People with Disability Australia Incorporated v The Honourable Andrew Constance Minister for Disability Services [2013] NSWSC 467 (7 May 2013)

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People with Disability Australia Incorporated v The Honourable Andrew Constance Minister for Disability Services [2013] NSWSC 467 (7 May 2013)

Last Updated: 8 May 2013

Supreme Court New South Wales

Case Title:	People with Disability Australia Incorporated v The Honourable Andrew Constance, Minister for Disability Services
Medium Neutral Citation:	[2013] NSWSC 467
Hearing Date(s):	20 - 21 February 2013
Decision Date:	07 May 2013
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) The Points of Claim filed 8 February 2013 are struck out pursuant to r 14.28(1)(b) UCPR; (2) The Plaintiff is to file a Statement of Claim in conformity with this judgment by 4 June 2013. (3) The Plaintiff is to pay the Defendant's costs of the Notice of Motion.
Catchwords:	PROCEDURE - pleading - Points of Claim - novel claim - legislative duty on Minister - plaintiff seeks to enforce duty - disclaimer of reliance on administrative law remedies - need to plead material facts - jurisdictional basis for the claim - need for pleading to relate facts to basis of claim
Legislation Cited:	Community Services (Complaints, Reviews and Monitoring) Act 1993 Disability Services Act 1993 Supreme Court Act 1970 Uniform Civil Procedure Rules
Cases Cited:	Constantinidis v Kehagiadis [2011] NSWSC 974 Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 McGuirk v The University of New South Wales [2009] NSWSC 1424 People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 289 ALR 1 R v McAuley ex parte Fardell (1979) 41 FLR 267 R v Metropolitan Police Commissioner ex parte Blackburn [1968] 1 All ER 763 R v Milkboard; Ex parte Sanders [1961] VicRp 31; [1961] VR 196 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Rahman v Dubs [2010] NSWCA 129 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Category:	Interlocutory applications
Parties:	People with Disability Australia Incorporated (Plaintiff) The Honourable Andrew Constance, Minister for Disability Services (Defendant)
Representation
- Counsel:	Counsel: R Francois (Plaintiff) JK Kirk SC & R Graycar
- Solicitors:	Solicitors: Gilbert & Tobin (Plaintiff) Crown Solicitors Office (Defendant)
File Number(s):	2012/381137

JUDGMENT

1. On 7 December 2012 the Plaintiff filed a Summons seeking these orders:

1 An order in the nature of mandamus directing the defendant to perform his duty under section 6(1) of the Disability Services Act 1993 (NSW) (DSA) in relation to:

(a) providing designated services to people with disabilities who currently reside in the facilities known as the Summer Hill Group Homes, Casuarina Grove and the Norton Road Specialist Supported Living Units; and

(b) funding the designated services to people with disabilities who currently reside in the facilities known as the Wadalba Group Homes.

2 In the alternative, a declaration the defendant is in breach of his duty under section 6(1) of the Disability Services Act 1993 (NSW) (DSA) in relation to:

(a) providing the designated services to people with disabilities in the facilities known as the Summer Hill Group Homes, Casuarina Grove and the Norton Road Specialist Supported Living Units; and

(b) funding the designated services to people with disabilities in the facilities known as the Wadalba Group Homes.

3 Costs.

4 Such further or other order as the Court deems fit.

2. When the Summons came before Registrar Bradford on 25 January 2013 he ordered that the Plaintiff file and serve Points of Claim setting out the basis of the allegations that the Minister has not performed his duties, as well as the basis on which the Plaintiff contends that Cluster Homes are inappropriate and the grounds on which that was based. The Plaintiff was also directed to set out the form of relief sought.

3. The Points of Claim were filed on 8 February 2013. The Defendant thereafter filed a Notice of Motion on 14 February 2013 seeking that the Points of Claim be set aside and that on or before a specified date the Plaintiff file and serve a Statement of Claim or replacement Points of Claim.
4. It was that Notice of Motion which I heard as a Duty Judge matter over the course of two days.

Background

5. The basis for the Plaintiff's claim is said to derive from s 6(1) Disability Services Act 1993 (the Act) which provides:

6 Minister to ensure that designated services are provided and funded in conformity with the Act

(1) It is the duty of the Minister in providing and funding designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, to ensure that the services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1.

