Hamilton v Iles
[2018] WADC 90
•3 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: HAMILTON -v- ILES [2018] WADC 90
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 6 APRIL 2018
DELIVERED : 3 AUGUST 2018
FILE NO/S: CIV 2826 of 2017
BETWEEN: JANIS CLARK MCCULLOCH HAMILTON
Plaintiff
AND
PAULINE FRANCES ILES
MICHAEL LINCOLN ILES
Defendants
Catchwords:
Application for leave to commence action in pending proceedings - Application to strike out - Application for summary judgment
Legislation:
Limitation Act 2005, s 15, s 40, s 44, s 79
Rules of the Supreme Court 1971
Result:
The statement of claim as against the first‑named defendant be struck out
Judgment for the second‑named defendant
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendants | : | Mr J P Wood |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendants | : | Norton Rose Fulbright Australia |
Case(s) referred to in decision(s):
Belgravia Nominees v Lowe Pty Ltd [2017] WASCA 127
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Donohue v Stevenson [1932] AC 562
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6114, 25 August 1986)
Kimberley Downs v Western Australia (Unreported, WASC, Library No 6114, 25 August 1986)
MacMahon Contractors Pty Ltd v CW-CG Pty Ltd [2017] WASC 211
Neil v Nott [1994] HCA 23
Niven v Grant (1903) 29 VLR 102
Rayney v The State of Western Australia [No3] [2010] WASC 83
Tame v New South Wales [2002] HCA 35
Wardley Australia Ltd v Western Australia (Rothwells Loan case) [1992] HCA 55
Webster v Lampard (1993) 177 CLR 598
Wentworth v Rogers (No.5) (1986) NSWLR 534
White v Johnston (1886) 8 ALT 53
Wookey v Quigley [No 2] [2010] WASC 209
PRINCIPAL REGISTRAR MELVILLE:
This action was commenced by a writ of summons that was filed on 3 August 2017. It was followed by a statement of claim and then on 15 November 2017 an amended statement of claim. Except in the broadest of senses, it is difficult to know from the amended statement of claim what the plaintiff wants and why. Broadly speaking the amended statement of claim seems to give rise to a separate claim against each of the defendants, who for ease of reference I will call Ms Iles and Mr Iles, the first being a claim for redress under 'Australian Human Rights Legislation (Bullying)' against Ms Iles, and secondly redress for defamation as a result of an allegation of libel under the 'Australian Defamation Law', against Mr Iles. The defendants now apply to strike out the case or alternatively obtain summary judgement.
It appears from what is alleged in the statement of claim and from what appears in the affidavit material filed in respect of the application that the plaintiff's mother was a resident at St Michael's Residential Care, which is an institution run by Iles Nominees Pty Ltd of which Ms Iles was a director and Mr Iles was a manager. The Public Advocate had by order of the State Administrative Tribunal made 1 September 2011 and again on 21 January 2013 been given power to determine where the plaintiff's mother was to reside and with whom she could have contact.
The plaintiff's mother moved into the residence in November 2011. Over the ensuing years until the death of her mother in about May 2015, the relationship between the plaintiff and the defendants was not to the plaintiff's satisfaction. In her statement of claim the plaintiff alleges she was targeted by Ms Iles with fictitious allegations of misconduct by the plaintiff, such as 'victimisation' of care home staff (par 6), of being angered by the [unspecified] way in which Ms Iles spoke to her (par 9) and by Ms Iles' refusal to call in the staff concerned or to identify the staff so as to allow the plaintiff to discuss the matter with them (par 10) and Ms Iles' advice to the plaintiff that she could stop the plaintiff seeing her mother (par 11). Whilst the plaintiff alleges she was targeted with fictitious allegations of misconduct, apart from the allegation that she was victimising the care home staff, she does not specify what those fictitious allegations were.
