Bush Goldman (by his Next Friend New South Wales Trustee and Guardian) v Ribshire Pty Ltd t/as GOODLINE - [2023] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BUSH GOLDMAN (by his Next Friend NEW SOUTH WALES TRUSTEE AND GUARDIAN) -v- RIBSHIRE PTY LTD t/as GOODLINE [2023] WADC 68
CORAM:   BOWDEN DCJ
HEARD:   15 JUNE 2023
DELIVERED          :   23 JUNE 2023
FILE NO/S:   CIV 1127 of 2019
BETWEEN:   BUSH GOLDMAN (by his Next Friend NEW SOUTH WALES TRUSTEE AND GUARDIAN)
Plaintiff
AND
RIBSHIRE PTY LTD t/as GOODLINE
Defendant

Catchwords:

Practice and procedure - Defendant's appeal from deputy registrar's decision to grant leave to the plaintiff to file a reply in relation to pars 8 - 17 of their minute, and plaintiff's appeal from the decision of the deputy registrar refusing leave to the plaintiff to file a reply in the form of pars 1- 6 of the minute

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Defendant's appeal dismissed
Time within which plaintiff has to appeal extended
Plaintiff's appeal allowed

Representation:

Counsel:

Plaintiff	:	Mr B L Nugawela
Defendant	:	Mr G R Hancy

Solicitors:

Plaintiff	:	Soul Legal
Defendant	:	Moray & Agnew Lawyers

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

A v City of Swan [No 5] [2010] WASC 204
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Commonwealth Bank of Australia v Cheng [No 2] [2021] WASC 291
Dare v Pulham (1982) 148 CLR 658
Emmerton v University of Sydney (1970) 2 NSWR 633
Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263
Palmer v Citic Ltd [No 7] [2023] WASC 202
Trac v Fero Reinforcing Pty Ltd [2019] WADC 115
Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1

BOWDEN DCJ:

The defendant's appeal and the plaintiff's application for an extension of time within which to appeal

On 7 December 2022 the deputy registrar ordered that the plaintiff have leave to file as its reply pars 8 - 17 of the Fourth Minute of Proposed Reply to Defence dated 21 November 2022 (Fourth Minute). The deputy registrar refused the plaintiff leave to file as part of its reply to pars 1 - 7 of the Fourth Minute.
The defendant appeals that order in respect of pars 8 - 17 of the Fourth Minute.
The plaintiff seeks an extension of time within which to appeal that order in respect of pars 1 - 6 of the Fourth Minute. It is accepted by the plaintiff that par 7 of the Fourth Minute is in improper form.
The appeal book relied upon by both parties is over 580 pages in length.

The plaintiff's application for an extension of time within which to appeal

The plaintiff says they did not need to file a notice of appeal because once the defendant had appealed the 'gate is opened' in relation to the reply in its entirety, as all matters the subject of the chamber summons for leave to file the reply the subject of the Fourth Minute are to be heard de novo.
Alternatively, the plaintiff said that if they did need to file a notice of appeal, being approximately six months out of time, they apply for an extension of time within which to appeal.
Mr Hancy for the defendant very practically did not oppose the extension of time. Mr Hancy accepted that the defendant was not prejudiced because they had foreshadowed that the reply in its entirety would be the subject of the plaintiff's submissions and had addressed those submissions in their written submissions and did not oppose the extension of time because, in essence, the defendant wanted a decision to be made on the reply in its entirety.
Accordingly, I grant leave to the plaintiff to extend the time within which to appeal until 15 June 2023 and treat the oral application and submissions made by Mr Nugawela as in effect the notice of appeal and grounds of appeal.

The law

The District Court Rules 2005 (WA) permit an appeal from a decision of a deputy registrar to a judge. The appeal is by way of a new hearing of the matter that was before the registrar and the matter is reviewed de novo and determined by the judge on the materials before the judge at the time the appeal is heard. The judge is not confined to the material and submissions presented to the deputy registrar.

