Farrugia v BHP Billiton Petroleum Pty Ltd - [2025] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   FARRUGIA -v- BHP BILLITON PETROLEUM PTY LTD [2025] WADC 64
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   30 JULY & 21 AUGUST 2025
DELIVERED          :   24 SEPTEMBER 2025
FILE NO/S:   CIV 714 of 2016
BETWEEN:   DENNIS FARRUGIA
Plaintiff
AND
BHP BILLITON PETROLEUM PTY LTD
First Defendant
TECHNIPFMC Pty Ltd
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Application to strike out parts of a pleading - Turns on its fact

Legislation:

Occupiers' Liability Act 1985 (WA)
Petroleum Pipelines (Environment) Regulations 2012 (WA)
Petroleum Pipelines Act 1969 (WA)

Result:

Parts of the amended substituted statement of claim are struck out

Representation:

Counsel:

Plaintiff	:	Mr R Richter KC (only appeared on 21 August 2025) and Mr J N D'Angelo
First Defendant	:	Mr T C Russell SC
Second Defendant	:	Mr S D Hubbard (only appeared on 21 August 2025)

Solicitors:

Plaintiff	:	Portfolio Law
First Defendant	:	HWL Ebsworth
Second Defendant	:	DLA Piper

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

Nil

DEPUTY REGISTRAR HARMAN:

