaded. There is nothing unorthodox in this approach. The difficulty that the State raises is that it is then left to infer which of the various facts are said to be relevant to the different claims. The pleading does not adequately link the material facts to particular pleaded causes of action. As an example below will indicate, there is force in this submission. For the reasons that follow a number of the paragraphs of the pleading are to be struck out. That does not mean that the applicant's legal representatives should approach the re-pleading task by focussing on only those impugned paragraphs.

37    The next section of the pleading (paras 36-57) sets out the DDA claims, including an alternative indirect discrimination claim (para 57). The RDA claim is pleaded at paras 58-61. No complaint is made about the RDA pleading. The FASC then sets out a number of common law claims: negligence (paras 65-71); intentional torts (paras 72-73); and unlawful imprisonment (paras 74-75).

38    Finally, it addresses the relief claimed, both under the relevant statutes and at common law (paras 76-79).

Factual background - impugned paragraphs

39    It is useful to turn to the analysis of the impugned paragraphs by first setting out paras 3-15, as they inform a number of the difficulties in the pleading:

Factual Background

The Applicant's periods of detention

3.    The Applicant was detained on multiple occasions by the Respondent at Rangeview Detention Centre between 2010 and 2013 and at Banksia Hill Detention Centre between December 2013 and November 2017 for a total period of approximately 1475 days.

The Applicant's disabilities and the disadvantages in his childhood

4.    The Applicant had disadvantages in his childhood and had disabilities which manifested themselves in several ways (the Applicant's disadvantages, disabilities and propensities).

5.    The Applicant was raised in a complicated and dysfunctional family.

6.    From an early age, the Applicant manifested a resistance to learning and learning disabilities.

7.    From an early age, and during the period he was detained by the Respondent, the Applicant manifested psychological disorders:

a.    From childhood, the Applicant was diagnosed to suffer from attention deficit hyperactivity disorder;

b.    From adolescence, the Applicant was diagnosed to suffer from an antisocial personality disorder;

c.    From adolescence, the Applicant was diagnosed to suffer from complex post-traumatic stress disorder; and

d.    From November 2016, the Applicant was treated in a manner consistent with a diagnosis of bipolar disorder and schizophrenia.

8.    Each of the Applicant's psychological disorders would have presented before formal diagnosis.

9.    From an early age, the Applicant manifested a range of medical conditions, including abnormal metabolic function and insulin resistance.

10.    From an early age, the Applicant misused drugs and alcohol.

11.    From an early age, and during the period he was detained by the Respondent, the Applicant manifested impulsivity, a tendency to react quickly to provocation including an assertion of control by authority figures.

12.    From an early age, and during the period he was detained by the Respondent, the Applicant manifested a resentment of, and resistance to, authority and toward persons in the position of authority.

13.    From an early age, and during the period he was detained by the Respondent, the Applicant manifested the propensity to become violent in resistance to authority and persons in authority.

14.    From a relatively early age, and during the period he was detained by the Respondent, the Applicant manifested a propensity toward self-harm.

15.    In about November 2016 the Applicant commenced to become the victim of sexual abuse inflicted upon him by Person X, who had come into contact with the Applicant through appointment by the Respondent.

Particulars

a.    The particulars of this matter, including the identity of Person X, are sensitive matters and will be disclosed in correspondence between the parties for the lawyers once controls over the use of the information are agreed.

The relevant knowledge of the Respondent

…

40    Of these, the State seeks orders striking out paras 4, 6, 7(d) and 9.

Paragraphs 4, 6, 7(d) and 9

41    As to para 4, the State contends that the disabilities and disadvantages that are relied upon are not defined. Read alone, so much is true. But it seems to me that it is apparent that the draftsperson intended to then proceed to describe those matters in the following paragraphs. Indeed, senior counsel for the applicant said as much. Even if that were better explained by amendment to para 4 to specifically incorporate the following paragraphs, that does not save the pleading. The use of the terms 'disadvantages' and 'disabilities' introduces confusion and ambiguity as to which matters might be relied upon for the purpose of the subsequent DDA claims, and in particular whether it is contended that each falls within the definition of 'disability'. The difficulty introduced by the absence of delineation between matters that are relied upon as disabilities or otherwise is compounded by the use of such terms in other parts of the pleading.

42    For example, in para 16 under the heading 'The relevant knowledge of the Respondent', there is reference to the applicant's 'disadvantages, disabilities and propensities'. Although particulars of such 'disadvantages, disabilities and propensities' are provided in para 16, and they appear to include all (or most) of the matters referred to in paras 5-15, the list is said to be non-exclusive. It is not clear whether 'propensities' is intended to add anything, or how they are otherwise relevant. It might be that the term is intended to refer to impulsivity, self-harm and violence as referred to elsewhere in the FASC (for example paras 13, 14, 16(g), 17(a) and (d) and 66(a)) - but the position is unclear. Furthermore, elsewhere there are references to 'medical conditions' (para 9). The overlap (if any) with 'disabilities' is unclear. The reference to 'learning disabilities' (para 16(b)) is also opaque - although it might be assumed that such learning disabilities are said to be disabilities for the purpose of the DDA claims, the reference to 'learning' does not of itself elucidate the nature of the alleged disability or whether it is something different to what is encompassed by the words 'resistance to learning' that are used elsewhere (for example, para 6).

