Federal Court of Australia

Gunning v State of Queensland (Pleadings Dispute) [2025] FCA 83

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file an amended originating application in the form annexed to the applicant’s interlocutory application dated 17 October 2024.

2.    The applicant has leave to file an amended statement of claim in substantially the form annexed to the applicant’s interlocutory application together with amendments consistent with the submissions of King’s Counsel for the applicant on 7 February 2025 as to the basis for the pleading that the matters alleged were wholly or partly because of the applicant’s race.

3.    The respondent file submissions of no more than four pages, and any evidence in support, regarding its estimate of the time required to provide the applicant with the discovery of documents described in categories (a), (b) and (c) in the applicant’s interlocutory application by 21 February 2025.

4.    The applicant file submissions in reply of no more than two pages by 28 February 2025.

5.    The applicant’s interlocutory application is otherwise dismissed.

6.    The respondent’s interlocutory application dated 3 April 2024 is otherwise dismissed.

7.    Costs reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to file an amended originating application in the form annexed to the applicant’s interlocutory application dated 17 October 2024.

2.    The applicant has leave to file an amended statement of claim in substantially the form annexed to the applicant’s interlocutory application:

(a)    together with amendments consistent with the submissions of King’s Counsel for the applicant on 7 February 2025 as to the basis for the pleading that the matters alleged were wholly or partly because of the applicant’s race; and

(b)    without the proposed third paragraph of the particulars to paragraph 42.

3.    The respondent file any submissions of no more than four pages, and any evidence in support, regarding its estimate of the time required to provide the applicant with the documents described in category (b) in the applicant’s interlocutory application by 21 February 2025.

4.    The applicant file submissions in reply of no more than two pages by 28 February 2025.

5.    The respondent provide discovery of all of the applicant’s child safety documents, whether electronic or hard copy, created or referred to between 27 August 2002 and 27 August 2020 in the possession, custody, or power of the respondent, including all case notes, without redaction or masking, inclusive of referrals to support services by 21 March 2025.

6.    The applicant’s interlocutory application is otherwise dismissed.

7.    The respondent’s interlocutory application dated 3 April 2024 is otherwise dismissed.

8.    Costs reserved.

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

REASONS FOR JUDGMENT

DOWLING J

Introduction

1    These two proceedings concern the consequences of the removal of First Nations children from their parents by the State of Queensland, pursuant to the Child Protection Act 1999 (Qld) (CPA), in the period between March 1992 and November 2023. In each proceeding both parties have brought an interlocutory application. The applicants’ interlocutory applications seek leave to amend their originating applications and statements of claim. The respondent’s interlocutory applications seek certain paragraphs of the statements of claim be struck out.

2    The two proceedings are being case managed together. In the first proceeding, Burns v State of Queensland (VID944/2024), Ms Burns alleges certain conduct and consequences following her removal from her family by the State. She alleges that conduct and those consequences occurred wholly or partly because of her race and were in breach of the Racial Discrimination Act 1975 (Cth) (RDA). Ms Burns further alleges that by its conduct, the State breached its duties and obligations under the CPA. Ms Burns brings the proceeding on her own behalf and on behalf of other First Nations children. In the second proceeding, Gunning v State of Queensland (VID943/2024), Mr Gunning, a First Nations man, alleges certain conduct and consequences following the removal of his children by the State. He alleges that conduct and those consequences occurred wholly or partly because of his race and were in breach of the RDA. Mr Gunning brings the proceeding on his own behalf and on behalf of other First Nations parents. Ms Burns and Mr Gunning are referred to in these reasons as the applicants. The State is referred to as the respondent.

3    The two proceedings were commenced in November 2023. The relevant procedural history of the two proceedings is as follows.

4    On 3 April 2024, the respondent applied to strike out parts of both statements of claim (the strike out applications). The respondent also sought to transfer the proceedings from the Victorian to the Queensland Registry of the Federal Court. The hearing to determine both those matters was held on 25 July 2024.

