P1 v D1 [2011] NSWSC 1034

Supreme Court New South Wales

Medium Neutral Citation: P1 v D1 [2011] NSWSC 1034 Hearing dates: 18 August 2011 Decision date: 09 September 2011 Jurisdiction: Common Law Before: Harrison J Decision: 1. Defendants' notice of motion dismissed. 2. Costs of the application to be costs in the proceedings. Catchwords: PRACTICE & PROCEDURE - pleadings - application to strike out statement of claim - UCPR 14.7, 14.8 and 14.28 - application dismissed Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: P1 & Ors (Plaintiffs) D1 & Ors (Defendants) Representation: R Bartley SC and J Sharpe (Plaintiff) J Sandford (First and Fourth to Fourteenth Defendants) Porters Lawyers (Plaintiff) Colin Biggers and Paisley (First and Fourth to Fourteenth Defendants) File Number(s): 2009/297873 Publication restriction: Parties only to be identified by pseudonyms

Judgment 1HIS HONOUR : The plaintiff is a former pupil of St Andrew's Christian Community School in Washpool Road at Clarenza, which is a short distance just east of Grafton in New South Wales. The third defendant was formerly the principal of that school but is now serving a term of imprisonment for the sexual assault of some of his pupils. By her second amended statement of claim, the plaintiff has sued him and a number of other defendants for damages. She alleges that in December 2007, the third defendant sexually assaulted her on a number of occasions. 2Several other former pupils of the school have commenced similar proceedings. Their statements of claim are relevantly in the same form as the plaintiff's. The second defendant has been deregistered and no application has been made by the several plaintiffs either to restore it to the register or to commence any other type of proceedings directly against its insurer. The first defendant is alleged to have been the owner of the school, which it operated, managed and controlled through its servants or agents. The plaintiff alleges that the first defendant employed the third defendant and that it was responsible for supervising him. The remaining defendants, apart from the fourteenth defendant, were members of the board of the school, appointed by the first defendant. Even though the proceedings were commenced in October 2009, no defences have yet been filed. 3The formal part of the plaintiff's pleading runs to nearly 50 pages. The defendants, apart from the second and third defendants, have moved the Court for orders striking out the statement of claim pursuant to UCPR 2.1 and 14.28 and s 61 of the Civil Procedure Act 2005. Alternatively, those defendants seek an order striking out a series of specified paragraphs of the statement of claim. Similar applications have been filed in all of the proceedings. It is agreed among the parties that my decision in this matter should inform the outcome in the related matters. 4Paragraph 19 of the second amended statement of claim is as follows: "19. Shortly after the third defendant commenced working at the school as principal, the first and/or second defendants became aware, or ought to have become aware, of facts and circumstances which gave rise to a duty on the part of the first and/or second defendants to take reasonable steps to protect the plaintiff and other children from the school from the risk of harm from potential sexual misconduct by the third defendant." 5Thereafter, under the heading "Facts and Circumstances Giving Rise to the Duty", the pleading purports to particularise what amounts to a chronological and historical account of events at the school between 2005 when the third defendant commenced his role there as the principal and 2007 when the plaintiff left it. These particulars run for some seven pages of the statement of claim. The burden of these particulars is that the third defendant was observed during this time by many people and students in the school community to engage in inappropriate physical and sexually suggestive behaviour with the plaintiff and other pupils. Complaints about the third defendant's conduct, including complaints of inappropriate touching of female pupils, were made to the deputy principal and other teachers at the school. It is even alleged that the deputy principal of the school observed the plaintiff in the third defendant's office "with her dress undone and her top pulled up, whilst the third defendant had his hands around the plaintiff's naked midriff". The defendants take particular exception to paragraph 19 upon the basis that it allegedly "comprises a prolix narration of events, rather than a succinct statement of material facts, and mixes facts with evidence". 