Goodacre v Department of Child Protection

[2018] WADC 83

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GOODACRE -v- DEPARTMENT OF CHILD PROTECTION [2018] WADC 83

CORAM:   PRINCIPAL REGISTRAR MELVILLE

HEARD:   8 JUNE 2018

DELIVERED          :   23 JULY 2018

FILE NO/S:   CIVO 37 of 2018

BETWEEN:   CHARLES GOODACRE

Applicant

AND

DEPARTMENT OF CHILD PROTECTION

Respondent

Catchwords:

Strike-out application - Proceedings wrongly commenced by originating summons - Irregularity - Arguable cause of action in negligence - Calculation of limitation period - Extending limitation period in pending action

Legislation:

Children and Community Services Act 2004
Limitation Act 2005
Rules of the Supreme Court 1971, O 2, O 4, O 20, O 21

Result:

The originating summons stands as the writ of summons
The plaintiff do file a statement of claim

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms J E Rhodes

Solicitors:

Applicant	:	In Person
Respondent	:	State Solicitor's Office

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

Alinta 2000 Ltd v Petkov [2012] WASCA 258

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127

Donohue v Stevenson [1932] AC 562

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

Kimberley Downs v Western Australia (Unreported, WASC, Library No 6114, 25 August 1986)

Neil v Nott [1994] HCA 23

Norris v Gittos [2011] WASC 295

SEB Trygg Liv Holding AB v Manches [2006] 1 All ER 437

Tame v State of New South Wales [2002] HCA 35

Wardley Australia Ltd v Western Australia (Rothwells Loan Case) (1992) 175 CLR 514

Wentworth v Rogers (No 5) (1986) NSWLR 534

PRINCIPAL REGISTRAR MELVILLE:

Mr Goodacre, who is unrepresented, commenced proceedings against the respondent in the form of an originating summons supported by a document described as an affidavit but which does not comply with all the requirements of the Oaths, Affirmations and Statutory Declarations Act 2005.

It is not clear whether the documents, which at first sight might be thought to be annexures, form part of the body of the affidavit, in which case the document is not signed by either Mr Goodacre or the authorised person at the foot of each page, or whether the document and its annexures have been assembled out of order, with the affidavit intending to, but failing to, identify and refer to the annexures as separate from the affidavit itself.  At the hearing of this application Mr Goodacre also handed up an edition of the Big Issue No 547 in which the contents of an interview with Mr Goodacre were published.  I have treated these documents produced by Mr Goodacre as his written submissions and particulars, rather than as admissible evidence in support of an incorrectly brought originating summons.  I will nevertheless refer to this document and the documents that appear to be an affidavit with annexures thereto as his 'affidavit'.

The originating summons fails to set out the orders that are sought but, between the originating summons and the affidavit, some vague sense of the nature of the claim being brought by Mr Goodacre can be ascertained.

On 29 March 2018 the respondent filed a memorandum of conditional appearance and on 6 April the respondent applied for orders setting aside the originating summons.

In dealing with the respondent's application I need to be mindful that the applicant is a litigant in person and I should approach the termination of the litigation with special care.  In particular, I am required to ensure that the rights of an unrepresented litigant have not been 'obfuscated' by his or her own advocacy: Neil v Nott [1994] HCA 23. Assistance should be offered if there is a viable cause of action which might be adequately pleaded with some help from the court: Wentworth v Rogers (No 5) (1986) NSWLR 534, 536. See also Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J).

Mr Goodacre has also made an oral application for orders for discovery of documents by the respondent.

Mr Goodacre's case

The applicant's case, insofar as it can be discerned from reading the affidavit, is difficult to understand.  Attempts were made in the hearing of the strike‑out application to have Mr Goodacre describe his application with more particularity.  This was a difficult process and Mr Goodacre was easily upset as he attempted to formulate his thoughts and express them.  As a result, it appears he is unable to articulate his case in a way which is easy to understand and this makes it very difficult for both the court and the respondent to identify any cause of action.