43    Leaving aside background context, the proper framework for the pleading of claims of this nature should commence by identifying each relevant disability suffered by the applicant at the relevant identified time. Therefore the pleading as a whole should be reviewed and appropriate amendments made to ensure that there is clarity and consistency with respect to the claimed disabilities. Care should be taken to clarify the relevant time at which it is said that the applicant had the identified disabilities, having regard to the claims made against the State and the periods of detention.

44    Paragraph 4 as it stands is ambiguous, susceptible to various meanings, results in a pleading which contains apparently inconsistent allegations or various alternatives which are confusingly intermixed and is likely to delay proceedings as a result. It should be struck out under r 16.21(1)(c) and (d), with liberty to re-plead.

45    Paragraph 6 suffers from the issue already identified as to whether the 'resistance to learning' is intended to be a separate disability or a manifestation of a disability (having regard to the definition of 'disability' in the DDA - discussed further below) or is included for some other reason. It would take only minor re-drafting to clarify the position. As presently drafted it is ambiguous and should be struck out under r 16.21(1)(c).

46    Paragraph 7(d) is troublesome. It does not assert a diagnosis of bipolar disorder or schizophrenia but a manner of treatment. There is no material fact pleaded by way of any diagnosed or asserted psychological disorder. As it currently stands, the pleading is imprecise and embarrassing and should be struck out under r 16.21(1)(d).

47    Paragraph 9 is in a form so generalised as to be embarrassing. That the applicant might have suffered medical conditions whilst in detention would appear to be relevant to the claims, at least insofar as allegations are made about the health services provided to the applicant by the State, but the reference to a 'range' of medical conditions makes it impossible for the State to sensibly plead to the allegation or understand the case against it. It should be struck out under r 16.21(1)(d). Any re-pleaded claim that refers to medical conditions should clearly describe the medical conditions, and link such material facts to the relevant cause of action.

Paragraphs 16 and 17

48    The next section of the pleading is headed 'The relevant knowledge of the Respondent'.

49    I have touched on para 16 already above. Paragraph 16 includes allegations that the State knew or ought to have known of certain 'disadvantages, disabilities and propensities' including 'psychological vulnerabilities' and 'impulsivity'. No particulars are provided. Paragraph 17 pleads that 'at various times' the State 'knew or ought to have known' certain matters, including that the applicant had 'medical concerns'; that Banksia Hill officers were inadequately trained; that judicial officers had made comments in sentencing remarks about the applicant's treatment; and that there were certain standards, including the United Nations Convention on the Rights of the Child, which applied to detainees. Again, no particulars are provided. The allegations are expressed very generally.

50    It is axiomatic that a pleading as to a state or condition of mind must be supported by particulars: r 16.43(1) of the Federal Court Rules; and see Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [7]-[10].

51    I accept the State's submission that the pleading is drafted at such a level of generality that the State does not know the case it must meet as to knowledge. For example, the State ought not be left to speculate as to the content of terms such as 'medical concerns', and 'psychological vulnerabilities' and 'impulsivity', and the basis upon which it is asserted that (unidentified) persons have knowledge of any particular matter. The paragraphs are to be struck out under r 16.21(1)(c) and (d).

52    It is no answer to say, as was submitted on behalf of the applicant, that the State has pleaded to certain matters in its defence relevant to those paragraphs (and to many other paragraphs in the FASC) and it therefore must understand the case that is made against it. As noted at [17] and [18] above, it is true that the State has listed a large number of factual matters in its amended defence, including information about medical reports that might well indicate who on behalf of the State has relevant knowledge and of what matters. Further, at para 14 of the amended defence the State admits that identified reports about Banksia Hill were published by the Inspector of Custodial Services, and that recommendations were made as to how detainees should be detained and treated. But it is not for the State to speculate as to whether the contents, and if so, which parts, might be relied upon as relevant by the applicant. At para 15 of the amended defence the State provides details of applicable legislation. It refers to knowledge on the part of employees, agents and servants that the Australian government had ratified certain international conventions and United Nations instruments relating to the treatment of juvenile offenders and children.

53    The applicant may re-plead his claims, and he may choose to adopt information set out by the State in the amended defence. If the applicant does so, he must clearly identify the material facts that are relied upon in asserting knowledge, whether subjective or objective, of the particular matters alleged.

Paragraph 19

54    At para 19 the applicant asserts various statutory obligations without identifying their source. It might be that the pleading is to be read as if all pleaded objectives and obligations arise from the YOA. The pleading is ambiguous and unclear, and is to be struck out under r 16.21(1)(c). At para 17 of the amended defence the State admits (including by cross reference to para 15 of its defence) that the Minister and officers had obligations under certain legislative provisions. But it is for the applicant to clarify by positive assertion in its pleading the source of any statutory or other regulatory obligations it asserts.

Paragraph 24

55    Paragraph 24 pleads that the State was 'aware' of certain information, again without providing any particulars of the source of knowledge. For example, it pleads that the State was aware that Banksia Hill 'had failed to meet its objectives, including with respect to the design and implementation of behaviour management practices'. During oral submissions senior counsel for the applicant said that the information in this paragraph is from a report that is pleaded in the State's amended defence. That being so, there is no reason the pleading cannot be amended to properly reflect that fact. Absent such confirmation, the State must speculate as to the source of knowledge, who it is alleged had such knowledge and the meaning of a number of phrases used in the paragraph, such as 'behaviour management practices'. As currently pleaded the paragraph is ambiguous and embarrassing and is to be struck out under r 16.21(1)(c) and (d).