6Paragraph 19A pleads that the first and/or second defendants either knew or ought to have known of the matters particularised in paragraph 19 or that knowledge of those matters should be imputed to them. The pleading goes on to allege that the first and/or the second defendants are vicariously liable for the actions of the third defendant whom they employed or who was their agent. It is alleged that the first and/or second defendants owed a non-delegable duty of care to the plaintiff to exercise reasonable care for her safety, including protecting her from sexual assault by the third defendant. Breaches of that duty are particularised at some length in paragraph 26 of the statement of claim and include the following: "(a) Failure to take any or any adequate precaution for the safety of the plaintiff in the circumstances... (b) Failure to heed numerous warnings from the staff at the school that the conduct of the third defendant...amounted to grooming behaviour and gave rise to a significant risk that the third defendant would engage in inappropriate sexual conduct and sexual assault of the plaintiff. (c) Failure to heed numerous warnings from children at the school [to a like effect]... (d) Failure to institute or conduct any, or any proper investigation into the numerous complaints from teachers of the school... (e) Failure to institute or conduct any, or any proper investigation into the numerous complaints from children of the school... (f) Failure to inform the plaintiff's mother of the nature of the allegations made against the third defendant... (g) Failure to inform the plaintiff's mother that her daughter, the plaintiff, was the subject of the allegations made against the third defendant... (h) Permitting the third defendant to remain in continuous unsupervised contact with female children at the school, including the plaintiff, in the face of the knowledge pleaded above. (i) Allowing the third defendant to continue to perform the functions of the principal of the school. ***** (s) Failing to protect the plaintiff from a foreseeable risk of harm from the third defendant's conduct. (t) Failure to report suspected cases of children at risk of physical or psychological harm to the Director general of the Department of Community Services. 7The statement of claim then proceeds to allege that the first and/or second defendants were vicariously liable for the acts and omissions of the fourth, fifth, and seventh to thirteenth defendants. It is important to observe at this point that the solicitors for the first defendant had earlier supplied information to the plaintiff's solicitor by letter dated 8 December 2008 that included advice about who the board members of the school were at the relevant time. That letter stated that "the Board members between 2005 and 2007 are set out in the attached schedule". The schedule contains the names of these defendants. The letter also advised that "[the third defendant] was employed by the Board that governed the School". 8After the filing on 21 October 2010 of the applications with which I am now asked to deal, the solicitors for the defendants wrote to the plaintiff's solicitor on 23 December 2010 setting out the complaints that they had with the pleadings. That letter is quite long and detailed. Some portions of it are as follows: "1. Generally, our clients maintain that the Statements of Claim as filed do not serve the purpose of pleadings. That is, they do not disclose a reasonable cause of action that the defendants can plead to. The faults of the pleading go beyond mere technicalities. The statements of claim as filed do not bring the parties to the real issue which can then be tried, which offends section 56 of the Civil Procedure Act 2005. 2. More particularly, the statements of claim as filed are a mixture of assertion and fact which makes the pleading embarrassing. In particular, we draw your attention to the lengthy paragraph 19, which attempts to plead numerous allegations of fact and evidence and is embarrassing. ***** 8. Your clients have made various allegations of agency without having pleaded the necessary basis and material facts which could give rise to an allegation of such a relationship. This is a fundamental error in the pleading. This goes beyond mere technicality. It does not allow the defendants to properly plead a defence, as they are unaware of the case that is made against them. Namely, the defendants are unaware [of] the basis on which your clients say that there was any agency relationship. ***** 21. The defendants [ sic ] complaint is that the allegations against the Board have been pleaded as though the Board was a separate entity with legal personality rather than a collection of individuals with different responsibilities and duties. We note that there is a general reference to joint and several liability, however, it is not pleaded how that liability could be said to be joint. Again, we say that this cause of action is uncertain and embarrassing. We invite your clients to amend so that the basis on which the duties are alleged to be joint is pleaded with proper particularity. ***** 24. We have previously alerted you to the difficulties with pleading to your clients rolling style of statement of claim. It is apparent from the face of the pleading that your clients have merely repeated allegations as against one defendant again in relation to all defendants. This is improper and does not disclose a reasonable course [ sic ] of action against each individual defendant. Namely, it does not consider the particular duties or breaches of duties alleged to have been engaged in by each particular individual defendant." 