It appears communications thereafter remained strained with the plaintiff not wishing to see Ms Iles and communicating with her in writing (par 14). For her part Ms Iles allegedly would send a nurse to the plaintiff with directives that the plaintiff attend Ms Iles at her office, directives that the plaintiff declined and responded to by way of request that Ms Iles attend upon her (pars 15 – 16).
Eventually the poor relationship between the protagonists appears to have resulted in a memorandum being sent by Mr Iles to Donna Leckie, who is or was the Care Manager at St Michael's in April 2015, which the plaintiff alleges contained the defamatory material.
It is the matters pleaded above which are said to give rise to the bullying claim against Ms Iles which are alleged to have caused 'psychological hurt and distress' and a great deal of unhappiness (par 17 and par 21) and in turn a claim under 'Australian Human Rights Legislation (Bullying)'. What this legislation is and what provisions applied, how the provisions were breached and how this legislation gives rise to a claim is not identified.
Further, the publication of the memorandum by Mr Iles in April 2015, the details of which are not pleaded, results in a claim for redress under the 'Australian Defamation Law' (par 19). It nevertheless seems common ground that the memorandum appears as annexure JPW 23. The memorandum proposes that some strict terms and conditions of behaviour needed to be set out so as to allow the plaintiff to continue to see her mother, allegedly as a result of the plaintiff's 'erratic/abusive behaviour ever since she has been coming to St. Michael's…'. The email articulates concerns about the staff's right to work in an environment free of harassment and abuse, refers to the plaintiff having been warned about her behaviour countless times and states this as being the first time that St Michael's have ever had to stipulate visiting times with anyone.
At annexure TPW 2 is an agreement signed by the plaintiff on the 21 April 2015 whereby she agrees to a number of conditions to her attendance at St Michael's including specified visiting times in specified areas under the supervision of Mr Iles and/or Donna Leckie. Further conditions include prohibitions on supplying medications to the plaintiff's mother and discussing self-harm or suicide with her mother.
The statement of claim by which the plaintiff attempts to set out her two causes of action against the defendants runs to 22 paragraphs in total. When the irrelevancies are stripped out, the statement of claim becomes brief to the point of obscurity. This is not to disparage conciseness. To the contrary, conciseness is required.
By a letter dated 20 August 2017 the plaintiff had written to the court seeking an extension of time to bring her action for defamation. In response she was advised that an application to the court should be made in accordance with the Rules of the Supreme Court 1971 (RSC) more particularly by way of a formal application prescribed under RSC in a form prescribed by the rules and on notice to the other party. The plaintiff was advised the application may also need to be supported by evidence provided in a form of an affidavit. She was also advised that any issues relating to the application for an extension could be addressed at a directions hearing to be convened upon the filing of a defence.
A directions hearing was held on 8 December 2017. There was no record that the issues relating to the plaintiff's desire to apply for an extension of the limitation period were addressed. Rather, the defendant was ordered to bring on any application to strike out the statement of claim or for summary judgment on or before 27 January.
The defendants filed their application to strike out the statement of claim and for summary judgment on 30 January 2018. The application was supported by the affidavit of Jeham Philippe Wood. The summons insofar as it sought orders to strike out the statement of claim purports to do so pursuant to the RSC O 20 r 19(1)(a), r 19(1)(b) and r 19(1)(d).
The RSC O 20 r 19(1)(a), r 19(1)(b) and r 19(1)(d) empower the court at in any stage of the proceedings to order a pleading be struck out, or amended, on the basis that:
(a)it discloses no reasonable cause of action;
(b)it is scandalous, frivolous or vexatious; and
(c)it is otherwise an abuse of the process of the court.
The application for summary judgment is brought pursuant to RSC O 16 r 1 which empowers the court to enter judgment for the defendants if satisfied:
(a)the action is frivolous or vexatious; or
(b)the defendants have a good defence on the merits.
