Kalsbeek v Commonwealth of Australia - [2019] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KALSBEEK -v- COMMONWEALTH OF AUSTRALIA [2019] WADC 49
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   1 FEBRUARY 2019
DELIVERED          :   12 APRIL 2019
FILE NO/S:   CIV 3841 of 2017
BETWEEN:   ROBERT KALSBEEK
Plaintiff
AND
COMMONWEALTH OF AUSTRALIA
Defendant

Catchwords:

Defendant's application for summary judgment - When cause of action accrues - Limitation Act 2005 defence

Legislation:

Limitation Act 2005 (WA), s 14, s 43, s 55
Rules of the Supreme Court 1971 (WA), O 16

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr M Hales

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Minter Ellison

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

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
MacMahon Contractors Pty Ltd v CW-DC Pty Ltd [2017] WASC 211
Webster v Lampard (1993) 177 CLR 598
White v Johnston (1886) 8 ALT 53

PRINCIPAL REGISTRAR MELVILLE:

On the 19 October 2017 plaintiff issued a writ generally indorsed with a claim for damages from the defendant for personal injury. The indorsement described a series of events starting 13 November 2013 when he was wrongly assessed as unemployed rather than disabled resulting in him being forced to attend MAX Employment for intensive work training in September 2014. The indorsement at par 12 states that whilst at MAX Employment he was first psychologically abused and then physically attacked with a chair. Apart from 13 November 2013 no dates are specified.
The plaintiff subsequently filed a statement of claim which on 21 August 2018 was ordered to be struck out. He was given leave to file an amended statement of claim confined to the claim for psychological and physical harm caused by inappropriate physical examination and referrals in the course of reassessing his entitlement to a disability pension. This he did and then he filed a re-amended statement of claim on 12 November 2018.
By chamber summons filed 28 November 2018 the defendant brought an application for leave to apply out of time for summary judgment against the plaintiff and for summary judgment. The application is brought pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (RSC) which provides:
1.Application by defendant for summary judgment
(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the court, apply to the court for summary judgment, and the court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order —
(a)that judgment be entered for the defendant with or without costs; or
(b)that the plaintiff shall proceed to trial without pleadings,
or if all parties consent, may dispose of the action finally and without appeal in a summary manner.
(2)An application under subrule (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based.
(3)Unless the court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
(4)The summons and a copy of the affidavit in support and its annexures, if any, shall be served on the plaintiff not less than seven days before the return day of the summons.
On 21 December 2018 the defendant was given leave to bring the application for summary judgment and the application was then adjourned to a special appointment. The plaintiff was ordered to bring any application under Pt 3 of the Limitation Act 2005 by 16 January 2019. This was not done.
The basis of the application for summary judgment is that the defendant has a good defence to the action brought by the plaintiff being more particularly a defence under the Limitation Act s 14 which provides that an action cannot be commenced for personal injuries if three years from the date it accrues has elapsed.
The defendant says that the plaintiff's statement of claim demonstrates that the plaintiff's cause of action for personal injury accrued on or about 13 November 2013. Accordingly the writ should have issued before, on or about 13 November 2016. It is the fact that the writ issued on 19 October 2017.
I am not persuaded on the material before me that the defendant has a good defence to the claim brought by the plaintiff. The reason I am not persuaded is because I am unable to discern with any confidence from the statement of claim when the cause of action accrued. More particularly I am not of the view the action insofar as it is based on negligent acts causing personal injury is limited to the alleged acts of 13 November 2013 or limited to any injury suffered on 13 November 2013 by those acts. In my view, until it can be clearly identified when the cause of action or causes of action accrued, or at the very least unless it can be clearly demonstrated that whenever the cause or causes of action accrued it or they accrued more than three years before the writ was issued, it is impossible to be confident s 14 of the Limitation Act applies.
To my mind the biggest problem the defendant faces in its application is that the cause of action is not complete and does not accrue until firstly, the plaintiff suffers an injury as a result of the acts complained of, which could be considerable time after the event causing it, and secondly, when the first occurs of either the person becoming aware he has suffered a 'not insignificant personal injury' or the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a 'not insignificant personal injury'.
The re-amended statement of claim was poorly written as might be anticipated by an unrepresented litigant. In a statement of claim that alleges pre-existing spinal and psychiatric conditions and which appears to be based on allegations of conduct that has given rise to aggravations thereof and especially aggravations of a psychiatric condition, the date or dates of the aggravation or aggravations are not clearly pleaded. In other words the plaintiff has not clearly stated in his re-amended statement of claim when the injuries said to have been caused by the various acts referred to in the statement of claim arose.