9Another not dissimilar letter was written to the solicitor for the plaintiff on 4 August 2011. 10With respect to paragraph 19 of the then current statement of claim, the defendants' solicitors wrote on 18 December 2009 to the plaintiff's solicitor seeking further and better particulars of that paragraph. That request ran for ten pages and 64 paragraphs with manifold sub-paragraphs. Paragraph 64 is as follows: "64. The alleged facts and circumstances giving rise to the duty alleged against individual members of the Board appears to be in the same terms as the alleged facts and circumstances giving rise to the duty alleged against the first and second defendants. Would you kindly advise whether any different or additional matters are relied upon in respect of the matters set out at paragraph 48 with respect to the matters set out [in] paragraph 19." 11The relevant reply to that letter is dated 27 April 2010. It runs to seventeen pages. The answer to question 64 is curiously limited to "[t]his has been sufficiently pleaded". The defendants did not criticise the plaintiff's answer to that question in particular or the other answers in general. A great deal of other correspondence has been exchanged, however, including an ongoing and as yet apparently unresolved complaint by the defendants concerning the plaintiff's failure to furnish her evidentiary statement in accordance with earlier directions. This is an indication that the parties have to some extent otherwise proceeded to conduct the litigation with the pleading issue running alongside. 12Ms Sandford of counsel, who appeared for the defendants, provided me with extremely detailed and helpful written submissions in support of the application. They reflected in large part, but were not limited to, the complaints earlier raised in the solicitors' correspondence to which I have referred. Some of those submissions were to the following effect. The second amended statement of claim does not comply with proper principles of pleading in that its form and content offend UCPR 14.7 and 14.8, and is embarrassing and productive of prejudice and delay within the meaning of UCPR 14.28. The pleading lacks brevity, clarity and precision, it contains a prolix narration of events that intermingles facts and evidence and contains "formulaic expressions and conclusionary allegations that follow upon the indiscriminate repetition, as against each defendant, of the [paragraph 19] narrative". It also contains allegations of serious impropriety in imprecise and general language, with inconsistent and confusing pleadings as to the existence of agency relationships without specifying how it is alleged that the relationship was constituted, or as to the bases of liability as against each of the defendants. 13I agree that the second amended statement of claim is a longer document than either it could or should have been. It is for that reason more difficult to read and to understand. Some of the allegations appear confusing and contradictory, but in most cases this is the result of a failure by the draughtsman to make it clear where matters are being pleaded in the alternative. Some of the vicarious liability allegations fall into this category. It is not necessarily clear how the plaintiff alleges, for example, that some of the board members became aware or ought to have become aware of matters that are alleged against the third defendant. There are also some allegations that the school is vicariously liable for the acts of the other defendants, as well as an apparently competing allegation that the other defendants are vicariously liable for the acts of the school. This is demonstrative of what the defendants' submissions characterise as a "scatter gun" approach. I agree that it is certainly difficult to think of any other allegation that the plaintiff could have made in this case against the defendants or anybody else for that matter. 14What does appear clearly to emerge is that the plaintiff says that she should have been protected from sexual assault by the principal of the school she attended, because his inappropriate sexual predispositions and propensities were notorious and were either otherwise well known to the school following complaints about him or they should have been. He sexually assaulted her as a result. Although the second amended statement of claim is turgid and repetitive, and on one view evinces a lack of discrimination in the choice of defendants and the allegations against them, the defendants could in my view be under no misapprehension about what it is that is alleged against them. I do not understand there to be any principled contest that the plaintiff was owed a duty of the type that she alleges by at least one or some of the defendants. It would surprise me if there were. Questions of breach of duty and by whom would appear to be the liability issues in the proceedings that are likely to attract attention. 