6. The background to these proceedings was set out in written submissions prepared by the Defendant. I did not understand this background to be contentious.

7. The dispute concerns four relatively new cluster homes for persons with significant intellectual and physical disabilities, with capacity to house a total of some 190 people. Three of these facilities (referred to as "Norton Road", "Summer Hill" and "Casuarina Grove") are owned and operated by the State; the fourth, "Wadalba", is privately owned and operated but funded by the State. The combined capital investment in the four facilities was some $68.5m.

8. Litigation between the parties has been on foot for some four years. In February 2009 the Plaintiff commenced proceedings in the Administrative Decisions Tribunal (ADT) with respect to three large and relatively old residential centres. That litigation went to the Court of Appeal on an interlocutory matter as to whether there were relevant "decisions" being challenged: People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253. The Court held there were, but by then the facilities had closed, and those ADT proceedings were moot.

9. The Plaintiff also commenced four proceedings in the ADT seeking orders directing the Minister to comply with his duties under the Act. Those proceedings were commenced in December 2009 with respect to Summer Hill, May 2010 with respect to Wadalba, and June 2011 with respect to Norton Road and Casuarina Grove. Correspondence was exchanged in relation to particulars and as to the precise relief sought by the Plaintiff. The effect of what the Plaintiff communicated, as the Defendant understood it, was that it argued that the provision of residential services to all persons with disabilities at these sites was non-compliant with the Act, and should cease.

10. On 11 October 2012 the Plaintiff discontinued each of the four proceedings following an acceptance that the relief it sought could not be granted by the Tribunal in light of s 5(1)(b) of the Community Services (Complaints, Reviews and Monitoring) Act 1993. That section provided at all material times that the ADT must not determine a relevant issue in a way that is inconsistent with the way in which resources appropriated by the Parliament for the delivery of community services have been allocated by the Minister, or by the Director-General in accordance with government policy.

11. By the stage the four proceedings were discontinued substantial lay and expert evidence had been filed by both sides.

12. The background was expanded upon by Mr Kirk SC for the Minister as follows:

Just to draw out what is not set out in our written submissions, of the four cluster homes there are differences between the four. The most different in one way is Wadalba, which in contrast to the other three homes, is privately owned and operated, but is operated by the State through the means of my client, the Minister. That, as is set out in the letter, involves four homes that are connected in which five people with disabilities live in four bedrooms per home plus one sort of independent living flat. Norton Road, Summer Hill and Casuarina Grove are owned by the State. Norton Road involves ten homes in close proximity to each other, each with five beds. Summer Hill involves two homes, or in a sense perhaps wings, each with ten beds, but that is specifically designed for people with significant disabilities who also have complex health needs, so some of them require very significant medical attention. Casuarina Grove involves ten homes in close proximity or, perhaps more accurately, ten wings, each with ten beds in it and that is designed as an aged care facility for people with significant disabilities. So there are some significant differences between the four homes.

The Points of Claim

13. It is necessary to set out the Plaintiff's Points of Claim in full so that the concerns expressed about them can be fully understood. The Points of Claim are these:

Parties

1 The Plaintiff is a peak non-government organisation in Australia representing the interests of people with disabilities.

2 The Defendant is the Minister for Disability Services in the state of New South Wales.

Designated Services

3 The Defendant is responsible for the provision of designated services to people with disabilities who currently reside in the facilities known as the Summer Hill Group Homes, Casuarina Grove and the Norton Road Specialist Supported Living Units.

4 The Defendant is responsible for the funding of the designated services provided to people-with disabilities who currently reside in the facilities known as the Wadalba Group Homes.

Breach of Duty

5 The Defendant has a duty under section 6(1) of the Disabilities Services Act 1993 (NSW) (Act) in providing and funding the designated services to the persons with debilities in the above facilities (facilities) to ensure that the services are provided and funded in conformity with the objects of the Act and the principles and applications of principles set out in Schedule 1 of the Act.

6 In breach of his duty, the Defendant does not provide or fund the designated services at the facilities in conformity with the objects of the Act and the principles and applications of principles set out in Schedule 1 of the Act.

Grounds

7 Contrary to objects 3(b)(i), 3(b)(ii), 3(e) and paragraphs 1(b), 2(a) and 2(g) of Schedule 1 of the Act and each of them, the facilities cluster a large group of persons with a disability together in one location and therefore do not promote their participation in the life of the local community through maximum physical and social integration.