The rather protracted history of this matter

The writ of summons was issued on 27 March 2019 and claims damages arising out of injuries sustained by the plaintiff in the course of his employment with the defendant on or about 28 December 2010 as a result of the defendant's negligence and/or breach of statutory duty.
The statement of claim of 19 December 2019 alleges an injury from heat stroke sustained on 28 December 2010.
By its defence of 24 January 2020, the defendant denied the plaintiff sustained any injury and raised a limitation period defence.
The plaintiff filed a reply dated 9 June 2020 and that reply was struck out by the deputy registrar on 9 September 2020 on the basis that the reply did not plead the nature of the mental disorder or the period of mental incapacity relied upon to defeat the defendant's statute of limitations defence and the case had nothing to do with approbation. The deputy registrar however granted leave to file a further reply, to be supported by a minute of the proposed reply.
Subsequently on the 10 December 2020 in relation to another application, the deputy registrar ordered that the action be stayed on the basis that the application had been made by the plaintiff's lawyers without instructions, as in effect it was alleged the plaintiff was a person under disability yet proceedings had been commenced without a next friend.
On 23 March 2022 her Honour Judge Russell declared the plaintiff a person under disability pursuant to O 70 r 1(c) of the Rules of the Supreme Court 1971 (WA) (RSC) and appointed the New South Wales Trustee and Guardian as his next friend and lifted the stay of proceedings.
On 13 June 2022 the plaintiff filed and served a chamber summons for leave to file an amended reply in terms of a minute of proposed amended reply of 20 July 2022.
On 4 August 2022, the deputy registrar refused leave to file that reply and adjourned proceedings to 19 October 2022 and ordered that the plaintiff file a minute of proposed reply within 21 days.
On 19 October 2022 the deputy registrar refused to allow a reply in terms of the minute filed on 17 October 2022 and adjourned the application to 7 December 2022.
On 7 December 2022 the plaintiff was given leave to file a reply in the form of pars 8 - 17 of the Fourth Minute and leave was refused to file a reply in terms of pars 1 - 7 of the Fourth Minute.

The purpose of a reply

The purpose of a reply is to meet the requirements of O 20 r 9 of the RSC by raising, in answer to the defence, new facts which were not necessary ingredients of any cause of action pleaded in the statement of claim, but which are necessary to meet some issue raised by the defence, to raise any matters which must be specifically pleaded which makes the defence not maintainable or which might otherwise take the defendant by surprise or raise issues of fact not arising out of the defence.
New claims or causes of action should not be introduced in a reply and a reply should not contradict or be inconsistent with the plaintiff's claim. It is not necessary for a reply to augment any existing cause of action.

New facts may be set up in a reply, where they are raised solely to meet a particular defence, however it is not incumbent upon an applicant to anticipate a defence which may never be made.
There must be a rational connection between the reply and the defences to which they respond.
Leave is not required to file a reply. However, in the circumstances of this case where the original reply was struck out, the court required leave to file a further reply supported by a minute to be filed with the application.

Modern case management principles

The principles to be applied in relation to leave being granted to file a reply are in my opinion the same principles that would apply on a strike out application.
Those principles were recently considered in Palmer v Citic Ltd [No 7] [2023] WASC 202 and can be stated, inter alia, as follows:
1.The applications must be assessed in the context of case management techniques.
2.Case management considerations are not, necessarily antithetical to the observance of pleading rules.
3.The objects of O 1 r 4A and r 4B RSC are promoted by a clear and precise statement of the issues for decision. O 1 r 4A RSC expressly provides that:
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
4.Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment: Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82.
5.The mere fact that a case appears weak is not of itself sufficient to refuse leave to file a reply. As a general rule, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found.
6.Leave would not be granted to file a reply if the reply would prejudice, embarrass or delay the fair trial of the action because it is vague, evasive, conceals or obscures the real questions in controversy; is ambiguous or not reasonably intelligible; raises immaterial, false or irrelevant issues; fails to confine the issues or fails to state the party's case with reasonable particularity, or is pleaded at too great a level of generality so as to leave the other party in doubt as to how to respond to the pleading.
The question of whether a pleading is so defective that it should be struck out is generally to be answered by whether or not the pleading serves the fundamental objective of pleadings and whether any significant deficiencies in it can adequately be overcome by the provision of particulars or by some other means. While it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleading is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of pleading.