The court's duty to unrepresented litigants

The court must exercise care to ensure that an arguable case of an unrepresented litigant is not dismissed simply because it has been obscured by his own inadequate advocacy, a duty which extends to the way he has expressed his case in his pleadings.
The Court of Appeal said in Glew v Frank Jasper Pty Ltd [2010] WASCA 87 at [10]:
Due allowance must, of course, be made for the fact that Mr Glew is unrepresented. A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148, 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.

The law relating to summary judgment applications

As stated in [3] above a defendant can bring an application for summary judgment on the basis that it has a good defence to the claim. The onus lies on the defendant to demonstrate this and the plaintiff need do nothing. However by O 16 r 2, a plaintiff may show cause against such an application by affidavit.
The party showing cause against the application for summary judgment 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. By way of example of how this may work, a defendant may apply for summary judgment in an action for failure to repay a loan by filing an affidavit purporting to show that the loan had been repaid. The defendant's affidavit may or may not be adequate. The plaintiff may with an abundance of caution seek to show cause by filing evidence that the loan has not been repaid. If the plaintiff's affidavit is so woefully inadequate that it does not discharge the evidential onus of showing the money had not been paid, the defendant is not relieved of the legal onus of satisfying the court that on the materials before it the defendant has a good defence to the claim.
The power to order summary judgment 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.

The law relating to limitation periods

By the Limitation Act, 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.
Section 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].
It can be difficult to determine precisely when a cause of action accrues. In this regard it has been held by Martino J in MacMahon Contractors Pty Ltd v CW-DC Pty Ltd [2017] WASC 211 at [43] that:
It is generally undesirable to attempt to determine questions of limitation other than in the context of a substantial trial: Morgan v Banning (479); Belgravia Nominees Pty Ltd v Lowe Pty Ltd [10]. In my view it is not appropriate to resolve the limitation issues raised by the defendant at a strike out application. They should be determined at trial.