A pleading which fails to disclose a cause of action is one which pleads facts which, assuming they can be proven, fails to establish a factual scenario from which it can be argued (not necessarily proved) the defendant has legal liability to the plaintiff. An action which is frivolous or vexatious is one which is obviously unsustainable and an abuse of the process of the court. An example of this is where the action is commenced in a court that clearly has no jurisdiction to deal with it. An action that is an abuse of the process of the court is one that is commenced using the court process for something that it is not designed, or for an improper or ulterior purpose. It will also be an abuse of process where the proceedings attempt to replicate proceedings brought elsewhere which involve the same or substantially the same issues between the same parties.
The defendants also submit that some of the alleged acts or omissions that are pleaded as the basis of the claim are or may be statute barred. In respect of the claim that the plaintiff brings against Ms Iles under 'Australian Human Rights Legislations – Bullying' at this stage it is not known when the all material events occurred and even less is known as to when any potential cause of action for personal injury accrued. Even if any cause of action accrues at a time in excess of three years before the writ issued it is possible for the plaintiff to bring an application in the existing proceedings for an extension – Belgravia Nominees v Lowe Pty Ltd [2017] WASCA 127 [51]. Limitation questions should not be resolved in an application to strike out – MacMahon Contractors Pty Ltd v CW-CG Pty Ltd [2017] WASC 211 [43]. A limitation issue is a matter to be raised in a defence and responded to in a reply. It is not an issue that is relevant to be pleaded in a statement of claim.
On 8 January 2018 the plaintiff filed an affidavit in support of a request for an extension of time/defamation. There is no formal application by way of a chamber summons seeking orders to commence proceedings out of time. On 25 January the plaintiff filed an affidavit of five paragraphs relevant to her claim for redress for the bullying.
General principles relating to applications to strike out pleadings
It is necessary to consider the purpose pleadings serve. At its heart the purpose of a pleading is to give the opposing party and the court an understanding of the facts that constitute the case against a defendant. This enables the defendant to take steps to defend itself against the relevant allegations. It enables the court to understand what material facts are in issue and then to consider, at a later time, what evidence there is that bears on the existence or non‑existence of the alleged facts, to decide which facts are established, and then to consider whether those facts result in a legal liability in the defendant to compensate or pay damages to the plaintiff. In order to provide that understanding it is necessary for the plaintiff to plead only the material facts to support the claim and not the evidence that will be referred to in order to try and prove those facts.
It is not uncommon to see statements of claim drafted that include the irrelevant facts, evidence, opinion, speculation, conclusions of fact or law, and propositions so broad as to being meaningless. For this reason the RSC O 20 establish rules relating to how matters are to be pleaded.
Order 20 r 8 requires the pleading to contain, and contain only, a statement in summary form of material facts on which the party pleading relies for his or her claim, but not the evidence by which those facts are to be proved. The statement must be as brief as the nature of the case admits. However a party is not required to plead the legal consequences of the material facts. That is a conclusion or opinion and is the task of the trial judge.
Order 20 r 13 requires the pleading contain the necessary particulars of the material facts. Where particulars are required in order to properly understand the material facts they will be necessary. For example, where it is alleged a person was defamed it may be necessary to provide particulars of what was said, when it was said, how it was said, and who said it.
On an application to strike out a pleading on the ground it does not disclose an arguable cause of action all the facts pleaded in the statement of claim must be taken to be true and it must be taken for granted that on all other points the pleading is unassailable: Niven v Grant (1903) 29 VLR 102, 106. However it may be appropriate to file affidavit evidence to demonstrate that for reasons that do not appear from the pleadings the case is frivolous or vexatious or an abuse of process.
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 of 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.
General principles relating to summary judgment applications
The party showing cause against the application for summary judgement assumes an evidentiary burden by that process, but the overall legal burden of persuasion remains upon the applicant: Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 23.
The power will not be exercised unless it is clear that there is no real question to be tried Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
It was never intended that, when the facts are in dispute, actions should be disposed of summarily White v Johnston (1886) 8 ALT 53. If a version of the facts is put forward by the defendant which is not inherently incredible, then in the absence of any opportunity of cross‑examination it is incumbent on the court to proceed on the basis that it will ultimately be accepted at the trial of the action: Webster v Lampard (1993) 177 CLR 598, 608.