8 Contrary to object 3(d) of the Act, the facilities cluster a large group of persons with a disability together in an institutionalised environment which is not innovative.

9 Contrary to object 3(c) of the Act, the facilities at the Wadalba Group Homes cluster a large group of persons with a disability together in an institutionalised environment which fails to take into account the outcomes achieved by persons with disability in such environments.

10 Contrary to object 3(a) and paragraphs 1 (c) and 2(a) of Schedule 1 of the Act and each of them, the provision of services to persons with a disability in institutionalised environments such as the facilities fails to provide persons with a disability with the environmental conditions and support that will enable them to reach their maximum potential as members of the community.

11 Contrary to objects 3(a), 3(b)(ii), 3(e) and paragraphs 1 (c), 2(a), 2(d), 2(f) and 2(j) of Schedule 1 of the Act and each of them, the provision of services to persons with a disability in institutionalised environments such as the facilities do not promote independence, or personal growth and development, and are strongly associated with the loss of skills and the development of maladaptive and antisocial behaviours.

12 Contrary to paragraph 1 (g) of Schedule 1 of the Act, the provision of services to persons with a disability in institutionalised environments such as the facilities is more restrictive on persons with disability than individualised community based support services.

13 Contrary to paragraph 1 (i) of Schedule 1 of the Act, the provision of services to persons with a disability in institutionalised environments such as the facilities are more likely to result in the neglect, abuse and exploitation of persons with a disability.

14 Contrary to object 3(b)(iii) and paragraphs 1(a) and 2(f) of Schedule 1 of the Act and each of them, the provision of services to persons with a disability in institutionalised environments such as the facilities are more likely to diminish the dignity, image and self-esteem of persons with a disability.

15 Contrary to paragraphs 1(e), 1(f), 2(d) and 2(e) of Schedule 1 of the Act and each of them, the provision of services to persons with a disability in institutionalised environments such as the facilities does not permit appropriate individualisation of service delivery.

16 Contrary to paragraphs 2(b) and 2(j) of Schedule 1 of the Act and each of them, the provision of services to persons with a disability in institutionalised environments such as the facilities does not provide or facilitate norms and patterns of life that are typical and valued in the community generally.

17 Contrary to paragraph 2(h) of Schedule 1 of the Act, the facilities result in a single organisation exercising control over all or most aspects of the life of the persons with a disability.

18 Contrary to paragraph 1 (d) of Schedule 1 of the Act, the facilities do not support persons with disability attaining a reasonable quality of life by reason of paragraphs 7 to 17 above and each of them.

Relief

19 An order in the nature of mandamus directing the Defendant to perform his duty under s 6(1) of the Disability Services Act 1993 (NSW) (DSA) in relation to:

(a) providing designated services to people with disabilities who currently reside in the facilities known as the Summer Hill Group Homes, Casuarina Grove and the Norton Road Specialist Supported Living Units; and

(b) funding the designated services to people with disabilities who currently reside in the facilities known as the Wadalba Group Homes.

20 In the alternative, a declaration the Defendant is in breach of his duty under s 6(1) of the Disability Services Act 1993 (NSW) (DSA) in relation to:

(a) providing the designated services to people with disabilities in the facilities known as the Summer Hill Group Homes, Casuarina Grove and the Norton Road Specialist Supported Living Units; and

(b) funding the designated services to people with disabilities in the facilities known as the Wadalba Group Homes.

14. The order made by the Registrar for the filing of Points of Claim was made on the application of the Defendant that either a Statement of Claim or Points of Claim be filed. The order made by the Registrar was no doubt made or influenced by the fact that paragraph 22 of Practice Note SC CL 3 in relation to the Administrative Law List (in which the proceedings were filed) made reference to the filing of Points of Claim and Points of Defence.

Principles of pleading

15. In my experience Points of Claim and Points of Defence have an informality about them that does not encourage proper pleading. The matter is not assisted by the fact that "pleading" as defined in the Dictionary to the Uniform Civil Procedure Rules makes an inclusive reference to documents ordinarily understood to constitute pleadings (Statement of Claim, Defence, Reply and any subsequent pleading for which leave is given under Pt 14). Moreover, the Rules regarding pleadings and what should and should not be included in them (specifically Pt 14) deal with pleadings as defined. The result has been that what is contained in Points of Claim and Points of Defence has often suffered from the sort of defects that Pt 14 and related cases have sought to deal with, because the Rules do not expressly apply to such documents.