However, the factual circumstances in which the claim was brought, having regard to what is in the affidavit and what Mr Goodacre said in oral submissions, can briefly be summarised as follows.

It seems that Mr Goodacre's son, Adam, was born on 27 July 1989.  When an infant, Adam was taken into the care of the Department of Child Welfare where he remained until he died in early 2007 at the age of 17 years.  From the medical reports it appears Mr Goodacre found Adam's body.  Years later, on 31 May 2012, Mr Goodacre was referred for psychological treatment by his general practitioner.  Mr Goodacre was treated by Mr C Hetebry, psychologist, on 1 June 2012.

It appears from the medical reports that the ultimate diagnosis was one of post‑traumatic stress disorder.  It should be observed that the possible diagnosis of post‑traumatic stress disorder may be in the context of a pre‑existing psychological illness, as the psychologist in his report at Annexure 'E' referred to Mr Goodacre's presentation and description of his history and lifespan as 'also indicative of traits of an Axis II disorder, especially in light of his obvious difficulties with emotional regulation'.

Mr Goodacre seems to allege that the death of Adam was caused by an unspecified breach of an unspecified duty of care by the Department of Child Protection which it owed directly to both he and Adam, resulting in Adam's death and, either directly or consequentially, psychological injury to Mr Goodacre.  In his affidavit, he alleges that the department 'neglected to follow their duty of care', which he describes as 'not following the best interest of my child'.

Mr Goodacre also seems to be alleging the post‑traumatic stress disorder was due to a breach of a duty of care by the department owed directly to Mr Goodacre somehow connected with a failure to provide advice, information, or a parenting plan or programme for Mr Goodacre and to foster the relationship between he and Adam.

It may be that Mr Goodacre seeks to bring a claim based on both of these broad scenarios and it seems clear that what he wants in respect of his claims is some form of compensation, at the very least, for the cost of treatment he has had to undergo.

The respondent's strike-out application

The summons to strike out the proceedings is brought on the basis that the originating summons is irregular in that it does not comply with O 4 r 1(a) of the Rules of the Supreme Court 1971 (RSC), does not disclose a cause of action and does not specify the orders sought by the plaintiff.

The action was not commenced by writ of summons

It is clear that the proceedings should have been commenced by way of a writ of summons, rather than by way of an originating summons. This is an irregularity, but this does not result in the originating process being a nullity. By the RSC O 2 r 1(3), it is provided the court shall not wholly set aside any proceedings or any writ or originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed. By RSC O 2 r 1(2), the court has the power to make any such order dealing with such proceedings generally as it thinks fit.

No cause of action

The respondent's complaints in this regard fall into three broad areas being:

(a)the Department of Child Protection does not exist and is not an entity capable of being sued;

(b)the facts do not give rise to a recognised or established duty at law; and

(c)the claims are statute barred.

The respondent's existence as a legal entity

In the circumstances it is difficult to see how this submission can be made given that the Department of Child Protection has entered a conditional appearance, brought an application to strike out and appeared by counsel.  All of these things point to the existence of a legal entity.  There is also an implied warranty that the solicitor on the record has authority to act: SEB Trygg Liv Holding AB v Manches [2006] 1 All ER 437 [57].

However, putting that aside, it seems sufficiently clear from the nature of the application brought by Mr Goodacre that the target of his application is the legal entity that had the care and custody of Adam. In my view, that sufficiently identifies the respondent irrespective of what name is used to describe it, in which case the name of the correctly identified respondent can be amended under the provisions of O 21 of the RSC: Alinta 2000 Ltd v Petkov [2012] WASCA 258 [30] ‑ [38]. In my view, misnaming the correctly identified defendant is not a basis for striking out the proceeding and Mr Goodacre should be given the opportunity to amend the name.

