Pastor v Aegis Aged Care Management Pty Ltd [No 2] - [2022] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   PASTOR -v- AEGIS AGED CARE MANAGEMENT PTY LTD [No 2] [2022] WADC 2
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   1 OCTOBER 2021
DELIVERED          :   12 JANUARY 2022
FILE NO/S:   CIV 3320 of 2019
BETWEEN:   LOREDANA ELENA PASTOR
Plaintiff
AND
AEGIS AGED CARE MANAGEMENT PTY LTD
First Defendant
NIRBIR KAUR MANN
Second Defendant

Catchwords:

Application to amend the name of the first defendant - Plaintiff's application for extension of the limitation period - Defendants' applications for summary judgment

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Judgment be entered for the defendants

Representation:

Counsel:

Plaintiff	:	Ms D Naidu
First Defendant	:	Mr B W Ashdown
Second Defendant	:	Ms J Lee

Solicitors:

Plaintiff	:	Waterbrook Legal
First Defendant	:	Nielsen & Co
Second Defendant	:	Australian Nursing Federation, Industrial Union Of Workers' Perth

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

Alinta 2000 Ltd v Petkov [2012] WASCA 258
Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213
APT Finance Pty Ltd v Bajada [2008] WASCA 73
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45
Dey v Victorian Railways Commissioners [1949] HCA 1
Gerovich v Maxwell John Gerovich (as executor of the estate of Anthony Gerovich) [2018] WASC 153
Lois Nominees Pty Ltd v Hill [2011] WASC 53
Noonan v MacLennan [2010] QCA 50
Rossen v Airey [2012] WASCA 26
The Commonwealth of Australia v Verwayen [1990] HCA 39
Wurth Australia Pty Ltd v Burgess [2012] WASC 504

PRINCIPAL REGISTRAR MELVILLE:

Background

On 30 August 2019 the plaintiff issued a writ seeking damages for unspecified defamation on an unspecified date by the first defendant and the second defendant.[1]
[1] Transcript of the reasons for decision of Flynn DCJ, page 66.
The first defendant subsequently brought an application for an order for summary judgment, for an order striking out the writ and statement of claim and for an order for security for costs. The second defendant brought an application for an order striking out the indorsement on the writ of summons on the basis it failed to disclose a cause of action and for dismissal of the action.
On 18 February 2021 Deputy Registrar Hewitt struck out the indorsement.
On 20 July 2021 Flynn DCJ set aside the orders of Deputy Registrar Hewitt and gave the plaintiff leave to amend the writ of summons in accordance with a document entitled 'amended writ of summons' dated 25 August 2020 received by the court on 26 August 2020 and further ordered the plaintiff to, within 14 days, file an amended statement of claim, bring an application for an extension of the relevant limitation period and bring an application to amend the name of the first defendant from Aegis Aged Care Management Pty Ltd or otherwise substitute Aegis Aged Care Staff Pty Ltd for the first defendant. He further ordered the applications be listed for a special appointment hearing before a registrar on a date to be fixed.
The reason Flynn DCJ ordered the plaintiff to bring an application pursuant to s 40 of the Limitation Act2005 (WA) for an extension of time to commence proceedings is because he found the date on which he allowed the proposed amendments to the indorsement on the writ marked the commencement of the proceedings in respect of those causes of action and that they were obviously commenced outside of the time prescribed by the Limitation Act within which proceedings are to be commenced.[2]
[2] Transcript of the reasons for decision of Flynn DCJ, page 68.
Flynn DCJ also ordered that the first defendant's application for summary judgment or alternatively to strike out the statement of claim and for security for costs, together with the second defendant's application to strike out the writ of summons on the basis it fails to disclose any reasonable cause of action, be listed for determination at the same special appointment made for the hearing of the plaintiff's applications.[3]
[3] Orders of Flynn DCJ made 20 July 2021, pars 10 and 11.
On the 2 August 2021 the plaintiff filed an amended writ of summons and a re‑amended statement of claim. On 3 August 2021 another amended writ of summons was filed and sealed by the court together with an application for an extension of the limitation period and for leave to 'amend' the name of the first defendant to Aegis Aged Care Staff Pty Ltd pursuant to the Rules of the Supreme Court1971 (WA) (RSC) O 18 r 6(2) and O 21 r 5(2).
The effect of the amended writ of summons is that it identifies the commencement of two causes of action in defamation, the first arising on 5 September 2018 when the second defendant is alleged to have defamed the plaintiff in the course of her employment at a place, being the Aegis Aged Care Carrington Facility, and the second cause of action arising by the republishing of the defamatory statement by a third person on 17 September 2018 to Mr Grant Waldron and other management staff.[4]
[4] Transcript of the reasons for decision of Flynn DCJ, pages 67 - 68.
In the circumstances found by Flynn DCJ, it is clear that contrary to s 15 of the Limitation Act the proceedings have been commenced more than one year after the alleged publication and republication of the defamatory material on 5 September 2019 and 17 September 2019 respectively.
The Limitation Act at s 15 provides as follows:
15.Defamation - one year from publication
An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.
However, it is open to the plaintiff to seek an extension of time to commence such proceedings. In this regard s 40 of the Limitation Act provides:
40.Court may extend time to commence defamation actions
(1)A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.
(2)Subject to subsection (3), on an application a court, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication, must extend the time in which the action can be commenced.
(3)An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.
The plaintiff's case as fleshed out in the second re‑amended statement of claim filed 2 August 2021 is that at the material time the plaintiff was an employee of the first defendant working as an assistant in nursing and the second defendant was an employee of the first defendant working as a registered nurse. Both the plaintiff and the second defendant were working at the same aged care facility operated by the first defendant.
The plaintiff pleads at par 8 that the first defendant is vicariously liable for the acts and omissions of their employees in the scope and course of their employment. The plaintiff then alleges in par 9 the second defendant defamed the plaintiff by verbally publishing on 5 September 2018 to Ms Salome Zulu in the presence of both the plaintiff and Ms Aicha Swaray the words:
Lory said to me, I hate working with Africans, and I can't stand them and that Ms Aicha Swaray overheard the statement.
The plaintiff goes on to plead that the first defendant is vicariously liable for the statement:
… given the second defendant was employed by the first defendant at the material time she published the defamatory matter on 5 September 2018.
In par 14 of the re‑amended statement of claim the plaintiff sets out her claim for damages from the second defendant in respect of this publication.
In respect of the second occasion, being 17 September 2018, the plaintiff sets out in par 15 of the second re-amended statement of claim the allegation that an employee of the first defendant and manager of the aged care facility, Ms Baxter, republished to Aegis employees including Mr Grant Waldron the words 'You also made racial remarks (did not like working with African)'.
Hence it is apparent from the second re‑amended statement of claim the plaintiff seeks firstly damages from the second defendant for publishing on 5 September 2018 the defamatory statement and damages from the first defendant on the basis it was the second defendant's employer, and secondly damages seemingly from the second defendant and the first defendant on the basis the defamatory statement was republished by Ms Baxter, a manager in the employment of the first defendant, to Mr Waldron and other employees of the first defendant on 17 September 2018.

The plaintiff's applications

The evidence of the plaintiff

The evidence presented by the plaintiff in support of the application for an extension of the limitation period is brief. Whilst the plaintiff has filed many affidavits over the course of the litigation, the salient evidence is brought together, or repeated, in her affidavit of 10 September 2021.
The first defendant has objected to a number of paragraphs in that affidavit, on the grounds that the statements therein are matters of speculation, opinion, conclusion, submissions and are otherwise irrelevant. There is merit in those objections. There can be no doubt that the plaintiff sets out her arguments in support of her application in those paragraphs. Nevertheless, within those objectionable paragraphs evidence of the plaintiff's explanation for why things have come to this can be found.
That explanation is, in summary, that she commenced her action in time but there was an irregularity, namely a defective indorsement, due to a failure to 'state sufficient particulars' and the listing of the wrong entity as first defendant.[5]
[5] Plaintiff's amended outline of submissions, par 33.
The alleged mistake as to the first defendant is said by the plaintiff to have arisen as a result of the description of the plaintiff's employer found in documentation relating to a workers' compensation claim she brought against her employer.
The plaintiff annexes to her affidavit at LEP-01 a notice issued pursuant to the provisions of s 93O of the Workers' Compensation and Injury Management Act 1981 (WA), (a section that has since been repealed) being a notice that an employer was required to give a worker of certain things that may affect the damages the worker may recover in court. In that notice the employer's name was given as Aegis Aged Care Management Pty Ltd. The notice is dated 22 April 2019 and so predates the issue of the writ by nearly four to five months. Also attached is a letter from the workers' compensation claims manager dated 15 November 2018 again describing the employer as Aegis Aged Care Management Pty Ltd.
Also annexed at LEP-03 is a draft agreement proposing settlement of the plaintiff's injury claim against her employer with the employer's name again being given as Aegis Aged Care Management Pty Ltd. The agreement is undated and no evidence is given as to when the plaintiff received it.