16. There is undoubted power in Administrative Law matters as with other proceedings in the Court to direct the filing of a Statement of Claim where, although proceedings have been correctly commenced by Summons, it is thought appropriate that the case should be set forth or pleaded in the commonly understood use of that term: Rahman v Dubs [2010] NSWCA 129 at [4]- [5].

17. Despite the fact that Pt 14 and related cases do not expressly deal with Points of Claim and Points of Defence, it is nevertheless appropriate that those rules and principles should operate on such documents, and that is the approach I have taken to the Points of Claim filed in these proceedings.

18. In Constantinidis v Kehagiadis [2011] NSWSC 974 I set out a number of extracts from various judgments which provided enlightenment on appropriate and inappropriate pleading as follows:

[7] In relation to pleading generally Schmidt J said in Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899:

[17] Those Rules are intended to ensure that both the defendants and the Court are given a clear indication, from the outset, of the claims which are made by Ms Cameron; the factual basis upon which those claims are advanced; and the orders which are sought. The parties' pleadings have important functions to perform in relation to the conduct and eventual hearing of the case, particularly in relation to the identification of the legal and factual issues lying between the parties and the evidence which is relevant to their determination.

[18] Ms Cameron's current pleadings are embarrassing, in the sense that is discussed in the authorities, namely that they are unintelligible, imprecise and ambiguous, depriving the defendants of a proper opportunity of understanding what actual allegations comprise the substance of her claims. They do not provide material facts to support the serious allegations made (see Kirby v Sanderson Motors Pty Limited [2001] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-143). In Gunns Limited v Marr [2005] VSC 251, Bongiorno J observed that:

"[57] It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r.23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form."

[8] Similarly, Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 said at [21] - [29]:

[21] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; [1982] 148 CLR 658 at 664; Banque Commerciale at 296.

[22] In Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are "the servants of the interests of justice", with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.

[23] Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the Court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at [100]- [103].

[24] Proper pleading is of fundamental importance in assisting Courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s.56 Civil Procedure Act 2005.

[25] Where application is made by a party for leave to amend pleadings, the Court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111]- [112]; [2009] HCA 27; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the Court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon, in determining an application such as this.

[26] The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].

[27] For a Statement of Claim to comply with the rules of Court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Rule 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: Rule 14.8 UCPR.

[28] In Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) said at 142-143 [20]-[21], with respect to the requirement for a pleading to state material facts:

"It might appear that these rules [the Supreme Court Rules] do not require that causes of action be stated in pleadings; the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - 'Material' means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action.

Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a Plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specific causes of action."

[9] In relation to whether a pleading is embarrassing within the meaning of such provisions as Rule 14.28 UCPR, Hislop J said in Bott v Carter [2009] NSWSC 236 at [18]:

A pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence: Gunns Limited v Marr [ 2005] VSC 251 at [14] - [15]. A pleading may also be embarrassing if it contains inconsistent, confusing or irrelevant allegations - Shelton v National Roads and Motorist's Association Limited [2004] FCA 1393; (2004) 51 ACSR 278 at [18].

[10] Johnson J also discussed the concept of embarrassment in McGuirk at [30] - [35]:

[30] A pleading is embarrassing 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] VicRp 7; [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15].

[31] In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings:

"Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 1429; (1995) ATPR 41-434."

[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6).

[33] Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited [1985] FCA 228; (1985) 7 FCR 109 at 112-114.

[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VicRp 75; [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli [1979] FCA 74; (1979) 30 ALR 181 at 186.

[35] It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited [1974] HCA 25; (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55].

The submissions

19. Before turning to what is contained in the Points of Claim it is necessary to say something briefly about the relief sought in the Summons in the circumstances of the present case.

20. Prayer 1 seeks an order in the nature of mandamus directing the Minister to perform his duty under s 6(1) of the Act. Prayer 2 seeks a declaration that the Defendant is in breach of that duty in relation to the same matters.