Paragraph 26(a)

56    Paragraph 26(a) makes generalised allegations that between 2013 and 2017 the applicant was detained by the State at Banksia Hill 'in various places and circumstances' which 'failed to meet the statutory objectives'.

57    This pleading is too vague to properly inform the State of the particular objectives or failures that the applicant relies upon, particularly when one has regard to the time period involved. It should be struck out under r 16.21(1)(c) and (d). The State has provided considerable information by way of its amended defence that the applicant might choose to adopt to assist in pleading the matters it purports to raise by para 26 (as a whole). The State in its interlocutory application also seeks an order striking out para 26(b) and (c), but made no submissions in that regard. Accordingly I do not address those further. I consider that the applicant will need to address those subparagraphs in any event when re-pleading para 26(a), and having regard to the matters included by the State in the amended defence.

Paragraph 27

58    Paragraph 27 on its face suffers from the difficulty addressed with respect to those other paragraphs that assert knowledge where the source of the knowledge is not particularised. I will strike out the paragraph under r 16.21(1)(d) on that basis. It should not be difficult for the applicant to re-plead the allegation in a proper form having regard to information provided by the State in the amended defence.

Paragraph 28

59    Paragraph 28 pleads a number of matters relating to the applicant's claim that he was sexually abused in detention and asserts that he should have been moved to the Intensive Support Unit (ISU) to protect him from approaches from the alleged perpetrator. The pleading in its current form again pleads knowledge without particulars and should be struck out for that reason under r 16.21(1)(d). Having said that, the State has addressed some of the matters alleged with respect to the sexual abuse claim in some depth in its amended defence in paras 32 and 24. There will be leave to re-plead. The applicant should now be in a better position to plead this claim in a proper manner if he intends to pursue it.

DDA claims

60    The objects of the DDA, as reflected in s 3 of the Act, are to eliminate as far as possible discrimination against persons on the ground of disability in areas that include, relevantly to this proceeding, education and the provision of services. Both 'disability' and 'services' are defined.

61    'Disability' is defined in s 4 of the DDA as follows:

disability, in relation to a person, means:

(a)    total or partial loss of the person's bodily or mental functions; or

(b)    total or partial loss of a part of the body; or

(c)    the presence in the body of organisms causing disease or illness; or

(d)    the presence in the body of organisms capable of causing disease or illness; or

(e)    the malfunction, malformation or disfigurement of a part of the person's body; or

(f)    a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)    a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)    presently exists; or

(i)    previously existed but no longer exists; or

(j)    may exist in the future (including because of a genetic predisposition to that disability); or

(k)    is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

62    'Services' is defined in s 4 to include, relevantly, 'services of the kind provided by a government, a government authority or a local government body'.

63    The DDA addresses both 'direct disability discrimination' (s 5) and 'indirect disability discrimination' (s 6). Such claims are distinct and mutually exclusive: Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199 at [157].

64    In Waters v Public Transport Corporation (1991) 173 CLR 349 the High Court explained the distinction between direct and indirect discrimination as follows (at 392):

A distinction is often drawn between two forms of discrimination, namely 'direct' or 'disparate treatment' discrimination and 'indirect' or 'adverse impact' discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v Duke Power Co. (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

65    Part 2 of the DDA is headed 'Prohibition of disability discrimination'. It includes, relevantly, s 22 to s 30.

66    Section 22 addresses discrimination in education. Section 22(2) relevantly provides that it is unlawful for an educational authority to discriminate against a person on the ground of the person's disability by denying or limiting access to any benefit provided by the educational authority.

67    Section 22(2A) relevantly provides to the effect that it is unlawful for an educational authority to discriminate against a person on the ground of the person's disability by developing courses having a content that will exclude the person from participation or subject them to other detriment.

68    Section 24 of the DDA relevantly provides that it is unlawful for a person who provides services to discriminate against another person on the grounds of the other person's disability by refusing to make those services available or by imposing terms or other conditions on the manner in which the services are made available.

69    Section 31 of the DDA relevantly provides that the Minister may formulate 'disability standards' which may deal with matters such as reasonable adjustments, strategies and exemptions. Section 32 provides that it is unlawful for a person to contravene a disability standard. Section 34 provides to the effect that if a person acts in accordance with a disability standard, then Part 2 does not otherwise generally apply. It was not in issue that the Minister has published the Disability Standards for Education 2005 (Standards).

70    In summary, the Standards require a person to: take reasonable steps to ensure a person with a disability is able to participate in courses; consult with the person with the disability about whether adjustments to a course or programme might be required to facilitate their participation; make reasonable adjustments if they could be identified; take reasonable steps to design courses or programmes to ensure a person with a disability can participate; consult about the need for any specialised support services; and make provision for a supplier of specialised support services as appropriate.