5    During the hearing on 25 July 2024, the parties agreed to adjourn the strike out applications to allow the applicants to amend their statements of claim to address the complaints made by the respondent and matters that arose during the hearing that day. I made orders adjourning the strike out applications and timetabling the provision of amended pleadings. I also provided for the exchange of submissions if agreement and consent could not be reached on amended pleadings. I dismissed the respondent’s application to transfer the proceeding.

6    On 23 August 2024, the applicants provided a first draft of their proposed amended statement of claim in both proceedings to the respondent. On 2 September 2024, the respondent provided comments on the proposed amended statements of claim including requesting clarification and restating previous concerns. On 10 September 2024, the applicants provided a second draft of their proposed amended statements of claim endeavouring to address the respondent’s concerns.

7    On 8 October 2024, agreement not having reached between the parties, I listed the pleadings application for hearing on 7 February 2025. On 17 October 2024, the applicants filed an application for leave to amend their statements of claim and originating applications (in each proceeding) attaching a third draft of their proposed amended statements of claim (the leave applications).

8    By January 2025 the respondent had not provided a response to the leave applications and to the applicants’ proposed amended statements of claim. I listed the matters for case management hearing on 24 January 2025, at which the parties agreed that the respondent would file submissions relating to the leave applications (and the proposed amended statements of claim). That was done on 31 January 2025.

9    The respondent’s strike out applications and the applicants’ leave applications were both heard on 7 February 2025.

PRINCIPLES

10    There was no dispute between the parties about the relevant legal principles. Those principles can be summarised as follows.

11    In exercising its discretion to strike out pleadings the Court should have regard to: (1) the Federal Court Rules 2011 (Cth); (2) the purpose of pleadings, which is to state with sufficient particularity the case that must be met: see Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487, at 515 (per Sackville J); and (3) the overarching purpose of civil litigation pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

12    Pursuant to r 16.02(1)(d) of the Rules, material facts must be pleaded with sufficient specificity to convey to the respondent the case that the respondent must meet. A “bare conclusion” is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226 at 235 (per Beaumont J).

13    Rule 16.21 provides that the Court may exercise its discretion to strike out all or part of a pleading including if the pleadings are evasive or ambiguous, are likely to cause prejudice, embarrassment or delay in the proceeding and/or fail to disclose a reasonable cause of action: see r 16.21(c)-(e) of the Rules.

14    A respondent is entitled to know the case against it to minimise the risk of injustice resulting from surprise: Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216 (per King CJ); Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286 (per Mason CJ and Gaudron J); Sitzler Pty Ltd v GPT RE Limited as Responsible Entity of the General Property Trust [2018] FCA 1496 (per White J).

15    An applicant’s claim for racial discrimination under the RDA requires them to show that the respondent’s act was unlawful because it was an act described in s 9: Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; 221 FCR 86, at [43]-[45] (per Kenny J with Greenwood and Logan JJ agreeing).

16    Rule 16.53 entitles a party to seek leave of the Court to amend a pleading. The Court’s power to grant leave to amend is broad, the Court’s power has the objective of ensuring that any defect in the pleadings is cured and that the real questions in controversy are properly agitated: Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [20] (per Gilmour and Foster JJ); Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [14] (per French CJ).

Amendment to the originating applications

17    The applicants sought leave to amend their originating applications in respect of the definition of group members in each of the representative proceedings.

18    Rule 8.21 of the Rules provides that an applicant may apply to the Court for leave to amend an originating application. The power of the Court is a broad one to be exercised in all of the circumstances of the proceeding. Generally, the amendment will be allowed unless the proposal is obviously futile or would cause substantial prejudice or injustice that could not be compensated.

19    The form of the proposed amendments to the originating applications was annexed to the leave applications. The respondent raised no objection to the proposed amendments (in respect of both proceedings).

20    I am satisfied that it is appropriate to grant leave to amend the originating applications in the form annexed to the leave applications.

REMAINING PLEADINGS ISSUE

21    In both proceedings the respondent complains about a number of paragraphs in the proposed amended statements of claim. Some of those paragraphs are new and some are existing paragraphs of the statements of claim. The parties directed their attention to those paragraphs whilst, effectively, addressing both the leave applications and strike out applications. Sensibly, the focus was on the adequacy of those paragraphs.