The plaintiff's case

To summarise the plaintiff's case by reference to the statement of claim, it is that from 1997 to 2013 he was in receipt of a disability pension for diagnosed and treated post-traumatic stress disorder and depression and a permanent spinal condition.
In or around the 13 November 2013 he was directed by Centrelink to attend a meeting. The meeting was conducted by a psychologist who was an employee or agent of the defendant and who, the plaintiff alleges, forced the plaintiff to perform several physical exercises and demonstrate his ability to get around the interview room while performing certain physical tasks.
The plaintiff alleges that these 'forced physical exercises' aggravated his spinal/chronic pain condition and psychological suffering.
Subsequently the administering psychologist changed the plaintiff's rating. The consequence of this was that his income went from $500 a week disability pension to $250 Newstart allowance. He was also given participation requirements which he says were clearly onerous for him.
This change in his status resulted him being referred to MAX employment for training.
At the following pars of the re-amended statement of claim he says:
55.The wrong referral to MAX employment rather than DES psych counselling include a deliberate rejection of the Dr Kanodia med cert that states that the plaintiff is unable to attend MAX Employment training due to specific medical, physical and psychological disabilities and limitations.
56Therefore for reasonable foreseeable and preventable chronic pain known to the defendant minister damages for $50,000 are claimed.
57.Therefore for reasonable foreseeable and preventable psychological suffering and aggravation of the PTDS and depression as mentioned in several of the defendant minister's reports and confirm in the plaintiff's supporting psych report damages for $100,000 are claimed.
61.For the deliberate deletion of medical evidence from page three of the JCA report and incorrect cancellation of the Dr Kanodia med cert that maliciously send the plaintiff to MAX Employment he claims $100,000 compensation for easily foreseeable and preventable aggravation of the MAX employment specific spinal condition chronic pain and clearly recognised psychological suffering. A claim supported by the police report into the physical assault on the plaintiff Mr Kalsbeek while he was forced to attend the wrong training session by the defendant minister.
Hence, from the statement of claim it appears that the plaintiff alleges several discreet acts, or periods within which acts occurred, that point to one or more claims for negligence, being:
(a)The events on or about 13 November 2013.
(b)The period leading up to the referral to MAX Employment.
(c)The events at MAX Employment.
However, it is only in respect of the events in, or about 13 November 2013 that a manifestation of an injury is clearly identified by date.
Whilst the plaintiff alleges injury in respect of those events described at (b) and (c) above, he does not clearly state when they first manifested themselves. This is significant because s 55 of the Limitation Act provides the following definition of when a cause of action accrues:
55.Personal injury — general
(1)A cause of action for damages relating to a personal injury to a person 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.
(2)This section does not apply to a personal injury that is attributable to the inhalation of asbestos.
In my view the situation becomes further complicated by the fact that the plaintiff had pre-existing spinal and psychiatric disorders. It would seem on the face of the pleadings that the case therefore is that as a result of these various acts and events his pre-existing condition was aggravated.
In light of s 55(1)(a) and (b) the cause of action accrues when the aggravation that is causally related to prior events is perceived to be not insignificant or when the firsts signs symptoms or manifestation consistent with a not insignificant personal injury appears. It seems to me a decision on whether an injury is a not insignificant injury and when the plaintiff becomes aware that the injury is a not insignificant injury or when the first sign of such appear is at the very least in part a subjective assessment and to the extent its objective, is one of those decisions on which reasonable minds might reasonable differ.
Arguably an aggravation will be perceived as being not insignificant by reference to the intensity of the symptoms and the duration of those symptoms, that is, the acuteness and the chronicity of the symptoms. Mildly increased symptoms that persist for a long period of time might, with the effluxion of time then be said to be significant whereas an acute flare of symptoms which total resolves very shortly might not be regarded as indicative of a significant injury.
In this context it may be impossible on a summary judgment application to determine when the plaintiff did or did not know he had a significant injury, in this case one or more aggravations of a pre-existing disease, or to determine when the first symptom, clinical sign or other manifestation of one or more aggravations of a pre-existing condition arose that was consistent having sustained a not insignificant injury.
The plaintiff has filed an affidavit, presumably to show cause against a finding that the defendant has a good defence. One might be forgiven for thinking that on an application in which the sole issue raised by the defendant is whether it has a defence by reason of s 14 of the Limitation Act the purpose of the affidavit would be to provide some evidence that would suggest either the cause of action, or a cause of action, accrued within three years of the date of issue of the writ.
Save for the events on or about 13 November 2013 and the injuries that are described as having been suffered at that time it is my view the 218 pages of affidavit material completely fail to address this issue. To the extent it refers to documentary evidence to corroborate the existence of one or more aggravations of the pre-existing diseases, this evidence, like the statement of claim, gives no detail of when where or how the one or more aggravations occurred and is silent on whether it or they occurred before or after the three years prior to the issue of the writ and what acts or events, more precisely, caused it.
This is perhaps not surprising given the plaintiff is self-represented and might not be expected to be aware of the provisions of the Limitation Act and the case law relating to the essential elements of a cause of action in negligence and the causal relationship between breach of the duty and any loss or damage that flows from the breach.
However the failure of the plaintiff to show cause does not overcome the legal onus the defendant has to show firstly that it has a good defence to the action.
In my view it is impossible to discern from the statement of claim when the injuries of which the plaintiff complains manifested themselves so as to be able to discern from the statement of claim when the cause of action or causes of action accrued. Further there is nothing in the affidavit evidence of the defendant nor the affidavit evidence of the plaintiff to assist.
Unless the statement of claim is better pleaded the only way this defence of the defendants is going to be determined is when all the evidence is heard, namely at trial. If it is found that the cause of action, or a cause of action arose within three years of the date of issue of the writ, the defence under the Limitation Act will fall away at least in respect of that cause of action. If it is found that the cause of action or a cause of action falls outside of that period, notwithstanding the plaintiff has failed to bring any application to extend the period within the time ordered by the court he may nevertheless apply for an extension of that time under the RSC O 3 r 5. That is not to say any such application would be successful.

Having regard to these matters and the decision in Belgravia Nominees Pty Ltd v Lowe Pty Ltd and MacMahon Contractors Pty Ltd this issue should go to trial and this application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
11 APRIL 2019