The parties' submissions

The primary contention of the defendant is that O 20 r 8(1) of the RSC requires the reply to state the material facts upon which the party relies and, in general, the reply pleads conclusions and not material facts.
In relation to pars 2 - 6 of the Fourth Minute, Mr Hancy points out that it is 13 years since the incident whereby the plaintiff claims he was injured. The limitation period ran out at the end of 2013, more than five years before the writ was issued. To overcome the limitation defence raised by the defendant the plaintiff in effect is pleading in the reply s 35(1) of the Limitation Act 2005 (WA), that is, for a period adding up to five years and three months the plaintiff was a person who was 'unable to make reasonable judgements'. Accordingly, the plaintiff has to establish he has a 'mental disability' that falls within s 35(1) of the Limitation Act and prove and plead an absence of a guardian.
Mr Hancy points out that under s 3(1) of the Limitation Act a mental disability 'in relation to a person' is defined as:
… a disability suffered by the person (including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia), an effect of which is that the person is unable to make a reasonable judgement in respect of matters relating to the person or the person's property.
Mr Hancy says this means that the plaintiff must establish, firstly, that he suffered a disability; secondly, that he was unable to make reasonable judgements in respect of matters relating to the person or the person's property (unable to make reasonable judgement); and thirdly, that the inability is as a result of the disability (causation).
Whilst the plaintiff has not pleaded that he was without a guardian, the defendant accepts that in fact the plaintiff did not have a guardian whilst maintaining their position that the plaintiff was not a person with a mental disability who required a guardian.
Mr Hancy points to the fact that the plaintiff has been able to make reasonable judgements in respect of matters relating to his person or his property, by being able to instruct lawyers since 2011, and providing detailed statements of evidence, including instructing lawyers in relation to litigation without a next friend or guardian (affidavits of Ms Keays sworn 29 November 2022 and 25 August 2021). Mr Hancy refers to Ms Keays' affidavit sworn 29 November 2022 which says there is no evidence from a medical practitioner or a lawyer who acted for the plaintiff that he was unable to make reasonable judgements during this period and no objective CT or MRI scans or EEG showing any organic brain abnormality and says that the only evidence before the court as to the plaintiff's alleged acquired brain injury comes from psychologists.
In relation to this issue Ms Goldman's affidavit of 22 May 2023 and its annexures refer to the plaintiff suffering many seizures, some resulting in hospital admissions; a diagnosis of PTSD, depression and anxiety; an inability to function, and ongoing difficulties. Ms Hinchliffe's affidavits of 8 September 2020 and 1 October 2021 and Dr Gillies' psychologist reports, attached to the affidavit of Mr Wong of 25 May 2023, is some evidence of ongoing difficulties to the contrary of the position maintained by the defendant and Ms Keays in her affidavits. It is not for me to rule on the admissibility of the various affidavits or the weight to be attached to their contents. It cannot be fairly submitted by the defendant in my view that there are not ongoing difficulties of some nature confronting the plaintiff proximate to the alleged acquired brain injury. Issues of the cause and effect of these difficulties including intervening factors such as drug usage and the like, are all evidentiary matters for a trial judge to assess.
Mr Hancy says that an action commenced by a person under a disability contrary to RSC O 70 is irregular and liable to be set aside (A v City of Swan [No 5] [2010] WASC 204) pointing out that if the plaintiff was under a disability without a guardian that would affect the election he made to retain damages and if there was no valid election the court could not make any award of damages and the action could be struck out: Armet v CFC Consolidated Pty Ltd [2019] WASCA 165. Trac v Fero Reinforcing Pty Ltd [2019] WADC 115found that once an election has been registered pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) and Workers' Compensation and Injury Management Regulations 1982 (WA), a plaintiff is able to bring proceedings. It appears that the defendant has not sought judicial review of the plaintiff's election. These are, however, issues for the trial judge to determine.
Mr Hancy says the plaintiff has not pleaded any material facts of the alleged acquired brain injury and has merely mimicked the language of the statute and made conclusory statements. He says there is a need to identify the brain injury by type ie frontal lobe injury, brain stem injury etc.
Mr Hancy says that in par 3, the nature and time of the secondary mental injury has not been specified and whilst the statement of claim asserts a number of possibilities, the reply should specify the material facts relating to the disability; identify and articulate the particular condition (intellectual disability, psychiatric condition, acquired brain injury or dementia); identify and specify precisely what reasonable judgements in respect to the person or his property that he was not able to make (ie instruct lawyers, manage money etc), and specify how the disability is causative of that inability.
In relation to par 4, Mr Hancy says expressions like 'seriously impaired', 'cognitive functioning' and 'including' are vague and embarrassing and each material alleged inability should be specifically pleaded.
Mr Hancy says that within the reply there are inexplicable gaps in the periods when the plaintiff is alleged to have suffered from a mental disability and this reinforces the need for facts to show a causal connection between an identified physical or mental state or condition and the pleaded material inability.