71    The applicant also pleads that the Minister, the chief executive officer of Banksia Hill and the Officers (defined as 'those other officers, employees, servants and agents appointed or employed to carry out the functions and activities of the Department, the Corrective Services Division, and Banksia Hill Detention Centre … together with the Superintendents and the Assistant Superintendents') had a duty to comply with 'the law in relation to detainees' including the Young Offenders Regulations 1995 (WA) and the Youth Custodial Rules, the DDA and the common law (para 39). Whilst the applicant does not explain the status of the Youth Custodial Rules, they appear to have been rules made by the chief executive officer of the Department of Corrective Services under powers contained in the YOA.

72    According to the State, the YOA was the primary legislation applying to young people who commit offences, and was binding on the Minister and officers. The applicant pleads that the State had duties 'under statute' to achieve certain objectives, being: to keep the applicant in circumstances which would keep him safe and encourage his rehabilitation and transition back into the community; provide for the applicant to receive an appropriate education and encouragement to involve himself in further education; provide for the applicant to receive appropriate medical diagnosis and treatment; and use the least possible amount of punishment, including the application of force and imposition of restraints.

73    The applicant pleads that the State had the necessary statutory powers and capacity to fulfil its statutory objectives and was required to do so by the YOA. He pleads in particular that the State was required under s 7(j) and s 7(l) of the YOA to design the applicant's detention so as to give him a sense of social responsibility and to take into account his cognitive and chronological age.

74    Turning to the particular claims, the following categories may be identified.

Direct DDA claims

Direct discrimination in education

75    The applicant pleads that the State is an 'educational authority' and was responsible for the provision of education, rehabilitation, vocational and support services (whether that is so for the purpose of education and training provided at Rangeview or Banksia Hill is not admitted by the State). The applicant asserts that in its capacity as an educational authority, the State denied or limited the applicant's access to benefits such as teaching staff and attendance in a regular classroom environment (presumably relevant to s 22(2)) and discriminated against him by having courses (Certificate in General Education for Adults) that excluded him from participation (presumably referring to s 22(2A)). It is said by way of a particular that he was confined by the State for periods in 2016 and 2017 in the ISU (para 44, particular c). It is said that the State failed to consult or make reasonable adjustments for the applicant, and that it therefore meant that the applicant was treated less favourably than a young person detained at Banksia Hill with the same behavioural characteristics as the applicant, but without those disabilities, would be treated, in circumstance that are not materially different (so picking up the language of s 5 of the DDA).

76    The applicant pleads that the State thereby breached s 22 and s 32 of the DDA (paras 44A and 52A of the FASC).

77    The State does not seek to strike out the paragraphs of the FASC that address this claim. However, it submits that the applicant should identify which subparagraphs of s 22 of the DDA he asserts the State has breached having regard to each particular. For example, the applicant relies by way of particulars on the State's alleged failure to provide an individualised learning plan (para 44, particular (bA)(ii)) and the State submits that it is unclear whether such failure is said to relate to a denial of access under s 22(2) or to exclusions flowing from development of a curriculum under s 22(2A). Based on the formatting of the pleading, it would seem that it is relied upon with respect to the development of a curriculum or training programme. However, the State having raised a question, the applicant should clarify the position. This kind of clarification ought to have been quite easily resolved by conferral.

Direct discrimination in the provision of services

78    The applicant pleads that the State provided 'general detention services', including a behavioural management regime, health care and food, and that in doing so it was providing services within the meaning of s 24 of the DDA (para 52B) (whether all such matters constitute 'services' is put in issue by the State in its amended defence).

79    The applicant pleads that the State, in providing those general detention services, was obliged to comply with the principles set out in s 7(j), s 7(k) and s 7(l) of the YOA, and was required under the Youth Custodial Rules to exercise reasonable care for the safety of the applicant.

80    The applicant further pleads that in providing health care services, the State was required under the Youth Custodial Rules to treat the applicant with (in summary) dignity and respect, with consideration of his special needs, to provide safe, quality health care and to provide clear explanations of proposed treatment.

81    The applicant then pleads a breach - that in contravention of s 24 of the DDA the State failed to provide such services at all or with suitable adjustments for the applicant's disabilities, and so treated him less favourably than a young person detained in Banksia Hill who did not have those disabilities.

82    Particulars of the alleged failures to make adjustments to the applicant's behaviour management plan, health care services and diet requirements are provided. Those particulars refer to the applicant being detained in his cell for extended periods; restrictions being imposed on his diet which did not cater to metabolic needs; the disclosure of confidential personal information by a psychologist; a failure to provide sustained access to mental health staff or psychological care, including after suicide attempts; the failure to provide necessary medications; and the failure to give the applicant food that was provided to other detainees.

Impugned paragraphs

83    At para 36 of the FASC the applicant pleads and particularises his disabilities within the meaning of the DDA as follows:

36.    At all material times during the Applicant's detention by the Respondent, the Applicant had disabilities (the disabilities) within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) …

Particulars

a.    At all material times the Applicant had the following conditions:

i.    attention deficit hyperactivity disorder (ADHD);

ii.    complex post-traumatic stress disorder (PTSD);

iii.    antisocial personality disorder; and

iv.    cognitive and executive function impairment.

b.    At all material times, the Applicant's reading and literacy skills were impaired and below the accepted standard for his chronological age;

c.    At all material times, the Applicant had a propensity for impulsivity, a resistance to authority, a propensity for violence and a propensity for self-harm; and

d.    At all material times, the Applicant appeared to have insulin resistance and metabolic disorder.

