Meo v Facial Plastic Surgery Pty Ltd - [2025] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MEO -v- FACIAL PLASTIC SURGERY PTY LTD [2025] WADC 88
CORAM:   REGISTRAR NUNN
HEARD:   DETERMINED ON THE PAPERS
DELIVERED          :   27 NOVEMBER 2025
FILE NO/S:   CIV 2398 of 2024
BETWEEN:   MARGARET MEO
Plaintiff
AND
FACIAL PLASTIC SURGERY PTY LTD
First Defendant
JASON WAYNE OATES
Second Defendant

Catchwords:

Personal injury - Limitation period - Section 39(3)(b) of the Limitation Act 2005 (WA) - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Ms V E Long-Droppert
First Defendant	:	Mr N Banks
Second Defendant	:	Ms E L Jack

Solicitors:

Plaintiff	:	Hammond Legal
First Defendant	:	Panetta McGrath Lawyers
Second Defendant	:	MDA National Insurance

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

Bee v ACN 116 198 460 Pty Ltd [2016] WADC 152
Ghiassi v Industrial People Pty Ltd [2012] WADC 23

REGISTRAR NUNN:

Introduction

Margaret Meo had a cosmetic facial treatment performed at Academy Face and Body, a plastic and cosmetic surgery clinic. It is run by Facial Plastic Surgery Pty Ltd (the first defendant) under the supervision of Dr Jason Oates, the sole director of Facial Plastic Surgery (the second defendant). For ease of reference, I will simply call the second defendant 'the clinic'.
The basis of her cause of action stems from an alleged injury caused by the treatment administered by the clinic's nurse practitioner, Ms Helen Cunningham.
Ms Meo has sued the clinic and Dr Oates but not Ms Cunningham. Ms Meo believed Ms Cunningham to be an employee of the clinic. Rather than pursue Ms Cunningham, Ms Meo has pursued the clinic as being vicariously liable for the acts of its employees, agents and servants. This purports to include Ms Cunningham.
The limitation period expired very soon after the writ was served but before any defence was received. The clinic has not yet filed a defence. Dr Oates has.
In his defence Dr Oates pleads that Ms Cunningham was not in fact an employee of the clinic but an independent contractor.
Ms Meo now applies outside of the limitation period for leave under s 39(3)(b) of the Limitation Act 2005 (WA) to bring an action against Ms Cunningham and to join her as a further defendant to the action.
The application is not opposed. At the first return date for the application, Ms Meo agreed the application could be determined on the papers. Written submissions and affidavits were received.
Ms Meo bases her application on the analogous authority of Ghiassi v Industrial People Pty Ltd [2012] WADC 23.
Notwithstanding that the application is not opposed I do not consider that the application can succeed for three reasons.
1.There is no satisfactory evidence that Ms Meo has suffered a personal injury to trigger the operation of s 39 of the Limitation Act 2005.
2.There is no satisfactory evidence as to when Ms Meo suffered any such personal injury or was aware of the first manifestation or clinical sign of such injury to ascertain when the limitation period commenced.
3.I consider Ghiassi distinguishable on its facts and an inappropriate analogue for this situation. Ms Meo was always aware of the person to whom her injury was attributable (whether in fact or law). A mistake as to Ms Cunningham's employment status is not one that is captured by operation of s 39 and the principles established by Ghiassi when no other entity or individual was otherwise involved.
For these reasons Ms Meo's application is dismissed.

Application unopposed

I am conscious that the application is not opposed. However, nor is the application formally conceded. No facts or issues are admitted by any party to the application and so it cannot be said that there is common ground from which an assessment of the application can be commenced. As such it remains for Ms Meo to prove the existence of the necessary facts that would ground the exercise of the court's discretion in this situation. The absence of evidence to the contrary should make that task an easy one but nevertheless one that Ms Meo is obliged to do.

