FEDERAL COURT OF AUSTRALIA

Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339

ORDERS

THE COURT ORDERS THAT:

1.    The third further amended statement of claim be struck out.

2.    No other amended statement of claim be filed without the leave of the Court.

3.    The respondents’ application for security for costs be dismissed.

4.    The applicants pay 80% of the respondents’ costs of the interlocutory application filed on 17 June 2024.

5.    These orders be entered forthwith.

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

REASONS FOR JUDGMENT

KATZMANN J:

INTRODUCTION

1    This is a representative proceeding, commonly known as class action, brought against the Commonwealth of Australia and four officers of the Commonwealth. The officers are Professor Brendon Murphy AC, the former Secretary of the Department of Health and Aged Care; Professor John Skerritt. the former Deputy Secretary of the Department; Professor Paul Kelly, the former Chief Medical Officer; and the Honourable Greg Hunt, the Minister for Health and Aged Care in the Morrison Government (the Commonwealth officers). The applicants are three men who claim damages for injuries they say they sustained as a result of receiving vaccines sponsored by Pfizer Australia Pty Ltd, Moderna Australia Pty Ltd and AstraZeneca Pty Ltd which received provisional approval on various dates between January 2021 and January 2022. They sue in their own right and on behalf of “all natural persons” in Australia (both adults and children), who were injected with one or more of the same vaccines and other, later approved vaccines, and suffered “a serious adverse event” “partly or wholly” for that reason, excluding “current” ministers of the Crown (Federal, State or Territory) and judicial officers (the group members). They claim that their injuries were caused by the negligence or misfeasance of one or more of the Commonwealth officers and that the Commonwealth is vicariously liable for the conduct of those officers. The allegedly tortious conduct is said to have occurred in relation to the provisional approval of the vaccines for use in Australia and in public statements made by the Commonwealth officers or issued by the Therapeutic Goods Administration (TGA) or the Department. A more precise summary of the applicants’ claims cannot be given for reasons which will soon become apparent.

2    The proceeding was commenced in April 2023 by the filing of an originating application and a 652-page statement of claim. Since then, the statement of claim has been amended four times. Still, the pleading remains prolix. The latest version, the third further amended statement of claim (3FASOC), is 819 pages long. It is dense and extremely difficult to follow. Substantial parts of it are impenetrable.

3    The relief sought is “compensation and/or damages” with interest plus costs. The basis of the claim for compensation, as distinct from damages, is obscure. A claim is made in the pleading, but not in the originating application, for exemplary damages but that claim is not particularised, contrary to the requirement in r 16.44(2) of the Federal Court Rules 2011 (Cth) (Rules) that, where such a claim is made, the pleading must also “state particulars of the facts on which the claim is based”. Despite the misfeasance claim, no declaration is sought that anything allegedly done by any of the Commonwealth officers was unauthorised, invalid or beyond power.

4    On 17 June 2024, after extensive correspondence with the applicants in an endeavour to understand and appropriately respond to their pleadings, the respondents filed an interlocutory application seeking:

(1)    summary judgment and in the alternative an order that the statement of claim be struck out without leave to replead; or

(2)    in the event that the matter is allowed to proceed, an order that within 20 days $312,000 (exclusive of GST) be paid as initial security for costs, that the proceedings be stayed until the security is paid, and that the proceeding be dismissed if the applicants fail to provide the security within the specified time.

5    The interlocutory application is supported by two affidavits affirmed by Emma Gill on 17 June 2024 and 29 November 2024. Ms Gill is a solicitor with the Australian Government Solicitor (AGS) with over 20 years’ experience conducting complex civil litigation for AGS, including representative proceedings and large common law negligence claims against the Commonwealth. The applicants relied on two affidavits relevant only to the security for costs application. Those affidavits were affirmed by Dr Melissa McCann, who has a funding agreement with the applicants, and Christopher Grisenti, a costs law specialist.

6    Written submissions were filed by both parties which were supplemented by oral argument. The written submissions were from the respondents in chief, the applicants in response and the respondents in reply. I have given careful consideration to those submissions. Shortly before the hearing commenced a further submission was filed on behalf of the applicants purportedly in reply to the respondents’ reply. I declined to grant leave to permit the applicants to file such a document but indicated that I would treat the document as “speaking notes” and that it was open to senior counsel for the respondents to address me on any part of them if he wished to.

7    At the conclusion of the hearing I made orders requiring the respondents to file and serve four documents to assist me in that process, namely: (1) a chronology of relevant background events and procedural history; (2) a table of alleged issues with the pleading in relation to the questions of knowledge and bad faith, annexed to these reasons; (3) a table identifying the alleged deficiencies in the amended statement of claim which continue to be present in the 3FASOC; and (4) references to any authorities interpreting s 61A of the Therapeutic Goods Act 1989 (Cth) (TG Act) or an analogous section in other legislation. At the same time I gave the applicants the opportunity to file any amended version of the respondents’ chronology; to identify any alleged errors in the respondents’ tables; and to provide any references to additional authorities on the interpretation of s 61A or analogous provisions.

8    The following day, senior counsel for the applicants informed my associate that his instructions had been withdrawn. The documents subsequently filed by the applicants were signed by the more senior of the applicants’ junior counsel.

9    Two of the three documents filed by the applicants did not comply with the terms of the orders. The applicants frankly acknowledged as much in relation to the document purporting to respond to the second table, stating:

The below does not engage in a response to the error or otherwise of the complaints made with respect to the ASOC, but rather as to the error of those complaints, the substance of which the Respondents now say subsist in the current Pleading.

10    What follows is some 56 pages seeking to defend the pleading.

11    The document filed by the applicants which purportedly responds to the respondents’ table of alleged issues with the pleading on knowledge and bad faith is 24 pages long and goes well beyond the terms of the order.

12    I propose to have no regard to these documents. They should not have been submitted or accepted for filing. The Rules did not authorise this course, the Court did not give the applicants leave to file them and the applicants did not seek leave. If leave had been sought, I would have refused it for the same reasons McHugh J proffered in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [27]–[31] in similar circumstances with respect to a seven-page submission forwarded to the High Court, after it had heard argument and while judgment was reserved. In that case, like the present, the appellant had informed the court that he had withdrawn his instructions to the senior counsel who had represented him at the hearing. The observations McHugh J made in Eastman at [29] and [31] apply equally here:

Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

…

Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions — with all the attendant delay in the Court's business by a fresh round of submissions. Efficiency requires that the despatch of the Court's business not be delayed by further submissions reflecting the afterthoughts of a party or — as perhaps is the case in this appeal — some dissatisfaction with the arguments of the party's counsel.

THE APPLICATION FOR SUMMARY JUDGMENT/STRIKE-OUT

The respondents’ contentions

13    The respondents’ contention is that summary judgment should be entered in their favour because the proceeding has no reasonable prospect of success; the 3FASOC fails to disclose any reasonable cause of action; and the proceeding is an abuse of process.

14    Alternatively, the respondents contend that the pleading should be struck out in full because it contains scandalous material, is embarrassing, evasive and ambiguous, and an abuse of process, and it fails to disclose a reasonable cause of action.

15    The respondents contend that the negligence claim is bound to fail because the applicants have no reasonable prospect of establishing the existence of the pleaded duty; the allegations of bad faith have not been adequately pleaded or properly particularised; the allegations of breach are vague, generalised, embarrassing and inappropriate; and the pleading makes no attempt to link the alleged breaches of duty to the harm allegedly suffered by the applicants. The respondents contend that the misfeasance claim is fatally flawed in a number of respects.

The evidence

16    The evidence from Ms Gill relevantly discloses the following matters.

17    Five days after the originating application and statement of claim were filed, the applicants served an amended statement of claim. Two months later, on 5 July 2023, AGS wrote a lengthy letter to the applicants’ lawyers drawing attention to “the inadequacy and fundamental flaws” of the document. Many of the matters raised are equally applicable to the latest pleading. For example:

The ASOC, at 654 pages, is extremely lengthy. It would assist the Court and the respondents to navigate the ASOC if it included an index, a glossary of key terms/expressions and an overarching statement outlining the essential elements of the claims.

…

The ASOC fails to comply with the ordinary rules of pleadings. It is incumbent on the applicants to plead all relevant facts and identify a proper basis for an allegation with respect to a person’s states of mind fully and clearly. This requires more than asserting a ‘material fact’ at such a high level of generality as to leave the respondents in real doubt as to the case they have to meet. Such a pleading is embarrassing and liable to be struck out.

…

I take the reference to “relevant” to mean “material”.

18    AGS also drew the applicants’ attention to the obligations of the parties under s 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and pointed out that “proper pleading discipline is critical to the management of civil cases, in which the ‘primary rule of evidence is that a court will receive, and only receive, evidence that is relevant to the issues as defined by the pleadings’”. AGS asserted:

On the basis of the current ASOC, the pre-trial processes in this matter would be extremely time-consuming and costly. For example, the lack of pleading specificity would make the proper scope of discovery unclear. For those reasons, the respondents consider it essential that both the applicants and the Court give early consideration to the adequacy of the pleadings.

19    AGS proceeded to identify numerous problems it detected with the pleading, foreshadowing the filing of an application for “strike out and summary judgment” unless the claims were satisfactorily repleaded.

20    Two days later I made an order by consent, among other things, requiring a further amended statement of claim to be filed and served by 21 August 2023. On 11 August 2023 I extended the time for filing, again by consent, to 4 September 2023 and on 4 September 2023 the duty judge extended the period to 18 September 2023. These orders also made provision for the respondents to request further and better particulars, for the applicants to reply to any such request, and for corresponding extensions to the filing dates.

21    On 18 September 2023 the applicants filed and served their Further Amended Statement of Claim (FASOC). It ran to 991 pages.

22    On 17 November 2023 AGS sent a 28-page letter to the applicants’ lawyers identifying numerous problems with the FASOC and asked them whether they proposed conducting “a further review and revision of the FASOC”. The author, Alison Thomson, a Senior Executive Lawyer, went on to say:

20.    In the meantime, we note the existing Court orders require the respondents to make requests for further and better particulars of the FASOC. Although we are further concerned that requesting particulars of the FASOC is an inefficient use of the parties’ time and costs, we intend to comply with the Court’s orders.

