O'Donovan v Western Australian Alcohol and Drug Authority - [2010] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: O'DONOVAN -v- WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY [2010] WADC 91

CORAM: REGISTRAR KINGSLEY

HEARD: 14 MAY 2010

DELIVERED : 14 JUNE 2010

FILE NO/S: CIV 148 of 2007

BETWEEN: ANNE O'DONOVAN
Plaintiff
AND
WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY
Defendant

Catchwords:

Practice - Application by defendant to strike paragraphs of statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr A Castley
Defendant: Mr D Clyne

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jarman McKenna

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

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

REGISTRAR KINGSLEY: By an application filed 22 March 2010 the defendant seeks orders that the paragraphs of the statement of claim described in Sch A to the application be struck out, principally on the ground that the various paragraphs will prejudice delay or embarrass the fair trial of the action.
Whilst there has been significant delay in bringing the application the plaintiff does not take issue with the delay.
The plaintiff pleads that she was employed by the defendant as a registered psychiatric nurse pursuant to a written contract of employment dated 28 April 1993. The plaintiff pleads express terms of the contract and at par 5 pleads implied terms of the contract. The implied terms of the contract are, broadly:
•The defendant would act fairly and reasonably and in good faith.
•The defendant would exercise reasonable care to establish, maintain and enforce a safe system of work.
•The defendant would take reasonable steps to minimise risk of injury to the plaintiff
•The defendant would comply with its own internal dispute resolution procedures.
•The defendant would consult with the plaintiff regarding changes to the system of work and/or rosters.
The defendant's counsel takes a issue with par 5 in that it fails to plead how and why the term are said to be implied.
Terms maybe implied in a contract when a court presumes the parties to the particular contract must have intended to include those terms. The criteria whether a term will be implied is stated in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266:
•The term must be reasonable and equitable.
•It must be necessary to give business efficacy to the contract (so no term will be implied if the contract is effective without it).
•The term must be so obvious that it "goes without saying".
•The term must be capable of clear expression.
•The term must not contradict an express term of the contract.
In my opinion it is not enough for the plaintiff to simply to plead that sub-paragraphs of par 5 of the statement of claim are the implied terms of the contract without also pleading the basis upon which those terms are implied. In my opinion par 5 is embarrassing to the defendant.
The plaintiff pleads at par 6 that the defendant owed to the plaintiff a duty of care under general law or alternatively pursuant to statute. The defendant objects to this paragraph on the basis that no statute has been specified.
In my opinion the defendant's submission has merit. Insofar as par 6 pleads a duty owed by the defendant to the plaintiff pursuant to statute the plaintiff must specify the particular statute and the particular section of that statute giving rise to the duty.
In my opinion par 6 insofar as it relates to the plea of duty of care arising from a statute is embarrassing to the defendant.
The plaintiff goes on to plead that between 1999 and early 2004 the plaintiff raised concerns about the nature and timing of her roster and that in April 2004 the plaintiff's work roster was modified to the plaintiffs reasonable satisfaction. The plaintiff pleads that on 9 May 2004 the defendant changed the plaintiff's roster without consulting the plaintiff, and without giving the plaintiff any reasonable warning or notice.
The plaintiff goes on to plead at par 12 that the defendant directed the plaintiff to take accrued public holiday leave. In subsequent paragraphs the plaintiff pleads the defendant had in place a procedure for dealing with grievances and complaints and the defendant did not comply with that procedure.
Paragraph 19 of the statement claim pleads that by changing the plaintiff's roster and by requiring her to go on leave the defendant breached its statutory obligation, breached the terms of contract or its duty of care pleaded in par 6.
The defendant objects to par 19 on the basis that the statutory obligations are not pleaded nor are the contractual terms for duty of care alleged to arise.
The issues in par 19 of the statement of claim flow back to par 5 and par 6 of the statement of claim. I am of the opinion that pars 5 and 6 are embarrassing. However, if those paragraphs are pleaded properly then the objection to par 19 would fall away. Whilst I am of the opinion that, as the statement of claim is presently pleaded, par 19 is embarrassing to the defendant, I do not propose to strike par 19 on the basis that a subsequent version of the statement of claim may cure the deficiencies.
Under the heading Unfair Roster Changes the plaintiff pleads that on her return from leave and without prior consultation the defendant modified the plaintiff's work roster. At par 22 the plaintiff pleads that the defendant was aware or ought to have been aware that the plaintiff had not been rostered on Wednesday night due to an established personal commitment and that the plaintiff had family commitments that made it impossible for her to work on a ad hoc basis.