Duties to unrepresented litigants
In dealing with the defendant's' application I need to be mindful that the plaintiff is a litigant is 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).
Defamation action brought against the second‑named defendant
Mr Iles argues that the writ should be struck out or that summary judgment should be entered. One of the arguments advanced is that the claim is statute barred in that s 15 of the Limitation Act 2005 (the Act) provides:
An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.
Mr Iles goes on to argue that the publication was on 2 April 2015 and accordingly unless the plaintiff can obtain leave to commence these proceedings under s 40 of the Act he has a good defence to the defamation action. Section 40 of the Act provides:
(1)A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.
(2)Subject to subsection (3), on an application a court, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication, must extend the time in which the action can be commenced.
(3)An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.
The plaintiff seeks leave to commence the proceedings for defamation. It is supported by her affidavit of the 8 January 2018 which states:
I, Janias Clark McCulloch Hamilton of C4/ 19 Lawley Crescent, Mt Lawley, Western Australia, Retired, being duly sworn MAKE OATH AND SAY as follows:
1.I refer to a letter regarding an extension of time (defamation) in this action written by the Principal Registrar, dated 13 September 2017. Please take note of the last sentence in that letter, on page 2.
2. Apropos that letter and at a directions hearing before Mr Kingsley on 8.12.17, I sought to raise the matter of an extension of time concerning the alleged defamation issue in this case, plus other relevant matters.
3. The solicitor for the Defendants spoke to the Court for approximately 5 minutes. I then requested time to speak regarding the extension of time and other issues.
4. Because of what was written in the Principal Registrar's letter, I believed I would, at least, be given an opportunity to raise the issue of an extension. My request to speak was denied.
5.REASONS FOR A REQUEST FOR AN EXTENSION OF TIME
(i)Immediately I received Mr Iles' email (April) I contacted Rowe Bristol who had been referred to me by the Law Society. After meetings and discussions it was clear to me that Rowe Bristol were unable to provide proper advice and I lost faith in their ability to assist me.
(ii)Then my mother died (May) and I had to be involved in organising her funeral and dealing with the Public Trustee, all of which took quite some time - many months in fact.
(iii)From early in 2016 I had been involved in an elder abuse case (DC398/16). This case had to be dismissed (December 2016) as there was/is no extant Australian legislation applying to elder abuse cases. For the whole of 2016 I was busy with this matter.
(iv)The Defendants in the above case are the same as in this action (DC2826/17) and although they are quite separate actions and this is quite apparent, nevertheless the Defendants' lawyer continues to endeavour to link the two, for whatever reason.
The above information is given in support of my request for an extension time with regard to alleged defamation, as noted in action DC2826/17.
My understanding is that one may apply for an extension of time for up to three years, pursuant to Section 32A of the Act.
It is not known to what Act the plaintiff is referring when she refers to s 32A. Neither the Limitation Act 2005 nor the Limitation Act 1935 as passed by the Parliament of Western Australia contain a s 32A. It may be, as counsel for the defendants suggests, the plaintiff is referring to the legislation of another State or of the Commonwealth. In any event, only legislation passed by the Parliament of this State is relevant to this issue.
It is plain that this court's jurisdiction to grant leave is only enlivened if it is satisfied it was not reasonable in the circumstances to have commenced the defamation action within the prescribed one year period. By s 79(3) of the Act the onus is on the plaintiff to satisfy the court that it was not reasonable. This is not a burden that is discharged by showing that it is not unreasonable to have not commenced within one year: See Rayney v The State of Western Australia [No3] [2010] WASC 83 [41]. Mr Iles argues that on the evidence presented above the court cannot be satisfied it was not reasonable to have commenced proceedings within the one year period.
Section 44 of the Act requires me to have regard to:
(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).