The claims that are put against each defendant are for breach of duty of care and breach of the Occupiers' Liability Act 1985 (WA).
Such claims are commonplace. The content of the amended substituted statement of claim does not suggest that the task of pleading would present any difficulty.
Contrary to what would be expected, the document is 52 pages in length.
A benchmark attributed to is that a statement of claim should be no more than two pages. By its written submissions the applicant has produced a fair illustration of what might be achieved by the plaintiff in one.
On an overview, the length of the document is due to presentation of information and submissions; to a narrative style; to lack of precision of expression; to incorporation of terminology and text from the Petroleum Pipelines Act 1969 (WA), the PetroleumPipelines (Environment) Regulations 2012 (WA); and irrelevant material.
By the amended substituted statement of claim the plaintiff refers to what he characterises as Occupational Safety and Health Regulations 1996 (WA). Such references are to the content of sch 1 of the Petroleum Pipelines Act. The clauses of that schedule relate to occupational safety and health.
The first defendant has applied to strike out some of the material from the document.
As by the time that it applied, time to do so had expired, the applicant requires a grant of leave. It approaches the task by applying to extend the time for bringing the substantive application.
Although the need for leave has been generated by the lapse of time, an exercise of discretion in favour of the applicant would be informed by the circumstances presented upon hearing the substantive application. To be specific, the content of the document, the evidence, the rules, practice and the submissions.
The rules did not emerge simply as a good idea, but rather in response to decades of contest. They establish a responsibility to plead straightforward allegations of material fact. In the case of a statement of claim; the allegations by which the plaintiff would engage the relief available for a particular cause of action. Regardless of whether its content might inform a defendant of features of the case put against it, service of a poorly pleaded claim burdens the task of responding.
In recent times by commentary it has been suggested that rather than applying to strike out content of a pleading, parties should proceed with litigation as it unfolds as best they can.
Because standards will not long endure unless the rules in which they are reflected are enforced, it is inevitable that the naivety of that approach will be increasingly exposed.
One ground upon which the first defendant relies for striking out particular paragraphs is that their content may prejudice, embarrass or delay the fair trial of the action.
Although courts have regarded the phrase 'prejudice, embarrass or delay' as a singular reason for intervention, the overview generates reason to focus on the meaning of the word 'embarrass' where it is used in the context of regulating the pleading process. It is to weigh down, impede, complicate or to encumber.
A claim under the Occupiers' Liability Act depends upon an allegation that at the material time the defendant was the occupier of premises upon which the plaintiff was present.
A claim founded upon a duty of care depends upon a connection between the plaintiff and the defendant sufficient to establish the duty for which the plaintiff contends. In this instance, it is that the plaintiff was working or present at premises for which the applicant had responsibility, controlled, managed or was an occupier.
An illustration of the lack of precision in putting allegations of material fact is that the plaintiff has complicated specification of the premises. Ultimately he provides scope for the reader to draw inferences.
He states that at the material time he worked at the onshore plant of the Macedon Gas Project. He defines that plant as his worksite. By par 5d. he states that the Macedon Gas Project is the pipeline that connects two facilities, one of which is an onshore gas treatment and compression plant. According to par 5d., that connection is a subsea pipeline. By par 3b. the plaintiff indicates that the Macedon Gas Project includes the onshore pipelines.
The onshore pipelines are not specified.
What the onshore plant of the subsea pipeline may be is unclear.
Throughout the document there are other references to pipelines by which the plaintiff would engage the Act and Regulations. The plaintiff does not allege that either the Act or the Regulations apply to either the Macedon Gas Project or to the worksite. He refers to a pipeline licence issued to the applicant, but he does not allege that it applies to either the Macedon Gas Project or the worksite. He does not allege that the worksite was within the licence area specified by the licence.
It is no more than open to the reader to infer that the worksite was the onshore gas treatment and compression plant; that the Act and Regulations apply to the worksite; and that the licence relates to the worksite. The same can be said for 'the premises' on the basis that it is substituted for 'the worksite' in this paragraph.
The claims put against the applicant emerge from the plaintiff's exposure to both dust and water. His exposure to water during the course of his employment either coincided with or followed upon it being drawn by him from ponds.
There is no allegation that the ponds were located at the premises, however the content of par 46, by which he states that at the Macedon Gas Project premises the reverse osmosis water was contained in two ponds, provides scope to infer that they were.
To the extent that dispersing water accounted for the plaintiff's relevant exposure, by par 56, he refers to 'plate of the premises', 'plate site of the premises' and 'construction plate of the premises'.
None of those terms are either defined or attributed any significance other than by reference to water that the plaintiff had been instructed to either disperse or not disperse for the purpose of dust suppression.
There is no allegation that the applicant had so instructed the plaintiff.