The defendant's counsel submits that par 22.2 of the statement of claim ought to be struck as there has been nothing previously pleaded, which provides any basis for the contention that the defendant knew or ought to have known that plaintiff had family commitments which made it impossible for her to work on a ad hoc basis.
Plaintiff's counsel has conceded this proposition but for completeness I am of the opinion that the necessary foundation for pleading the awareness of the defendant has not been established and therefore par 22.2 is embarrassing to the defendant.
The plaintiff goes on to plead that by reason of the unfair roster changes the defendant has breached its statutory obligations (par 28). For the reasons expressed in par 14 above in relation to par 19 of the statement of claim, par 28 is embarrassing to the defendant.
At par 30 of the statement of claim under the heading Work in Environment the plaintiff pleads that the defendant established, conducted and maintained a work environment which, the plaintiff counsel colloquially expresses, was poisonous.
The defendant's counsel seeks that the par 30 to par 35 be struck out on the basis that they are far too broad, relate to other unrelated individuals, and are not causatively connected to the subsequence of the plaintiff's claims. The substance of the defendant's objection is that the particulars, and the number of people potentially who will need to be identified to establish the plaintiff's case, are large and will create an unreasonable burden on the defendant.
The defendant's counsel cite by way of example the preamble in par 30 referring to the defendant having established, conducted and maintained a work environment which, in essence, was hostile to its employees. The defendant is a corporate entity and the period referred to is almost two years. The defendant's counsel submits that if the particulars are allowed to stand the defendant will need to identify who, on the part of the defendant, established the work environment, who conducted the work environment and who maintained the work environment. This hypothetically could involve very many people.
Further, defendant's counsel submits that par 30.1 does not allege how the defendant permitted its employees to carry out the various acts alleged in that paragraph.
In my opinion the mere the fact that a plea on the part of a plaintiff will involve considerable work for both by plaintiff and defendant does not, in itself, constitute a ground to strike out the plea. However, the plea in par 30 is unsupported by the necessary particulars and is embarrassing.
The defendant's counsel submits that the defendant is embarrassed by par 31 in that there is a plea the plaintiff advised the defendant verbally on numerous occasions of certain facts but there is no particularisation of that plea. In my opinion the defendant's complaint is well founded and particulars ought be given of the verbal advice by the plaintiff to the defendant.
Paragraph 34 and also par 40 and par 45 contain the same plea as that in par 19 and par 28 of the statement of claim. Provided par 5 and par 6 of the statement of claim are adequately dealt with then the complaint regarding these paragraphs should fall away.
At par 48 of the statement of claim the plaintiff pleads that the defendant breached the Equal Opportunity Act1984 and plaintiff's counsel has conceded that this paragraph ought to be struck out.
Paragraph 49.3 of the statement of claim pleads that the defendant breached the Occupation Safety and Health Act 1984 in that as the plaintiff's employer the defendant failed to consult the safety and health representatives and other employees at the premises. As it is pleaded that paragraph is too wide and not causally related to the cause of action and is struck out.
Paragraphs 56.2 and 56.3 plead a wrong date and can be cured in the next version of the statement of claim.
Paragraph 58 pleads the basis for a prayer for exemplary and aggravated damages. In my opinion the plea of par 58 is a rolled up plea. The distinction between aggravated and exemplary damages is that aggravated damages are given to compensate the plaintiff when harm is done to them by a wrongful act, aggravated by the manner in which that act was done. Exemplary damages are given to punish the defendant as well as to serve as moral retribution or deterrent (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149).
The distinction between exemplary damages and aggravated damages is recognised in O 20 r 9(3) Rules of the Supreme Court 1971 (RFC) where a claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts upon which the party pleading relies. Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996 is authority for the proposition that to avoid embarrassment the pleading must make clear what facts are relied on to support each claim: i.e., the claim for aggravated damages and the claim for exemplary damages should be separately pleaded and particularised. Accordingly I am of the opinion that par 58 is embarrassing to the defendant.
I am of the opinion that the defendant's application is best dealt with by giving leave to the plaintiff to bring in a minute of substituted statement of claim addressing the various issued raised in my reasons. I will hear the parties on the time period within which this is to occur and on costs.