However, it would seem these requirements do not arise for consideration in the context of whether the court has a discretion under s 40(1) to extend the limitation period. It is only once it has been determined that the limitation period should be extended and the question becomes one of how long the extension should be that these considerations arise. See Wookey v Quigley [No 2] [2010] WASC 209 [27(f)].
In my opinion the plaintiff's explanation for why she did not issue the proceedings within one year is lacking in detail. The period of time we are dealing with is 3 April 2015 to 2 April 2016. Her evidence bearing on the question whether it was not reasonable to commence proceedings within one year of the publication of the alleged defamatory material suggests her time was occupied on:
(a)seeking but failing to obtain adequate or satisfactory legal advice and or representation;
(b)organising her mother's funeral following her death in May 2015 and then dealing with the Public Trustee;
(c)preparing for and commencing an 'elder abuse' case from early 2016.
However, with respect to her failure to obtain satisfactory legal advice or representation the plaintiff does not condescend to particulars of what she was advised or demonstrate how her lack of faith in those solicitors impaired her ability to progress the action for defamation, or engage other lawyers, or commence proceedings as an unrepresented litigant as she has now done some two years and four months later.
With respect to the need to arrange the funeral of her mother and to deal with the Public Trustee the plaintiff does not condescend to providing the court with any detail as to what she says constitutes 'many months', what was involved in arranging the funeral and her participation in it, what was involved in dealing with the Public Trustee or why these involvements prevented her issuing proceedings before 2 April 2016.
With respect to the plaintiff's involvement in the elder abuse case, the court is not told when exactly the plaintiff commenced the action, no evidence is provided as to the work involved in pursuing that action and no explanation is given as to how and why it prevented her pursuing this action between 2 April 2015 and 2 April 2016. Further, the fact the plaintiff was able to commence the elder abuse proceedings in 'early' 2016 suggests she had the capacity to commence these proceedings by no later than early 2016 and accordingly before the 2 April 2016 when the one year period expired.
Lest it be thought otherwise, it should be said that it is not appropriate for this court to embark on a search of its own records or to inform itself independently of the information placed before it by the parties to see if there is relevant evidence which may be of assistance to one or the other.
In the above circumstances I find the plaintiff's explanation for the delay so lacking in detail that I am not satisfied it was unreasonable for her to have commenced proceedings for the alleged defamation within the 12 month period. Not only am I not satisfied it was unreasonable to commence proceedings within the prescribed time, and whilst I accept the matters raised by the plaintiff would have occupied some of her time and would have been a distraction from pursuing this case for some of the time, I am of the additional view there was still sufficient time to issue the writ within the one year period and that she either chose not to do so or chose to give her dealings with the public trustee and or preparation for the 'elder abuse' case priority over this case.
Accordingly the plaintiff's application for an extension of time to bring these proceedings for defamation is refused.
Where there is argument about when a cause of action accrued it is generally undesirable to decide limitation questions in an interlocutory application – Wardley Australia Ltd v Western Australia (Rothwells Loan case) [1992] HCA 55 [31]. However here the date of accrual is clear and this is one of the clearest of cases.
Whilst it is not appropriate to strike out the claim on this basis, it is nevertheless clear on the evidence that has been filed that Mr Iles has an impregnable defence to the action in defamation. The plaintiff does not suggest there is any issues that would constitute a waiver of this defence or that would estop Mr Iles raising it.
Accordingly, on Mr Iles' application for summary judgment there should be judgement for Mr Iles with the action to be dismissed.
The claim under Australian Human Rights Legislation (Bullying) brought against the first‑named defendant
It is convenient to deal firstly with the defendants' submission the writ should be struck out on the basis that the subject matter replicates the issues raised by the plaintiff in earlier proceeding against Iles Nominees Pty Ltd dismissed by consent and therefore is an abuse of process. Annexed to the affidavit of Mr Wood at JPW 15 is a copy consent orders in CIV 398 of 2015 whereby all the plaintiff's claims in the other proceedings be dismissed. To this I observe I have no copy of any writ or statement of claim filed in the other proceedings. Further, it is apparent the parties to the other proceeding are different and accordingly no issue as between these parties can be said to be finally decided and no question of estoppel would appear to arise. Insofar as the application to strike out is brought on this basis, it is dismissed.
