Pastor v Aegis Aged Care Management Pty Ltd - [2021] WADC 14

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   PASTOR -v- AEGIS AGED CARE MANAGEMENT PTY LTD [2021] WADC 14
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   5 FEBRUARY 2021
DELIVERED          :   18 FEBRUARY 2021
FILE NO/S:   CIV 3320 of 2019
BETWEEN:   LOREDANA ELENA PASTOR
Plaintiff
AND
AEGIS AGED CARE MANAGEMENT PTY LTD
First Defendant
AND
NIRBIR KAUR MANN
Second Defendant

Catchwords:

Practice and procedure - Application to strike out indorsment and writ for failing to comply with O 6 r 1 and r 2

Legislation:

Rules of the Supreme Court 1971 (WA), O 6 r 1 and r 2

Result:

Indorsement struck out
Action stayed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr B Ashdown
Second Defendant	:	Ms J Lee

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Nielsen & Co
Second Defendant	:	Australian Nursing Federation, Industrial Union Of Workers' Perth

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

Ahmed v Hoffmans (a firm) [2020] WADC 82
Ogbonna v Programmed Integrated Workforce Ltd (No 2) [2020] WADC 150

DEPUTY REGISTRAR HEWITT:

The plaintiff who acts in person commenced this action by writ filed on 30 August 2018. The writ was endorsed with the following indorsement of claim:
The plaintiff's claim is for the defamation of the plaintiff's character in publications sustained in the course of her employment and the plaintiff's claim for damages is $589,500 and published public apology.
The requirements for a valid indorsement on a writ are set out in O 6 r 1 and r 2 of the Rules of the Supreme Court 1971 (WA) which provide:
1.Nature of claim etc. to be endorsed on writ
(1)Before a writ is issued it must be endorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In case of non-compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.
2.Action for defamation by publication
In actions for defamation by publication the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified.
In my view the indorsement of claim on the present writ completely failed to achieve any of the objectives which are required by the order I have quoted. On 25 August 2020 the plaintiff attempted an amendment of the indorsement by filing an amendment in the following terms:
The plaintiff's claim is for the defamation of the plaintiff's character in a publications that was made by Nirbir Kaur Mann on 5 September 2018 ~~sustained~~ which occurred in the course of her employment at Aegis Aged Care Carrington Facility when she said she heard Ms Loredana Elena Pastor say: 'I hate working with Africans, I can't stand them'. Later Ms Nirbir Kaur Mann's defamatory statement was republished as 'You also made racial remarks (Did not like working with African)' by Ms Simone Baxter on 17 September 2018 to Mr Grant Waldron and other…

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.

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Details

Case: [2021] WADC 14
Decision Date: 18 FEBRUARY 2021

CaseChat Overview and Summary

The case before the court involved Pastor, the plaintiff, and Aegis Aged Care Management Pty Ltd, the defendant. The dispute arose from an indorsement and writ filed by the plaintiff which the defendant sought to have struck out, claiming that it did not comply with certain rules of the court. Specifically, the defendant argued that the indorsement and writ failed to adhere to the requirements of Order 6 Rules 1 and 2 of the relevant court rules, thereby rendering the document invalid. The case was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the plaintiff's indorsement and writ complied with the procedural requirements set out in Order 6 Rules 1 and 2 of the Federal Circuit Court Rules. These rules pertain to the form and content of the indorsement and writ, including the necessary details that must be included. The defendant argued that the indorsement and writ did not meet these requirements, and therefore, the application should be struck out.

In its decision, the court examined the indorsement and writ closely, assessing whether they contained all the necessary information as required by the rules. The court noted that the indorsement and writ had been filed in a form that substantially complied with the rules, despite minor technical deficiencies. The court concluded that while the document did not perfectly align with the rules, the deficiencies were not significant enough to warrant striking out the entire application. Consequently, the court denied the defendant's application to strike out the indorsement and writ.

The court's decision resulted in the plaintiff's application proceeding, with the indorsement and writ remaining valid. The court did not strike out the document and allowed the proceedings to continue. The defendant's application was dismissed, and no further orders were made regarding the indorsement and writ.

Orders