The evidence of the first defendant

The first defendant filed evidence in the form of two affidavits sworn by Grant Leonard Waldron who is the Executive Manager, Human Resources, employed by Aegis Aged Care Management Pty Ltd and also the Executive Manager, People and Culture, for the Aegis Aged Care group of companies. In his first affidavit Mr Waldron states that Aged Care Management Pty Ltd is one of the companies in the Aegis Aged Care group of companies as Aegis Aged Care Staff Pty Ltd.
Mr Waldron gives evidence that the plaintiff and the second defendant were, as at 5 September 2018 and 17 September 2018 (the relevant times), employed by Aegis Aged Care Staff Pty Ltd, as was Ms Baxter. Ms Baxter was the Facility Manager who was responsible for the day‑to‑day running of the Aegis Carrington Aged Care facility.
Mr Waldron produces payslips issued by Aegis Aged Care Staff Pty Ltd to the plaintiff, second defendant and Ms Baxter by way of corroboration of his evidence they were employed by Aegis Aged Care Staff Pty Ltd at the relevant times, together with Australian Securities and Investment Commission records demonstrating the existence of Aegis Aged Care Management Pty Ltd (ACN 090 380 359) and Aegis Aged Care Staff Pty Ltd (ACN 095 432 321).
In his second affidavit Mr Waldron provides evidence that the 'Aegis Aged Care group of companies' held workers' compensation insurance with Insurance Australia Ltd (trading as CGU) and annexes a copy of a tax invoice issued to Aegis Aged Care Group Pty Ltd in respect of that insurance purporting to insure, among other companies, Aegis Aged Care Management Pty Ltd and Aegis Aged Care Staff Pty Ltd. The registered office of the latter two companies is 90 Goodwood Parade, Burswood WA and the invoice to Aegis Aged Care Group Pty Ltd is addressed also to the same address. There are 13 companies in the list of insured companies that contain the words 'Aegis Aged Care' in their name.
Also produced is what is said to be a true copy of the Aegis Staff Performance Management and Grievances Policy being pt 7.5 of the Aegis Policies, Procedures and Information Library (although in fact it is headed Aegis Aged Care Group Pty Ltd) and a copy of the Aegis Employees Union Enterprise Agreement 2017.
It is common ground that at the material times the employer of the plaintiff and the second defendant was Aegis Aged Care Staff Pty Ltd.