Insofar as the claim purportedly brought for redress under the 'Australian Human Rights Legislation (Bullying)' is to be taken literally, the plaintiff does not identify any legislation or the provisions of any legislation that give her a statutory right of action against Ms Iles. It is impossible to discern any cause of action arising out of the statement of claim so framed.
If in fact the plaintiff is seeking relief under Australian Human Rights Legislation then it may be that she is seeking relief under the AustralianHuman Rights Commission Act 1986, being Commonwealth legislation. If so then it seems to me any application for redress under that Act should be to the Australian Human Rights Commission and subsequently the Federal Court, not to the District Court of Western Australia.
However, notwithstanding the fact the plaintiff has drafted her statement of claim using language that indicates she is seeking relief in the District Court of Western Australia under 'Australian Human Rights Legislations (Bullying)', a mindset seemingly confirmed by her subsequent letter to the court dated 14 June 2018 in which she encloses a document purporting to be a fact sheet on bullying published by the Australian Human Rights Commission, she is not required to plead the legal consequence of the pleaded facts.
Mindful that she is unrepresented and that I must take care to ensure that her legal entitlements are not obscured by her own advocacy the facts as pleaded cause me to turn my mind to whether there may be an arguable case in negligence.
It has been said by McHugh J in Tame v 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; and
(c)a causal connection between the damage sustained and the breach of the duty.
In Tame v New South Wales is a reported decision on two cases in which the High Court was required to consider the circumstances in which a duty of care arose generally and more particularly in circumstances where persons whose acts or omission were in question owed duties elsewhere and in circumstances where a plaintiff in the absence of physical injury suffered purely psychiatric injury.
The first decision involved Ms Tame who alleged Acting Sergeant Beardsley, an officer of the New South Wales Police Force defamed her when inaccurately writing up a report after a motor vehicle accident stated she had a blood alcohol reading of 0.14%.
The second was a case involving the Annetts suing Australian Stations Pty Ltd for purely psychiatric injury as a result of the death of their son whilst in the employment of Australian Stations Pty Ltd.
Tame v New South Wales endorsed the proposition that, in determining whether one person, in this case Ms Iles, owes another person, in this case the plaintiff, 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. The duty of care will only arise in the case of purely psychiatric injury when the relationship between the parties is sufficiently close and when it is reasonably foreseeable that there was a risk of this type of harm. However, when that person knows or ought to know of the peculiar susceptibility of the plaintiff to being injured as a result of his acts or omissions, then the risk of injury is likely to be foreseeable. 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 young son was delivered only after seeking assurances as to the arrangements for his care and welfare. In these circumstances 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.
In circumstances in which the plaintiff's mother was a resident of St Michaels, St Michael's would have a duty of care to the plaintiff's mother. Similarly, St Michael's undoubtedly owed a duty of care to its employees. I am unable to discern any pleaded facts that would indicate that Ms Iles owed the plaintiff a duty of care, that is, that the plaintiff was a person who was so closely and directly affected by the alleged acts or omissions of Ms Iles, those acts being pleaded as (unspecified) fictitious allegations of (unspecified) misconduct by the plaintiff, Ms Iles' refusal to make staff available to be interrogated by the plaintiff or to divulge the names of the staff concerned, Ms Iles' 'directive' that the plaintiff attend her office, Ms Iles' failure to comply with the plaintiff's 'request' to attend upon the plaintiff and Ms Iles' advice that she could stop the plaintiff having access to the plaintiff's mother and Mr Iles' memorandum of April 2015, that Ms Iles should have had her in contemplation as someone who might have suffered psychiatric injury. Nowhere is it alleged that the plaintiff was at the time a person of peculiar susceptibility to psychological injury and, if she was, nowhere is it alleged that Ms Iles was aware or ought to have been aware of this.