With reference to the terms 'construction plate' and 'construction plate of the premises', there is no clear allegation that at any material time, any part of whatever constitutes the premises had been in the process of construction.
Another illustration of the lack of precision in the content of the document is with reference to a pipeline or system of pipelines by which water was conveyed from bore MDW4. Incidentally neither the bore nor the pipeline or system of pipelines is located by the plaintiff on the premises.
According to the pipeline licence, the term 'pipeline' has the same meaning as that established by the Petroleum Pipelines Act. It is:
… a pipe or system of pipes used or intended to be used for the conveyance of petroleum; and includes all structures for protecting or supporting a pipeline and all loading terminals, works and buildings and all fittings, pumps, tanks, storage tanks, appurtenances and appliances and any facility, or any facility of a class, which is declared for the time being under section 5 to be a pipeline facility for the purpose of this Act used in connection with a pipeline …
By par 11, the plaintiff has drawn upon that meaning in putting the proposition that a pipeline that conveyed bore water falls within its ambit. In so doing he contends that the pipeline licence applied to 'all structures, loading terminals, works and buildings, and all fittings, pumps, tanks and storage tanks, appurtenances appliances, and pipelines, which formed part of the process to access underground water from bore MDW4 …'.
By par 11, the plaintiff has substituted the words 'and pipelines, which formed part of the process to access underground water from bore MDW4 …' for the words 'and any facility, or any facility of a class, which is declared for the time being under section 5 to be a pipeline facility for the purpose of this Act used in connection with a pipeline …', but without reference to the declaration by which that result was established.
Failure to refer to the relevant declaration presents an opportunity for the reader to draw an inference.
As by par 12 the plaintiff states that the licence 'also' applied to the pipes connecting the MWD4 [sic] bore to the reverse osmosis unit, it provides another opportunity to infer that by some declaration the connection between the MDW4 bore and the reverse osmosis unit is within the scope of the licence.
But for the meaning of the term 'the Macedon Gas Project' and the reference to a gas treatment and compression plant, there is no reason to consider that any pipe or system of pipes for conveyance of any substance was located at the premises.
The content of the document provides no reason to consider that any of the Petroleum Pipelines Act, the Petroleum Pipelines (Environment) Regulations, the provisions of sch 1 of the Act; or the pipeline licence that had issued to the applicant apply to whatever constitutes the premises.
To the extent that some measure of connection between the plaintiff and the applicant would be constructed upon or informed by provisions of the Petroleum Pipelines Act, the PetroleumPipelines (Environment) Regulations, the provisions of sch 1 of the Act and the pipeline licence that had issued to the applicant, there is no allegation that either the plaintiff or anyone else had been involved in a pipeline operation. There is also no allegation that the plaintiff had been at or near a place where a pipeline operation was being carried on. The terms 'pipeline operation' and 'at or near a place where a pipeline operation was being carried on' are significant for the purposes of the Act.
A further illustration of the lack of precision in the content of the document is insofar as the plaintiff's exposure to water is informed by the quality of the water that he drew, transported and dispersed. Rather than simply state that the water in pond 1 was potable and the water in pond 2 was not, the pleader has embarked upon a process that results in a lack of clarity as to whether water stored in pond 2 had engaged with the reverse osmosis unit.
According to par 44, it was by the reverse osmosis unit that potable water was produced from non‑potable water. According to par 46a., 'the reverse osmosis water' was contained in both ponds 1 and 2. The term 'reverse osmosis water' is introduced without any attributed meaning, but it suggests that prior to it being contained in each pond, it had somehow encountered the reverse osmosis unit. The content of par 46a. does not countenance the distinction that pond 1 contained 'the potable water' and pond 2, 'the non-potable water' made by par 47.
The submission of the plaintiff at the hearing was that in the process of producing potable water, the reverse osmosis unit also produced waste. Hence the term 'reject water'. It had been introduced into the document without any meaning being attributed to it.
The explanation provided at the hearing cannot comfortably be transposed to the document absent some amendment.
It is by undergoing reverse osmosis that the plaintiff contends that water was rendered usable. The only relevant uses that emerge from the content of the document that relate to the plaintiff are those suggested by reference to a shower facility and the plaintiff's dust suppression activities in the course of his employment.
As the plaintiff used non‑potable water from pond 2 for the purposes of dust suppression, it is unclear how that use would be reconciled with the contention at par 43 that the water from the Birdrong Aquifer could not be used until it underwent the process of reverse osmosis.
By par 48, the plaintiff introduces the terms 'high levels', 'waste product' and 'heavy metals' to qualify the non‑potable water, however no meaning is attributed to them.
By par 49, in introducing information relating to the 'purportedly potable water' the plaintiff draws upon unspecified times that the analysis outlined was undertaken.
The plaintiff does not specify the 'various substances' and the 'heavy metals' present in samples the subject of analysis.
The term 'purportedly potable water' is introduced without any meaning being attributed to it.
By par 74, the plaintiff refers to samples of potable water taken from the MDW4 bore. By par 44, the plaintiff submits that potable water was produced from non‑potable water by the reverse osmosis unit.