21. It is to be noted, first, that neither an order in the nature of prohibition nor certiorari has not been sought in relation to decisions made by the Minister up to the present time. Secondly, although mandamus is a remedy for jurisdictional error (Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [82]; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [142] and Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 289 ALR 1 at [58]), no such error is identified.

22. Despite that, the Plaintiff expressly disclaims impugning any administrative decision of the Minister and says that it does not apply to the Court on the basis of s 65 Supreme Court Act 1970. In a letter from the Plaintiff's solicitors to the Crown Solicitor of 14 February 2013 this appears:

We do not know why you continue to make reference to concepts referable to an application claiming jurisdictional error in the making of an administrative decision (e.g. relevant and irrelevant considerations, jurisdictional facts etc).

23. Again, in a letter from the Plaintiff's solicitors to the Crown Solicitor of 19 February 2013 the point is re-iterated:

We also do not understand what concessions you seek in relation to relevant and irrelevant considerations and the like that your client may have addressed in reaching any particular decision. We had understood from the procedural points taken by your client over the past five years that your client's position was that he has made no reviewable decision. In any event, as we set out in our client's Summons, Points of Claim and again in our letter of 14 February 2013, our client does not impugn any administrative decision of your client in this proceeding. Our allegation is that in providing and funding the facilities he is in breach of his duties.

24. The Defendant submits that it is precisely because mandamus is sought in the Summons, yet the Plaintiff says that it does not seek to impugn any administrative decision, that the Defendant needs to understand the basis upon which this Court's jurisdiction is invoked and what precisely the claim is against the Minister. The Defendant says that it does not seek to argue at this stage the question of whether the Plaintiff has a cause of action if it does not seek mandamus in the regularly understood way either as an adjunct to certiorari or prohibition where a particular decision is sought to be impugned or where there is a constructive failure to exercise jurisdiction by reason of a failure to act. The Defendant says that it may seek to do that at a later stage but it wishes first to understand the case that the Plaintiff brings outside the usual administrative law proceedings.

25. The Plaintiff submits that the Defendant's complaint about the Points of Claim is twofold. First, the Plaintiff submits, the Defendant identifies the issue of whether or not the breach of duty alleged gives rise to an arguable claim. The second complaint is said to be about a lack of particulars in what has been set out in the Points of Claim.

26. This approach of the Plaintiff appears to me to be based on a misconception about the Defendant's complaint. The Defendant expressly said that it did not at this stage seek to argue that the Plaintiff had no arguable claim or cause of action against the Minister. Rather, the Defendant said that it could not understand what the claim was and what were the material facts that gave rise to that claim. In other words, the complaint went to a matter of pleading and not to whether the claim should remain on foot at all. Hence, the Notice of Motion did not seek a dismissal of the claim but only that the Points of Claim be set aside (ie. r 14.28 rather than 13.4 UCPR).

27. The Plaintiff submits that it is not necessary to identify jurisdictional error before mandamus will issue. Reliance is placed on the English Court of Appeal's decision in R v Metropolitan Police Commissioner ex parte Blackburn [1968] 1 All ER 763 at 769. That is really the issue that the Defendant does not seek to have decided on the present application. However, it is relevant to an understanding of what the basis of the claim is that the Plaintiff seeks to bring.

28. In R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242-3 Rich, Dixon and McTiernan JJ said:

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a Court which on appeal, certiorari, or other process is competent to examine it.

29. Similarly, where there is no evidence of a refusal or omission to perform a public duty mandamus will not lie: R v McAuley ex parte Fardell (1979) 41 FLR 267 at 274; nor will an order go to undo an act which has already been done: R v Milkboard; ex parte Sanders [1961] VicRp 31; [1961] VR 196 at 204.

30. Although the Plaintiff accepts that the homes are operative and have been funded as a result of decisions of the Minister the Plaintiff contends that the Minister has not performed his duty under s 6(1). In those circumstances it is necessary for the Plaintiff to identify precisely the claim that is being made. If the duty has been performed in a way that in law does not amount to a performance there may be a nullity which would enable mandamus to lie. On the other hand, if the duty the Minister exercised involved discretions the duty may nevertheless have been exercised in a way that would preclude an order for mandamus.

31. The Plaintiff sought to distinguish between decisions which the Minister had made and the performance of his duty on the basis that his duty, it was said, was not to make a decision. It is not apparent to me how his duty can be exercised other than by making one or more decisions that lead to some form of action whether it is funding for homes or otherwise. One might have thought that in those circumstances it might be necessary to quash decisions already made before mandamus could be sought in respect of what the Plaintiff says is the duty under s 6.

