The applicants, represented by Brisbane-based firm NR Barbi Solicitor, claimed their injuries were caused by “negligence or misfeasance” by one or more of the Commonwealth officers, whose conduct the Commonwealth was “vicariously liable” for.

The 652-page statement of claim has been amended four times, with the latest edition finishing at around 819 pages. It is “dense and extremely difficult to follow”, and at times is “impenetrable”.

Justice Anna Katzmann of the Federal Court of Australia said when she asked for a glossary, she was instead handed a document that listed the defined terms and the paragraphs where they would be.

On the last working day before the hearing of the interlocutory application – in which the Commonwealth sought to have the statement of claim struck out – a “reworked version” of the same document was filed, but was “even less helpful than the first”.

VIEW ALL

When the matter first came before the court in April 2024 for a case management hearing, Justice Katzmann was informed the applicants had engaged senior counsel, Mark Robinson – now KC, according to the judgment – and he would undertake a review of the pleadings.

While the “odd paragraph” was removed”, Justice Katzmann said the latest statement of claim “neither truncated nor refined the pleading in any significant respect” and “did not make it any easier to digest”.

“Reading it is a herculean task,” Justice Katzmann said.

“Trying to make sense of it could drive the reader mad. Identifying the material is like looking for a needle in a haystack. It would be oppressive to require the respondents to plead to it.”

Further, the pleading has been riddled with cross-referencing, with a good deal of it sending the reader “running around in circles”. At some points, it made reference to non-existent subparagraphs.

Justice Katzmann said it “beggars belief” how some of the allegations could have been made, such as a claim about the state of knowledge among “the public officers and the Australian public”.

The claim of misfeasance stretched over 74 pages, but it was impossible to know “precisely what acts or omissions associated with the approvals process are said to be invalid or unauthorised”.

“I also accept the respondents’ submission that the pleading of malice is manifestly deficient because of its lack of specificity and particularly.

“By no stretch of the imagination do the schedules compensate for this. They simply send the reader on a wild goose chase,” the court said.

To allow the case to proceed on this statement of claim “would not be the way that best promotes the overarching purpose of the civil procedure provision”. Justice Katzmann said it was “far from it”.

At one point prior to the interlocutory hearing, Robinson informed the court his instructions had been withdrawn.

Documents subsequently filed were signed off by the more senior of his two junior counsel, Joseph Manner and AC White.

Two of the three documents did not comply with the terms of the orders. One document purportedly responding 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”.

“I propose to have no regard to these documents. They should not have been submitted or accepted for filing,” Justice Katzmann said.

“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.”

Justice Katzmann had “no confidence” the applicants would be able to produce a statement of claim that conformed to the rules of the court, “as least as currently advised”.

The applicants were not given leave to replead, at least not without having first satisfied the court they can “craft an intelligible pleading”.

“Although I have grave doubts about whether the applicants can mount a reasonably arguable case, the difficulty in seeing the woods for the trees is the current pleading means that I cannot rule out the possibility that there is a case at least against one of the respondents.

“Consequently, and notwithstanding my misgivings, I have decided to give the applicants one further opportunity to fix their pleading. It seems to me that it will require fresh eyes and a fresh start in a ‘root and branch review’,” Justice Katzmann concluded.

The Commonwealth parties also applied for security of costs in the sum of $312,000, but the court was not satisfied it was justified.

The case is: Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339 (10 April 2025).