21.    As such, we have targeted our request for particulars on key areas of the FASOC where we consider the deficiency in pleading is most grievous. As noted above, the respondents do not consider that provision of further particulars can remedy the applicants’ failure to properly plead the material facts required to establish each element of the relevant causes of action. However, we have taken this approach to provide the applicants with the opportunity to attempt to remedy these flaws, to the extent possible, through the provision of particulars, before we obtain instructions as to whether to proceed with an application for summary dismissal/strike out.

23    Ms Thomson drew particular attention to the manner in which the putative knowledge of the respondents had been pleaded, reminding the applicants of the relevant rules of court. Among other things, she informed the applicants’ lawyers that none of the decisions to approve the vaccines was made by any of the Commonwealth officers. She requested 166 further and better particulars.

24    On 14 December 2023 I made various orders by consent, among other things, giving the applicants additional time to reply to the respondents’ request for particulars.

25    On 24 January 2024 the applicants’ lawyers wrote to AGS advising that they had considered the issues raised in its letter of 17 November 2023, and proposed filing a second further amended statement of claim which would incorporate the further and better particulars as requested. Unwisely, as it turned out, the respondents agreed to this course and on 9 February 2024 I made orders in chambers by consent enabling the applicants to file any second further amended statement of claim by 1 March 2024 and the respondents to file and serve any interlocutory application for orders for summary judgment and/or striking out the pleadings by 12 April 2024.

26    On 4 March 2024 the applicants filed the Second Further Amended Statement of Claim (2FASOC). It ran to 1025 pages.

27    Three weeks later, on 26 March 2024, the applicants’ lawyers wrote to AGS seeking to “further refine the 2FASOC” and on 28 March 2024 provided AGS with a draft 3FASOC.

28    On 8 April 2024 AGS wrote to the applicants’ lawyers seeking confirmation that the applicants intended to rely on the draft 3FASOC and informing them, among other things, that the respondents would consent to the filing of the 3FASOC but reserved their rights to bring applications for strike out and summary dismissal with respect to the amended pleading. The next day, the applicants’ lawyers informed AGS that they had retained senior counsel (Mark Robinson SC), that he had advised that further amendments to the proposed 3FASOC were desirable, and that they denied that their claims were “fundamentally defective”. On 11 April AGS sent a letter to the applicants’ lawyers indicating that the respondents would consent to the filing of the proposed 3FASOC but reserved their rights to bring applications for strike out and summary judgment with respect to that pleading.

29    On 17 April 2024 I made orders requiring the applicants to file any 3FASOC and a concise statement by 7 May 2024, the latter in the pious hope that it might clarify the applicants’ claims.

30    The 3FASOC was filed on 7 May 2024.

31    The 3FASOC is nearly 200 pages longer than the original statement of claim, albeit that 629 pages are incorporated as “schedules”. While it contains an index (curiously titled “index of contents”), it does not include a glossary of key terms/expressions. It is apt to confuse. At the first case management hearing, I asked the applicants to provide me with a glossary. No such document was ever provided. Instead I received a document listing the defined terms and the paragraphs in the statement of claim where the definitions could be found. On the last working day before hearing of the interlocutory application, a reworked version of the same document was filed. It was even less helpful than the first.

The applicants’ arguments

32    The applicants emphasised the need for caution in exercising the power to award summary judgment and the heavy onus on the party who seeks it. They contended that the “timing and nature” of the respondents’ application was “misconceived” because no defence has been filed. They asserted that where, as here, there are mixed questions of fact and law, “the complexity requires a full hearing”. They refuted the respondents’ characterisation of their pleadings, contending that “on their face” they demonstrate the “baselessness of the respondents’ assertions” because “the pleadings make clear the case against them”. The applicants submitted that the relief the respondents seek should be refused “because the legal and factual issues the Court must decide have not crystallised”.

33    I will refer in due course to the particular arguments concerning the pleaded causes of action. Before doing so, however, it is necessary to identify the relevant powers, rules and principles.

The relevant powers, rules and principles

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

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers the Court has apart from this section.

35    The principles governing the exercise of this power are set out in Spencer v Commonwealth of Australia (2010) 241 CLR 118. There is a difference between “no reasonable prospect” and “no real prospect” (the expression in the Civil Procedure Rules 1998 of England and Wales), as the “negative admonition” in s 31A(3) makes clear: Spencer at [51]–[52] (Hayne, Crennan, Kiefel and Bell JJ). The former requires an assessment of the prospects of success, the latter calls for a determination that the action is certain to fail: Ibid at [54]. The power is not to be exercised lightly: Ibid at [60]; [24] (French CJ and Gummow J). An action should not be summarily dismissed merely because the Court considers the applicant is unlikely to succeed on a factual issue. Similarly, if the success of the proceeding depends on a proposition of law, the fact that case law, other than a judgment of the High Court, appears to preclude an applicant from succeeding “may not always be the end of the matter” as “[e]xisting authority may be overruled, qualified or further explained”: Spencer at [25] (French CJ and Gummow J). A “practical judgment” is called for: Spencer at [25].

36    By r 26.01, read with r 1.40, the Court may also order summary judgment in favour of a respondent if the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding or the proceeding is frivolous or vexatious, discloses no reasonable cause of action, or is an abuse of process.

37    Pleadings are covered by Pt 16 of the Rules. The key features include the following matters. First, a pleading must be as brief as the nature of the case permits: r 16.02(1)(b). Second, it must identify the issues the party wants the Court to resolve: r 16.02(1)(c). Third, it must state the material facts on which the party relies that are necessary to give the opposite party fair notice of the case against it but not the evidence by which the material facts are to be proved: r 16.02(d). Fourth, it must state the provisions of any statute relied on: r 16.02(e). In addition, a pleading must not ask for relief that is not claimed in the originating application: r 16.02(4).

38    Importantly, not all relevant facts are “material facts”. A fact is material if it is essential to the cause of action, that is to say, if it is a fact which, in combination with other facts, gives rise to a right to sue: Bruce v Odhams Press Limited [1936] 1 KB 697 at 710–712 (Scott LJ). In other words, a fact is material if it is essential to prove that fact in order to make out the cause of action or put another way, it is an element of the cause of action.

39    The elements of a cause of action in negligence are the existence of a duty of care, breach of duty, damage and a causal connection between the breach and the damage. The elements of a cause of action for misfeasance in public office are an invalid or unauthorised act; done maliciously; by a public officer; in the purported discharge of their public duty; which causes loss or harm to the applicant: Northern Territory v Mengel (1995) 185 CLR 308 at 370 (Deane J). In contrast to the tort of negligence, misfeasance in public office is a “deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power”: Mengel at 345 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).

40    In Mengel at 356 Brennan J discussed what was necessary to establish that a purported exercise of a power was invalid or unauthorised and the consequences of such a finding:

A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss — or even an intended loss — but, if the exercise of the power is valid, the other’s loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires.

41    Malice can be made out if the act is done (or omitted to be done) either:

(a)    with the specific intention of causing injury to a person or persons in the knowledge that the act (or omission) was invalid or done without power and in the knowledge that it would, or would be likely to cause injury (sometimes referred to as “targeted malice”); or

(b)    with reckless indifference or deliberate blindness to the illegality of the act and likelihood of injury (sometimes referred to as “untargeted malice”).

See, for example, Mengel at 356–7 (Brennan J); 370–1 (Deane J); Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 191E-F (Lord Steyn), 197 (Lord Hope of Craighead); and Sanders v Snell (No 2) (2003) 130 FCR 149 at [95]-[96] (Black CJ, French and von Doussa JJ).

42    Mere foreseeability of harm is insufficient: Obeid v Lockley (2018) 98 NSWLR 258 at [153]-[171] (Bathurst CJ, Beazley P agreeing at [206], and Leeming JA agreeing at [213], [226]-[242]). As Bathurst CJ and Leeming JA explained in Obeid, the contrary view (expressed in South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [263]–[264]) is based on a misreading of a passage of the reasons of the plurality in Mengel at 347.

43    Rares J explained in Brett Cattle Company Pty Limited v Minister for Agriculture (2020) 274 FCR 337 at [270] (original emphasis):

Relevantly, [misfeasance in public office] is a tort that requires the claimant to establish that the public officer abused or misused his or her office intentionally, that is by either intending to cause harm (the first limb) or knowingly acting in excess of his or her power (the second limb): Mengel at 345; Sanders 196 CLR 329 at [37]-[38], [42] per Gleeson CJ, Gaudron, Kirby and Hayne JJ; Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at [11], [55] per Gummow, Hayne, Heydon and Crennan JJ. The intention or state of mind of the public officer when exercising the power, which he or she appears to hold, is critical to the ascertainment of whether he or she misused the public office in that exercise.

44    Each limb involves the exercise of a public power in bad faith. As Lord Steyn put it in Three Rivers at 191E–F, the first involves bad faith in the sense of the exercise of the power for an improper or ulterior motive, the second occurs where a public officer acts knowing that he has no power to do so and that the act will probably injure the plaintiff (applicant). In the second case, the bad faith is an absence of an honest belief that his act is lawful. This is consistent with, and reflects, the analysis of Brennan J in Mengel at 357 to which his Lordship referred at 192E-F.

45    In Mengel at 357 Brennan J put it this way:

[T]he mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged — whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury … It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.

(Emphasis added.)

46    Where serious allegations of dishonesty, fraud or acting with malice or bad faith are made, the allegations must be pleaded “specifically and with particularity”: Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [56] (Mortimer J).

47    As the Full Court (Siopis, Gilmore and McKerracher JJ) said in Fuller v Toms [2012] FCAFC 155 at [17]:

The general principles of pleadings in the modern context are well-established. The function of a pleading is to state, with sufficient clarity, the case that a party must meet thereby rendering procedural fairness, as well as defining the issues for decision. Both aspects are important: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286.

48    In order to provide procedural fairness to a respondent in a representative action, the basic function of the statement of claim is to set out “in comprehensible terms” the material facts in the applicant’s case and, “at a high level of generality”, the claims of group members: Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462; 369 ALR 512 at [21] (Lee J).

49    Rule 16.02(2) provides that a pleading must not:

(a)    contain any scandalous material; or

(b)    contain any frivolous or vexatious material; or

(c)    be evasive or ambiguous; or

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

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

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

50    A pleading which answers any of these descriptions is liable to be struck out either on the application of a party or at the initiative of the Court: rr 16.21, 1.40.