The content of par 74 is difficult to reconcile with the context established by par 44.
By par 77, the plaintiff introduces a standard that is attributed to unspecified heavy metals, toxic elements and/or unspecified additional elements. It is 'above the range considered safe'.
That term is out of place in any pleading.
The anchor for introduction of all the material in the document that relates to water is '[a]t the time of construction of the Macedon Gas Project'. The imprecision of expression of both the time of construction of the Macedon Gas Project and the material time permits scope for there being some overlap. The plaintiff has not asserted that at any material time either the subsea gas pipeline or the onshore pipeline had been under construction.
At a point after introducing pipes by which water was conveyed, the plaintiff asserts that the Petroleum Pipelines (Environment) Regulations apply to the construction of 'the pipeline'. He does not specify the pipeline to which he refers.
If the case of breach of duty of care is pursued on the basis that water stored in ponds designated 1 and 2 had been conveyed to and discharged into those ponds by pipe, the plaintiff does not so allege. He leaves it to the reader to draw an inference.
That the reader would do so is the slender thread by which pages of the document that relate to pipes and pipelines; the Act and Regulations; and the pipeline licence depend.
The length of the document and the complexity that it presents generates the question whether it would be appropriate to draw any inference in favour of the plaintiff.
The crisp point is that upon service of a statement of claim, the task established for the reader ought to be straightforward. The expectation that a plaintiff will observe the rules and clearly allege material facts should obviate the need for a reader to draw any inference. A defendant should not be set a task of interpretation.
By pars 60 ‑ 73, the plaintiff presents a narrative informed by snapshots from his life during the period from 1 March 2013 to 15 November 2021. The material is interspersed with information that clearly has been drawn from material either provided by medical practitioners or providers of various forms of attention.
It is inappropriate to present information in the pleading process other than by unequivocal and succinct allegations of material fact. In the case of the content of pars 60 ‑ 73, what does not fit that description amounts to an outline of proposed evidence whether of the plaintiff or his proposed witnesses. Whilst it may inform, presentation of information in that form complicates the process of responding.
One illustration of the presentation of irrelevant material is that the other parts of par 5 are a string of statements that have no significance for the purposes of either claim. The second is the content of par 19 by which the plaintiff locates seven structures within the licence area of the petroleum pipeline licence issued to the applicant. The third is by the page of text devoted to the quotation of parts of the Macedon Gas Project Environmental Protection Statement. The fourth is the page of text that introduces and then analyses features of water licences issued to the applicant. It is remarkable that the pleader has gone to the trouble of pointing out that in the period prior to 5 September 2013, the licences granted to the applicant had not authorised it to take water from the Birdrong Aquifer for the purpose of dust suppression. The fifth is the reference to a Safety Case presented to an unspecified minister.
On a limited consideration of the content of the document to that point, there is reason to consider that the first 77 paragraphs that occupy the first 21 pages contain so many examples of imprecision of expression; text that qualifies or obscures the information and submissions presented; and irrelevant material, that the merciful result for each party and the court would be that pars 1 ‑ 77 be struck out as they may prejudice embarrass or delay the fair trial of the action.
That is not to suggest that the document undergo a transformation after that point. The reason to conclude the process of considering the utility of the material as a pleading at that point is that there is no need to continue. What has been canvassed relates to roughly half of the number of paragraphs and roughly 40% of the pages. The observations that have been made in relation to their content are no more than that. There is reason to consider that similar observations are open on the balance of the material.
Of the part of the document so far considered, the applicant seeks only to strike out pars 14, 20, 23, 26, 29, 43, 48, 57, and 59 on the ground that their content may prejudice, embarrass or delay the fair trial of the action and par 59 on the additional ground that it discloses no cause of action. It applies on each of those grounds in relation to pars 99, 100, 105, 106, 107, 110, 115, 116 and 118.
Paragraph 14 is as follows:
The pipes connecting the MDW4 bore to the [reverse osmosis] unit and pipes emanating from the [reverse osmosis] unit, were pipes used for and in connection with the earthwork and construction purposes and accordingly 'are pipelines connected for purposes associated with the pipeline activity', pursuant to the [Petroleum Pipelines] Act.
Part of the applicant's written submission is as follows:
What is meant by 'pipelines connected for purposes associated with the pipeline activity, pursuant to the PP [Petroleum Pipelines] Act' is not clear from either the paragraph, the remainder of the ASSOC [Amended Substituted Statement of Claim], or the PP [Petroleum Pipelines] Act itself. Neither:
(a)the phrase 'pipelines connected for purposes associated with the pipeline activity' (nor anything analogous to that phrase); nor
(b)the phrase 'pipeline activity'; nor
(c)the word 'associated',
appear anywhere in the [Petroleum Pipelines] Act.
By his written submissions the plaintiff neither addresses that submission nor assists with the process of understanding the meaning of par 14. At no point in his oral submissions was anything advanced that detracts from the applicant's submission.