22    In Burns, the respondent attacks the following paragraphs of the proposed amended statement of claim: 16, 17, 18, 20, 21, 22, 23, 28, 29, 30, 31, 40, 41, 42 and 43. It says those paragraphs contain bare and conclusionary pleadings that the matters alleged were wholly or partly because of or were a function of Ms Burns’ race and amount to contraventions of s 9(1) of the RDA. It says that the amending paragraphs compound the ambiguousness of the pleadings by expanding the basis to include the race of other family members. It also complains that the pleadings are evasive or ambiguous and are likely to cause prejudice, embarrassment and/or delay.

23    In Burns, the respondent also attacks the particulars to paragraph 42. It says the particulars render the pleadings evasive or ambiguous, and likely to cause prejudice, embarrassment and/or delay. This is because Ms Burns now includes particulars relating to the alleged rate of removal of First Nations children in comparison to non-First Nations children in Queensland, where the proposed amended statement of claim no longer alleges that “removals” of group members, or group members’ children contravened s 9(1) of the RDA.

24    In Gunning, the respondent attacks the following paragraphs of the proposed amended statement of claim: 23, 24, 25, 31, 32, 33 and 34. It says those paragraphs contain bare and conclusionary pleadings that the matters alleged were wholly or partly because of or were a function of Mr Gunning’s race or the race of one or more of his children. It says Mr Gunning’s proposed amendments compound the ambiguousness of the pleadings by expanding the basis of the conduct to include the race of other family members. It also complains that the pleadings: are evasive or ambiguous; are likely to cause prejudice, embarrassment and/or delay; and/or fail to disclose a reasonable cause of action under s 9(1) of the RDA.

25    In the hearing, paragraph 16 of the Burns proposed amended statement of claim was used as a representative example for the purposes of the pleadings dispute. Paragraph 16 provides:

The matters set out in paragraph 15 above were wholly or partly because of or a function of the Applicant’s race or the race of one or more of the Applicant’s First Nations Parents and/or family group.

26    In response to the respondent’s complaint about that paragraph, King’s Counsel for the applicants submitted that the allegation that the conduct of the respondent was because of race pursuant to s 9(1) of the RDA (as pleaded in paragraph 16 (above)) was the result of an inference drawn from the facts otherwise pleaded. Relevantly, the facts otherwise pleaded were said to be those at paragraphs 10-15 of the proposed amended statement of claim in Burns.

27    King’s Counsel for the respondent submitted that if the proposed amended statement of claim was amended, to clarify that the applicants relied on an inference drawn from the facts otherwise pleaded to establish that the conduct was wholly or partly because of race, that would satisfy the pleading concerns of the respondent.

28    The hearing was conducted on the basis that if the pleadings dispute could be resolved in relation to paragraph [16] in Burns as above, it could be resolved with respect to the balance of the disputed paragraphs in both Burns and Gunning, save the particulars to paragraph 42 which is dealt with separately below.

29    In all of those circumstances, I grant leave to the applicants to file the proposed amended statements of claim, in the form annexed to the leave applications, together with amendments consistent with the submissions of King’s Counsel for the applicants (set out at [26] above) as to the basis for the pleading that the matters alleged were wholly or partly because of the applicant’s race.

30    The applicants were content for leave to be granted in that form. The respondents did not resist leave being granted in that form. I consider that form of leave is properly within the Court’s broad power to grant leave to amend. Further, where the pleadings dispute has so far consumed a significant amount of time and resources, I consider that course will facilitate the just resolution of the dispute as quickly, inexpensively and efficiently as possible.

31    I am satisfied that such amendments: (a) sufficiently convey to the respondent the case that it has to meet; (b) sufficiently plead the material facts to disclose the elements of racial discrimination under s 9(1) of the RDA; and (c) properly agitate the real questions in controversy.

32    I separately address the respondent’s complaint about the particulars to paragraph 42 of the Burns statement of claim. Paragraph 42 is contained within the group members’ claim of the Burns proceeding. It pleads:

The matters set out in paragraphs 40 and 41 above [those alleging certain conduct wholly or partly because of the group members race] had the effect of nullifying and/or impairing the Group Members’ recognition, enjoyment or exercise, on an equal footing, of their fundamental human rights and freedoms.