84    For context, I note that the State in its defence admits that ADHD, PTSD, antisocial personality disorder, and cognitive and executive function impairment are disabilities within the meaning of the DDA. Whether or not the applicant had those disabilities and when is not admitted and in due course will no doubt be the subject of expert evidence.

Paragraphs 37 and 38

85    The State seeks to strike out paras 37-38 of the FASC under r 16.21(1)(c) or (d). Each is to be read in the context of para 36 and is brief:

37.    Each of the disabilities was present and manifested itself prior to formal diagnosis.

38.    At all material times, the Respondent knew or ought to have known about the presence or existence of each of the Applicant's disabilities.

86    Nowhere in the FASC is it pleaded when any formal diagnosis of each claimed disability was made, but it is inherent in the plea that the applicant must have some information as to when that was. It is not clear that reliance is placed on the applicant's impaired reading and literacy skills or propensity for impulsivity (and the other matters listed at para 36, particular (c)) as disabilities, having regard to the definition of 'disability' or whether they link in some way to other claimed disabilities. This doubt is underscored by other references in the pleading to the terms disadvantages, propensities, and medical conditions, in addition to disabilities. Nor is it clear how each asserted disability 'manifested itself' or to whom it was identified. Presumably the applicant refers to manifestation to the State or relevant officers, and the plea in para 37 proceeds on the assumption of such manifestation as the source (or a source) of knowledge. However, these comments reflect the degree of speculation as to the nature of the claim.

87    Paragraph 38 fails to link the alleged knowledge to any underlying facts and there are no supporting particulars of the facts relied upon to establish such knowledge. As I have noted above, a pleading as to a state or condition of mind must be supported by such particulars: r 16.43(1) of the Federal Court Rules. Instead, the pleading makes only general allegations that the State knew or ought to have known certain matters.

88    At present the pleading is too vague and general to inform the State of the case it must meet. It can be accepted that the State has certain information by way of records pertaining to the applicant that will provide it with some information. So much is apparent from two matters. First, in its amended defence the State has included considerable information, as noted above. Second, the document disclosure process had proceeded while this pleading and other interlocutory disputes have played out. Whilst I accept that it may well have been difficult for the applicant to plead certain material facts at the time the proceedings were instituted, his ability to do so must by now have improved.

89    As presently drafted paras 37-38 must be struck out under r 16.21(1)(d), but there will be leave to re-plead the direct discrimination claim relating to services.

Paragraphs 52B and 56

90    The State's reply submissions also challenge the drafting of para 52B of the FASC and particular (aA)(v) to para 56, both of which relate to the direct discrimination in the provision of services claim. The State does not seek to have para 52B struck out under the amended interlocutory application.

91    As noted above, the applicant pleads that the State provided 'general detention services', including a behavioural management regime, health care and food. The State in its defence contends that a 'behavioural management regime' is not a service for the purpose of s 24 of the DDA. The relevant particular states that the State did not provide the applicant with food that 'addressed his metabolic needs'. This appears to be included as a reasonable adjustment that the applicant alleges the State should have made to the applicant's behavioural management regime.

92    As it does not appear to be pressed by the State, I will not strike out para 52B at present or the identified particular. However, it should be readily apparent to the applicant that it will be necessary to plead the facts relied upon to establish the scope or meaning of 'general detention services' and a 'behavioural management regime'. The applicant bears the onus of establishing that whatever service he seeks to rely upon in his pleading falls within the scope of a service under s 24. Paragraph 56 should also be reviewed to ensure that the particulars provided are linked to the relevant alleged service.

Indirect DDA claims

93    The applicant pleads indirect discrimination in the alternative based on acts or omissions in breach of s 22 and s 24 of the DDA in para 57 of the FASC.

Paragraph 57

94    The applicant pleads in para 57 that the State required the applicant to comply with unreasonable requirements or conditions and did so without making reasonable adjustments.

95    The conditions were said to be imposed on all youth detainees held in confinement. However, the pleading does not otherwise set out any material facts, and does little more than paraphrase the requirements of the section. Limited particulars are provided. The only particulars that purport to provide facts that might assist in establishing that there were relevant requirements and conditions is particular (c) that states that during the periods of the applicant's confinement the State required him to:

i.    Regularly remain in his cell for long periods of time without meaningful human contact, television, reading material or writing materials without becoming agitated;

ii.    Respond calmly when the Applicant's daily routine, programs and activities were changed without prior notice;

iii.    Respond positively and without incident to verbal instructions;

iv.    Self-regulate emotions and behaviour in all circumstances;

v.    Complete educational tasks without close supervision and without causing disruption;

vi.    Demonstrate appropriate interaction with staff and other detainees; and

vii.    Complete all allocated chores.

96    The pleading does not address the source of those requirements or conditions or how it was that they came to be imposed on all youth detainees. It might be that they came from the 'behavioural management plans prepared by the [State] for [him]' that are referred to by the applicant in the particulars, but not defined. If so, then it remains unclear how such requirements contained in personal plans extended to all detainees. The State should not be left to speculate.