Neither by par 14 nor otherwise does the plaintiff specify either the meaning of the term 'the earthwork and construction purposes' or to what it refers.
The content of par 14 is put as a submission, not an allegation of material fact.
The reason to strike out par 14 is that its content may prejudice, embarrass or delay the fair trial of the action.
Paragraph 20 is as follows:
The PPER [Petroleum Pipeline (Environment) Regulations] also applied to the construction of the pipeline, because the PPER [Petroleum Pipeline (Environment) Regulations] required (amongst other things), the First Defendant to submit an environmental plan ('The Environmental Plan') to the Environmental Protection Authority …which identified any environmental risks associated with the pipeline activity.
The content of par 20 does not identify the pipeline to which it relates. It is remarkable that the Regulations took effect on 29 August 2012, part way through the period that the plaintiff asserts his presence at whatever constitutes the premises.
Neither by the content of par 20 nor by the content of the balance of the document is there a clear allegation that at any time any pipeline had been under construction. The work undertaken by the plaintiff in the course of his employment suggests that any pipeline that conveyed water that ultimately was used for the purpose of dust suppression had been operational.
As the applicant contends in its written submissions, the obligation to submit an environmental plan arises only if the Regulations so require.
The content of par 20 puts a submission, not an allegation of material fact.
The reason to strike out par 20 is that it may prejudice, embarrass or delay the fair trial of the action.
By par 23 the plaintiff states the first defendant was:
... bound by the conditions in the Environmental Plan, to monitor all emission and discharges from the pipeline activity, to identify and minimise possible risks of toxicity to flora/fauna and the surrounding environment including, the people who lived and worked within the worksite at the premises.
The plaintiff does not specify the pipeline to which the term 'the pipeline activity' relates.
The applicant has introduced into evidence the environmental plan approved by the Minister and in reliance upon its content, contends that it was not required to comply as the plaintiff specifies.
Although the affidavit to which the plan was attached was filed within sufficient time of the first date of hearing for the plaintiff to determine whether it was the document upon which he relies, his initial response was that the applicant's case is not thereby advanced. Implicitly it is only a document that he would produce that would be determinative.
It transpired that on the second day of hearing the plaintiff had satisfied himself in relation to a plan that has been provided by the applicant.
The plaintiff then maintained the proposition advanced by par 23.
The conditions to which par 23 refers were not identified in the course of submissions.
The reason to strike out par 23 is that it presents an unfounded submission that relates to matters that are irrelevant. It serves no purpose other than that it may prejudice, embarrass or delay the fair trial of the action.
By par 26 the plaintiff states as follows:
… pursuant to Regulation 33(1) of the PPER [Petroleum Pipelines (Environment) Regulations], the first defendant was bound to conduct regular monitoring of the water quality emanating from the RO [reverse osmosis] unit, as both the potable and reject water was sprayed by the Plaintiff for the purposes of dust suppression throughout the surrounding environment, namely, both inside and outside the plate of the Macedon Gas Project at the premises.
Regulation 33(1) is not to the effect contended by the plaintiff. It prescribes a reporting period.
Although the applicant considered that by par 26 the plaintiff may have intended to draw upon a different Regulation, by par 26 the plaintiff impermissibly puts a submission, not an allegation of material fact.
The reason to strike out par 26 is that its content may prejudice, embarrass or delay the fair trial of the action.
Paragraph 29 is as follows:
a.[the plaintiff] was 'a person engaged in a pipeline operation' (within the meaning of s56B (1) & (2) of the [Petroleum Pipelines] Act); and
b.further or alternatively, he [the plaintiff] was a 'protected person' (within the meaning of the s56B (1) & (2) PP [Petroleum Pipelines] Act).
By the provisions cited, Regulations may be made for either the occupational safety and health of a person engaged in a pipeline operation or the safety and health of another protected person. The meaning of the latter term is given by s 4 as a person who is at or near a place where a pipeline operation is being carried on at the invitation of or with express or implied consent of the licensee.
By its submissions the applicant characterises the parts of par 29 as bare allegations.
By his submissions the plaintiff responded by drawing upon the content of par 50. It is as follows:
At all material times during the period from in or about June 2012 to in or about April 2013, the plaintiff was, inter alia, directed or required by … [his employer] to cart water at the Macedon Gas Project. In this regard, the plaintiff's duties … involved driving a truck … which carried approximately 14,000 litres of water at a time, and disbursing the water … in certain areas in and around the site for the purposes for dust suppression …
Paragraph 50 does not establish the plaintiff within either part of par 29.
Establishing the plaintiff in the classes of persons within the scope of an exercise or potential exercise of regulatory power is to no useful end. The only issues that could be presented by the provisions are whether regulatory power has been exercised and if so, the result.
Where a plaintiff claims some entitlement under a Regulation, the claimant only needs to plead the grounds upon which the entitlement is generated, not that a regulatory authority had been empowered to so regulate. That is an issue is for a defendant to raise. For the plaintiff to so allege is anticipatory.
Otherwise, for the purposes of each part of par 29, there is no allegation that any material time either the plaintiff or anyone else had been undertaking a pipeline operation. For the purposes of par 29b., the plaintiff is not located at or near a place where any pipeline operation was being undertaken.
The reason that each part of par 29 ought to be struck out is that it serves no purpose other than that it may prejudice, embarrass or delay the fair trial of the action.