51    In Karlsson v Griffith University [2022] FCA 591 at [43] I observed that:

These categories overlap. For example, a proceeding will be frivolous, if, among other reasons, the applicant has no reasonable prospects of successfully prosecuting it (Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22] per French CJ and Gummow J) or because no reasonable cause of action is disclosed (Karlsson v Griffith University per Wright J at [87]) and a proceeding may be an abuse of process if it is “vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ). A reasonable cause of action is a cause of action with some chance of success if regard is only had to the allegations in the claimant’s pleading: Polar Aviation Pty Ltd v Civil Aviation Authority (2012) 203 FCR 325 at [41]–[43] (Perram, Dodds-Streeton and Griffiths JJ).

52    A pleading is “likely to cause prejudice, embarrassment or delay” where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him” (Meckiff v Simpson [1968] VR 62 at 70 per Winneke CJ, Adam and Gowans JJ); if it merely asserts a conclusion to be drawn from facts which are not stated (Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114–115 per Fisher J); if it contains inconsistent or irrelevant allegations or alternatives that are “confusingly intermixed” (Shelton v National Roads and Motorists’ Association Ltd [2004] FCA 1393; 51 ACSR 278 at [18] per Tamberlin J). And, as Wigney J remarked in KTC v David [2022] FCAFC 60 at [121]:

A pleading may be considered to be embarrassing if it suffers from narrative prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 at [80]-[84]. A party cannot be expected to respond to mere context, commentary, “history, narrative material or material of a general evidentiary nature”: Fuller v Toms at [83].

53    In Oztech Pty Ltd v Public Trustee of Queensland (2019) 269 FCR 349 at [28]–[32] Middleton, Perram and Anastassiou JJ observed:

The question of whether a pleading adequately raises a claim or defence is not concerned with the expression of the pleading as a matter of style, or of phrasing, or the structure of the pleading. Neither is it concerned with the formality of the process by which the issues in the proceeding are identified; be it a statement of claim, statement of contentions, concise statement, points of claim or points of defence. The verbal formulation of the allegations of fact, or the contentions of law, need not conform to a particular style guide or to any pro forma template.

The sole objective of a pleading is to clearly identify matters in dispute and difference by and between the parties to the dispute. This objective necessarily involves expressing the factual basis of each claim or defence. It is necessary that the legal elements of each cause of action or defence are expressed by reference to allegations of fact required to establish each element. It is not necessary to plead the legal conclusions that follow from the facts, but it is often convenient to do so. These are trite propositions but nevertheless vital to ensuring that the pleading serves its purpose.

There should be no doubt about whether any particular cause of action is relied upon. At a minimum, the pleading should be pellucidly clear about the causes of action, or claims, relied upon by the applicant, including any claims made upon an alternative hypothesis. The explicit clarity with which a claim is expressed should ensure that there be no need for the opposite party to closely scrutinise the pleading in a process of textual construction to determine whether a particular fact is relied upon, or the purpose for which it is alleged, much less to decide whether a particular cause of action is raised. The same basic requirement applies to any defence raised in answer to a claim.

Clarity in pleading is by no means an unattainable objective, even in the most complex litigation. Often the elements of a cause of action require careful and precise identification to ensure that the relevant integer is properly characterised having regard to the context in which the claim arose. The pleading should always be a bespoke articulation of the dispute between the parties, even though the warp and the weft of its fabric may be the same as other claims based upon the same, or a similar, cause of action.

…

(Emphasis added.)

54    A “reasonable cause of action” for present purposes means “one which has some chance of success if regard is had only to the allegations and the applicant’s pleading”: Wride v Schulze [2004] FCAFC 216 at [25] (Spender, Tamberlin and Bennett JJ).

55    Although the categories of cases which will constitute an abuse of process are not closed, it has long been accepted that any of the following circumstances will suffice: where the court’s processes or procedures are invoked for an illegitimate or collateral purpose; where the use of the court’s processes or procedures would be unjustifiably oppressive to a party; or where the use of the court’s processes or procedures would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286 (McHugh J); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [9], [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ). See also PNJ v The Queen [2009] HCA 6; 83 ALJR 384; 252 ALR 612; 193 A Crim R 54 at [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) and UBS AG v Tyne as Trustee of the Argo Trust (2018) 265 CLR 77 at [1] (Kiefel CJ, Bell and Keane JJ).

56    The power to strike out a pleading is to be exercised with caution and only in a clear or obvious case. In Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; 293 ALR 537 at [6] Emmett, Bennett and McKerracher JJ summarised the relevant principles:

In an application to strike out a pleading, all of the facts alleged in the relevant pleading are to be accepted as true, and it is to be taken for granted that, on all other points, the pleading is unassailable. Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial. Further, a court of first instance should be careful not to risk stifling the development of the law by summarily dismissing a claim where there is a reasonable possibility that, as the law develops, a cause of action may be held to lie.

57    Although a reasonable cause of action may be available, the pleadings may fail to disclose it. In that event, the question for the Court is whether the applicants have been given a reasonable opportunity to articulate the cause or causes of action upon which their application is based. See, for example, Plaintiff M83A at [47]. “A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47] (Lindgren J) cited with approval by French CJ and Gummow J in Spencer at [23].

58    Last but not least, any power conferred by the FCA Act or Rules must be exercised in a way that best promotes the overarching purpose of the civil practice and procedure provisions: FCA Act, s 37M(3). That purpose is described in s 37M(1) and (2):

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

59    Moreover, parties to a civil proceeding have a duty to conduct the proceeding in a way that is consistent with the overarching purpose (s 37N(1)); a party’s lawyer is obliged to take that duty into account and assist the party to comply with it (s 37N(2)); and a failure to comply with that duty must be taken into account in the exercise of the discretion to award costs (s 37(4)).

The pleading

60    I reject the submission that it is premature for the Court to entertain the respondents’ application. The task of responding to the 3FASOC is a formidable one. As the respondents put it in their reply submissions, both the preparation of the defence and the provision of discovery would be “exceptionally onerous and expensive”. Applications for summary judgment and/or striking out a statement of claim are often, if not commonly, made before a defence is filed and before discovery is sought. The respondents acted appropriately, and in accordance with their obligations under s 37N of the FCA Act, by making their application when they did.

Should the third further amended statement of claim be struck out?

61    The answer to this question is an emphatic yes. This is a clear and obvious case.

62    It is true, as the applicants submitted, that this is a complex case. But the 3FASOC makes it impossibly complex, so much so that it defies the fundamental principles of pleading. It is not only likely to cause prejudice, embarrassment and delay, it is inevitable that it will have those results. Large parts of it are incoherent, unintelligible, ambiguous, impenetrable and/or expressed at a high level of generality. In critical aspects it lacks precision. It suffers from both narrative prolixity and the inclusion of irrelevant detail such that it is not a pleading to which the respondents can reasonably expect to plead. In argument at the hearing senior counsel for the applicants candidly and accurately described it as “tortuous”. He expressed “trepidation” at the “[un]pleasant exercise” of taking the Court to it. It is a pleading of the kind described by Perram J in Stewart v Deputy Commissioner of Taxation [2010] FCA 402; 76 ATR 66; 367 ALR 637 at [33]:

[It] is filled with irrelevancies and allegations which reveal the absence either of comprehension or application or both. The task of identifying what, if any, case the applicants have has been very much hampered by the pleadings put forward on their behalf, which is, of course, precisely the opposite effect which pleadings are intended to achieve see: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [148] per Black CJ, French and Tamberlin JJ. Anyone who seeks to wrestle with the mysteries of the proposed further amended statement of claim will see that it is more akin to a Chinese puzzle box than a succinct statement of the applicants’ cases.

63    To allow the case to proceed on the present pleading or anything like it would not be the way that best promotes the overarching purpose of the civil practice and procedure provisions – far from it. Rather, to refrain from striking out the pleading would be to act in defiance of that purpose.

64    When the matter first came before the Court for case management in April 2024, I was informed that the applicants had recently engaged senior counsel and that he was undertaking a final review of the pleading with a view to further truncating and refining it. While the odd paragraph was omitted, the 3FASOC (which carries the endorsement that it was prepared by senior and junior counsel) neither truncated nor refined the pleading in any significant respect and certainly did not make it any easier to digest.

65    One of the functions of pleadings and particulars is to provide “a statement of the case sufficiently clear to enable the other party [or parties] a fair opportunity to meet it”. Another is to define the issues for resolution in the litigation, so as to enable the trial judge to rule on the admissibility of evidence. See Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). The 3FASOC fulfils neither function.

66    The 3FASOC is replete with recitations of immaterial facts; untethered, acontextual references to legislation; and a morass of infuriating cross-referencing which makes the critical allegations nigh impossible to decipher. Reading it is a herculean task. Trying to make sense of it could drive the reader mad. Identifying the material facts is like looking for a needle in a haystack. It would be oppressive to require the respondents to plead to it. If it were permitted to stand, it would likely severely delay a fair trial and prejudice the respondents in attempting to mount a defence: see Fuller v Toms at [18].

67    It beggars belief how some of the allegations could be made, such as the allegations about the state of knowledge of “the public officers and the Australian public” (in para 69). Some of the allegations are tendentious.

68    The schedules are confusing and, in some instances, misleading. Some of them have no place in a pleading and merely serve to contribute to the prolixity of the document.

69    Frequently, rolled-up allegations are made in a single paragraph.

70    Frequently, too, allegations are pleaded in a cascading series of alternatives apparently seeking to cover every conceivable way a respondent might or might not have engaged in certain conduct. At para 51, for example, the applicants allege that Prof Skerritt:

(a)    “personally and directly” granted the approvals;

(b)    further or alternatively that he “either directly or through direction given to an employee of the Commonwealth, expressly or impliedly advis[ed]” the Secretary and [the Minister] and/or advised, sanctioned or directed “any other person imbued with the actual or delegated authority to grant the Approvals” that the approvals be granted or ought to be granted, that the grant of the approvals would satisfy the requirements of the TG Act and Regulations, that at the date of the respective approvals the “Critical Vaccine requirements” (defined in para 42) had been “rationally established”, that all available information, data and material accumulated by the TGA, the Department and Prof Skerrit and/or reasonably available to him “rationally established that the Vaccines at the time of the Approvals met the Critical Vaccine Requirements”, and that he was “rationally satisfied” of those matters;

(c)    further or alternatively, by failing or refusing at any time to “expressly or impliedly, either directly or through direction given to an employee of the Commonwealth” advise the Secretary or the Minister “and/or advise, sanction or direct any other person imbued with the actual or delegated authority to grant the Approvals” that the approvals not or ought not to be granted, that the grant of the Approvals would not satisfy the requirements of the TG Act and Regulations, that the “Critical Vaccine Requirements had not been rationally established” and that he was rationally satisfied of those matters; and

(d)    in each instance that Prof Skerrit “undertook any or all of the acts and/or omissions” pleaded in each instance he “intended, knew, expected and considered it likely that as a natural and probable consequence of those acts or omissions” that the approvals would be granted and that the vaccines would be widely distributed and received by the Australian public; and he caused as a direct consequence the approvals to be granted, the vaccines to be distributed to the Australian public and the vaccines to be received by the group members.