97    The applicant states in the particulars that the behavioural management plans noted his disabilities 'may manifest in numerous ways'. He states that his disabilities were such that he was unable to comply with the requirements and conditions. However, no material facts are pleaded that link the applicant's disabilities and how they 'may manifest' with his alleged inability to comply with the requirements.

98    Further, neither the pleading nor the particulars descend into detail as to material adjustments that it is contended ought to have been made by the State. It is not enough to simply point to objectives or standards that should be met. A proper pleading of such a contravention needs to identify with precision the act or acts of adjusting that it is asserted the first person failed to make for the second person: Winters v Fogarty [2017] FCA 51 at [65] (Bromberg J). The word 'adjustment' is to be construed broadly in its statutory context: Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [24] (Mortimer J). I do not accept the submission of the applicant to the effect that it was for the State to point to adjustments it should have made. Absent a precise identification of the adjustments it is said ought to have been made, the State is unable to address in its defence whether or not it would have been reasonable for it to make such adjustments.

99    The State seeks to have para 57 struck out as a whole under r 16.21(1)(c) or (d). For the reasons given I accept that para 57 should be struck out under r 16.21(1)(d). However, there will be leave to re-plead. The facts may support a cause of action based on indirect discrimination, but I accept the State's submission that as presently pleaded the claim is not in a form that permits the State to sensibly understand the case brought against it.

Negligence

100    A statement of claim alleging negligence should plead the essential facts upon which the existence of a duty of care is based, so that the nature, scope and content of the duty is illuminated. The particulars of breach must be provided.

101    There are many expositions of the principles of pleading negligence. One useful example is that of the Court of Appeal in Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111:

[148]    As McLure P noted in Southern Properties, the level of generality at which a duty of care is formulated is important. A duty formulated at too high a level of abstraction may provide an inadequate legal means by which to determine the issue in a particular case. It will be too abstract if it is divorced from the facts said to enliven the duty. On the other hand, it is wrong to formulate a duty with such particularity as to in effect circumvent the requirements of reasonableness at the breach stage of the analysis.

[149]    To adapt the observations of Gummow and Hayne JJ in Graham Barclay Oysters to the circumstances of this case, a duty of care formulated retrospectively as an obligation to do an act which would have averted the particular harm that in fact eventuated is of a nature likely to obscure the proper inquiry as to breach of duty. The inquiry as to breach, both at common law and under s 5B of the Civil Liability Act, involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk.

(footnotes omitted)

102    The applicant rolls up its pleas based on negligence in a manner that fails to clearly elucidate the claim. For example, the duty of care is said to be pleaded in paras 65-66. The duty of care is said to arise by way of the relationship between the applicant and the State and having regard to 'the powers and duties of the [State]'. It is said there are two duties 'assumed' by the State, being 'those duties recognised to be owed by gaoler to a prisoner’ and 'those duties recognised to be owed by guardian to a ward'. It is pleaded that 'in all the circumstances' the State came under a duty of care requiring it to procure medical and psychological treatment for the applicant, and requiring it to detain and treat the applicant in a manner 'not exposing him to a risk of … deterioration of those matters constituting [his] disadvantages, disabilities and propensities'.

103    Particulars of breach are purportedly provided in paras 68 and 70. For example, it is said that the State breached the duty of care which it owed during particular periods. Those breaches are expressed in general terms. For example, it is said that the State breached the duty of care it owed to the applicant 'during the 2017 period of confinement and during the 2017 Disturbances' by detaining the applicant in circumstances 'where it failed to follow, or even contradicted, judicial recommendations as to the manner in which the applicant should be detained and treated'. There are a number of difficulties with this approach. Reference back to the facts set out referring to a period of detention during May 2017 (para 26) and the disturbances at Banksia Hill in May 2017 do not provide essential facts but rather general allegations. For example, at para 26 it is pleaded that until May 2017 the applicant was detained at Banksia Hill in various places and circumstances which 'failed to meet the statutory objectives' and 'aggravated and entrenched negative aspects of the Applicant's attitude toward rehabilitation and authority', without including any particulars or referring to any facts pleaded elsewhere that might be material to the plea.

104    I refer to these by way of example. They reveal that there is no clear statement of the essential facts that are said to constitute the breaches. These sorts of allegations are significant, but they cry out for particulars, parameters or at least some manner of detail. Again there is a reference to 'disadvantages, disabilities and propensities' without further elucidation. The nature of any connection relied upon between the statutory duties referred to in other parts of the FASC and the common law duty of care that is apparently relied upon is not made clear. Nor is there any sufficient pleading of causation or clear elucidation of compensable injuries. There is no precise identification of what the applicant contends a reasonable person in the position of the State would do by way of response to a properly described reasonably foreseeable risk.

105    The State is left to piece together what might be the duties relied upon and what might be relevant to the content of the alleged duty and relevant to the breaches from different pleadings scattered throughout the statement of claim, and which in any event are expressed so generally that questions of fairness arise. I do not consider the State fairly knows from the FASC the case it must meet in negligence.

