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:

1. 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.

2. 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.

3. 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 management staff and the plaintiff claim for damages is $589,500.00 $750,000.00 and a published public apology.

4. The attempted amendment was rejected by the court on the basis that the requirements required when amending a writ were not satisfied. On 4 September 2020 each of the defendants filed an appearance which led to the filing of a statement of claim on 11 September 2020 and a subsequent amended statement of claim on 24 September 2020, an application for summary judgment filed by the plaintiff on 25 September 2020, a chamber summons filed by the first defendant for summary judgment dismissing the action, alternatively to strike out the amended writ of summons and statement of claim and further for security for costs, subsequently the second defendant filed an application seeking to have the indorsement struck out and the action dismissed. Additionally on 25 September 2020 the second defendant filed a defence and on the 11 October 2020 the plaintiff filed an amended statement of claim. All of those matters were listed before me for hearing on 5 February 2021 but it is the strike-out applications which have been filed by the defendants that are the focus of my present decision. The proposed amended indorsement of claim and the various versions of the statement of claim which have been filed make it clear that the cause of action pursued by the plaintiff arose from statements made by the second defendant on 5 September 2018 for which the plaintiff alleges the second defendant is personally responsible and the first defendant vicariously responsible.

5. It can be seen that the writ of summons was issued a few days before the defendants would have been possessed of a limitation act defence. Notwithstanding the lateness of the filing of the writ the plaintiff waited almost a year before taking any further action in regard to the action. Although they are phrased somewhat differently the application filed by the first defendant and that filed by the second defendant raise a number of matters. That upon which I intend to focus is the question of whether or not this writ should be struck out due to the total inadequacy of the indorsement of claim. There has been considerable discussion in this court about this point and in particular the decision of Ahmed v Hoffmans(a firm) [2020] WADC 82 a decision delivered by Judge Troy on 8 May 2020 and the decision of Judge Bowden in the matter of Ogbonna v Programmed Integrated Workforce Ltd (No 2) [2020] WADC 150 are directly in point. In the case decided by his Honour Judge Troy his Honour concluded on appeal from a Registrar's decision:

   The deputy registrar was plainly correct in his assessment of the original indorsement. It was woefully inadequate. It was, by some considerable margin, a more egregious failure to comply with the requirements of O 6 r 1 than many others considered by the authorities in this area, for example, in Glendinning v Cuzens.

   It is not possible from that indorsement to determine the nature of the claims made and how they related to the relief sought. It is not possible to determine whether the claims fell within a relevant limitation period, it is not possible to determine the metes and bounds with which any statement of claim must be framed.

   (footnote omitted)

6. Likewise when dealing with the indorsement in Mr Ogbonna's case, his Honour Judge Bowden stated:

   The indorsement in this case has not identified any critical factual field or events which give rise to the relief claimed.

   The indorsement does not state sufficient particulars to enable the publication in respect of which the action is brought to be identified and fails to comply with O 6 r 2 of the Rules of the Supreme Court in that it does not enable an identification of the written document or conversations containing the defamatory matter which was made available to a third party in which the third party had available for his or her comprehension: Rossen v Airey [2012] WASCA 26.

7. The indorsement simply identifies the area of law (Defamation) and claims damages. There are no facts referred to and nothing to put any facts into a recognised legal framework showing how the claim arises. There is nothing linking the claim to any facts and no particulars allowing the relevant publication to be identified or the limitation outcome established.

8. Interestingly, both of the cases to which I have referred are under appeal. In Ahmed's case the appeal is brought by the defendant who appeals orders permitting amendments to the indorsement of writ to correct the indorsement and thereby provide a proper foundation for an action to proceed. On the other hand, Judge Bowden formed the view that the amendments proposed by the plaintiff in the action with which he was dealing had the effect of introducing a new cause of action (because the indorsement did not in fact identify any cause of action) and since the application for amendment had come after the expiration of the one year limitation period it should be refused.

9. In my view these decisions are not reconcilable. In every material aspect the critical question remains the same, that is whether an indorsement of claim which fails to identify any recognisable cause of action is capable of correction after the limitation period and for the cause of action ultimately identified to be pursued. Both of these cases are before the Court of Appeal and although I am inclined to prefer the view of Judge Bowden, I recognise the fact that the view taken by Judge Troy might find favour with the Court of Appeal.

10. I take the view that the indorsement in the writ is clearly inadequate and should be struck out.  Given the different attitudes of the judges at this court I am not prepared to strike out the writ but intend to stay the action and all the applications in it pending the outcome of the appeals to which I have referred. The stay will be until further order with liberty to apply.  In the meantime I shall direct that the action no longer be case flow managed which will protect it from arbitrary dismissal under the case flow management rules.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

CM

Court Officer

18 FEBRUARY 2021