Robertson v State of Queensland [2021] QCA 92

Henry J (Fraser and McMurdo JJA agreeing)

The Plaintiff appealed the trial decision of Robertson v State of Queensland [2020] QDC 185 together with the pre-trial order for further and better particulars.

The trial judge found against the Plaintiff on the basis there was no duty of care, and if there was, it was not breached and causation had not been satisfied.

The Court found that in keeping with Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 if the employer had no reason to suspect the employee was at risk of a psychiatric injury, the duty did not extend. It was not the situation as was in Eaton v Tricare (Country) Pty Ltd [2016] QCA 139, where the employee’s deterioration in mental health was apparent during the period of the alleged abuse.

Five days before the trial, the trial judge reviewed the matter and stated the factual basis for liability was not properly pleaded and provided the parties with a list of particulars. The Plaintiff did not object to the order for particulars. The Plaintiff appealed the pre-trial order on the basis that:

(a) There was no power to require the provision of particulars of his Honour’s own volition.

(b) There was a denial of procedural fairness.

(c) The Plaintiff was forced to conduct her case on a different and more restricted basis.

The Court found there was power to make such an order and found the argument ‘novel’ in light of the procedural rules, practice directions and pre-trial management over the past decades by the court:

[27] Ms Robertson advances three arguments in support of that ground. The first argument is that his Honour did not have the power to require the provision of particulars of his own volition.[16] It is a novel argument in light of the procedural rules and practice directions which enabled the increased proactivity of the courts in pre-trial management of cases in recent decades.[17] The argument contemplates that the only means by which a court can order the provision of particulars is on the application of a party. This overlooks that the sufficient pleading of a case not only puts each party on notice of the case to be met but also sets the boundaries of the issues to be tried.[18] It would be a curious constraint on the power of the trial judge, as the person responsible for determining those issues according to law, if the judge’s power to require inadequacy in a pleading to be remedied by amendment or provision of particulars, was conditional on the application of a party. Once a trial is underway it could scarcely be thought a judge who realises more particularity is required in order to properly identify the case to be determined, would not have the power, as an incident of the judge’s inherent power to manage the conduct of the trial appropriately, to require the provision of such particularity.[19] Why would that inherent power not embrace the period in which the judge is seized of the matter in the period leading up to the trial? If there lingered any doubt that it does, it would be removed by r 367(1) Uniform Civil Procedure Rules 1999 (Qld), which provides:

“The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.” It follows the argument must be rejected.

As to the second and third appeal points, they received short shift. The Court found there was sufficient time for the Plaintiff to raise the matter and that the requirement for particularity about the case, did not alter or restrict the manner in which it was prepared or conducted:

[30] The third argument in support of the complaint of error is that Ms Robertson was “forced to conduct her case on a different, and more restricted basis, from the way it had been prepared”.[22] In support of this submission it was highlighted that the learned trial judge said that Ms Robertson would be held to the particulars of her pleaded case. That a party should be so confined is, in the absence of the parties’ mutual departure from the pleadings, an unremarkable reflection of the ordinary rules of engagement at trial.[23] It adds nothing to the argument. The premise of the argument is that the provision of better particulars of the case to be advanced must in some unexplained way have altered or restricted the case which Ms Robertson’s representatives had prepared to conduct. The premise is flawed because, unless it was intended to impermissibly use obscure pleadings as a cover for the conduct of a surprise case at trial, the provision of greater particularity about the case which was to be conducted should not have altered or restricted the case Ms Robertson’s representatives had prepared to conduct.

The appeal was dismissed.

David Cormack

Brisbane Barrister and Mediator

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