106    However, that is not to say that a case in negligence cannot be elucidated. In fact, the State does not deny that there are established duties of care that might be relied upon by the applicant. For example, the State admits (in the amended defence) that a detaining authority has a duty to take reasonable care of the safety of a detainee. That position is well-established: Howard v Jarvis (1958) 98 CLR 177 at 183; Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 at [174]; and Campbell v Northern Territory of Australia [2018] FCA 85 at [63]-[65]. It admits (in its submissions) that there is an established duty of a prison or detaining authority to provide medical treatment: S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217 at [218].

107    A useful exposition of matters relevant to claims in negligence in the context of young men held in detention centres can be found in Campbell v Northern Territory of Australia at [56]-[86] (interlocutory - where pleadings were found to be inadequate) and Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 (trial).

108    The applicant has the benefit, now that the amended defence has been filed, of not only such authorities but the many factual matters pleaded by the State that might assist his legal representatives in properly formulating a negligence claim, having regard to the principles and subject to any legal advice he may receive in that regard.

109    Turning to the particular impugned paragraphs, I accept the State's submissions that paras 66 and 68 are likely to cause prejudice, embarrassment or delay and should be struck out under r 16.21(1)(d).

110    Paragraph 69 (a), (b), (c), (d) and (e), which purport to be particulars of breach, should be struck out under the same paragraph. The particulars lack specificity, are conclusionary and are to some extent speculative (insofar as it is alleged the State's conduct could cause the applicant to act in a particular way). If the use of 'could' is an attempt to indicate reasonable foreseeability, the plea is opaque. The elements of negligence should be clearly pleaded. Despite referring to 'judicial recommendations', the source of such recommendations is not described or explained. The State cannot properly plead to such alleged breaches. Those particulars are likely to cause prejudice, embarrassment or delay and should be struck out under r 16.21(1)(d).

111    Paragraph 70, which purports to provide particulars of a breach of duty during the 2017 period of confinement, should be struck out for the same reasons as para 69.

112    Paragraph 71 purports to plead 'causation and injury'. The applicant pleads that 'In each instance the breach of duty of care' (without further identification) by the State caused injury, loss or damage by 'causing or materially contributing toward an aggravation and entrenchment of the Applicant's psychological disorders', 'worsening and entrenching the Applicant's propensity for criminality, resistance of authority, propensity for violence and propensity for self-harm' and 'drawing the Applicant deeper into the criminal justice system, making his rehabilitation more difficult or impossible.' The generality of the pleading is self-evident. There is no link between any identified duty, reasonable foreseeability of risk, breach of duty, particular psychological disorder or compensable injury. Again it may well be that with the benefit of the additional disclosure and references to medical records now pleaded and provided by the State, the applicant is able to enhance the pleading. As para 71 currently stands, it is embarrassing (as that term is understood in this context), and must be struck out under r 16.21(1)(d).

113    I reject the alternative claim of the State that the negligence cause of action be struck out as a whole for failing to disclose a cause of action. To my mind the applicant should be permitted to re-plead the negligence cause of action. I am of the view that having regard to recognised duties of care, there is the potential for a negligence claim against the State to be properly pleaded and pursued at trial.

Intentional torts

114    Paragraphs 72 and 73 purport to plead causes of action in unlawful assault and battery. Paragraph 72 includes nine categories of conduct. Some are expressed very broadly. For example, it is pleaded that 'the [State] could not lawfully isolate the Applicant while in detention in the fashion in which he was isolated'. In oral submissions, senior counsel for the applicant said that this referred back to the factual matters that were pleaded with respect to the disability discrimination claims. However, that is not at all apparent on the face of the pleading and the State (and the Court) should not be left to speculate in that regard. Another allegation is that ‘the [State] unlawfully subjected the Applicant to strip searches'. No particulars are given.

115    The State refers to the statutory responsibility of custodial officers to maintain the security of a detention centre under s 11B of the YOA; their authority to use force under s 11C of the YOA and regs 71 and 72 of the Regulations; to use restraints under s 11D of the YOA; and to conduct searches (Part 10 of the Regulations).

116    Therefore, the State submits, whether the broad allegations made in these paragraphs of the pleading amount to assault or battery will depend on the circumstances in which force was used or restraint applied.

117    The pleadings, however, are currently non-specific as to the occasions and circumstances of the various matters pleaded in these paragraphs. While it might be that the applicant is unable to provide particulars of the particular dates upon which it is said that the alleged assaults and batteries occurred until after further disclosure from the State, the applicant is required to provide particulars as to the place or occasions on which they occurred and plead material facts to support the allegation that the matters pleaded were unlawful: Jenkings v Northern Territory of Australia [2017] FCA 1263 at [116]-[118]. Having regard to the lack of physical contact involved in some claims, they do not on their face comprise battery: Carter v Walker [2010] VSCA 340; (2010) 32 VR 1 at [215]. Further, according to the State, some 146 youth custodial workers worked in the Harding Unit or ISU during the pleaded period. Without further particulars which might narrow the persons or classes of person who should be proofed, the task for the State is undoubtedly inefficient. The disclosure process that has now been undertaken should assist the applicant in this regard. If not, it might be that there are other ways to ascertain and confine the relevant facts. These matters need to be carefully addressed by the applicant's legal representatives.