32. The fact that the Plaintiff endeavoured to eschew decisions of the Minister and any reliance on such decisions in these proceedings was difficult to understand when the Plaintiff had argued in earlier similar proceedings that there was a decision that needed review, albeit the review was sought from the Administrative Decisions Tribunal. That was the point decided in the Plaintiff's favour by the Court of Appeal in People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253. I mention this also because it helps to inform the decision here about the need for clear and appropriate pleading of the claim now sought to be brought by the Plaintiff.

33. On a number of occasions the Plaintiff's counsel submitted that if I determined there was no right to mandamus in the manner of the Plaintiff's asking I should dismiss the proceedings. However, as I noted earlier, the Defendant did not seek such dismissal, nor was that matter fully argued. The Defendant asks only that I find that the Points of Claim are not properly pleaded and that the Plaintiff properly plead its case. In circumstances where the Plaintiff disclaims reliance on the usual approach to administrative law remedies including mandamus the Defendant says that the problem it has in understanding the case is thrown into greater relief.

Are the Points of Claim adequate?

34. It is necessary, therefore, to examine the Points of Claim. In that regard, I bear in mind that, as Johnson J said in McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35], it is not the function of the Court to draw or settle a party's pleading.

35. The first thing to note is that there are no material facts set out in the Points of Claim. In their letter of 19 February 2013 (to which I earlier made reference) the solicitors for the Plaintiff said this:

...[O]ur client was not ordered to provide Points of Claim which set out "material facts". Our client was ordered to identify the basis upon which it alleged your client is in breach of duty and why cluster homes are inappropriate (which in this case is the same thing).

36. This was an entirely inappropriate response to the concerns expressed by the Crown Solicitor because, unless the material facts upon which the claim is made are identified, it is not possible properly to understand the basis upon which the Minister is alleged to be in breach of his duty. The explanation that there had been prior proceedings with evidence exchanged which was likely to be used in the present proceedings is no answer to that. The opposing party is not expected to divine from evidence served what are said to be the material facts upon which a claim is based.

37. Moreover, unless the material facts are identified so as to enable the opposing party to admit, not admit, deny or admit with qualification each of those facts the Court will not be in the position of knowing what the true issues are in the case. That matter is highlighted in the present case because the Plaintiff asserts that what will necessarily be involved in the present proceedings is a form of merits review of the acts or performance of the duty (I hesitate to use the word "decisions" in light of the Plaintiff's submissions) of the Minister. These proceedings, on the Plaintiff's insistence, are not apparently Administrative Law proceedings where factual matters are unlikely to be in dispute and the only issue is what is the legal effect of the acts of omissions of the person or body whose decision is being reviewed.

38. Legal determinations and adjudications were not made in a factual vacuum. The legal principles to be applied will ultimately be governed by the facts which are either agreed or determined after contest.

39. The Plaintiff says

At a very practical level...this matter concerns the physical layout of these homes so it is a matter ultimately of how the homes are laid out and how many people are there and that is controlled all by one organisation..., (T 42)

so that It might be expected that the material facts will include appropriate descriptions of the homes concerned, how many people are in each, and what has happened regarding the funding and running of those homes which is relevant to the Minister's duty so that the arguments based upon the matters contained in the section of the Points of Claim headed "Grounds" can be understood and put in some context.

40. Secondly, in the section of Points of Claim headed "Grounds" (paragraphs 7 to 18) all that the Plaintiff has done is to recite various Objects of the Act contained in s 3 and various matters contained in the Principles in Schedule 1 of the Act which are to be taken into account as s 9(1) requires. The Object and Principles, as one would expect, are framed in very general terms using widely-expressed concepts ("innovation", "positive outcome", "integration", "achieve their maximum potential as members of the community" etc) that without a factual context are devoid of a great deal of meaning. Grounds 7 to 18 incorporate many of these general terms with no specificity and in no factual context.

41. That is unsatisfactory enough when a determination has to be made in the first place of whether and how the Minister breached any duty. It is even more unsatisfactory when what is being sought is either mandamus or some form of mandatory injunction, because in circumstances where the Minister asserts that he has performed his duty under the Act he would be entitled to know how he was expected to act if his past performance was deficient. Indeed, a court would be reluctant to make an order of a mandatory kind unless it was specific enough to be enforceable.