Insufficient evidence of personal injury

Section 39 is predicated on a plaintiff being able to apply for leave out of time to commence an action for damages relating to 'personal injury'.
Personal injury is defined by the Limitation Act 2005 as including a 'disease, impairment of a person's physical condition, and mental disability'.
Ms Meo relies on one affidavit of her own and two affidavits of Mr Alexander, her solicitor. I accept that the affidavit evidence is uncontroverted. However, even uncontroverted evidence must rise to the level of evidence necessary to establish the essential factual conditions required to enliven (and then exercise) the discretion resident in s 39 of the Limitation Act 2005.
The highest Mr Alexander's affidavits reach is to attach two letters from Ms Meo's former solicitors that assert that she suffered 'complications' after her treatment at the clinic.
This does not rise to anything above a suggestion that Ms Meo suffered a personal injury as defined.
The pleadings state the range of injuries and impairments Ms Meo alleges she suffered. However, pleadings are allegations of material fact, not evidence of it. What is necessary to be found in the affidavit evidence is some evidence consistent with those material facts pleaded to establish that Ms Meo suffered a personal injury.
Ms Meo herself does not state that she suffered an injury. She does detail that the 'treatment administered by Ms Cunningham on this date [11 May 2021] is the treatment the subject of my claim'. However, that is a statement as to her treatment, not her injury.
The highest Ms Meo's affidavit rises to a statement that she suffered a personal injury is to attach a document that she states 'appears to have been prepared' by Dr Oates. Although she states that this document summarises her meeting with Dr Oates, she does not state that this is an accurate reflection of her meeting or her injury.
She attests at par 2 of her affidavit that the matters contained within it are within her personal knowledge save as otherwise stated in which case the source is as stated.
As noted, the source here is not her own personal knowledge but a note that 'appears to be made by Dr Oates'.
I am not persuaded that this is adequate evidence to establish a finding of fact that Ms Meo suffered a personal injury.

No evidence of when the limitation period commenced

Section 14(1) of the Limitation Act 2005 provides that an action for personal injuries cannot be commenced if more than three years have elapsed since the cause of action accrued.
Section 55 of the Limitation Act 2005 addresses the accrual of a cause of action for personal injury and states:
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.
So, in addition to establishing that Ms Meo in fact suffered a personal injury, in order to assess when the limitation period expired (and hence under s 39 when her awareness ought to be assessed from) Ms Meo must establish when her cause of action accrued.
This is pleaded as being 11 May 2021 which is the date she received the treatment which is the subject of her claim.
However, as stated above, a pleading does not constitute evidence.
As with the issues addressing whether the affidavit evidence establishes that Ms Meo suffered a personal injury, when the cause of action might be said to have accrued is similarly not established by the affidavit evidence.