Paragraph 43 is as follows:
… due to the presence of various contaminants including, minerals and heavy metals in Birdrong Aquifer, the water could not be used until it underwent the process of reverse osmosis … (i.e. through the [reverse osmosis] unit).
The applicant takes issue with the lack of specificity presented by the phrase 'various contaminants including minerals and heavy metals in the Birdrong Aquifer' and that the water could not be used until it underwent the process of reverse osmosis. It also refers to the complexity generated by other references to water in the pleading.
Other terms related to water used in the document are 'reverse osmosis water', 'reject water' and 'purportedly potable water'; terms for which no meaning is given, along with potable water and non‑potable water.
By par 43, the plaintiff puts a submission.
The reason to strike out par 43 is that its content may prejudice, embarrass or delay the fair trial of the action.
Paragraph 48 is as follows:
The non‑potable water contained high levels of concentrated waste product (including, heavy metals).
There is nothing in the document that provides the meaning of the terms 'high levels' and 'concentrated waste product'. By his submissions the plaintiff refers to par 49b, but by that paragraph the plaintiff refers to the unspecified term 'purportedly potable water'.
The reason to strike out par 48 is that its content may prejudice, embarrass or delay the fair trial of the action.
By par 57 the plaintiff states:
… that during his time at the Macedon Gas Project he was never informed or advised as to the health hazards and dangers which the First Defendant and/or the Second Defendant knew or ought to have known of, in relation to using the potable water from pond 1 and/or the non‑potable water from pond 2.
The plaintiff does not specify any of the health hazards and dangers; either those known to the applicant or those which it ought to have known.
The reason to strike out the content of par 57 is that it may prejudice, embarrass or delay the fair trial of the action.
By par 59 the plaintiff states:
At all material times (i.e. during the period from in or about June 2012 to in or about April 2013), whilst at the Macedon Gas Project worksite at the premises, …:
a.as part of the dust suppression, he was continuously and regularly exposed to the non‑potable water from pond 2 and/or the potable water from pond 1 and would thereby inadvertently get splashed with the water that was intended for use for wetting down ground cover, and regularly being soaked right through into his clothing to his skin;
b.he would often get water in his mouth/nose and breathe in water from the spray mist;
c.he was splashed with the water when using the compressor pump to fill the truck;
d.the water cartage trucks used to disperse water for dust suppression never totally emptied resulting in cross‑contaminated water, that is, a combination of potable and non‑potable water being dispersed within the plate of the premises and coming into contact with the Plaintiff and other people present at the premises;
e.due to the extreme heat (which often exceeded 40 degrees Celsius), the water sprayed onto the hot ground would evaporate forming a cloud of steam and vapour which he would inhale;
f.as part of the dust suppression, he was continuously exposed to dust and airborne dust on a daily basis, which was present at the worksite premises, and was also exposed to other elements including, air, soil, and crystalline silica;
g.he was continuously subjected to dust inhalation from the dust rising from the roads and paths, the wind blowing, the water cartage trucks (and other vehicles) and/or other workers (present at the premises);
h.approximately 4 of the 5 vehicles …including, the water cartage trucks, which he drove in the course of his dust suppression duties, had no functioning air conditioning, which forced the Plaintiff to drive the water cartage truck and 3 of the other vehicles with the windows down (due to the extreme heat), and as a consequence, dust was always entering the cabin of the water cartage trucks and the 3 other vehicles;
i.maintenance of the water cartage trucks was not conducted on a regular basis and windows and access points to the cabins of the water cartage trucks were not well sealed to prevent dust ingress. Furthermore, there was no internal dust extraction system in the water cartage trucks the windows and access points to the cabins of 4 of the vehicles (including, the water cartage truck) were not adequately sealed to prevent dust ingress. Furthermore, the cabins of 4 of the vehicles (including, the water cartage truck) had no internal dust extraction systems. However, the fifth vehicle (which was a new semi‑trailer), had a working air conditioning system but did not have an internal dust extraction system; and
j.dust was also present in the accommodation village (including, the laundry area, wet mess bar area and dining area). Despite regular cleaning there was always dust throughout the interior of his accommodation hut (donga), and the base of the shower was always covered in a red dust film (which emanated from the dust he washed off his body);
(collectively referred to as the 'exposure').
The focus of the following paragraphs is upon the extent of the contended exposure as it would be likely to be of significance for the purpose of informing expert opinion.
With reference to par 59a., by use of both the words 'continuously' and 'regularly' to outline the plaintiff's exposure to water, that part of the contention is rendered unclear. In a context where the plaintiff specifies that he was soaked to his skin, it is not clear what the plaintiff means by 'exposed', how such exposure relates to inadvertently getting splashed and the extent of splashing. In any event, by the point at which the plaintiff asserts actual contact, the contention is rendered as a submission.
With reference to par 59b., there is no allegation that would account for the term 'the spray mist' and it is not clear whether the spray mist would account for the plaintiff getting water in his mouth/nose. Where over a period of approximately one year, the plaintiff was often getting water in his mouth/nose and breathing in water from the spray mist, the contention 'often' is rendered vague.
With reference to par 59c., the regularity of the events when the plaintiff was splashed when using the pump is even less certain than the extent of exposure accounted for by par 59b.
