Kasela v The Commonwealth of Australia Through the Agency of the Department of Jobs and Small Business - [2019] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KASELA -v- THE COMMONWEALTH OF AUSTRALIA THROUGH THE AGENCY OF THE DEPARTMENT OF JOBS AND SMALL BUSINESS [2019] WASC 150
CORAM:   MASTER SANDERSON
HEARD:   6 MAY 2019
DELIVERED          :   6 MAY 2019
PUBLISHED           :   9 MAY 2019
FILE NO/S:   CIV 2655 of 2018
BETWEEN:   ALYESI KASELA
First plaintiff

JOHN MICHAEL UDALL
Second plaintiff

AND

THE COMMONWEALTH OF AUSTRALIA THROUGH THE AGENCY OF THE DEPARTMENT OF JOBS AND SMALL BUSINESS
First Defendant

ATWORK AUSTRALIA PTY LTD
Second Defendant

UNITINGCARE WEST
Third Defendant

COLE NORMAN BATEMAN
Fourth Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Amended statement of claim struck out

Category: B

Representation:

Counsel:

First plaintiff	:	In Person
Second plaintiff	:	In Person
First Defendant	:	Mr S Quenby
Second Defendant	:	Mr G P Wood
Third Defendant	:	Mr P A Hopwood
Fourth Defendant	:	Dr K J O'Toole

Solicitors:

First plaintiff	:	In Person
Second plaintiff	:	In Person
First Defendant	:	Ashurst Australia
Second Defendant	:	Norton Rose Fulbright Australia
Third Defendant	:	Clyde & Co
Fourth Defendant	:	James Chong Lawyers

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

Nil

MASTER SANDERSON:

This was an application brought by all four defendants under O 16 and O 20 r 19 of the Rules of the Supreme Court 1981 (WA) (the Rules) to strike out the plaintiffs amended statement of claim filed 8 February 2019. At the conclusion of the hearing I indicated I would strike out the amended statement of claim in its entirety and the proceedings be dismissed. I said I would publish reasons for that decision. These are those reasons.
What follows is a summary of the relevant facts taken largely from the second defendant's submissions.[1]
[1] Second defendant's submissions filed 8 March 2019.
The plaintiffs are self‑represented litigants. The first plaintiff is a 43‑year‑old job seeker and the second plaintiff is the first plaintiff's husband. The first defendant, the Commonwealth of Australia through the Agency of the Department of Jobs and Small Business (the Department) is a department of Commonwealth government of Australia charged with responsibility for employment, job services and the labour market, work place relations, small business and deregulation. The Department administers the Commonwealth government's Work for the Dole programme as part of its 'Jobactive' employment service. The Work for the Dole scheme is a work experience programme designed to help job seekers gain new skills while they look for work.
The second defendant is an employment services provider that specialises in providing work placement opportunities to job seekers who are required to participate in the Commonwealth government's Work for the Dole scheme or other approved activity in order to keep receiving income support while they look for work.
The third defendant is a community services agency of the Uniting Church that provides a range of support services for Australians including community and family services, disabilities and youth, mental health, independent living and accommodation services. The third defendant offered a Work for the Dole programme.
The fourth defendant Cole Norman Bateman (Mr Bateman), was an employee of the third defendant at all relevant times.
It is not easy to work out from the amended statement of claim just what is being alleged by the plaintiffs against the defendants. However, I accept that the following summary which is again taken from the second defendant's written submissions is a fair reflection of the claims put by the plaintiffs against the defendants. If anything it teases out a far more coherent claim than is found in the amended statement of claim filed by the plaintiffs.
The first plaintiff registered as a Work for the Dole participant with the second defendant in about 2014. In early 2017 the second defendant arranged for the first plaintiff to be placed with the third defendant working as a kitchen assistant starting on 21 March 2017. On 23 May 2017 the first plaintiff was referred to a 'level up breakfast prep' work activity at the third defendant. That placement came to an end on or about 5 July 2017.
The plaintiffs commenced this proceeding on 19 September 2018. The relief sought by the plaintiffs against the second defendant is damages for past loss, future economic loss and costs and general damages for pain and suffering which is said to result from physical injuries and mental harm suffered by the first plaintiff.
The plaintiffs plead that the first plaintiff suffered physical injuries and mental harm and the second plaintiff and their teenage daughter have suffered mental harm as a result of the alleged negligence of the defendants.
The first plaintiff says she suffered a uterine prolapse resulting from the persistent heavy or awkward lifting demanded of her during the work activity which resulted in a hysterectomy in November 2017 and consequential harm which the plaintiffs say could or should have been foreseeable by all the defendants. The fourth defendant is the person who it is pleaded was particularly responsible for failing to supervise the first plaintiff's activities.
Following the operation the first plaintiff says she is experiencing continual abdominal pain and discomfort, diagnosed as an umbilical hernia, following the hysterectomy and consequent mental harm. The first plaintiff says she suffered a psychological injury because of the persistent, aggressive atmosphere at the work activity, her mistreatment by other participants not appropriately corrected or reprimanded by Mr Bateman and the persistent varying abuse caused by the behaviour of Mr Bateman.
The plaintiffs say the first plaintiff was 'nervous uncomfortable humiliated intimidated and offended' by her treatment at the activity either directly by Mr Bateman or because of his failure to correct the behaviour of other participants. The first plaintiff is receiving psychological counselling. The second plaintiff acting in his own right, and on behalf of the plaintiffs' teenage daughter, claims that the negligent acts and omissions of the defendants have caused them stress, difficulties, loss of enjoyment and suffering generally. The second plaintiff says he is receiving psychological counselling because of 'frustration' and 'resentment' at the treatment of the first plaintiff.
It would appear that the second plaintiff has withdrawn his claims against the second defendant. The first plaintiff's allegations of negligence against the second defendant are set out in par 10 and 11 (on page 8) and, it seems, in par 1 to 5 (on page 7) of the amended statement of claim.
It seems clear that what the plaintiffs are seeking are damages for personal injury suffered by the first plaintiff during the period she was engaged in the Work for the Dole scheme. Both plaintiffs must establish the defendants individually owed them a duty of care. They must then establish that duty of care has been breached and that as a consequence they suffered loss and damage. It is immediately apparent the second plaintiff cannot, in the circumstances, establish any of the defendants owed him a duty of care. The first plaintiff was engaged in the Work for the Dole scheme. It is not difficult to see this may have involved a duty of care by virtue of the nature of the relationship. But, none of the defendants had any relationship with the second plaintiff and they could not possibly have owed him a duty of care. If, as seems to be the case, the second plaintiff is acting in some capacity which relates to the plaintiffs' daughter that is even more remote. There is simply no basis upon which the second plaintiff can maintain a claim against any of the defendants because there is no duty of care. The claims of the second plaintiff must be dismissed.
Turning then to each of the defendants it seems the first plaintiff alleges that the duty of care between the first plaintiff and the first defendant arises from two documents. The first is described in the amended statement of claim as 'The Guides to Social Policy Law, Social Security Guide 1.252 No 3.2.9.60 'Suitable Activity ‑ Work for the Dole' and 'The Guides to Social Policy Law, Social Security Guide 1.252 No 1.3.4.10 titled 'Duty of Care'.[2] As set out in the first defendant's written submission a document in the nature of a guide is not capable of giving rise to a duty of care. There are no material facts pleaded to indicate how a duty of care is said to arise. What facts are pleaded by the first plaintiff are not material facts and cannot themselves support the existence of a duty of care.[3]
[2] Amended statement of claim filed 8 February 2019 page 2.
[3] First defendant's outline of submissions filed 1 March 2019 par 18.
Moreover, when the first plaintiff's position is considered relative to the first defendant it is simply not possible to frame a broad duty of care that would confer on the first plaintiff any right of action. The Commonwealth government has mandated a regime which is entitled 'Work for the Dole'. That does not render the Commonwealth government, in the guise of the first defendant, liable for any and every injury sustained by a participant in the scheme. That is the way the first plaintiff appears to frame her case. There is nothing in the pleading that gives rise to the alleged duty of care. The first plaintiff's claim against the first defendant has no prospect of succeeding and should be dismissed.
So far as the second defendant is concerned the amended statement of claim alleges the 'Jobactive Deed' imposes obligations on the second defendant.[4] It is then pleaded the 'Activity Host Organisation Agreement' imposes obligations on the third defendant.[5] The first plaintiff's claim against the second defendant breaks down at this point. Whatever may be the contractual obligations between the second and third defendants they have nothing to do with the first plaintiff. The foundation upon which the first plaintiff makes her claim against the second defendant has no legal basis and therefore the claim cannot succeed.
[4] Amended statement of claim filed 8 February 2019 page 7.
[5] Amended statement of claim filed 8 February 2019 page 7.
Much the same reasoning applies in relation to the third defendant. The amended statement of claim does not identify the nature and scope of the alleged duty owed by the third defendant. Nor does the amended statement of claim plead any facts which could be said to give rise to a breach of that duty. The defect is fundamental and on that basis the claim against the third defendant ought be struck out.
It is clear that if any claim is available to the first plaintiff it would be against the second and third defendants. As I have noted above, essentially what the plaintiff is claiming is damages for personal injury. It is possible that the plaintiff could establish that either the second defendant or the third defendant or both owed the first plaintiff a duty of care. That duty of care would perhaps be framed in the same way as the duty owed by an employer to an employee. The duty would presumably arise at common law ‑ certainly there is nothing in the amended statement of claim which suggests that there is some statutory basis for such a duty of care. Assuming that such a duty exists it needs to be given content. Once the duty has content ‑ perhaps a duty not to require the first plaintiff to lift pots above certain weight ‑ then a breach of that duty can be pleaded. That would then be followed by a plea of loss and damage consequent upon the breach of duty. None of these matters are taken up in the amended statement of claim.
As to the fourth defendant, no basis is pleaded upon which he could be said to be liable to the first plaintiff. Instead there are a series of scandalous pleas which could not in any circumstance remain in a pleading. Counsel for the fourth defendant in his written submissions described these allegations as 'contemptible' even when made by unrepresented litigants.[6] He is right. The allegations should never have been made. There is nothing in the pleading which would implicate the fourth defendant in any way and the claims against him must be dismissed.
[6] Fourth defendant's written submissions filed 22 March 2019 par 4.10.
As I have indicated above, it is possible to see the jurisprudential basis upon which the first plaintiff may have a claim against the second and third defendants. But, the fact is the claim has not been made out in the pleading. The plaintiffs have been provided with ample opportunity to plead their claim, even allowing for the fact they are self‑represented. This matter cannot be allowed to simply drift on. For that reason the amended statement of claim is struck out in its entirety and the proceedings are dismissed. The plaintiffs are to pay the defendants' costs of the action, including reserved costs, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
9 MAY 2019