Application of Ghiassi

However, if I am wrong to conclude that Ms Meo has led insufficient evidence to establish that she suffered a personal injury, I am not persuaded that Ghiassi applies in this situation or that s 39(3)(b) is properly engaged.
In this instance Ms Meo's chamber summons does not refer to any specific limb or subsection of s 39 but rather references that the application is brought under s 39 generally.
However, Ms Meo's submissions confine the application to one under s 39(3)(b) and it is on this basis that I approach the application.
Turning to the facts of Ghiassi: Mr Ghiassi worked for his own company as a driver and had an arrangement with another company called Country Carriers for haulage and delivery services. Country Carriers had a yard in Kewdale. A Mr Stafford had worked at the yard for as long as Mr Ghiassi had been delivering goods to and from the yard and for Country Carriers. To Mr Ghiassi's knowledge Mr Stafford worked full‑time, five days a week.
One day Mr Stafford did not properly align a forklift to unload Mr Ghiassi's truck at the Kewdale yard and Mr Ghiassi was injured when fell through the gap between the truck and the pallet on the forklift.
Mr Ghiassi assumed that Mr Stafford was an employee of Country Carriers and so he sued Country Carriers as being vicariously liable for Mr Stafford's error.
However, Country Carriers denied that Mr Stafford was an employee pleading that he was in fact employed by labour hire company Industrial People. As here, this only came to light after the limitation period expired.
Mr Ghiassi applied under s 39(3)(b) and s 39(3)(c) of the Limitation Act 2005 for leave to commence an action against Industrial People. Section 39(3)(c) was held to have no application because the person to whom the injury could be attributed to was identified. Accordingly, Mr Ghiassi's application turned on the operation of s 39(3)(b).
I accept that Ghiassi stands for the proposition that s 39(3)(b) is broad enough to encompass a situation where an 'injury is "attributable to the conduct of a person" when the only basis alleged for that person's liability is vicarious liability as in the case of an employer' (see Ghiassi [22]). That is, provided all of the constituent elements of the necessary attributable conduct are established.
I equally accept that Ms Meo relies on Ghiassi by way of analogy recognising that the facts of this case are different. This is not the first time Ghiassi has been analogously applied to different facts and distinguished. See for example, Bee v ACN 116 198 460 Pty Ltd [2016] WADC 152.
Ghiassi arose in circumstances where at the time the limitation period expired there was ignorance of the existence of a further entity to whom liability might be attributed. That is, Mr Ghiassi neither knew that Mr Stafford was employed by someone other than Country Carriers or the identity of that further employer (being Industrial People).
In this instance there is no further employer. Ms Meo was always aware of Ms Cunningham's identity. Ms Meo was only unaware of Ms Cunningham's legal status as an independent contractor. That is, Ms Meo was only unaware of the capacity in which Ms Cunningham might be sued and so the necessity to sue her personally.
Furthermore, Ms Meo seeks orders for leave that Ms Cunningham be joined by reference to both her name and ABN. However, nothing in the affidavit evidence establishes Ms Cunningham's ABN.
This however does not change whom Ms Meo's injury might be attributed to. That was always open to be attributed to Ms Cunningham or the clinic (which was assumed to have been Ms Cunningham's employer).
In this instance it is not apparent on the evidence before me that Ms Cunningham has an employer. She (supposedly) operated under an ABN. An ABN does not change the nature of Ms Cunningham's legal status or create some other entity to whom responsibility might be attributed.
There is no evidence that Ms Cunningham was employed by a third party which had contracted with the clinic for the provision of Ms Cunningham's services or labour.
That would be on all fours with the ratio of Ghiassi.
Rather, Ms Cunningham is an individual capable of being sued personally. Even as an employee of the clinic she was capable of being sued in such a manner although there may be forensic reasons why a plaintiff might not wish to do so.
As noted in Ghiassi at [28]:
…the language of s 39(3)(b) does not require the court to find that the would-be respondent has 'caused' the relevant death or injury. All that is required is that the death or injury may be 'ascribed to as an effect or consequence' of the conduct of that person.
In this instance the evidence is that Ms Meo (and presumably her solicitors through whom she acted) only ever contemplated suing Ms Cunningham's employer. There is a range of evidence that establishes why Ms Meo might have thought Ms Cunningham was an employee of the clinic.
However, that does not change the fact that Ms Cunningham was always known to have been the person who applied the treatments complained of or that Ms Cunningham was capable of being sued as an individual (even as an employee) and that it is that capacity that Ms Meo now seeks to sue Ms Cunningham.
At all times it seems open that the injury may have been 'ascribed to as an effect or consequence of the conduct' of Ms Cunningham.
No explanation as to why only the clinic (as Ms Cunningham's assumed employer) was pursued has been provided.
All that can be ascertained is that the clinic was pursued in preference to Ms Cunningham not in the absence of any knowledge that Ms Meo's alleged injury could be 'ascribed to as an effect or consequence of the conduct' of Ms Cunningham.
This appears to be a forensic decision and not one that engages with the requirements of s 39(3)(b).
In my view, the provisions of s 39(3)(b) are not engaged. Although the parallels with Ghiassi are plain to see, the facts of this case are distinguishable such that these facts strain the operation of s 39(3)(b).
Whether Ms Meo's decision to not pursue Ms Cunningham personally (on the assumption that she was an employee of the clinic) was based on any facts that could enliven any other basis for extending the limitation period may be a matter for Ms Meo to consider but is not a matter presently before me.

Conclusion

In the circumstances it is not necessary to consider any discretionary factors as to whether the limitation period ought be extended as I am not persuaded the discretion to extend is properly engaged in the present situation.

As the matter was reserved for determination on the papers and no other party engaged with the application the appropriate order as to costs is that there be no order as to costs effectively requiring Ms Meo to bear her own costs of the application.

Orders

The application is dismissed.
There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
PD
Associate
27 NOVEMBER 2025