71    Substantially identical allegations are made against Prof Murphy and Prof Kelly in paras 54 and 57. Similar cascading alternatives appear in relation to the continuing approval allegations made in paras 52, 55 and 58.

72    These parts of the pleading are incoherent. While it is not impermissible to plead claims in the alternative, as the plurality (French CJ, Gummow, Hayne and Kiefel JJ) observed in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [27]:

The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it. In this case, there were hundreds, if not thousands, of alternative and cumulative combinations of allegations. As Keane CJ observed in his judgment in the Full Court (36):

“The presentation of a range of alternative arguments is not apt to aid comprehension or coherence of analysis and exposition; indeed, this approach may distract attention from the central issues.”

(Emphasis added.)

73    As I mentioned earlier, the pleading is riddled with cross-referencing, a good deal of which sends one running around in circles. From time to time reference is made to a non-existent sub-paragraph.

74    Paragraph 75 of the 3FASOC is a good example. It reads:

By reason of the factual matters and knowledge pleaded and particularised in paragraph 74 herein above, the Reckless Conduct – Approvals undertaken by Skerritt, the Secretary and the Chief Medical Officer respectively failed to observe the limits of their respective powers and their said actions were:

a)    so unreasonable that no reasonable person could have so acted or failed to act, or in the alternative, they were legally unreasonable;

b)     conducted in bad faith.

Particulars

Para. 75 in Schedule D of the SOC.

75    The allegation in para 75 must be read with the allegations contained in para 74 and the particulars in para 75 of Sch D. However, these two cross-references do little on their own to explain the basis on which the allegation is made, and contain no fewer than 150 cross-references. To make out the allegation of bad faith in para 75 of the pleading, the “particulars” in para 75 of Sch D contain cross-references to “those factual matters and circumstances pleaded and particularised at paras 22 to 38, 42, 44 to 47, 49 to 64, 69 to 75, and 77 to 84 (inclusive) of the SOC and particularised at paras 1 to 74 of Schedule B to the SOC”. That is, the “particulars” contain cross-references to 53 separate paragraphs or sub-paragraphs of the pleadings and 74 paragraphs of Sch B.

76    The other cross-reference contained in para 75, which is to para 74 of the pleadings, is no less expansive. Paragraph 74 contains cross-references to 58 paragraphs (some more than once), including a cross-reference to the “particulars” in para 74 of Sch D. Those “particulars” in turn refer to some 64 individual paragraphs of Sch B (mentioned repetitively across at least 280 cross-references).

77    This is not an isolated example, as the annexure to these reasons indicates. This is a vice which permeates the pleading.

78    Further, the 3FASOC contains allegations that the respondents made numerous misleading statements but does not allege that any of the applicants read or heard any of them, let alone that they relied on any of them. Many of the statements relied upon are statements made by the TGA, not by any of the Commonwealth officers.

79    One has to read 67 pages before the first cause of action (negligence) is pleaded and then it is not until eight pages later, in para 73, that the duty of care is described. The duty of care is said to be owed to the group members (and not the applicants) and the way in which it is expressed is troubling. Paragraph 73 reads:

By reason of the factual matters and the circumstances of the relationship between the Public Officers and the Group Members pleaded herein, the Public Officers were under a duty to the Group Members to exercise reasonable care and skill and to avoid or minimise the risk of harm when undertaking acts and omissions which would directly or indirectly cause (“the Respondents’ Duty”):

a)    a therapeutic good to become lawfully available to the Group Members;

b)    a therapeutic good to remain lawfully available to the Group Members;

c)    the distribution of a therapeutic good to the Group Members;

d)    public statements to the Group Members as to the safety, efficacy and necessity of a therapeutic good.

Particulars

Para. 73 in Schedule D of the SOC.

80    This articulation of the duty is problematic.

81    The duty makes no reference to damage. Yet, “[a] postulated duty of care must be stated by reference to the kind of damage that a plaintiff will suffer”: Minister for the Environment v Sharma (2022) 291 FCR 311 at [8] (Allsop CJ) and the cases referred to there.

82    But this is by no means the only problem.

83    The relationship between the Commonwealth officers and the group members is no different from the relationship between the respondents and any member of the Australian public. “The factual matters and circumstances” in the preceding pages, insofar as they are relevant to the duty of care, are all directed at “the Australian public” or “the Australian population (or people)” albeit that at para 41 the applicants plead that the references to those terms includes the group members. In the result, properly understood, the duty of care is said to be owed to the entire population of the country. In these circumstances, the potential liability of the respondents and the class of persons to whom the duty is owed is indeterminate which tells against the existence of a duty of care: see, for example, Sharma at [706]ff (Beach J).

84    The particulars make no sense. They read:

1.     Respondents’ Control of Therapeutic Goods in Australia;

2.     Public Expectation of Skill;

3.     Public’s Reasonable Expectation and Reliance;

4.     Known Gravity of the Approvals;

5.     Known Vulnerability of the Australian Public;

6.     Foreseeability of Risk and Harm;

7.     Public Officers’ Voluntary Assumption of Risk

One has to trawl through the earlier part of the pleading to remind oneself of the meaning intended to be conveyed by these expressions.

85    The misfeasance claim is pleaded over 74 pages, not including other parts incorporated by reference. As the respondents put it, it suffers from a number of “fatal” flaws. The first is what the respondents correctly described as the “hopelessly vague” manner in which the acts and omissions are pleaded. It is impossible to discern from the pleading precisely what acts or omissions associated with the approvals processes are said to be invalid or unauthorised or why. As the respondents submitted, even if the public officers made misleading statements, that is insufficient to establish that the statement was beyond power. I also accept the respondents’ submission that the pleading of malice is manifestly deficient because of its lack of specificity and particularity. By no stretch of the imagination do the schedules compensate for this. They simply send the reader on a wild goose chase.

86    At various places in the 3FASOC allegations are made against the Commonwealth officers collectively. Yet, “it is impermissible to plead a case of misfeasance in public office based on a composite or aggregate of the conduct and states of mind of a number of individual officers”: Farah Custodians Pty Ltd v Federal Commissioner of Taxation [2018] FCA 1185 at [147] (Wigney J).

87    Assumptions are made (for example in Sch C) that every statement attributed to the TGA or one of the Commonwealth officers was known to every respondent merely because of the positions held by the officers, such that the knowledge of one officer or one employee in the Department is attributed to all of the respondents.

88    In their written submissions the respondents contended that the applicants have no reasonable prospect of proving that the respondents were recklessly indifferent to the absence of legal authority and the likelihood of injury to the applicants. The applicants’ response did not address the thrust of the submission, particularly the following substantive points:

(1)    reckless indifference requires subjective recklessness; in other words, it is necessary to show that the respondents believed or suspected that their conduct was invalid and likely to cause injury but dishonestly proceeded regardless (Farah Custodians at [105]);

(2)    a finding of intentional wrongdoing cannot be inferred from facts, matters or circumstances that could be equally consistent with an absence of intentional wrongdoing, such as inadvertence, negligence or even incompetence (Farah Custodians at [105], Plaintiff M83A at [57]–[60]; [115] (Mortimer J);

(3)    nor is it sufficient to prove that the respondents’ conduct was legally contentious and potentially subject to challenge (Minister for Fisheries v Pranfield Holdings Ltd [2008] 3 NZLR 649 at [114]–[121]) per O’Regan, Ellen France and Baragwanath JJ)); and

(4)    since the relevant decision makers did not have the applicants in mind when exercising powers under the TG Act and/or Regulations or (making or endorsing any of) the allegedly misleading statements, which were directed not to them but to the public at large, to succeed the applicants would have to show that they knew that it was likely that the Australian public would be harmed by their conduct but proceeded regardless; it would not be enough to show that there was some risk, however remote, for some people.

89    The applicants submitted that it is open to the Court to infer malicious intent from the allegations in the statement of claim that the respondents acted with reckless indifference, citing Alpert v Commonwealth of Australia (Department of Defence) (No 2) [2024] FCA 447 at [99] (Snaden J). With respect, that is a preposterous submission. And it is not supported by the cited source. In Alpert at [99] Snaden J merely observed that “a court may infer a malicious intent from a respondent’s reckless indifference to the limits of the powers attaching to his or her office”. That much may be accepted, subject to the qualification that in a case like this where serious allegations are made with potentially serious repercussions, any such inference should be direct, not indirect, and should not be drawn from “inexact proofs” or “indefinite testimony”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).

90    The applicants also submitted that an act done for lawful purposes could still be an abuse of power when done for an improper purpose. But that submission is based on a misrepresentation or misunderstanding of what North and Rares JJ said in Nyoni v Shire of Kellerberrin (2017) 248 FCR 311 at [96]. The point their Honours were making is that an improper purpose is an abuse of power even if the officer “could have decided to do the same act for a lawful or proper purpose”.

91    The applicants proceeded to cite the paragraphs of the pleading in which they allege that the respondents were actuated by an improper purpose. One of those paragraphs was 90(e) where the applicants alleged that:

the Skerritt Approvals were undertaken by Skerritt:

i)    purportedly for the proper purpose incident to his office that his actions in that office be undertaken consistently with:

(1)    the Department Overarching Purpose;

(2)    the TGA’s Statutory Purpose;

(3)    his duty to act for the public good;

ii)    in circumstances wherein, the Skerritt Approvals were in fact inconsistent with the Department Overarching Purpose and the TGA’s Statutory Purpose because they were made in the circumstances of the facts of and Skerritt’s knowledge of the Pre-Approval Established Critical Defects;

iii)    thereby for an improper purpose:

(1)    contrary to the public good;

(2)    in breach of a duty to act for the public good.

Particulars

Para. 90(e) in Schedule D of the SOC.