No recognised cause of action or established duty at law

It has been said in Tame v State of New South Wales [2002] HCA 35 [88], that the common law of negligence has three elements constituted by:

(a)a duty of care owed to the plaintiff;

(b)a breach of the duty;

(c)a causal connection between the damage sustained and the breach of the duty.

Tame v State of New South Wales is support for the proposition that in determining whether one person, in this case the Department of Child Protection, owes another person, in this case Mr Goodacre, a duty of care, the comments of Lord Atkin in Donohue v Stevenson [1932] AC 562 remain apposite, namely a duty of care arises where persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

This duty of care extends to preventing not only physical injury to those to whom a duty is owed, but also psychiatric injury.  Where psychiatric injury has been suffered in circumstances where there has been no physical injury, it might be reasonable for the person whose acts or omissions are called into question not to take into account those persons in the community who are particularly vulnerable or susceptible to this type of injury, that is, those who do not have normal fortitude.  However, when that person knows or ought to know of the peculiar susceptibility of the plaintiff to his acts or omissions, a duty of care can arise.  It is in these circumstances that the Annetts, who suffered a purely psychiatric injury consequent upon the death of their son were able to claim damages.  This was because of the closeness of the relationship between the Annetts and the defendant into whose care their son was delivered, the closeness of the relationship being of such a nature that it was reasonable to require the employer to have in contemplation the kind of injury to the Annetts that they in fact suffered.

Against that background, and mindful that the applicant is an unrepresented litigant, I need to consider whether among inadequately expressed and inadequately particularised facts there may be an arguable case.  General principles applicable to striking out cases which are applicable to all litigants, not just unrepresented litigants, have been summarised in Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6114, 25 August 1986) (Staples M). These principles include a requirement to take great care to ensure a plaintiff has not been improperly deprived of his or her opportunity to have a trial of his or her case by the appointed tribunal, to strike out only when it is clear there is no basis for the legal conclusion contended for by the plaintiff and to exercise care not to risk stifling the development of the law by summarily rejecting a claim where there is a real possibility that, as the law develops, it will be found that a cause of action will lie.

Counsel for the defendant also referred me to the Supreme Court decision of Martin J in Norris v Gittos [2011] WASC 295. This was a case in which the plaintiff acting in person had taken action (by way of a writ supported by a statement of claim) against employees of the Department of Child Protection which had taken her child into its custody and in respect of which it was alleged the defendants acted negligently with the result she suffered psychological injury. His Honour proceeded on the basis the plaintiff was maintaining the defendants owed her a duty of care, albeit an unformulated one.

The defendants submitted that there was no arguable duty of care because to recognise such a duty would be incompatible with the undoubted duty of care the defendants owed the child. His Honour concluded on the facts that that submission was correct. He also observed that under s 246 of the Children and Community Services Act 2004 no action lies against a person for anything done or not done in good faith in the performance or purported performance of any function under the Act.  His Honour, for those reasons, went on to dismiss the plaintiff's claim.

There are certain similarities between the facts of that case and this case.  However, in that case the plaintiff had filed a statement of claim and the case upon which she relied to demonstrate an arguable cause of action were, compared to this case, clearly articulated.  Further, the defendants in that case had brought an application to strike out the claim together with an application for summary judgment supported by affidavit evidence.  In other words, it seems clear that by the time that application was heard by the Supreme Court there was evidence relating to the plaintiff's case, which was by then sufficiently crystallised to be able to make an informed decision about its prospects of success.  This is not the position with this case.

In this case, and at this stage, it is not clear whether, on the facts that might be better pleaded, a duty of care might be shown to be owing to the plaintiff that is not incompatible with the duty of care the department would seem to inarguably owe to Adam.  Similarly, on the facts that might be more clearly presented to this court by way of a more appropriately pleaded statement of claim, it may emerge that there is an argument that the defendant or its servants or agents were not acting in good faith.

On the material that has been presented to the court, there is so much uncertainty as to what the plaintiff is alleging, it is premature to conclude there does not lie beneath and within these vague and insufficiently expressed allegations an arguable case, although that might in the end be the only conclusion.