With reference to par 59d., the fact that water dispersed within the plate of the premises came into contact with the plaintiff may amount to either the exposure or the splashing referred to at par 59a. In the case of par 59d., the plaintiff does not express the regularity with which he came into contact with the water in the manner that he describes. By par 59, the plaintiff puts submissions.
To the extent that by par 59d., the plaintiff suggests that the water cartage trucks were unfit for purpose, there is no allegation relating to their provision to the plaintiff.
By par 59d., and at other points in the document the plaintiff refers to persons other than himself who were exposed to the plaintiff's activities and to other emissions and discharges. Because each such reference is irrelevant, it has no place within the document.
With reference to par 59e., because it contains the only reference to clouds of steam and vapour and par 59e. provides no indication of the extent of the plaintiff's exposure to those clouds, there is nothing other than the reference to the measure of heat to indicate the frequency of such exposure. By par 59 the plaintiff puts a submission.
With reference to par 59f., the plaintiff's exposure to dust is expressed to be both 'continuous' and 'daily'. Any conclusion is rendered unclear. The exposure to air, soil and crystalline silica is unexplained by the balance of the document.
With reference to par 59g., the statement that the plaintiff was subjected to dust inhalation is imprecise. That the plaintiff contends that his subjection to dust inhalation was continuous is objectively at odds with the stated mechanisms by which he was exposed.
With reference to par 59h., a similar observation is made in relation to the contention that dust was always entering the trucks and the three other vehicles.
To the extent that dust entered any of the vehicles due to their condition, there is no allegation relating to the provision of the vehicles to the plaintiff.
With reference to par 59i., the plaintiff refers to deficiencies in vehicles with reference to dust ingress and lack of a dust extraction system. There is no allegation relating to their provision to the plaintiff. As for the material that goes to maintenance of the vehicles, there is nothing to indicate that either the vehicles themselves or the lack of maintenance had been a vector for his exposure.
With reference to par 59j., the plaintiff refers to dust at the accommodation village and that it was always in his donga and in a film at the base of a shower.
The contention is introduced by reference to the plaintiff's worksite, not to the premises upon which the facilities were located.
Typically, such facilities are transportable. There is nothing to suggest that the applicant had any role to play in their provision to the plaintiff.
By par 59 the plaintiff outlines his exposure to dust, water and to both potable and non‑potable water, but only by reference to circumstances outlined in broad terms if at all and not to his exposure to any substance to which he was thereby exposed. He does so in circumstances where he contends an array of discrete injuries that he attributes to exposure. Because he attributes each injury to unspecified exposure, he actually makes no attribution. For that reason, he compromises the impact of par 72.
The reason to strike out the content of par 59 is that it may prejudice, embarrass or delay the fair trial of the action.
The proposition that par 59 discloses no reasonable cause of action was not pressed at the hearing.
By par 99, the plaintiff states:
… the first defendant as the operator/licensee of the Macedon Gas Project was negligent because it breached the [Petroleum Pipelines] Act.
By what the plaintiff presents as particulars of breach, he states at par 100 as follows:
The First Defendant breached the PP [Petroleum Pipelines] Act by failing to comply with Section 56A and Section 56B of the PP [Petroleum Pipelines] Act, relevantly, in relation to occupational safety and health including, without limitation:
a.by failing to provide for the safety and health of the Plaintiff engaged in the pipeline operation;
b.by failing to establish and maintain a system of management to secure the occupational safety and health of the Plaintiff engaged in the pipeline operation; and
c.the Plaintiff also repeats the allegations of negligence set out in par 96a. - h. (inclusive) of the [substituted statement of claim] mutatis mutandis, as further allegations of the First Defendants breach of the PP [Petroleum Pipelines] Act.
By s 56A Sch 1 is given effect. The schedule is designated occupational safety and health. It contains a number of clauses relevant to those considerations.
Objectively the plaintiff could not be in breach of s 56A.
Section 56B provides that Regulations may be made in relation to the occupational safety and health of a person engaged in a pipeline operation and in relation to the safety and health of 'any other protected person'.
As the plaintiff has not contended that the power to regulate had devolved to the applicant, it could not have failed to comply with s 56B.
Objectively par 100c. does not fit within the scope provided by par 100 as the specified statutory provisions are not engaged.
By par 100c. the plaintiff engages par 96. It is a compendious statement of the grounds for the proposition that the applicant was negligent. Although it runs to four pages of text, when internal references are considered, its length would increase.
The significant consideration in addressing the content of par 96 for the purposes of par 100c. is that it should be immediately apparent which provision of the Act had been breached by any contended breach of the contended duty of care. Because no such reference is made it is not possible to discern which statutory provision the plaintiff considered had been breached.
Accordingly, par 99 and each part of pars 100a. and 100 b. are struck out on each basis proposed by the applicant. Paragraph 100c. is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 105 the plaintiff states:
The Plaintiffs duties which involved (inter alia) the dispersion of the potable and non-potable water for the purposes of dust suppression at the premises are 'operations or works carried out in relation to a pipeline which may have an environmental impact.
The words in italics are one meaning given to the term 'pipeline activity', by the Petroleum Pipelines (Environment) Regulations.
The words 'environmental impact' are themselves established as a defined term in the same Regulations as:
Any change to the environment, whether adverse or beneficial, that wholly or partly results from a pipeline activity of an operator.