92    Five additional allegations of the same kind are made against Prof Skerritt elsewhere in para 90 and also in paras 92 and 94. Six such allegations are made against Prof Murphy, seven against Prof Kelly and one against Mr Hunt. All are said to have been actuated by the same improper purpose or purposes “contrary to the public good” and/or “in breach of a duty to act for the public good”.

93    Putting aside the error in the submission referred to at [90] above, like other allegations in the 3FASOC, some of these allegations are barely comprehensible; others are altogether incomprehensible.

94    Finally, although no allegations are made anywhere else in the pleading that unidentified public officers committed any tort, para 114 states:

In the premises each of the acts done so as to render the Commonwealth liable in law for the actions of the Public Officers and any and all unidentified officers of the Commonwealth.

(Emphasis added.)

95    That pleading is plainly embarrassing.

Should the proceeding be summarily dismissed or should the applicants be granted leave to replead?

96    The applicants argued that, if the Court were persuaded to strike out the 3FASOC, they should have leave to replead.

97    I have no confidence that the applicants, at least as currently advised, are able to produce a statement of claim that conforms to the Rules sufficient to enable each of the respondents to know precisely the case they have to meet and is capable of pleading to it.

98    Little has changed since the original pleading. If anything, the position has worsened. Furthermore, the applicants have had multiple opportunities to propound a cogent argument capable of persuading a court that they had a reasonably arguable case against each of the respondents but failed to do so. They did not do so in any of their correspondence with AGS. They did not do so in their concise statement. They did not do so in their written submissions. Nor did they do so in oral argument. And they did not proffer a fourth proposed amended statement of claim which rectified the numerous deficiencies of those proffered to date. Moreover, save for some minor concessions, they doggedly maintain that their pleading is acceptable.

99    It is evident from the way in which the claims based on the approvals of the vaccines is pleaded that the applicants do not know who approved the vaccines. In para 51, for example, Prof Skerritt is alleged to have “granted, caused or materially contributed to the grant of each of the respective Approvals” and the various ways in which he might conceivably have done so are then listed. The same allegation is made against Prof Murphy in para 54. In a letter to the applicants’ lawyers on 17 November 2023 AGS wrote:

In relation to the alleged ‘Approvals Misfeasance’ for each of the first, second and third respondents, we are instructed that none of the first, second or third respondents was the decision-maker for the ‘Approvals’ as defined in para 20 of the FASOC. Accordingly, we consider the applicants will be unable to properly plead the material facts to establish that each of the first, second or third respondents was exercising a public power for the purposes of the alleged ‘Approvals Misfeasance’.

100    The applicants filed the 3FASOC on 7 May 2024 — almost six months after AGS informed their lawyers that none of the individual respondents approved the vaccines. In these circumstances, the allegations of misfeasance in connection with the approvals are scandalous. I fail to see how it was reasonably open to the applicants’ lawyers, consistent with their professional obligations, to make the allegations of misfeasance relating to the approvals. It is no answer to point to the “asymmetry of information” or the availability of discovery as the applicants did both in correspondence and submissions.

101    The Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) relevantly provide that “[a] barrister must not allege any matter of fact in … any court document settled by the barrister … unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so”: see r 64.

102    Moreover, r 65 provides that:

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a)    available material by which the allegation could be supported provides a proper basis for it; and

(b)    the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

103    Identical rules appear at rr 63 and 64 of the 2011 Barristers’ Rules (Qld) as amended, notified under s 225 of the Legal Profession Act 2007 (Qld).

104    Similar provisions appear in the Solicitors’ Conduct Rules: see Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 21.4; Australian Solicitors Conduct Rules 2023 (Qld), r 21.4.

105    Discovery is not available as a matter of right, only upon application to the Court, and then only after a defence has been filed: Rules, r 20.13. It is true, as the applicants submitted, that there is authority for the proposition that, where the facts are peculiarly within the respondent’s knowledge, a cause of action should not be dismissed because of gaps in the applicant’s case if the necessary evidence might be obtained as a result of discovery (or, for that matter, other curial processes): see, for example, Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313 at [39] (Gallop J), cited with approval by Jagot J in Salvation Army (New South Wales) Property Trust v Commonwealth of Australia [2015] FCA 674; 147 ALD 677 at [3]. But discovery cannot be used to determine whether an applicant has a case.

106    In the absence of evidence that the respondents took any steps to identify the actual decision makers, despite having been informed that none of the Commonwealth officers made any of the approval decisions, one is left to wonder whether at least that aspect of the proceeding has been brought against those respondents for an ulterior purpose.

107    It is also doubtful whether the applicants would get to first base in their negligence suit.

108    The duty is pleaded in the following terms:

73.    By reason of the factual matters and the circumstances of the relationship between the Public Officers and the Group Members pleaded herein, the Public Officers were under a duty to the Group Members to exercise reasonable care and skill and to avoid or minimise the risk of harm when undertaking acts and omissions which would directly or indirectly cause …

a)    a therapeutic good to become lawfully available to the Group Members;

b)    a therapeutic good to remain lawfully available to the Group Members;

c)    the distribution of a therapeutic good to the Group Members;

d)    public statements to the Group Members as to the safety, efficacy and of a therapeutic good.

Particulars

Para. 73 in Schedule D of the SOC.

The term “Public Officers” is defined in para 14. It refers to the Commonwealth Officers.

109    With good reason, the respondents complain, amongst other things, that, “in reality, the duty alleged would be one owed to every potential vaccine recipient, and thus potentially to the entire Australian population”.

110    That is apparent from the particulars.

111    Paragraph 73 of Sch D to the 3FASOC reads:

1.    Respondents’ Control of Therapeutic Goods in Australia.

2.    Public Expectation of Skill;

3.    Public’s Reasonable Expectation and Reliance;

4.    Known Gravity of the Approvals;

5.    Known Vulnerability of the Australian Public;

6.    Foreseeability of Risk and Harm;

7.    Public Officers’ Voluntary Assumption of Risk.

112    These so-called particulars are in fact references to the allegations made in paras 61 to 64 and 69 to 72 of the 3FASOC.

113    In para 61, one can find the allegations about the respondents’ control of therapeutic goods in Australia. There, the applicants allege, among other things, that the Commonwealth officers had absolute control of whether or not a therapeutic “good” in Australia, including the vaccines, could be lawfully used and the conditions in which and the period over which they could be used; of access to the vaccines by the Australian public (including the group members); of “all statements made to the Australian public (including the group members) for and on behalf of the Commonwealth)” in relation to the safety, efficacy, risk-benefit profile and necessity for use; “and of any other matter relating to the approvals, continuing approvals, and the vaccines”.

114    In para 62, the applicants plead that these matters were generally known by the group members and the Australian public and promoted publicly by the TGA and the Commonwealth officers.

115    The “Public’s Reasonable Expectation and Reliance” is pleaded in para 63. In short, there the applicants allege that, because of the respondents’ control of therapeutic goods and the public’s knowledge of it, the respondents knew first, that the Australian public (including the group members) relied on the Commonwealth officers to perform their functions “with reasonable care, in good faith, in fulfilment of the objects of the Act, and for the public good” and second, to provide true and accurate public statements about the vaccines, including “exhaustive representations as to what was known by them about those matters”, and to make “representations solely based upon rationally determined matters in which the respective [Commonwealth officer] had formed a rational belief”.

116    The “Public Expectation of Skill” is a reference to the matters pleaded in para 64. The pleading is unnecessarily lengthy. In substance, it relates to the alleged expectation of “the Australian population” (including the group members) that the Commonwealth officers would exercise the powers, discretions and functions with which they, others acting on their authority, and the TGA were invested with “reasonable care, professionally and in good faith” and in compliance with the TG Act and Regulations and “publicly declared policy including the TGA Policies”.

117    In para 69 the applicants allege that the Commonwealth officers and the Australian public knew that “the [Commonwealth officers] and those acting under authority” were invested with the power, functions and discretion relating to the approval of, the provision of, advices and public statements in respect of, and the wide distribution to the Australian population of therapeutic goods (including the vaccines); that the conduct of those functions would be significant and material to the Australian population (including the group members) and would expose them to a deleterious and extreme risk of harm if the functions and powers were exercised without reasonable care, “extraneous to power”, for an ulterior or improper purpose, with knowledge or reckless indifference to the absence of statutory power or otherwise to undertake those functions, to the risk of injury to the group members and to “the misleading or false nature of statements made”; and in bad faith.

118    The “Knowledge of Vulnerability of Australian Public to TGA Actions” is pleaded in para 70 as knowledge that any decision or act taken or omission by the Public Officers or those under their authority and direction would directly affect the following: the lawful access of the Australian public (including the group members) to the vaccines; whether they were injected with the vaccines; whether the vaccines were safe and effective for their intended use and had “a positive risk-benefit profile”; the health and well-being of those who were injected; and the likelihood they would suffer serious personal injury and harm.

119    The “Foreseeability of Risk and Harm” is pleaded in para 71. There the applicants allege that it was reasonable that the group members would rely and act upon “the Misleading Vaccines Statements”; “apprehend and believe the Misleading Public Message”, and “determine thereby to take one or more of the Vaccines”. They also allege that it was reasonably foreseeable that the impugned conduct would cause vaccines to be available “for use not otherwise available”; that the group members would use the vaccines when otherwise they would not; that the group members would suffer injury, loss and damage and “pervasive and serious negative consequences upon the health and well-being of the Australian population (including the Group Members)”; and that in the absence of reasonable care there was a “real probability and likelihood” that the group members would suffer “serious or catastrophic personal injuries” and loss and damage.

120    In para 72 the applicants plead that, by the various statements and public messages which they allege were misleading, the Commonwealth officers “publicly and unequivocally” claimed that the vaccines were “safe, effective and necessary for the Group Members” and “thereby personally assumed responsibility for … harm to the Group Members” arising from the administration of any of the vaccines.

121    It is common ground that the propounded duty would be a novel one. That means that it is up to the Court to decide whether the duty as formulated should be recognised by the common law. The relevant principles to be applied have been considered in a number of cases, some of which were cited in the parties’ submissions. It is sufficient for present purposes to refer to Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [93]–[94] in which McHugh J said that the question of whether, in a novel case, a statutory authority owed a plaintiff a duty of care at common law should be determined by asking the following questions:

1.    Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

2.    By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

3.    Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

4.    Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

5.    Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.

6.    Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority.

