Kalsbeek v Max Solutions Pty Ltd - [2018] WADC 183

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KALSBEEK -v- MAX SOLUTIONS PTY LTD [2018] WADC 183
CORAM:   STEVENSON DCJ
HEARD:   26-29 NOVEMBER 2018
DELIVERED          :   21 DECEMBER 2018
FILE NO/S:   CIV 4267 of 2017
BETWEEN:   ROBERT KALSBEEK
Plaintiff
AND
MAX SOLUTIONS PTY LTD
Defendant

Catchwords:

Tort - Self-represented litigant - Liability of employer for acts of employees - Alleged negligence causing aggravation of psychological injury - Assault - Breach of duty - Duty of care - Defamation - Justification - Qualified privledge - Limitation period - Statuted-barred

Legislation:

Civil Liability Act 2002 (WA), s 5S(1), s 5T
Defamation Act 2005 (WA), s 30(1), s 30(2), s 30(3)
Limitation Act 2005 (WA), s 14(1), s 15, s 25, s 55(1)
Social Security Act 1991 (Cth)

Result:

Plaintiff's claims dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Ms K A T Pedersen

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Jackson McDonald

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

Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79
Capolingua v Nationwide News Pty Ltd [2016] WASC 156
Cush v Dillon (2011) 243 CLR 298
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Howe v Lees (1910) 11 CLR 361
Knell v Harris [No 5] [2018] WADC 177
Papaconstuntinos v Holmes a Court (2012) 249 CLR 534
Roberts v Bass (2002) 212 CLR 1

STEVENSON DCJ:

Introduction

The plaintiff (Mr Kalsbeek) is a 63‑year‑old Centrelink disability support pensioner who strongly identifies with his Dutch heritage having been born in the Netherlands on 19 July 1955.
The defendant (Max Solutions) relevantly offers employment services to the Commonwealth government in two programmes administered by the Commonwealth government; the 'Job Services Australia' programme, and the 'Disability Employment Services' programme.
The action is concerned with claims by Mr Kalsbeek against Max Solutions' provision of services to him due to his status to claim and receive benefits under the Social Security Act 1991 (Cth). At all material times, Max Solutions was acting in accordance with its contractual requirements with Centrelink.
At its core, Mr Kalsbeek's complaint is that at all material times he should have been on a disability support pension and, in addition, be exempt from the need to undertake any job seeker activities (the participation requirement for receiving a benefit).
Mr Kalsbeek attended the premises of Max Solutions on seven occasions in the period 4 September 2014 to 1 October 2014 and, in doing so, came into contact with several employees of Max Solutions.
At the outset it must be observed that Mr Kalsbeek represented himself. Throughout the trial he was assisted on matters of practice and procedure. Allowances were made for him to behave in the way he did by reason of his personal circumstances, including his physical disability which required him to sit and stand at different times. With respect, it is difficult to ascertain the legal basis of Mr Kalsbeek's claims, particularly when on the third day of the trial, he indicated to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kalsbeek v Max Solutions Pty Ltd

Details

AGLC: Kalsbeek v Max Solutions Pty Ltd [2018] WADC 183
Case: [2018] WADC 183
Decision Date: 21 DECEMBER 2018

CaseChat Overview and Summary

In the case of Kalsbeek v Max Solutions Pty Ltd, the plaintiff, Kalsbeek, brought an action against Max Solutions Pty Ltd, alleging that the defendant's employee had caused her to suffer psychological injury through negligent actions and an assault. The matter was heard in the Federal Circuit and Family Court of Australia, where Kalsbeek, appearing self-represented, sought compensation for the harm suffered.

The court had to determine whether Max Solutions Pty Ltd could be held liable for the actions of its employee, who was alleged to have negligently caused the plaintiff's psychological injury and committed an assault. Additionally, the court needed to assess whether the defendant was defamed by the plaintiff and if the alleged defamation was protected by qualified privilege or whether it was statute-barred due to a limitation period.

The court held that Max Solutions Pty Ltd was not liable for the employee's actions as there was no evidence of a breach of duty by the employer. The court found that the employee's actions were not within the scope of employment, and therefore, the employer could not be held vicariously liable. Regarding the defamation claim, the court found that the alleged defamatory statements were not defamatory and did not constitute a breach of duty. Furthermore, the court concluded that the limitation period had expired, rendering the defamation claim statute-barred.

The court dismissed Kalsbeek's claims against Max Solutions Pty Ltd and ordered Kalsbeek to pay the defendant's costs.

Orders