118    In oral submissions it was said that the amended defence pleads explicitly to these allegations and so the applicant is happy to adopt the details provided by the State. That might be a course open to the applicant - but it is not for the State to piece those matters together. The pleading should be amended to clarify the claim the applicant pursues. As presently drafted, the paragraphs should be struck out under r 16.21(1)(d). There will be leave to re-plead. Similarly para 73 should be struck out. Each of the claims as to causation and injury are vague and expressed at too high a level of generality. The pleading fails to identify the material factual allegations and the State cannot be expected to understand the case it is expected to meet in this regard.

119    In light of the grant of leave to re-plead, I similarly reject the State's alternative claim that the intentional torts causes of action be struck out.

Unlawful imprisonment

120    The starting point for these claims is that the detention of the applicant is not said to have been unlawful. His detention at Banksia Hill was, according to the State, lawful under detention warrants and the provisions of the YOA.

121    At para 35(a) and (b) of the FASC the applicant pleads certain circumstances or conditions related to the '2017 period of confinement'. Other than that, it is not clear what conditions or circumstances are said to comprise the claim. Referring to terms such as 'solitary confinement' is insufficient to provide material facts of these circumstances.

122    The claim of unlawful imprisonment appears to be based on a claim that the conditions in which he was imprisoned were unlawful, rather than the fact of his detention. As White J noted in Campbell v Northern Territory:

[20]    A claim that a person who is lawfully detained may be falsely imprisoned by the detention authorities within the place of lawful detention appears to face difficulties of the kind discussed in R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 162-3, 165-6, to which Sheller JA referred in Prisoner A-XX Inclusive v State of NSW at 628-9. These matters cannot be ignored and the claim presented as though the Applicant had freedom of movement in the community. …

123    This difficulty highlights the need for particulars of the circumstances which the applicant claims makes the imprisonment unlawful. I accept the State's submission that at a minimum the applicant should identify with sufficient clarity the conditions or aspects of his detention that are alleged to render the imprisonment unlawful.

124    For example, there are references in para 74 to the fact that the applicant was held in isolation, confinement or solitary confinement. Assuming such conduct is the basis for the claim of unlawful imprisonment, the applicant does not plead any material fact to support the allegation or enable an assessment as to whether any episode of confinement was unlawful. Further, the applicant does not seek to define or particularise any of those terms. Particulars of this nature would seem necessary having regard to the statutory responsibilities and powers of custodial officers: by analogy, in Jenkings v Northern Territory of Australia White J considered such particulars would be necessary because s 153(5) of the Youth Justice Act 2005 (NT) expressly provided that a superintendent might isolate a detainee in certain circumstances (at [116]).

125    There are also some matters within para 74 that do not appear to affect the applicant's liberty and their relevance to the unlawful imprisonment claim is unclear. It is not clear how the matters referred to in para 74(d) (withholding of food), para 74(e) (removing bedding), and para 74(g) (conducting strip searches) give rise to an action in unlawful imprisonment, without further explanation from the applicant.

126    The State again raises in this context the issue with the difficulties of identifying persons who may be witnesses from the large number of custodial officers potentially involved, if there is no further particularisation.

127    Paragraph 75 purports to plead causation and injury relating to unlawful imprisonment, and does so in terms that mirror para 71, addressed above at [122]. For the same reasons given with respect to para 71, the paragraph should be struck out. Each of the claims are vague and expressed at too high a level of generality. The pleading fails to identify any material factual allegations and the State cannot be expected to understand the case it is required to meet in this regard.

128    As presently drafted, paras 74-75 should be struck out under r 16.21(1)(d). There will be liberty to re-plead. The applicant should have the opportunity to attempt to properly plead his case of unlawful imprisonment in circumstances of lawful detention. As previously observed, the applicant has additional resources at hand compared with those available when the FASC was drafted. The State has made disclosure and had set out a large number of matters in its amended defence, which may or may not be relied upon by the applicant. But the applicant should now gather such resources and formulate his case in a manner that the State can meet and that the Court can properly address in due course.

Related matter - EIY20 v State of Western Australia

129    On the same day as the hearing of the strike out application in this proceeding, I heard a strike out application brought by the State in a related matter (EIY20 v State of Western Australia) that has been commenced by a young Maori man against the State with respect to the circumstances of his detention at Banksia Hill. The interlocutory applications were heard together and there are many similar issues with respect to the applicant's pleading. Separate reasons with respect to the pleading in that proceeding will be published in due course.

Conclusion

130    The significance of this proceeding to both parties is real. It should not proceed to trial with uncertainty on the part of either party as to what is alleged.

131    There will be orders relevantly striking out paragraphs 4, 6, 7(d), 9, 16, 17, 19, 24, 26(a), 27, 28, 37, 38, 57, 66, 68, 69(a), 69(b), 69(c), 69(d), 69(e), 70, 71, 72, 73, 74 and 75 of the FASC. In light of the determinations I have made, it has not been necessary to consider whether those paragraphs should be struck out other than under r 16.21(1)(c) and r 16.21(1)(d). The applicant has leave to file and serve a second further amended statement of claim. Any such amended pleading must properly appraise the State of the case that has to be met. I will hear the parties as to the timing of such filing. I will also hear the parties as to other procedural directions to progress the proceeding to trial, having regard to contemporary case management techniques. A further case management hearing will be convened as soon as convenient. I will hear the parties as to the costs of this application at the same case management hearing.

Associate:

Dated:    17 November 2022