122    The respondents submit that for the following reasons none of them owed the applicants or group members a duty of care in the terms propounded. First, they contend that the class of persons to whom the duty would be owed could not be confined within reasonable limits. Second, they contend that the duty propounded would create incoherence in the law because it would be inconsistent with, or undermine the effectiveness of, the duties imposed by the statute by distorting the focus of the decision-making process required by the TG Act. Third, they contend that the propounded duty raises “core policy questions” which are unsuitable for determination through the tort of negligence because the functions imposed on the respondents through the TG Act require them to balance competing considerations, such as the risk to public health posed by the disease, the benefits and potential risks of vaccination, the risks to the community arising from not approving the vaccines, and the timing of approvals. Fourth, they contend that there is no relevant pre-existing relationship between the applicants or group members and the respondents, no known reliance, no physical propinquity, no relevant assumption of responsibility, and no relevant vulnerability, that is to say a “special vulnerability and dependence”. They argue that, where the propounded duty would be owed to the entire Australian population, there can be no special vulnerability, noting, in particular, that the applicants do not allege that they were forced to have the vaccinations against their will.

123    In Knowles v Commonwealth of Australia [2022] FCA 741 at [235], Mortimer J observed:

[T]he way the duty of care is framed here invites the Court to pass judgment on the reasonableness of what was fundamentally a complex, multi-dimensional and necessarily changeable government policy response to a world-wide pandemic, where different choices were made at different times by different governments, depending on their own assessment of the circumstances in the area for which they held political responsibility. It is precisely the kind of situation to which the observations of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [6] are directed.

124    In Graham Barclay Oysters Pty Ltd v Ryan at [6], Gleeson CJ observed, among other things:

At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of government action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy are ordinarily decided through the political process …

125    In the present case, if, as appears likely, the relevant duty of care in relation to access to vaccinations and approval of vaccinations would require the court to pass judgment on the reasonableness of what was fundamentally a complex, multi-dimensional and necessarily changeable government policy response to a worldwide pandemic, that would tell against the existence of a common law duty of care.

126    But it is unnecessary to consider this question further or the arguments advanced for and against the existence of the posited duty. That is because s 61A of the TG Act immunises the respondents from any civil suit unless their relevant acts or omissions were “in bad faith”. Section 61A is in the following terms:

Immunity from civil actions

(1)    No civil action, suit or proceeding lies against:

(a)    the Commonwealth; or

(b)    a protected person;

in respect of loss, damage or injury of any kind suffered by another person as a result of anything done, or omitted to be done, by a protected person in relation to the performance or purported performance, or in relation to the exercise or purported exercise, of a protected person’s functions, duties or powers under this Act or the regulations.

(2)    Subsection (1) does not apply to an act or omission in bad faith.

(3)    A reference in subsection (1) to anything omitted to be done includes a reference to a failure to make a decision.

(4)    In this section:

protected person means any of the following:

(a)    the Minister;

(b)    the Secretary;

(c)    a person to whom powers or functions are delegated under subsection 57(1);

(d)    a member of a committee established under this Act or the regulations;

(e)    an authorised person in relation to a provision of this Act (other than this section);

(f)    an authorised officer (within the meaning of the regulations);

(g)    an authorised person (within the meaning of the regulations);

(h)    a person assisting a person (a primary person) referred to in paragraph (a), (b), (c), (d), (e), (f) or (g) in relation to the performance or purported performance, or in relation to the exercise or purported exercise, of a primary person’s functions, duties or powers under this Act or the regulations.

127    It is common ground that the relevant public officials are protected persons within the meaning of s 61A and that the impugned conduct concerns things allegedly done or omitted to be done by them in the performance or purported performance, or in relation to the exercise or purported exercise of their functions, duties or powers under the TG Act or Regulations.

128    The effect of s 61A is that, unless the applicants can make out their case that the respondents acted, or failed to act, in bad faith, their entire claim fails. The section operates as an absolute bar to any civil claim: see Knowles at [245] in relation to an analogous provision of the Public Health Act 2010 (NSW). It is true, of course, as the applicants submitted, that in the ordinary course it is for a respondent to plead and prove that they are protected by a statutory immunity. But where, as here, a respondent has signalled an intention to rely on the immunity, that circumstance does not make the existence of the immunity irrelevant to the question of whether the applicants have reasonable prospects of success.

129    The respondents acknowledged that the applicants had alleged bad faith but submitted that the factual matters said to give rise to bad faith have not been adequately pleaded and the claim has not been adequately particularised. They argued that the deficiencies in the pleading give rise to the inference that there is no arguable basis for so serious an allegation. There is force in that argument.

130    The applicants submitted that “the voluminous factual matters manifesting bad faith in the negligent conduct of the respondents are pleaded here and are highly particularised”. But the very volume of material in the 3FASOC is a critical vice of the pleading. It is often impossible to see the wood for the trees and those parts of the 3FASOC upon which the applicants relied in their submissions to support such a finding are impenetrable. When one turns to the particulars to try to understand the basis of the allegations, one is referred to Sch D which then takes one back to other paragraphs of the pleading, which, in turn, refer to Sch B, which is 406 pages long. One is none the wiser.

131    In their written submissions the applicants contended that the bad faith consisted of:

the absence of an honest belief that the act is lawful – include proceeding in the voluminous and ever-increasing knowledge as to the absence of safety, efficacy, necessity, benefit exceeding risk, or therapeutic advance in the Vaccines, acting in breach of not only the provisions of the Act but those statutes regulating the proper conduct of the respondents in their respective offices, and acting contrary to their individual responsibilities and departmental purpose.

132    This high-level characterisation is of no assistance and the footnotes are equally unhelpful. When given the opportunity in oral argument to explain their case, whether by way of examples or otherwise, the applicants failed to seize it.

133    For the purposes of the tort of misfeasance in public office, the applicants are required to plead and prove that the respondents were either aware or recklessly indifferent to a likely risk of harm to them. Yet, no such allegation is pleaded. As I mentioned earlier, it is not enough to show that there is a reasonably foreseeable risk of harm.

134    Furthermore, since the applicants admittedly do not know who made any of the impugned approval decisions or statements issued by the TGA and the Department, I cannot see how it was open to them to allege bad faith in respect of those decisions or statements.

135    In all the circumstances, I am disposed not to grant the applicants leave to replead, at least not without being satisfied that they can craft an intelligible pleading which conforms to the Rules. Although I have grave doubts about whether the applicants can mount a reasonably arguable case, the difficulty in seeing the wood for the trees in the current pleading means that I cannot rule out the possibility that there is such a case at least against one of the respondents. Also, although the 3FASOC is the fifth iteration of the applicants’ pleading, this is the only time the Court has been troubled by it. Consequently, and notwithstanding my misgivings, I have decided to give the applicants one further opportunity to fix their pleading. It seems to me that that will require fresh eyes and a fresh start in a “root and branch review”, as Lee J urged the parties to do in the Hendra class action: see Abbott at [21]. This means it is necessary to deal with the respondents’ application for security for costs.

THE APPLICATION FOR SECURITY FOR COSTS

136    The respondents seek an order for the payment into court of $312,000 by way of initial security for their costs. The application is opposed.

137    The application was supported by evidence from Ms Gill. In opposition the applicants filed an affidavit from Christopher Grisenti to which was exhibited a report from Mr Grisenti commenting on Ms Gill’s costs estimates. Mr Grisenti is a Victorian solicitor, who has apparently practised solely in the area of legal costing since August 2014 and has been an accredited costs law specialist since October 2019. The applicants also filed an affidavit from Melissa McCann, a medical practitioner and the litigation funder, affirmed on 15 July 2024. None of the deponents was required for cross-examination.

138    I will come to the evidence shortly, but before I do so, I should outline the relevant power and legal principles which apply to such an application.

The relevant power and legal principles

139    Section 56 of the FCA Act gives the Court the power to order an applicant in a proceeding in the Court to give security for the payment of costs that may be awarded against them. It relevantly provides as follows:

(1)    The Court or a Judge may order an applicant in a proceeding in the Court … to give security for the payment of costs that may be awarded against him or her.

(2)    The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

(3)    The Court or Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

(4)    If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.

(5)    This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.

140    The section confers a broad and unfettered discretionary power, limited only by the requirement that it be exercised judicially, having regard to the circumstances and merits of the particular case: Madgwick v Kelly (2013) 212 FCR 1 at [6] (Allsop CJ and Middleton J).

141    Of course, like all the powers conferred by the Act and Rules, this power, too, must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions. The Court has the power to regulate the manner, time and terms of the giving of security and to order that the proceeding be stayed until security is given: r 19.01 read with r 1.40. Allsop CJ observed in Augusta Ventures Limited v Mt Arthur Coal Pty Limited (2020) 283 FCR 123 at [15], “[a]n order for security for costs is, in its essential and usual character, an order compliance with which is a condition of the relevant proceeding not being stayed or dismissed”.

142    Courts have long been disinclined to order natural persons to provide security: Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32] (Lindgren J). Numerous cases can be cited for the proposition going back to the 19th century including Cowell v Taylor (1885) 31 Ch D 34 at 38 (Bowen LJ). As Lindgren J observed in Knight at [32]–[33], where such an order has been made or considered, impecuniosity has been coupled by one or more additional factors. Relevantly, they include the bringing of a claim to a significant extent for the benefit of others and the weakness of the applicant’s case.

143    Whereas under s 1335 of the Corporations Act 2001 (Cth) an order for security for costs can only be made if there is reason to believe that the corporation will be unable to pay the defendant’s costs, s 56 of the FCA Act imposes no such condition. Nevertheless, an applicant’s inability to pay the respondents’ costs is an important consideration in the exercise of the Court’s discretion: All Class Insurance Brokers Pty Ltd (in liq) v Chubb Insurance Australia Ltd [2020] FCA 840 at [41] (Allsop CJ). The Court strives to strike a “balance between ensuring that adequate and fair protection is provided to the defendants, and avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings”: Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 470 (Giles J). In KP Cable Investments v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 Beazley J set out some guidelines to the exercise of the discretion. These guidelines, often referred to as factors or considerations, have been frequently cited and were approved by the NSW Court of Appeal in Jazabas Pty Ltd v Haddad [2007] NSWCA 291, 65 ACSR 276 at [74] (McClellan CJ at CL, Mason P agreeing at [2]). There is no need to refer to them here, however. As this is a representative proceeding, I propose to focus on the guidelines or principles that have been articulated in relation to proceedings of this kind.