42. The Plaintiff does not really come to terms with the notion that the Minister has purportedly (it would seem on the Plaintiff's case) performed his duty but not done so correctly. For example, in their letter of 19 February 2103 the Plaintiff's solicitors say:

...it seems that your client no longer has any practical concerns but just wishes our client to undertake the function of government by prescribing in detail how your client should fulfil his duty. We do not agree that this is an appropriate or orthodox course when a party seeks mandamus. Further, the relevant legislation in this case does not have fixed standards and, accordingly, our client cannot seek detailed prescriptive relief that we know the Court has no power to grant. Our case can only address how your client has currently breached his duties.

43. That appears to be an acknowledgement not only that there are at least discretions involved in the exercise of power but that there are decisions and determinations that have been made which would need to be quashed or prohibited before mandamus would go. The precise nature of those decisions and determinations might be thought to be material facts to be pleaded. Merely making a general statement of breach by reference to some Object or Principle in the Act is neither helpful nor sufficient where some mandatory order is sought.

44. As expressed, these Grounds appear to be particulars of breaches of duty. Not only is greater specificity required to identify each breach but without the sort of material facts mentioned in paragraph [39] above the breaches alleged will not have much content and will not inform the Minister of what the Plaintiff is asserting he should have done and should be doing.

45. Thirdly, the Points of Claim say little about the basis for the Plaintiff's standing to bring the present proceedings. Paragraph 1 simply identifies who the Plaintiff is. It is not apparent from that on what basis the Plaintiff is entitled to bring the proceedings when it, as an organisation, would not appear to be affected, in a legal sense, by what has and has not been done in connection with the homes. The Plaintiff says that the Minister has never taken a point about standing and justiciability. I accept, however, the Defendant's submission that until it knows the basis upon which the proceedings are brought and the claims made it is not in a position to form a view about those matters.

46. Fourthly, where a claim is made that does not fall within a usual type or category, and the Plaintiff accepts the proceedings are novel for what is sought, it is incumbent upon the Plaintiff to plead its case so that it can be understood how the Court has jurisdiction to adjudicate on the issues raised. In Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 Hodgson JA (with whom Mason P and Handley JA agreed) said:

[20] It might appear that these rules do not require that causes of action be stated in pleadings: the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion -

(1) "Material" means material to the claim, that is, to the cause or causes of action which are relied on.

(2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract.

(3) The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action.

[21] Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is never any requirement to do more than set out facts. Where there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specified causes of action.

47. Whilst the terminology of "cause of action" was used in Kirby an examination of the facts in that case show that the term was not used in its strict sense of a common law claim but as a convenient shorthand for the basis for a claim being made whether at common law or in equity or otherwise.

48. In my opinion, the Plaintiff must set out how the material facts and the law on which it relies enable the bringing of the claim - in other words, to demonstrate that the claim is justiciable by this Court. The Plaintiff expressly disclaimed reliance on s 65 Supreme Court Act 1970 which might otherwise have been thought to provide the jurisdictional basis for the Court to adjudicate on the claim. If it is not s 65 the basis must be specified, at least in the first instance, to enable the Defendant to consider whether or not it moves under r 13.4 UCPR to dismiss the proceedings and, if not, thereafter how it will answer the claim made.

Conclusion

49. For the reasons which I have given the Points of Claim are entirely inadequate in that they do not comply with the rules nor the common law principles of proper pleading. They will be struck out.

50. The Plaintiff submitted that the costs of the Motion should be costs in the cause because it complied with the Registrar's order to file Points of Claim dealing with the matters he specified. I do not consider that there was proper compliance with that order. The Defendant had sought to obtain a proper understanding of the claim in correspondence passing between the solicitors. It was not forthcoming. I consider that the Plaintiff should pay the Defendant's costs of the Motion.

51. I make the following orders:

(1) The Points of Claim filed 8 February 2013 are struck out pursuant to r 14.28(1)(b) UCPR;

(2) The Plaintiff is to file a Statement of Claim in conformity with this judgment by 4 June 2013.

(3) The Plaintiff is to pay the Defendant's costs of the Notice of Motion.

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