Is the case statue barred?

The defendant also argued that any cause of action the plaintiff might have had was now statute barred.

It has been said that it is undesirable that a limitation question should be decided in advance of the hearing except in the clearest of cases: Wardley Australia Ltd v Western Australia (Rothwells Loan Case) (1992) 175 CLR 514. In my opinion, this is not one of the clearest of cases.

By the Limitation Act 2005, s 14, an action cannot be commenced for personal injuries if three years from the day it accrues has elapsed. Section 55 defines when a cause of action accrues. It says a cause of action accrues:

… when the only or earlier of such of the following events as are applicable occurs —

(a)the person becomes aware that he or she has sustained a not insignificant personal injury;

(b)the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

Further, s 14 is subject to pt 3 of the Act. In pt 3 of the Act is found s 39. Section 39 allows a person to apply to the court for leave to commence an action relating to a personal injury even though the limitation period has expired. If successful, the court may extend the time for a further three years.

If an application for extension is to be made, then s 43(1) requires the application to be made by summons in the jurisdiction in which the existing action, if any, has been brought or in which the proposed action would be brought if the application was successful.

The effect of this is to allow the application for an extension of the limitation period to be brought in the course of the existing proceedings even though the action was commenced outside of the initial three-year period: Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [51].

In this case it may be arguable that any cause of action accrued when Mr Goodacre experienced symptoms that may be attributable to post‑traumatic stress disorder or some sort of deterioration in his pre‑existing mental state resulting in referral for psychological treatment on or about 31 May 2012. If that is the case, then Mr Goodacre would have had until on or about 30 May 2015 to commence proceedings without being precluded by s 14 of the Limitation Act 2005.Even then it may be possible that he could, by bringing an application in these proceedings, obtain an order extending the limitation period for a further three years, so bringing the limitation period to on or about 30 May 2018.  In such circumstances this would mean the proceedings which commenced when filed on 12 March 2018 would be commenced within the time limited by the Limitation Act.

Mr Goodacre's application for discovery

Mr Goodacre has sought discovery of documents relating to the respondent's care of Adam over the time Adam was in its charge.  It is not proposed by Mr Goodacre that he needs the documents in order to determine whether proceedings should be commenced against the respondent.  I understand his principal motive for seeking the documents is to satisfy his desire for an understanding of what happened to Adam whilst in the care of the respondent and, indeed, at one stage I wondered whether this originating summons had been brought for orders that the department deliver up its records for inspection.  Although in the past Mr Goodacre appears to have been given a number of documents by the respondent, he no longer has them.  Mr Goodacre complained that he had since been unable to obtain the documents he wanted from the respondent, but it seems he may not have made a proper application under the Freedom of Information Act 1992.  In my view, it is premature to order discovery because the respondent should not be put to the expense of providing discovery until it knows the case and the issues it has to meet.

Conclusion

In my view, the originating summons should be ordered to stand as a writ of summons and Mr Goodacre should be given an opportunity to set out the nature of his claim against the department by filing a statement of claim.  The statement of claim should spell out clearly and concisely, and with some precision, the material facts that establish a cause of action including, where relevant:

(a)What, when, where, why, who and how the department did that it should not have done, or did not do that it ought to have done, which resulted in the death of Adam and/or injury to Mr Goodacre;

(b)If it is alleged that the department or some person within it was or should have been aware of any particular vulnerability of Mr Goodacre being injured as a result of these acts or omissions, what that vulnerability was and how and why it or they were, or should have been, aware;

(c)If these acts or omissions are alleged to have been made in other than good faith, what, where, when, why and how the lack of good faith arose;

(d)What injuries are alleged to have resulted from the pleaded acts or omissions at par (a) above;

(e)Whether compensation is being sought for loss and expenses, pain and suffering, loss of enjoyment of life or otherwise and, if so, what and why the claims are said to result from the claimed injuries.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LW
COURT OFFICER

17 JULY 2018