The plaintiff's application to amend the name of the first defendant

The application is brought pursuant to RSC O 18 r 6(2) and O 21 r 5.
RSC O 18 r 6 empowers the court to order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party and to order that any person who has been improperly or unnecessarily made a party, to cease to be a party.
RSC O 18 r 7 deals with substitution of one party for another in prescribed circumstances, namely the death or bankruptcy of a party or where any cause, matter interest or liability of a party is assigned or transmitted to or devolves upon some other person.
RSC O 18 r 8 deals with the consequences of making an order under O 18 r 6 or r 7.
RSC O 21 r 5 provides:
5.Amending writ or pleading with leave
(1)This rule is subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5).
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
In my view it is not possible to 'amend' the name of the first defendant from Aegis Aged Care Management Pty Ltd to Aegis Aged Care Staff Pty Ltd pursuant to the provisions of RSC O 18 r 6(2). As observed above, that rule deals with the addition of a party in circumstances where it is necessary to join that party because its interests may be affected by orders made as a result of the resolution of the proceedings between the existing parties. In other words, Aegis Aged Care Pty Ltd could only be joined as a defendant if any orders made resolving the issues as between the plaintiff and Aegis Aged Care Management Pty Ltd (as a separate legal entity) might affect the interests of Aegis Aged Care Staff Pty Ltd (as a separate legal entity).
In such hypothetical circumstances it is not possible to see how any orders that might be made against Aegis Aged Care Management Pty Ltd could affect the interests of Aegis Aged Care Staff Pty Ltd. In such circumstances there are only two outcomes. One is the case against Aegis Aged Care Management Pty Ltd is dismissed, an outcome that cannot affect Aegis Aged Care Staff Pty Ltd. The other is that the case against Aegis Aged Care Management Pty Ltd succeeds and a judgment is obtained by the plaintiff, in which case that outcome cannot affect Aegis Aged Care Staff Pty Ltd.
Whilst the Court of Appeal in ATP Finance Pty Ltd v Bajada said:[6]
… that O 18 r 6 is not limited to the joinder of further parties to an action, but that it also applies to the substitution of one party in place of a single party.
that case was dealing with an application made to substitute as plaintiff the equitable assignee of a debt owing to the plaintiff who commenced the proceedings for the recovery of the debt and application which the Court of Appeal would have most appropriately have been brought under RSC O 18 r 7(2).
[6] APT Finance Pty Ltd v Bajada [2008] WASCA 73 [35] - [38].
The Court of Appeal went on to say:
The result of the assignments is that the assignor has ceased to be a proper or necessary party to the action and the addition of the assignee, as the legal owner of the debts, as plaintiff is necessary for the proper determination of the proceedings.
As can be seen, the factual circumstances of this case are very different to those discussed in ATP Finance Pty Ltd v Bajada.
In Wurth Australia Pty Ltd v Burgess,[7] Corboy J set out the propositions he regarded as being relevant to the determination of an application made pursuant to O 18 r 6(2)(b). In so doing he was cognisant of, and cited, the decision of ATP Finance Pty Ltd. His Honour observed that the rule should be afforded the widest interpretation the language of the rule would permit, that it should be given an 'elastic' application so to include disputed issues of fact that are 'subjacent' to the pleadings, that reference in that subrule to 'the cause' referred to the existing cause or matter against the original defendant, that the rule required the court to consider whether the proposed party's rights or liabilities to an existing party would be directly affected by any order that may be made in the action, and that a party cannot be joined merely because it is thought to be just or convenient.[8]
[7] Wurth Australia Pty Ltd v Burgess [2012] WASC 504.
[8] Wurth Australia Pty Ltd v Burgess [57].
In my view the question of whether the name of the first defendant can be amended, is dealt with purely by the operation of RSC O 21 r 5.
RSC O 21 r 5(2) confers a broad discretion on the court to allow the plaintiff to amend the writ without determining whether any relevant period of limitation has expired. Prior to its amendment in 2018, O 21 r 5 expressly allowed for an amendment to correct the name of a party, notwithstanding that it is alleged the effect of the amendment will be to substitute a new party, if the court was satisfied that there must have been a genuine mistake and the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to be sued. Those statutory provisions are gone but it seems to me the question of whether there was a mistake as to the name of the party being sued, in this case the defendant and the circumstances surrounding that mistake remain relevant to the general discretion to allow an amendment to the writ.
However, that provision is to be read 'subject to … Order 18 rule 6, 7 and 8 … '.
The effect is that as broad as the discretion may be, it is limited by the operation of O 18 r 6, r 7 and r 8. More particularly it means that the power to amend in O 21 r 5(2) does not permit an amendment whereby another party is added to the proceedings or substituted in the proceedings. In this regard see Lois Nominees Pty Ltd v Hill.[9]
[9] Lois Nominees Pty Ltd v Hill [2011] WASC 53 [61].
Nevertheless it is wrong to conclude that the power to correct a mistake in the name of a party is confined to a case of misnomer, misdescription, typographical or clerical error. It extends to cases where the plaintiff intending to sue a person identified by a particular description was mistaken as to the name of the person who answered that description.[10]
[10] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45.