144    Representative proceedings are covered by Pt IVA of the FCA Act, which does not include s 56. Still, s 33ZG relevantly provides that, except as otherwise provided by Pt IVA, nothing in that Part affects the Court’s power to order security for costs (s 33ZG(c)(v)).

145    Madgwick v Kelly concerned an application for leave to appeal from a judgment in a representative proceeding in which an application for security for costs was refused. The primary judge declined to make an order for security on the grounds that the applicants, who were described as ordinary Australian citizens of average means, did not have sufficient assets to meet an adverse costs order and that an order for security was likely to stifle their and the group members’ pursuit of the claims: Kelly v Willmott Forests Ltd (in liq) [2012] FCA 1446. The Full Court granted leave to appeal and allowed the appeal.

146    In Madgwick v Kelly at [7] Allsop CJ and Middleton J nonetheless approved the following passage in the reasons of the primary judge at [13]:

The considerations relevant to the exercise of my discretion under s 56 in the context of a class action can be distilled from the various authorities I detail below. They were usefully summarised by Hollingworth J in Hall v Finance Direct Ltd [2005] VSC 306 (“Hall”) at [107] and they include the following:

(a)    Whether there is reason to believe that the applicants will be unable to pay the respondents’ costs if so ordered, that is, whether the applicants are impecunious?

(b)    Whether the applicants’ insufficiency of means is caused by the conduct which is the foundation for the action?

(c)    The promptness of the application and the stage of the proceedings at which an application for security is brought.

(d)    Whether the proceeding has become bogged down with “interminable and expensive interlocutory applications” for which the applicants bear responsibility?

(e)    The strength and bona fides of the applicants’ claim for relief from the respondents.

(f)    Whether the applicants have been deliberately selected as “persons of straw”, in order to immunise from costs orders group members of substantial means?

(g)    Whether the proceeding is essentially defensive in nature?

(h)    Whether the applicants are suing for someone else’s benefit?

(i)    The characteristics of the group members. For example do they include corporations or natural persons, and are they rich or poor?

(j)    Whether someone who stands to benefit from the litigation is funding the applicants?

(k)    Whether security would have been ordered if separate actions had been brought by the group members?

(l)    Whether an order for security would stifle the action and shut the applicants out from pursuing an arguable claim?

147    Subject only to relevance, however, the factors that may be taken into account in the exercise of the discretion are unrestricted, “and the weight to be given to them depends upon the [factor’s] own intrinsic persuasiveness and its impact on other circumstances which have to be weighed” in the balance; “context is everything”: Abbott at [15].

148    In Kelly the primary judge also referred at [14] to the remarks made by McHugh J in PS Chellaram v China Ocean Shipping Co (1991) 102 ALR 321 at 323 that in the exercise of the discretion to make an order for security for costs the Court is obliged to weigh all the circumstances of the case and the weight to be given to any particular circumstance “depends not only on its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed”.

149    The burden of satisfying the Court that it should exercise its discretion to order security rests with the respondents, subject to the following qualifications. The burden is on the applicants to establish matters peculiarly within their knowledge, such as whether the applicants’ impecuniosity was caused by the respondents and to show that the making of an order for security would stultify the proceeding. See Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 at [21]–[22] (Maxwell P and Buchanan JA); Madgwick v Kelly at [81] (Allsop CJ and Middleton J). And a finding to that effect cannot be made without evidence that litigation funding had unsuccessfully been sought: Madgwick v Kelly at [77] (Allsop CJ and Middleton J; [150] and [183] (Jessup J).

150    Allsop CJ and Middleton J emphasised at [8] that not every case requires an examination of all these factors, pointing out that “much will depend on the facts of the individual case and, importantly, how the application is argued by the parties”.

The evidence/facts

Background to the respondents’ application

151    The applicants’ lawyers were informed as early as 5 July 2023 of the respondents’ intention to seek an order for security for costs. In a joint position paper provided to the Court on 7 July 2023, the applicants opposed such an order, claiming that it would “hobble the progress of the proceeding which is a matter of public interest and not indicated in the circumstances”. In December 2023, AGS wrote to the applicants’ lawyers seeking details of the basis of the claim that an order for security for costs “would hobble the progress of the proceeding”. The applicants replied on 1 February 2024 in a letter which provided some information about the financial circumstances of the named applicants and certain potential group members, informed the respondents that Dr McCann was funding the proceeding but did not stand to benefit from the litigation, and stated that the applicants’ position was that the public interest, merits of the proceeding and the position of the respondents were factors weighing against the Court making an order for security for costs. The lawyers continued to engage in correspondence about the question of security over the ensuing months.

The respondents’ costs

152    In her first affidavit Ms Gill detailed the charging rates of the lawyers and paralegals in the respondents’ legal team as well as counsel. Ms Gill deposed that the respondents’ legal team consisted of five AGS solicitors (two Senior Executive Lawyers, one Senior Lawyer, and two Lawyers) and an unspecified number of graduates or law clerks, who worked on the matter on a part-time basis. She also deposed that the respondents had briefed three counsel (comprising one senior counsel and two junior counsel). In comparison with the rates charged by lawyers in private practice, the charge-out rates of the lawyers on the respondents’ legal team are modest. So, too, are counsel’s rates.

153    Ms Gill gave evidence of the work AGS lawyers and counsel had undertaken from 6 July 2023 to 31 May 2024, which consisted of examining three iterations of the applicants’ pleadings; corresponding with the applicants about alleged deficiencies in the pleadings; negotiating consent orders ahead of case management hearings; preparation for and attending a case management hearing; drafting the interlocutory applications and affidavits in support of those applications; and advising the respondents. Ms Gill deposed the respondents’ actual costs up to 31 May 2024 amounted to $208,000, comprising $192,000 in solicitors’ fees, $12,000 in counsel fees and $4,000 in other disbursements.

154    Ms Gill gave the following evidence based on her experience. At least 60% of AGS’s solicitor fees and 100% of counsel’s fees are recovered when fees are assessed on a party/party basis. Consequently, she estimated that the total recoverable costs from 6 July to 31 May 2024 were $131,000. She estimated the likely costs from 3 June 2024 up to and including the determination of the respondents’ applications to be in the order of about $147,000 made of $105,000 in solicitors’ fees; $40,000 in counsel fees, and $2,000 in other disbursements. She considered, based on her experience, that the total recoverable costs on a party/party basis would be $105,000. With the qualification that she could not accurately estimate the respondents’ costs if the proceeding were to continue after the determination of the interlocutory application, she predicted that the respondents would incur at least $112,000 in costs in continuing to defend the proceedings of which $76,000 would be recoverable.

155    Consequently, Ms Gill deposed that the respondents were seeking an order for initial security of $312,000 made up as follows:

a.    from 6 July 2023 to 31 May 2024, $131,000 (comprising $115,000 for recoverable solicitor’s fees, $12,000 for counsel fees and $4,000 for other disbursements)

b.    from 3 June 2024 to the determination of the Applications, $105,000 (comprising $63,000 for recoverable solicitor’s fees, $40,000 for counsel fees and $2,000 for other disbursements)

c.    following determination of the Applications, $76,000 (comprising $54,000 for recoverable solicitor’s fees, $20,000 for counsel fees and $2,000 for other disbursements).

156    Ms Gill confirmed in her second affidavit that the respondents continued to seek an order in that amount.

157    As I indicated earlier, and based on certain assumptions he was asked to make (not all of which were justified) Mr Grisenti called into question Ms Gill’s evidence about the costs AGS would likely recover on taxation.

The financial circumstances of the applicants

158    In her first affidavit Ms Gill deposed to various matters relevant to the applicants’ financial circumstances, including evidence of a litigation funding agreement and crowdfunding arrangements. None of this evidence was contentious.

159    On 5 June 2024 AGS conducted National Property Title searches of each of the applicants. Those searches revealed that the first and second applicants do not own real property in Australia but that the third applicant is the registered proprietor of a property in Cheltenham in Victoria and that the Cheltenham property is subject to a registered mortgage. Searches of the Personal Property Securities Register (PPSR) conducted on the same day did not disclose that the applicants held any other property or assets in their names. On 6 June 2024 AGS conducted searches of the website “realestate.com.au” which indicated that the Cheltenham property owned by the third applicant had an estimated value range of between $520,000 and $650,000 and that the property was last sold on 7 April 2016 for $550,000. Ms Gill expressed the opinion that there is a reasonable basis to believe that the applicants will be unable to pay the respondents’ costs of the proceedings if ordered to do so.

160    Ms Gill referred to assertions made by the solicitors for the applicants in their letter of 1 February 2024 about the financial position of three group members (whose names were not given). Those assertions were to the effect that each of the three group members had a limited capacity to work or reduced earning capacity as a result of alleged vaccine injuries. Ms Gill deposed that she was not aware of any other information as to whether the group members have the financial capacity to contribute to the provision of security for costs.

161    The funding agreement, a copy of which was exhibited to Ms Gill’s first affidavit provides that the funder will “fund the Project Costs of the Applicant[s]” (cl 9.1); pay “any Adverse Costs Order in respect of costs which arise in, or are attributed to, the period beginning on the Date of Commencement and ending on the date the Funder’s termination becomes effective” (cl 15.8(b)); and pay the applicants’ lawyers their professional fees and disbursements invoiced in the prior month (Sch 1, cl 6(c)). The definition of “Project Costs” in cl 23 of the funding agreement relevantly includes “the costs involved in the provision by the Funder for any security for costs”. Clauses 15 and 16 of the funding agreement provide for the funder or the applicant to terminate the agreement by notice in writing in certain circumstances.

162    On 24 August 2023 AGS obtained a title search for a property jointly owned by Dr McCann and Jared Sandelin-McCann in Cannonvale, Queensland, which is subject to a registered mortgage. On 6 June 2024 AGS conducted searches of the value of the Cannonvale property on domain.com.au and realestate.com.au which respectively showed an estimated property value in the range of $580,000 to $760,000 (on domain.com.au) and $620,000 to $830,000 (on realestate.com.au). Both websites showed the Cannonvale property had been purchased in March 2021 for $435,000. On 24 August 2023 AGS conducted PPSR searches in respect of Dr McCann, which indicated that she had no other property or assets in her name.

