Bundesen v Kumar - [2017] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BUNDESEN -v- KUMAR [2017] WASC 197

CORAM: MASTER SANDERSON

HEARD: 16 MAY 2017

DELIVERED : 25 JULY 2017

FILE NO/S: CIV 2557 of 2016

BETWEEN: SUZANNE BUNDESEN
Plaintiff
AND
MANOJ KUMAR
Defendant

Catchwords:

Summary judgment - Defendant says plaintiff's action statute barred - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Summary judgment granted
Action dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr A Crocker

Solicitors:

Plaintiff: In person
Defendant: Avant Law

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

Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

MASTER SANDERSON: This was the defendant's application for summary judgment; in the alternative the defendant sought an order that the matter be remitted to the District Court. The defendant's application was supported by an affidavit of Morag Donaldson Smith affirmed 19 January 2017. The plaintiff relied on her affidavit sworn 3 March 2017. The defendant accepted that for the purposes of this application it bore the onus of establishing there was no serious question to be tried. Furthermore, it was accepted the material facts as pleaded by the plaintiff should be assumed to be correct.
The plaintiff is self‑represented. She drew the statement of claim. It is not an altogether easy document to read. However it is necessary to attempt to tease out the material facts and to see whether, accepting these material facts may be proved at trial, the plaintiff has a case which should be allowed to proceed.
The defendant is a psychiatrist. The plaintiff consulted the defendant on or about 18 June 2007. The plaintiff pleads a contract arose between her and the defendant thereafter. That is undoubtedly the case. She further pleads that there was a condition in the contract that 'confidentiality' would be maintained at all times. A lawyer would doubtless frame this term of the contract in a slightly different way but for present purposes it can be accepted that a condition of confidentiality was an implied if not an express term of the contract.
It is pleaded by the plaintiff she has certain qualifications in the area of chemistry and laboratory techniques that qualified her to work as a laboratory manager. That was the position she held when she first consulted the defendant. In 2009 she was the managing director of a company known as Independent Assay Laboratories. She was also one of five directors of that company. Her brother and her father were also directors of the company and there were two independent directors. It would seem that each of the directors or entities associated with them were shareholders of the company. The plaintiff pleads that she passed on to the defendant detailed information about her work situation. Presumably this included details as to her management of Independent Assay Laboratories.
The plaintiff alleges that on at least three occasions - December 2009, January 2010 and February 2010 - the defendant passed on confidential information to the plaintiff's parents without the plaintiff's knowledge or consent. The plaintiff says she became aware this information had been divulged in early February 2010 and specifically prohibited the defendant from divulging any further information to her parents.
By par 18 of the statement of claim the plaintiff pleads the defendant 'negligently misdiagnosed the Plaintiff with delusions and schizophrenia'. The plea itself is a little difficult to understand because it is said this diagnosis was made 'as a direct result of the unauthorised communications with the Plaintiff's parents'. For present purposes I think the better view is to say the plaintiff has alleged professional negligence against the defendant.
The plaintiff pleads that as a result of the confidential information being relayed by the defendant to her parents she was put on indefinite leave from the company and on 8 October 2010 her employment was terminated. As a consequence she says she has suffered loss and damage.
In his submissions counsel for the defendant suggests the plaintiff's claim is a hybrid - that is to say it is a claim for breach of contract and a personal injury claim. In her written submissions the plaintiff maintains her action is not a personal injury claim. Rather she says it is a claim for breach of contract, a claim for breach of equitable duty of confidence and negligence resulting in economic loss. I will have more to say about the plaintiff's submission that she brings an action in equity later in these reasons.
An essential element in a claim for negligence is damage. As the defendant correctly points out it is unclear from the pleading whether the plaintiff suffered damage when she was put on indefinite leave in March 2010 or whether she suffered damage when her employment was terminated on 8 October 2010. Either way the three year limitation period in an action for damages relating to personal injury expired well before the issue of the writ.
So far as any action for breach of contract is concerned the action accrues when the breach of contract occurs. On the plaintiff's pleaded case the breaches of contract occurred in December 2009, January 2010 and February 2010. The affidavit of Ms Smith makes it plain the plaintiff terminated the doctor/patient relationship with the defendant on 16 April 2010. Thus on the pleaded facts the limitation period of six years had expired when the writ was issued in September 2016.
That then leaves the question of the claim in equity. As the statement of claim stands at the moment it is difficult to see how an equitable claim arises. But bearing in mind the statement of claim was drawn by a self‑represented litigant and good pleading practice requires only a pleading of material facts not causes of action it might be possible to say there was a fiduciary relationship between the plaintiff and the defendant and one aspect of that fiduciary relationship was that the defendant would not make unauthorised disclosure of confidential information. But even assuming that to be the case the breach of equitable duty must have occurred at the latest in February 2010.
The Limitation Act 2005 (WA) does not by its terms apply to equitable causes of action. But equity has always applied to limitation periods when a cause of action in equity closely mirrors a cause of action at law. Here any equitable cause of action is identical to a claim for breach of contract by releasing confidential information. Accordingly the defendant has a complete answer to any claim in equity made by the plaintiff.
The principles in relation to summary judgment were not in dispute. it is enough if I say that judgment will run only in the clearest of cases and where there is a high degree of certainty that the plaintiff's claim is unsustainable. Further, what was said by the High Court in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question (533).
This is one of those clear cases. Taken at its best the plaintiff's application cannot succeed. There should be judgment for the defendant. I will hear the parties as to the precise form of orders and as to costs.