15There has been a considerable amount of heat, and very much less light, generated in correspondence complaining about delay and waste of time and costs. As far as I can determine, none of this energy has been productive of anything yet resembling a possible defence to the plaintiff's pleading. Nor have I seen material that faintly suggests what the defendants' respective defences might be. It occurs to me that one possible way of exposing and highlighting the significance of the matters that are particularly troublesome for the defendants, and those that are not, might simply be to require them to file their defences to the current pleading. Even the defendants do not contend that the second amended statement of claim is wholly bad (notwithstanding the form of the relief sought in their notice of motion), and in my view they ought without too much difficulty to be able to plead to those portions that are unexceptionable. If the defendants maintain the view that the remainder of the pleading is bad, whether because it does not disclose or plead a reasonable cause of action known to the law, or that it is embarrassing, prejudicial or likely to cause delay, or is otherwise an abuse of process, they can say so in terms and decline to plead to it. I consider that those complaints are more apparent than real. However, the determination of what, if anything, follows from that approach can thereafter be dealt by application to me on short notice. 16I accept that the statement of claim contains unnecessary repetition of some matters, such as the details of the sexual assault, the facts and circumstances said to give rise to the duties alleged and the particulars of breach of duty in each case. Some appropriate and well-accepted pleading technique, such as incorporating the repeated matters by reference to earlier pleaded material, would undoubtedly have produced a much shorter, more concise and more easily navigable document. The fact that this and other similar techniques were not used is regrettable but it has not in my opinion led to the production of a pleading that is so bad in form that it merits being struck out or to the conclusion that some of its paragraphs should be similarly but individually disposed of. 17The draughtsman has clearly attempted to produce a document that pleads every conceivable cause of action and them some. It may well be a case of failing to recognise that less is often more. Whatever may be the position, I consider that the second amended statement of claim is a pleading to which the defendants ought presently to be able to plead and that they should be required to do so. The particulars in paragraph 19, and its subsequent similar or identical restatements, do not necessitate a pleaded response. On one view, the defendants have been provided with more information in that paragraph than they might ordinarily have been entitled to expect. This can in the circumstances hardly translate into a complaint that the plaintiff 's pleading fails, for example, to disclose a reasonable cause of action or that it somehow illegitimately intermingles facts and evidence. 18Finally I note that the defendants draw upon the exhortation in s 56 of the Civil Procedure Act with respect to the overriding purpose and the obligation of litigants to honour it. Without suggesting that it is possible to detect where the fault lies, if fault there be, it does seem to me that having regard to the fact that the original statement of claim was filed in this Court as long ago as 14 October 2009, that a somewhat quicker path to the filing of a defence might have been expected. In so saying I acknowledge immediately that the plaintiff has herself been less than blameless in terms of delay. She sought to amend her original statement of claim but did not file a motion seeking leave to do so until 13 October 2010. The second amended statement of claim would yet not appear to be the final form of the plaintiff's pleading, as the existence of doubts about its current form, which became apparent from some of the comments offered by her counsel as late as the hearing of the application before me, rather confirms. 19I consider in these circumstances that the defendants' notice of motion should be dismissed. The defendants should be required to file their defences within 21 days of the receipt of the plaintiff's written confirmation that the statement of claim upon which she proposes to rely is in a form attached to the writing or is otherwise sufficiently indicated and identified. I consider that the costs of the defendants' application should be costs in the proceedings. My reason for coming to that view about costs is influenced by the fact that the plaintiff's statement of claim was not in its final form even when the hearing before me commenced. I was not asked to make, and therefore I do not make, any orders or directions concerning the current status of the second defendant, or with respect to any later role it might directly or indirectly assume in these proceedings.