33    The particulars to that paragraph are as follows:

The Respondent’s actions had the effect of nullifying or impairing the recognition, enjoyment, or exercise of the Group Members’ rights to remain free from unlawful interference with their family, and their right to the protection of their family as the natural and fundamental group unit of society, contrary to Art 23(1) of the ICCPR.

The Respondent’s actions had the effect of nullifying or impairing the recognition, enjoyment, or exercise of the Group Members’ right to enjoy their own Culture and to use their own Language, contrary to Art 28 of the United Nations Declaration on the Rights of Indigenous Peoples.

First Nations children in Queensland are subject to child protection services of the Respondent approximately 7.2 times more frequently than non-First Nations children.

34    The respondent complains about the third paragraph of those particulars. First, it complains that the proposed amended statement of claim no longer pleads that “removals” of group members contravened s 9(1) of the RDA, rather the proposed amended pleading alleges contraventions by conduct “after removal”. Second, it complains the words “subject to child protection services” are unclear. I accept that both of those complaints are a proper reason to refuse leave in respect of that paragraph. Further, it is not clear how that paragraph is properly a particular of how the contraventions (alleged in paragraphs 40 and 41) had “the effect of nullifying and/or impairing the Group Members’ recognition, enjoyment or exercise, on an equal footing, of their fundamental human rights and freedoms”. Leave to amend is refused in respect of the third paragraph of the particulars to paragraph 42 in the Burns proposed amended statement of claim.

DISCOVERY

Discovery principles and background

35    Pursuant to r 20.11 of the Rules, a party “must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible”. This reflects the overarching purpose of civil practice and procedure provided by s 37M of the FCA Act.

36    The applicants seek non-standard discovery by categories pursuant to r 20.15 of the Rules. If discovery by categories is sought, those categories should not be too wide and should be stated with sufficient specificity: Austal Ships Pty Ltd v Incat Australia Pty Ltd [2009] FCA 368 at [150] (per McKerracher J) and Simpson v Thorn Australia Pty Ltd trading as Radio Rentals [2018] FCA 1219 at [16] (per Gleeson J).

37    Before making the application for discovery in this Court, the applicants sought documents from the Department of Child Safety, Seniors and Disability Services through Right to Information requests pursuant to the Information Privacy Act 2009 (Qld). The applicants’ solicitor deposes that they have made nine such requests. The applicants submit that the documents provided as a result of these requests are unusable because of extensive redactions. The applicants made further requests for documents by correspondence with the respondent’s solicitors. Those requests were unsuccessful.

Discovery in Burns

38    In Burns, the applicant seeks the following categories of documents:

a.    Madison Burns’ child safety documents, whether electronic or hard copy, created or referred to between 27 August 2002 and 27 August 2020 in the possession, custody, or power of the Respondent, including all Case Notes, without redaction or masking, inclusive of referrals to support services;

b.    Documents, whether electronic or hard copy, created or referred to between 27 August 2002 and 27 August 2020 in the possession, custody, or power of the Respondent, without redaction or masking, relating to or evidencing any steps taken by the Respondent to enable or assist Madison Burns learning about her First Nations family, history, culture, country, and language;

c.    Guidelines operative during the Child Claim Period for ascertaining suitable carers for children subject to protection orders under the Child Protection Act 1999 (Qld) (protected children); and

d.    Checklists or other documents for the use of case workers operative during the Child Claim Period to ascertain suitable carers for protected children; and

e.    Instructions to Child Safety Officers as to placement of protected children.

39    On the morning of the hearing, the respondent agreed to provide to the applicant the documents in category (a). It objects to discovery of categories (b), (c), (d) and (e).

40    The applicants submit that category (b) is of the same type as category (a), and that the respondent’s concession with respect to category (a) undermines its objection to category (b). The respondents only objection to category (b) is that it is premature, and the Court should await the closure of (amended) pleadings.