The water dispersed by the plaintiff had been drawn from ponds. There is no allegation that the ponds had been supplied by pipes.
The contention that pipes emanated from the reverse osmosis unit is sufficiently removed from the process of dispersal of the water, it is clear that the plaintiff's dispersal of water could not be characterised as a pipeline activity.
Otherwise, the plaintiff does not allege that the emissions and discharges from the reverse osmosis unit were made to the environment. Although the default of the applicant is expressed by reference to the reverse osmosis unit, it is clear from the whole of the content of the document. that it was the water that the plaintiff dispersed that was released into the environment.
Paragraph 105 is struck out on each of the grounds for which the applicant contends.
By par 106, the plaintiff states:
… the first defendant was negligent because it breached the relevant regulations of the [Petroleum Pipeline] (Environment) Regulations referred to in par 104a. - f. (inclusive) of the [substituted statement of claim] (sic).
By par 104a. - 104f. the plaintiff refers to regs 4, 5, 13, 15(7), 16 and 33.
Regulation 4 provides a series of definitions whilst reg 5 provides an expanded meaning of the term 'pipeline activity'.
Regulation 13 provides that an 'environment plan' for a 'pipeline activity' must include the matters set out in regs 14, 15, 16 and 17.
Regulations 15(7) and 16 detail the requirements of an 'implementation strategy' and the monitoring, recording and reporting arrangements that must be included in an 'environment plan'.
Regulation 33 relates to monitoring and reporting emissions and discharges.
The applicant could not be in breach of either reg 4 or reg 5. To the extent that par 106 draws on those provisions it is struck out on each ground.
As for each of the other parts of par 104, by par 107 the plaintiff provides particulars of the allegation of negligence put by par 106 as follows:
The First Defendant breached the [Petroleum Pipelines (Environment) Regulations], because it failed to comply with:
a.Regulation 33, relevantly, by failing to test, monitor and report on the potable and non‑potable water, being an 'emission or discharge', from the [reverse osmosis] unit. The potable and non-potable water that the Plaintiff was required to use for dust suppression was not monitored for safety or to determine the presence of heavy metals and/or other contaminants, that constituted a hazard or danger and thereby a risk of injury to the Plaintiff's health. The non-potable water was sprayed outside the plate with no regard to the consequences for the Plaintiff's safety. The spraying of the non‑potable water was contrary to the First Defendant's Environmental Plan;
b.Regulations 16 and 31, relevantly, by failing to store and maintain each document or record as provided in subregulation (2). The Plaintiff says that the First Defendant has failed to 'store and maintain records' of the [reverse osmosis] unit potable and non-potable water 36 monitoring and test results; and
c.further and better particulars may be provided, once discovery and inspection have taken place.
Despite the scope of the content of par 104, by par 107 the allegation of negligence by reference to the Regulations is limited to contentions that relate only to regs 16, 31 and 33.
As for the first sentence of par 107a., it is only by the terms of an environmental plan approved by the Minister that any obligation to test emissions or discharges is established.
The plaintiff does not contend that the relevant environmental plan had established any requirement to either test or monitor the potable and non-potable water.
The defendant submitted that the relevant environmental plan approved by the Minister did not so provide, accordingly the applicant could not be in breach. By his submissions the plaintiff did not contend otherwise.
As there is nothing to justify the breach contended by par 107a, it is appropriate that it be struck out on each ground sought by the applicant.
The balance of paragraph 107a. is not within the scope of reg 33. It is struck out on the basis that its content may prejudice, embarrass or delay the fair trial of the action.
As for the content of par 107b., of regs 16 and 31, it is only the latter that has a subregulation (2).
Regulation 16 provides:
The environment plan must include arrangements for-
(a)monitoring, and recording information about, the pipeline activity that are sufficient to enable the Minister to determine whether-
(i)the environmental performance objectives and environmental performance standards in the environment plan had been met; and
(ii)the implementation strategy in the environment plan has been complied with;
and
(b)reporting to the Minister on the information recorded under paragraph (a) at intervals agreed with the Minister, but not less often than annually.
It is relatively easy to come to the conclusion that no default of the applicant in the terms proposed by par 107b. is within the scope of reg 16.
As for the prospect that by par 107b., the plaintiff contends that the applicant was in breach of reg 31, it is evident that the focus of the plaintiff is on the correlation between subregulation (2) and a failure to store records of monitoring and test results made under reg 33; in particular, records that relate to emissions or discharges of the reverse osmosis unit.
At that point, analysis may run along the lines that if by the environment plan the applicant had not been required to test, monitor and report on the emissions or discharges of the reverse osmosis unit then there was no record to maintain or store for the purposes of complying with reg 31(2).
If the content of par 107b. permits some different analysis, there is reason to consider that failure to consider that prospect flows from the insufficiency of the content of par 107b.
The content of par 107b. ought to be struck out as it may prejudice, embarrass or delay the fair trial of the action.
The applicant pressed the proposition that regs 16 and 31 do not establish a private right of action.
Breach of reg 31 might be characterised as an offence as it specifies a penalty. There is nothing in the content of reg 31 that generates any momentum towards the conclusion that in addition to a penalty, breach of its provisions would establish a benefit in any class of persons.
Although breach of reg 16 attracts no penalty, the benefit it establishes is for the Minister. The regulation generates no momentum to the conclusion that any benefit had been conferred upon any class of persons.
To the extent that par 107b. draws upon either of reg 16 or 31, it is struck out as it discloses no reasonable cause of action.
By par 110, the plaintiff states:
The First Defendant was negligent in that it breached the [Petroleum Pipelines Occupational Safety and Health Regulations], because it failed to take all reasonably practicable steps to ensure that the pipeline operation (at the Macedon Gas Project at the premises) was carried out in a manner that was safe and without risk to the health of the Plaintiff (who was 'a person engaged in the pipeline operation' and/or 'other protected person'), in that it failed to adequately or at all:
…
As the content of par 110 suggests, it would be by reference to some specified pipeline operation that the provisions of sch 1 of the Act would be engaged. The plaintiff specifies no pipeline operation.
The reason to strike out par 110 is that it may prejudice, embarrass or delay the fair trial of the action.
The applicant did not press the contention that par 110 be struck on the additional ground.
At par 115, the plaintiff states:
Further or alternatively, the injuries were caused or contributed to, by the breach of s 5 of the [Occupiers Liability Act], by the First Defendant … (and… [its] agents, employees, contractors and/or sub‑contractors).
Paragraph 5(1) of the Occupiers' Liability Act is as follows:
Subject to (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible …
By his submissions the plaintiff refers to a duty to ensure contractor compliance with the provisions of sch 1 of the Act. He also refers to the content of pars 50, 59 and 2h.
By par 2h., the plaintiff identifies the relevant statutory duty. By par 50 he outlines his work duties and by par 59, the exposure. Paragraph 59 has been struck due to its various insufficiencies.
By par 50 the plaintiff does not advance a case 'in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible'.
By par 116, the plaintiff states particulars of breach of the Occupiers' Liability Act. The particulars express the allegations set out in paragraphs 96a. ‑ h., 100a. ‑ c., 107a ‑ c. and 110a. All but pars 96a. ‑ h. have been struck.
Paragraph 96 has earlier been considered in addressing par 100c in the context of the proposition that particulars of negligence would be established as particulars of breach of the Petroleum Pipelines Act.
For present purposes, consideration of the content of par 96 is no different. Any parts of par 96 by which the plaintiff would engage the statutory duty are not sufficiently articulated with reference to the statutory duty to discern their significance.
Each of pars 115 and 116 are struck out as their content may prejudice, embarrass or delay the fair trial of the action.
At par 118, the plaintiff states:
'[The plaintiff] has required treatment, as a result of the injuries that were caused by or contributed to, by the negligence and/or breach of statutory duties by the [applicant] … .
At par 119, the plaintiff states particulars of the medications and supplements to which he refers by the term 'treatment' at par 118. At par 119, the plaintiff specifies 15 medications and supplements but does not connect any of those medications or supplements with any condition that by par 118 he characterises as an injury.
The paragraphs are intended to be read together and also together with pars 72 and 73 by which his injuries are recorded. On that basis and for that reason it is not possible to correlate discrete injuries with medications and supplements.
It is open to consider that at some point each of the parties will seek expert opinion that draws upon the allegations made by the plaintiff as to the injuries and their treatment. Until the plaintiff correlates one to the other, it is likely both that the task could not either be possible or undertaken efficiently and that such an undertaking may be flawed by particular inferences drawn by a proposed witness.
It is appropriate that pars 118 and 119 be struck out as their content may prejudice embarrass or delay the fair trial of the action.
There would be a significant benefit to be realised in granting leave to apply as to do so will permit consideration of at least parts of the pleading prior to trial. The benefit for each of the parties and for the court are obvious. To refrain from engaging with the task established by the substantive application carries the real prospect that the issues presented would be canvassed at trial. That would be at least undesirable.
At each point on which the applicant has been successful, there is reason to exercise of discretion in favour of there being leave to bring that part of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
PD
Associate
23 SEPTEMBER 2025