163    Dr McCann deposed that she established an unincorporated association with the not-for-profit purpose of fundraising for the proceeding, styled “No More Silence”. Donations from the public have been collected “on the express basis that if [the applicants are] successful and costs recovered, the donations will be returned”. Exhibited to her affidavit is a transaction record for the donations received by No More Silence between 1 January 2022 to 4 July 2024. Dr McCann also deposed that, before establishing No More Silence, she collected crowdfunding donations via a “Mighty Cause” fundraising page until Stripe, the payment processor, closed the account in March 2023.

164    Documents annexed to Ms Gill’s affidavits reveal that by 17 June 2024 $485,811 had been raised through crowdfunding from 715 donors and by 29 November 2024 $558,087 had been raised from 1,016 donors, all for the purpose of funding this proceeding. The crowdfunding page of the class action website, which is apparently administered by the applicants’ lawyers, boasts that “several very generous amounts have also been paid directly to the Applicants’ solicitors trust account”. The evidence shows that by 17 June 2024 the Mighty Cause crowdfunding page had received $172,820 in donations from 324 donors.

165    Dr McCann deposed that she arranges for funds donated to No More Silence to be paid to the trust account of the applicants’ solicitors and transaction records annexed to her affidavit support her evidence in this respect. At the time her affidavit was affirmed, Dr McCann had contributed approximately $250,000 directly to the trust account. However, “to provide transparency to the public” she recorded that contribution as a donation on the No More Silence website. As there is no transaction record of the applicants’ solicitors trust account, the total amount that has been contributed to the funding of the proceeding is not clear from Dr McCann’s evidence. As the applicants do not contend the total amounts contained in Ms Gill’s affidavit are incorrect, however, I take those figures as accurate.

166    In order to meet “all costs and outlays” in the proceeding “when they have become due”, Dr McCann personally took out several loans, sold a beachfront commercial block of land that was intended for her business expansion and has made other arrangements to reduce her personal and business financial obligations. She deposed that this was necessary to cover the shortfall between money raised through crowdfunding and the actual cost of running the proceeding.

167    Dr McCann deposed that she understands that she would be required under the litigation funding agreement to fund the payment of security for costs if the Court made the orders sought by the respondents. Dr McCann’s said that, in the absence of assistance by way of further crowdfunded donations, she would find it “difficult to marshal [scil.] the funds necessary” to pay the security sought by the respondents and “continue to fund the applicants’ costs of running the proceeding at the same time”. She deposed that it would be necessary for her to obtain further loans against her property or sell her home in order to do so.

168    Dr McCann also deposed that she understands that she is bound by the funding agreement to meet the legal costs of the action and to pay any adverse costs order if the action is unsuccessful.

169    In order to prepare for the possibility that the respondents might succeed in their application for security for costs, Dr McCann approached a number of third parties to seek assistance in meeting an order of the Court requiring the payment of security for costs. Exhibited to her affidavit was an email she received from Johnathan Shaw, a solicitor who acts on behalf Mineralogy Pty Ltd dated 11 July 2024 containing a promise on behalf of Mineralogy, in these terms:

I act for Mineralogy Pty Ltd.

I refer to the application for security for costs made by the respondents in proceedings NSD 349 of 2023 in which an order is sought that the Applicants pay into Court, either by a bank guarantee or cash or in an alternate form acceptable to the Registrar, the sum of $312,000 exclusive of GST as initial security for the Respondents’ costs of the proceeding.

I am instructed that Mineralogy Ptd Ltd promises to pay any taxed costs order of the Respondents in the proceedings up to the amount of $312,000 exclusive of GST.

Mineralogy is willing to provide its personal promise to the Respondents in lieu of the other forms of security set out in the application. Mineralogy has very substantial assets as disclosed in its most recent audited financial statements lodged with ASIC. I will provide a copy of the financial statements to you separately.

Please let me know how Mineralogy may otherwise assist you in respect of the abovementioned promise and the respondents security for costs application.

170    The financial statements referred to in Mr Shaw’s email were not annexed to Dr McCann’s affidavit or otherwise provided to the Court.

171    Dr McCann deposed that she understands the respondents were seeking to have the proceeding dismissed if the security were not paid within 20 business days of the Court’s order. She deposed that, unless a third-party funder is prepared to provide security in a form that is acceptable to the Court, she would need additional time to obtain the necessary funds. At the time of affirming her affidavit, she said she did not have “liquid funds readily available right now to adequately meet a security for costs order” and estimated she would require “three to four months” to obtain additional funds to do so.

Should an order be made?

172    Ms Gill’s opinion that “there is a reasonable basis to believe” that the applicants will be unable to pay the respondents’ costs if ordered to do so, at least without the support of the litigation funder, is uncontentious.

173    The applicants do not contend that their impecuniosity has been brought about by the conduct the subject of the proceeding. Nor do they contend that there has been any delay in making the application. The proceeding is not defensive in nature. As the action is funded, there is no room for an argument that an order for security would stultify the proceeding. It is true that the proceeding has not been bogged down with interminable and expensive interlocutory applications for which the applicants are to blame. That said, the applicants’ problematic pleadings have unnecessarily augmented the costs the respondents should reasonably be expected to bear. Beyond the assertions made by the applicants’ lawyers in their letter to AGS of 1 February 2024, which was annexed to Ms Gill’s affidavit, there is no evidence of the financial position of the group members.

174    The respondents submit that the presence of a third-party funder will ordinarily be a factor weighing in favour of security for costs, citing Augusta Ventures at [30]–[31], [33] (Allsop CJ).

175    The respondents also submit that the applicants’ prospects of success are weak and that the costs that will be incurred in the litigation, if it is to proceed, would be “significant”. In their submissions on the question of security, the applicants said nothing about the strength of their case. I have already expressed my views about some of its apparent weaknesses. There is no room to doubt that the respondents’ costs will be substantial.

176    On the face of things, all these factors favour the making of an order for security.

177    On the other hand, if separate actions had been brought by the group members, it is highly unlikely that an order for security would have been made. And in their submissions the applicants point to three other matters, which they maintain “tend decisively against such an order”.

178    The first is the ability of the applicants to meet a costs order. The respondents contend that the applicants are able to meet any adverse costs order because they are the beneficiaries of an indemnity from Dr McCann under the litigation funding agreement and Mineralogy has offered to pay the respondents’ taxed costs up to the amount the respondents presently seek by way of security. They point out that the respondents, who bear the onus, do not claim that Dr McCann or Mineralogy will not honour their agreements.

179    The second is “the character of the proceeding”, being an action for damages suffered as a result of the respondents’ “serious maladministration”, citing Lee v Parker (No 2) [2022] FCA 582 at [29] per Halley J and Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 at 750 (Richardson J, McMullin and Somers JJ agreeing). The point made in those cases is that a court should take into account any public interest considerations served by the litigation.

180    The third is that the reason security is often ordered in funded representative proceedings is a concern about litigation being used as a vehicle for commercial profit where the person who will derive the profit may avoid responsibility for costs if the litigation fails. Here, however, the applicants submit such a consideration does not arise. The respondents accept that Dr McCann will not derive a pecuniary benefit from the proceeding.

181    As to the first, I accept that Dr McCann has a binding obligation to pay the respondents’ costs should an adverse order be made. But the overall costs of the proceedings if they continue to final judgment are likely to be in the order of tens, if not hundreds, of millions of dollars, and she has proffered no evidence about her assets, liabilities and income. On the other hand, the respondents made no complaint about this and submit that Dr McCann has “substantial assets”.

182    It is difficult to put much weight on Mineralogy’s promise in the absence of evidence about its financial position; in view of the fact that it is a promise made to Dr McCann, not to the Court; and without any evident basis upon which it could be enforced.

183    Dr McCann deposed that she would require three to four months to raise the funds to provide the security in a form acceptable to the Court but there is no apparent reason why she could not do so within the time the respondents propose, particularly since nine months have elapsed since she affirmed her affidavit, or within a shorter period than she anticipated.

184    As to the second, I accept that there are public interest considerations raised by the proceeding.

185    As to the third, the applicants are also correct.

186    In the paragraphs of Augusta Ventures upon which the respondents rely, Allsop CJ referred to a number of authorities which, as his Honour put it, demonstrate “the willingness of the courts to consider as a factor in favour of an order for security for costs, the presence of a litigation funder, including in circumstances where, ordinarily, security would not be awarded against an impecunious individual at first instance …”. Those authorities were all concerned with “commercial” funders, that is persons who were funding the litigation in order to make money for themselves. The rationale is that “a litigation funder, involved in the litigation purely for commercial profit, should not be able to avoid responsibility for costs if the litigation fails, or be in a position where there may be obstacles in the way of a successful defendant obtaining costs from such a funder”: Green v CGU Insurance Ltd [2008] NSWCA 148; 67 ACSR 105 at [61] (Hodgson JA), cited with approval in Augusta Ventures at [31]. There is no evidence to indicate that Dr McCann has any intention of making a commercial profit from the proceeding.

187    The respondents submitted that the apparent absence of a profit motive “does not negate the relevance of the funder”, citing only Troiano v Voci (2019) 61 VR 511 at [37]. In that case Riordan J said that there is “no bright line to be drawn between litigation funders and other financial supporters of plaintiffs”. But his Honour went on to observe that “the Court may be sensitive to the position of … [a] financial supporter of a plaintiff if satisfied that the supporter has not acquired an interest in the proceeds of the claim”; that “the order for security may cause financial inconvenience to the supporter”; and/or that “the supporter, such as a trade union might not be prepared to continue to provide litigation support in the future, if it were to lead to orders for security for costs”. Here, there is no suggestion that any of the financial supporters of the applicants have an interest in the proceeds of the claim. There is evidence that an order for security may cause some financial inconvenience to the funder, Dr McCann. And there is no evidence that a supporter might not be prepared to continue to provide litigation support in the future if it were to lead to orders for security of costs.

188    I therefore accept the applicants’ submission that the presence of a funder in this case is “a neutral consideration”.

189    Weighing all the relevant facts and circumstances in the balance, I am not satisfied that there should be an order for security in this case.

190    In the event that the funding agreement is terminated or there is any other significant change of circumstances, it is of course open to the respondents to make another application for security.

COSTS

191    That leaves the question of the costs of the interlocutory application. Since the lion’s share of the work (including all the argument at the hearing) related to the summary judgment/strike out application, upon which the respondents prevailed, I propose to order that the applicants pay 80% of the respondents’ costs.

Associate:

Dated:    10 April 2025

SCHEDULE OF PARTIES

ANNEXURE