41    In all of the circumstances I am satisfied that discovery of category (b) is appropriate. It is clearly relevant to the pleaded case. It is sufficiently specific. It will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

42    On the state of the (amended) pleadings I am not satisfied that it is presently appropriate to order discovery of those documents in categories (c), (d) and (e). King’s Counsel for the applicants properly accepted that the applicants are not presently aware of such guidelines, checklists or instructions, and such things are not presently pleaded. I accept that the existence of such documents is outside of the knowledge of the applicants, and the difficulties that might create. However, on the amended pleadings, and material before the Court, the discovery of those documents is not presently appropriate.

Discovery in Gunning

43    In Gunning, the applicant seeks the following categories of documents (with a marked-up amendment made at the hearing on 7 February 2025):

a.    Documents referring to the Applicant, whether electronic or hard copy, created or referred to between 29 December 2005 and 13 November 2023 in the possession, custody, or power of the Respondent in relation to any of the Applicant’s children referred to in the Amended Statement of Claim, including all Case Notes, without redaction or masking, inclusive of referrals to support services, directions or instructions to the Applicant, and confirmation of commencement, progress or completion of any courses, training, education, counselling, lifestyle changes or similar activity prescribed by the Respondent for the Applicant under its powers or functions under the Child Protection Act 1999 (Qld) (the Act);

b.    Documents, whether electronic or hard copy, created or referred to between 29 December 2005 and 13 November 2023 in the possession, custody, or power of the Respondent, without redaction or masking, relating to or evidencing any steps taken by the Applicant to satisfy any requirement imposed by the Respondent upon him under its powers or functions under the Act;

c.    Documents, whether electronic or hard copy, created or referred to between 29 December 2005 and 13 November 2023 in the possession, custody, or power of the Respondent, without redaction or masking, relating to or evidencing any assessment by the Respondent of steps taken by the Applicant to satisfy any requirement imposed by the Respondent upon him under its powers or functions under the Act;

d.    Guidelines or policies operative created or used by the Respondent between 29 December 2005 and 13 November 2023 for facilitating or otherwise participating in 3 the formation, resumption or restoration of relationships between children subject to protection orders under the Act (protected children) and their parents;

e.    Guidelines or policies created or used by the Respondent and operative between 29 December 2005 and 13 November 2023 relating to the imposition of requirements upon parents of protected children by the Respondent; and

f.    Guidelines or policies created or used by the Respondent and operative between 29 December 2005 and 13 November 2023 relating to the assessment of parents, guardians or other care takers of children to be made in deciding whether to seek protection orders under the Act.

44    The respondents object to each of categories (a)-(f). The applicants submit that categories (a) to (c) are of the same type and in the same position as categories (a)-(b) in Burns. I accept that submission. I am satisfied that discovery of category (a)-(c) is appropriate. They are clearly relevant to the pleaded case. They are sufficiently specific. They will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. I refuse to order discovery of categories (d), (e) and (f) for the reasons set out above at [42].

DISPOSITION

45    In all of those circumstances, I grant leave to the applicants to file amended originating applications in the form annexed to the leave applications. I grant leave to the applicants to file amended statements of claim in substantially the form annexed to the leave applications, together with additional amendments consistent with submission of King’s Counsel for the applicants set out at [26] above, and the removal of the third paragraph of the particulars as set out at [33] above.

46    I will also order discovery of categories (a) and (b) in Burns and categories (a), (b) and (c) in Gunning. However, at the hearing the respondent submitted that, if I was against it on discovery, that it have the opportunity to address the court on the period of time required to produce the discoverable documents. I will determine that matter on the papers. I will provide the respondent the opportunity to file up to four pages of submissions (in total for both proceedings), and any evidence in support, addressing the period of time required for the production of category (b) in Burns and categories (a), (b) and (c) in Gunning. Those submissions and evidence are to be filed and served by 21 February 2025. I will provide the applicants up to 2 pages of reply submissions (in total for both proceedings) and any evidence in support. Those submissions and evidence are to be filed and served by 28 February 2025. The respondent agreed to the provision of the documents in category (a) in Burns. It submitted that it requires six weeks to provide those documents. I understood that as six weeks from the date of its agreement to provide the documents. I am satisfied that is an appropriate period and will order accordingly.

47    I will otherwise dismiss the strike out applications and leave applications and reserve costs.

Associate:

Dated:    14 February 2025