EIX20 v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 17 November 2022
• Neutral Citation: [2022] FCA 1357
• Date: 17 November 2022
• Court: Federal Court

Federal Court of Australia

EIX20 v State of Western Australia [2022] FCA 1357

File number:	WAD 218 of 2020
Judgment of:	BANKS-SMITH J
Date of judgment:	17 November 2022
Catchwords:	PRACTICE AND PROCEDURE - application to strike out pleadings pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) - applicable principles - applicant detained in Rangeview Detention Centre and Banksia Hill Detention Centre in Western Australia - allegations against the respondent include direct and indirect discrimination under the Disability Discrimination Act 1992 (Cth), discrimination under the Racial Discrimination Act 1975 (Cth), negligence, unlawful assault and battery and unlawful imprisonment - whether claims are properly articulated - requirement that material facts be stated - particular paragraphs struck out - leave granted to re-plead
Legislation:	Australian Human Rights Commission Act 1986 (Cth) s 46PH Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 22, 31, 32, 34 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Federal Court Rules 2011 (Cth) rr 16.02, 16.21, 16.43 Racial Discrimination Act 1975 (Cth) Young Offenders Act 1994 (WA) ss 7, 11B, 11C, 11D Young Offenders Regulations 1995 (WA) regs 71, 72, Part 10
Cases cited:	Australian Competition and Consumer Commission v Pauls Ltd[1999] FCA 1750 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs[2004] HCA 36; (2004) 219 CLR 486 Campbell v Northern Territory of Australia [2018] FCA 85 Campbell v Northern Territory of Australia (No 3)[2021] FCA 1089 Carter v Walker[2010] VSCA 340; (2010) 32 VR 1 Chandrasekaranv Commonwealth of Australia (No 3) [2020] FCA 1629 Fair Work Ombudsman v Eastern Colour Pty Ltd[2011] FCA 803 Gall v Domino's Pizza Enterprises Limited (No 2)[2021] FCA 345 Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 Howard v Jarvis(1958) 98 CLR 177 Jenkings v Northern Territory of Australia [2017] FCA 1263 KTC v David [2022] FCAFC 60 Michael Wilson & Partners Ltd v Nicholls[2011] HCA 48; (2011) 244 CLR 427 Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199 Polar Aviation Pty Ltd v Civil Aviation Safety Authority[2012] FCAFC 97; (2012) 203 FCR 325 Rauland Australia Pty Ltd v Johnson (No 1)[2019] FCA 1174 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs[2005] FCA 549; (2005) 143 FCR 217 Spiteri v Nine Network Australia Pty Ltd[2008] FCA 905 Thomson v STX Pan Ocean Co Ltd[2012] FCAFC 15 Waters v Public Transport Corporation (1991) 173 CLR 349 Watts v Australian Postal Corporation [2014] FCA 370;(2014) 222 FCR 220 Winters v Fogarty [2017] FCA 51 Young Investments Group Pty Ltd v Mann[2012] FCAFC 107
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	131
Date of hearing:	16 March 2022
Counsel for the Applicant:	Mr GM Watson SC with Ms D Tang and Dr KL Fallah
Solicitor for the Applicant:	The National Justice Project Ltd
Counsel for the Respondent:	Ms C Thatcher SC
Solicitor for the Respondent:	State Solicitor's Office

ORDERS

		WAD 218 of 2020
BETWEEN:	EIX20 Applicant
AND:	STATE OF WESTERN AUSTRALIA Respondent

order made by:	BANKS-SMITH J
DATE OF ORDER:	17 november 2022

THE COURT ORDERS THAT:

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

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

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

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

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

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

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

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

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

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

Disability and racial discrimination claims

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

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