Further, by par 18 of her statement of claim the plaintiff alleges that 'All of the above is cause of action'. The above includes the memorandum of April 2015 published by Mr Iles. This present two problems being firstly, nowhere in the statement of claim is it alleged that Ms Iles was responsible for the acts of Mr Iles, and secondly, that this allegation appears to be pleaded as a material fact essential to establish a causal nexus between the acts and omissions of Ms Iles on the one hand and the psychological hurt, distress and unhappiness of the plaintiff on the other.
In Tame v State of New South Wales at [193] it was also said that:
In Australia, as in England, Canada and New Zealand, a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover. Grief and sorrow are among the 'ordinary and inevitable incidents of life'; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial.
Whether the plaintiff has in fact suffered a recognised psychiatric illness is something that would need to be proved by admissible evidence at trial. However, whilst evidence should not be pleaded in the statement of claim it is necessary to plead facts that point to a psychiatric illness as distinct from facts that point to something else, more particularly psychological hurt, distress and unhappiness. In the absence of such a pleading there is no injury and no cause of action. The statement of claim does not plead this.
However, having regard to the contents of the plaintiff's affidavit filed the 25 January 2018 it is observed that she complains of the development of anxiety, and within the context of that complaint she describes the prescription of medication by her GP. The plaintiff goes on to described the 'severe toll' on her previously good health as a result of the 'spiteful treatment' she experienced at St Michael's and the thought she may have to undergo hospitalisation due to depression. It is not clear whether the plaintiff is using the terms depression and anxiety in a layman's sense or whether those terms are intended to reflect some form of clinical diagnosis that should properly be regarded as an allegation of a recognised psychiatric injury.
Taken together with her statement of claim, such as it is, it seems to me that the case the plaintiff is trying to articulate, but at this stage not appropriately, is that she was the subject of a spiteful campaign over an extended period of time orchestrated by Ms Iles, designed to make life difficult for a dutiful daughter trying to ease her mother through her final days that has resulted in anxiety and possibly depression, and as a result has suffered injury, loss and damage. If that is the case and the material facts which support such as case are adequately pleaded then the plaintiff may have an arguable case that should not be summarily dismissed.
Whilst the contents of the plaintiff's affidavit do not rectify any deficiencies in the manner by which she has pleaded her case in her statement of claim, I have regard to it when considering whether the plaintiff may have a case which can with the assistance of the court be adequately pleaded.
I agree with the submissions of the defendants that the statement of claim 'is largely made up of a series of vague and unparticularised statements of fact, expressions of opinion or belief, speculation, rhetorical questions, commentary and conclusions'. In my opinion the statement of claim fails to disclose injury, a relationship between the plaintiff and Ms Iles of such close proximity as to give rise to a duty to take care not to cause this type of injury to the plaintiff, that the alleged acts or omissions of Ms Iles has caused any recognisable psychiatric injury that might be encompassed by the expression 'psychological harm'.
Accordingly, the statement of claim insofar as it seeks to set up a personal injury claim should be struck out but the plaintiff should be given an opportunity to bring in a draft further amended statement of claim to plead a claim in negligence, should she wish to do so, but not in respect of statutory entitlement under 'Australian Human Rights Legislation'.
Any draft further amended statement of claim should identify with some particularity:
(a)What, when, where and why, Ms Iles did that she should not have done, or did not do that she ought to have done, which resulted in injury to the plaintiff.
(b)If it is alleged that Ms Iles was or should have been aware of any particular vulnerability of the plaintiff being injured as a result of these acts or omissions, what that vulnerability was and how and why she was, or should have been, aware.
(d)If any recognisable psychiatric illness is alleged to have resulted from the pleaded acts or omissions at par (a) above what that illness is.
(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.
Summary judgment on the personal injury claim.
Until such time as the question of whether the plaintiff can file any re‑amended statement of claim is resolved it is premature to decide the defendant's summary judgement application on this issue. This part of the application should be adjourned.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LW
COURT OFFICER2 AUGUST 2018
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