Mr Hancy says the acquired brain injury or psychiatric condition is not identified by specifying the physical or mental state or condition ie frontal lobe injury, brain stem injury, chronic depression, PTSD etc, nor are any facts pleaded from which a conclusion may be reached of the inability to make reasonable judgements, and there are no pleaded facts establishing a causal link between an identified physical or mental state or condition and the pleaded material inability.

Mr Hancy says par 4(a) does not contain the facts or times of the alleged seizures, the nature and duration of the cognitive impairment, nor provide material facts supporting the conclusion of the inability to manage money or instruct lawyers, nor plead the material facts resulting from those matters which support the conclusion of the material inability pleaded or the causative link between the pleaded condition and the pleaded material inability.
In relation to par 4(b), Mr Hancy points out that there are no material facts relating to the nature and timing of 'neurocognitive and psychiatric sequala' and 'cognitive impairments' or material facts supporting the conclusion of an inability to manage money or instruct lawyers or establishing the causal link between the pleaded condition and the pleaded material inability. In relation to par 4(c) similar criticisms are made.
Mr Hancy stresses that the defendant is entitled to have sufficient information disclosed in the reply by way of material facts to enable them to understand the very nature of the case being set up to defeat the defendant's complete defence under the statute of limitation.
Mr Hancy recognises and accepts that the line has to be drawn somewhere and there is a limit to the extent of material particulars that need to be referred to in the reply. As always, it is a question of where you draw the line. Following Mr Hancy's submission to the nth degree then a reply would look like a 15 or 16-page medical report.
Mr Nugawela says that pars 2 and 3 of the proposed reply refer back to the statement of claim and when the reply and statement of claim are read together the plaintiff has pleaded sufficient material facts without pleading the evidence to establish those facts. Mr Nugawela says the proposed reply fairly apprises the defendant of the nature of the plaintiff's issue with the defence.
Mr Nugawela says there is ample evidence to justify the materials contained in the reply as a result of the additional affidavit of Ms Goldman of 22 May 2022. Mr Nugawela says the issues raised by the defendant are matters of evidence and mixed fact/law which are to be determined by the trial judge.
I reject Mr Nugawela's submission that in the context of modern case management as there is an obligation for ongoing discovery by the parties and the defendant has the medical reports, they can see for themselves what the experts are saying. It is no answer to a deficient reply to say that all the relevant facts are within the knowledge of the defendant. The defendant is entitled to have identified the specific terms of the reply and the case against their defence being made by the plaintiff: Dare v Pulham (1982) 148 CLR 658, 664; Emmerton v University of Sydney (1970) 2 NSWR 633, 635.

In relation to pars 8 - 17 of the Fourth Minute, Mr Hancy says they do not differ materially from the corresponding paragraphs of the first, second and third minutes which were struck out and says there was no appeal from those decisions and therefore including them in the reply is an abuse of process.
Mr Hancy says an application to amend a pleading in terms that were previously struck out is an abuse of process: Nationwide News Pty Ltd v Wiese(1990) 4 WAR 263. That was a case where the application to reamend a defence that had been previously struck out for not disclosing a reasonable defence was held to be an abuse of process.
In addition, Mr Hancy says that pars 8 - 17 of the Fourth Minute do not plead material facts or other assertions that answer any defence, raises immaterial or irrelevant issues and makes similar criticisms to those I referred to above.
In relation to the abuse of process point I agree with Mr Nugawela's submission. The Fourth Minute pars 8 - 17 may be similar to but is not the same as previous minutes for which leave was not granted.
Whilst these appeals are hearings de novo and I must decide on the evidence before me to deal with the abuse of process argument, it is necessary to examine the previous minutes of reply and the reasons why leave was not granted.
The 9 September 2020 decision by Deputy Registrar Hewitt to strike out the reply and not grant leave to file the minute of proposed reply of 16 July 2020 was because it lacked particularity.
The 4 August 2022 decision by Deputy Registrar Harman to refuse leave in respect of the minute then before him was based on the lack of particularity and the plaintiff was advised to do a 'better job'.
The 19 October 2022 decision by Deputy Registrar Harman to refuse the minute of reply dated 30 June 2022, and another minute dated 17 October 2022, was based on insufficiency of detail.
As seen in each application, although the presiding deputy registrar declined to grant leave to file the respective minute of proposed reply, leave was granted for a further minute to be filed. I can understand the deputy registrar's frustration with the plaintiff's pleading attempts and some may have thought it had reached a stage where the plaintiff had been given sufficient opportunities to perfect their pleadings and ought not to be given any further opportunities, but the deputy registrars permitted a minute of further reply to be filed. Each subsequent minute has provided more particulars so it cannot be said that each subsequent minute has been exactly the same as a previous minute, and I am not persuaded then the Fourth Minute pars 8 - 17 was an abuse of process, and reject Mr Hancy's submissions to the contrary.

