Bicker v Aegis Aged Care Staff Pty Ltd - [2024] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BICKER -v- AEGIS AGED CARE STAFF PTY LTD [2024] WADC 117
CORAM:   STAUDE DCJ
HEARD:   17 DECEMBER 2024
DELIVERED          :   Ex tempore
PUBLISHED           :   30 JANUARY 2025
FILE NO/S:   CIV 1096 of 2022
BETWEEN:   KELLIE BICKER
Plaintiff
AND
AEGIS AGED CARE STAFF PTY LTD
First Defendant
AEGIS AGED CARE MANAGEMENT PTY LTD
Second Defendant
AEGIS AGED CARE GROUP PTY LTD
Third Defendant
AEGIS HEALTH PTY LTD
Fourth Defendant
AEGIS HEALTH OPERATING PTY LTD
Sixth Defendant
BALMORAL AGED CARE GROUP PTY LTD
Seventh Defendant

Catchwords:

Practice and procedure - Pleadings - Rules of the Supreme Court 1971 (WA) O 20 r 19 - Strike out application by second defendant - Appeal from registrar's decision - Whether plaintiff required to plead factual basis for asserting that second defendant occupied or was in control of premises for purpose of Occupiers' Liability Act 1985 (WA) - Whether plaintiff required to plead factual basis for asserting that second defendant was in control of premises for purpose of s 22 of Occupational Safety and Health Act 1984 (WA) (repealed)

Practice and procedure - Pleadings - Rules of the Supreme Court 1971 (WA) O 20 r 7(5) - Observations on rule that pleadings be signed - Observations on requirement that there be a factual basis for pleading

Legislation:

Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Appeal dismissed
Statement of claim struck out in part

Representation:

Counsel:

Plaintiff	:	Mr T H Offer
First Defendant	:	Mr J J Sheldrick
Second Defendant	:	Mr J J Sheldrick
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance

Solicitors:

Plaintiff	:	Peninsula Personal Injury Lawyers
First Defendant	:	Hall & Wilcox (Perth)
Second Defendant	:	Hall & Wilcox (Perth)
Third Defendant	:	Not applicable
Fourth Defendant	:	Not applicable
Sixth Defendant	:	Not applicable
Seventh Defendant	:	Not applicable

Case(s) referred to in decision(s):

DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Great Australian Goldmining Co v Martin (1877) 5 Ch D 1
Metaxas v Legal Profession Complaints Committee [2020] WASCA 27
Rossen v Airey [2012] WASCA 26
Stewart v Hames [2019] WASCA 127
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright [No 2] [2021] WASC 159

STAUDE DCJ:

[This decision was delivered extemporaneously on 20 December 2024 and edited from the transcript.]

This action involves a claim for damages for personal injury suffered by the plaintiff on 21 March 2019 when, in the course of her employment at premises described as the Aegis Aged Care Facility in Melville, the plaintiff slipped and fell on the wet floor of a kitchen and was injured.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WADC 117
Decision Date: 30 JANUARY 2025

CaseChat Overview and Summary

Aegis Aged Care Staff Pty Ltd sought to have particulars of the claim struck out under Rule 19 of the Rules of the Supreme Court 1971 (WA), as the plaintiff did not allege a factual basis for the assertion that Aegis was the occupier or in control of the premises for the purposes of the Occupiers' Liability Act 1985 (WA). The plaintiff's claim also did not include a factual basis for asserting that Aegis was in control of the premises for the purposes of section 22 of the Occupational Safety and Health Act 1984 (WA). The court needed to determine whether the plaintiff was required to plead a factual basis for these assertions and whether the pleadings complied with the requirement that they be signed.

The court held that the plaintiff was not required to plead a factual basis for the assertion that Aegis was the occupier or in control of the premises for the purposes of the Occupiers' Liability Act 1985 (WA). However, the plaintiff was required to plead a factual basis for asserting that Aegis was in control of the premises for the purposes of section 22 of the Occupational Safety and Health Act 1984 (WA). The court also held that the requirement that pleadings be signed was mandatory and that the failure to sign pleadings could be grounds for striking out the claim. The court dismissed the application for a strike out but warned the plaintiff to ensure that all future pleadings were signed.

The court ordered that the plaintiff's claim was to be struck out unless the plaintiff filed amended pleadings that included a factual basis for the assertion that Aegis was in control of the premises for the purposes of section 22 of the Occupational Safety and Health Act 1984 (WA) and that all future pleadings were signed. The court also ordered that the plaintiff pay Aegis's costs of the application.

Orders