Conclusion

The reply pleads matters that form an arguable basis upon which the defence might be undermined, and I would allow the plaintiff's appeal in relation to pars 1 - 6 of the Fourth Minute.
In relation to pars 8 - 17, the acts pleaded may be approbation or reprobation or have their foundation in the law of estoppel or waiver, but they are at least arguable in law, and I reject Mr Hancy's submissions to the contrary. The reply at pars 8 - 9 deals with the defendant's conduct, that being representation and maintaining a position (approbating); par 10 deals with factual reliance; pars 11, 13 and 15 - 16 with what the plaintiff did in reliance on the conduct; par 12 deals with allegations of fact in relation to the conduct of the plaintiff and the defendant's conduct in reprobation, and par 17 deals with estoppel and waiver.
In the Commonwealth Bank of Australia v Cheng [No 2] [2021] WASC 291, Justice Smith dealt with the doctrine of approbation and reprobation and observed that the principles seemed to be the following:
1.That the approbating party must have elected, that is, made his or her choice clearly and unequivocally by an approbating act or conduct.
2.Secondly, the party in question must have gained or taken some benefit from the approbation.
3.Thirdly, the reprobating act or conduct must be clearly insistent with the earlier approbating act or conduct.
The ultimate question is whether the reply pleads matters that are at least relevant or at least arguably relevant to answering the defence or include matters relevant to material facts in the statement of claim in the context of what is pleaded in the defence. In my view they do.
The reply does fulfil its basic function. It apprises the defendant of the issues that the plaintiff says make the defence not maintainable and raises the issues (approbation and reprobation) that might otherwise take the defendant by surprise. It may not comply meticulously with the rule of pleadings, but it does fulfil the basic function.
Accordingly, the defendant's appeal in relation to the deputy registrar's decision relating to permitting pars 8 - 17 of the Fourth Minute is dismissed and the plaintiff's appeal in relation to pars 1 - 6 of the Fourth Minute is allowed.
If the plaintiff seeks to lead evidence in support of their case which is outside the realms of the statement of claim and the reply, it will be for the trial judge to consider whether in the interests of justice such evidence unfairly amounts to a case to which the other party has had insufficient warning. It is for the trial judge to determine whether to permit the evidence (subject in some cases to amendment to either the statement of claim or the reply) or to hold the party to the issues of facts as limited by that reply: Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, 6 (Blackburn J).
Pleadings are necessary to set the parameters within which to conduct the trial but the experience of the court tends to show that no matter how many interlocutory applications are made or directions hearings and case conferences held, trials are still regularly adjourned on the basis of last minute amendments and pleading applications and even during the course of the trial, amendments to pleadings are made.
It is of course open to the defendant to obtain further and better particulars or to rejoinder with the reply. That is a matter entirely for the defendant. While pleadings, of course, are an essential element of a trial, at the end of the day the issues are determined on the evidence and not the pleadings and some cases are better progressed by being heard rather than delayed.

Orders

I make the following orders:
1.The defendant's appeal is dismissed.
2.The time within which the plaintiff has to lodge its appeal against the deputy registrar's decision of 7 December 2022 is extended until 15 June 2023.
3.The plaintiff's appeal is allowed and the order made by the deputy registrar on 7 December 2022 refusing the plaintiff leave to file as part of its reply pars 1 - 7 of the Fourth Minute of Proposed Reply to Defence dated 21 November 2022 is set aside.
4.The plaintiff has leave to file as part of its reply pars 1 - 6 of Fourth Minute of Proposed Reply to Defence dated 21 November 2022.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
23 JUNE 2023