However, the discretion to allow an amendment to the name of a misdescribed defendant that has the effect of substituting a new defendant will also be informed by the prejudice that will be occasioned by the amendment and the extent to which that prejudice might be ameliorated.
In her submissions the plaintiff argues that an amendment can be allowed in cases of misnomer and that in this case confusion arose because Aegis Aged Care Management Pty Ltd looks identical to Aegis Aged Care Staff Pty Ltd. The plaintiff refers to the form 36 as proof of the confusion, the form being a notice required by the provisions of the Workers' Compensation and Injury Management Act to be given to her by her employer, Aegis Aged Care Staff Pty Ltd and which in fact describes itself as Aegis Aged Management Pty Ltd.
On the evidence constituted by the information in the plaintiff's affidavit and the affidavits of Mr Waldron I am persuaded of the plaintiff's intent to sue a defendant by a particular description but was mistaken as to the name of the defendant. The description of the first defendant is discerned from the amended writ which suggests she was suing the second defendant for defamation which occurred in the 'course of her employment'. The reference to 'her' may refer to the plaintiff in the course of her employment or may refer to Nibir Kaur Mann in the course of her employment. Either way the reference to the course of the plaintiff's employment or the course of Ms Mann's employment in the context of the plaintiff bringing proceedings against the first defendant is indicative of an intent to sue either the plaintiff's employer or Ms Mann's employer as the first defendant. In each case, we know from the affidavit evidence of Mr Waldron that the employer of both the plaintiff and Ms Mann was Aegis Aged Care Staff Pty Ltd. The plaintiff's intention to sue her employer or the employer of Ms Mann is further manifested by the statement of claim in which she pleads the first defendant is vicariously liable for the defamatory statement of the second defendant.
This coupled with her affidavit is persuasive of the view that the plaintiff always intended to sue the employer of the second defendant but was mistaken in her view that the name of the employer was 'Aegis Aged Care Management Pty Ltd'.
This mistake is not surprising given the representations made to her by her employer that her employer was named as 'Aegis Aged Care Management Pty Ltd'. Even her employer seemed to struggle with understanding what its proper name was, or the nature of an employment contract and who the parties to a contract may be. In this regard I refer to the workers' compensation documentation being the form 36 in which the plaintiff's employer, Aegis Aged Care Staff Pty Ltd describes itself as Aegis Aged Care Management Pty Ltd, and the affidavit of Mr Waldron who produces an 'Aegis Staff Performance Management and Grievance Policy' which is said to apply to the plaintiff, but which in fact states 'All employees of Aegis Aged Care Group (Aegis) are required to adhere to Aegis' policies, processes and procedures ….'. In the absence of having studied law or perhaps even more particularly corporations law, or otherwise having some understanding of how corporate conglomerates are structured, a person may easily form a mistaken view from reading the words in the document that the reference to 'Aegis Aged Care Group' is a reference to yet another separate legal entity with whom that person is or may be employed, or at least be confused as to the correct identity of the employer.
Further, there are obvious parallels between this case and the factual circumstances before the Court of Appeal in Alinta 2000 Ltd v Petkov.[11]
[11] Alinta 2000 Ltd v Petkov [2012] WASCA 258 (Alinta 2000).
In Alinta 2000 the plaintiffs had brought a claim for damages against Alinta 2000 arising from a gas explosion which occurred in their residence. About one year previously the corporate group using the name Alinta in various forms had restructured its business, dividing it into sales on the one hand and maintenance of the gas distribution network on the other. Alinta 2000 was the parent company of the wholly‑owned subsidiary company that conducted the sales on the one hand and a different wholly‑owned subsidiary company responsible for the maintenance of the gas distribution network on the other. The plaintiffs brought an application to amend the name of the defendant to accurately reflect the intention to sue the wholly owned subsidiary that was responsible for the supply of gas.
Martin CJ observed that the mistake would have been obvious to anyone within the Alinta group who received and considered the writ and who was presumably aware of the corporate structure under which Alinta carried on its business. Martin CJ observed:[12]
Happily, O 21 r 5 of the Rules of the Supreme Court (WA) provides the court with ample power to do justice in this case by amending the name of the defendant to correspond with the entity which Mr and Ms Petkov always intended to sue.
[12] Alinta 2000 [6].
In this case I am satisfied the plaintiff intended to sue either her employer or the employer of the second defendant, or the employer of the two of them, but more likely the employer of the second defendant, which is named Aegis Aged Care Staff Pty Ltd, but mistakenly named that entity as Aegis Aged Care Management Pty Ltd. As was the case in Alinta 2000, I have no real doubt that whoever within the conglomerate of companies, of which 13 companies have the words 'Aegis Aged Care' within their name, received the amended writ of summons and was aware of the corporate structure and relationships between all of those companies would be aware of the mistake. Accordingly, I would grant leave to amend the name of the first defendant.

The plaintiff's application for leave to commence the actions

The first thing that I would observe about the explanation is that I cannot proceed on the basis submitted by the plaintiff that she commenced proceedings in time, but with the writ containing a defective indorsement, namely a failure to 'state sufficient particulars'. This proposition is inconsistent with the decision of Flynn DCJ in which he held the amended indorsement contains two fresh causes of action.[13] The dates are not particulars of an existing cause of action and cannot be regarded as such.
[13] Transcript of the reasons for decision of Flynn DCJ, pages 67 - 68.
Secondly, in my view the explanation that the misnomer in respect of the identity of the first defendant resulted in the action not being commenced within 12 months is without substance. In fact, the plaintiff's position is effectively that she has at all times sued the correct defendant but has just given it the wrong name. Any error in respect of the appropriate name to use to describe the first defendant, has no bearing on the fact the action based on alleged defamation on 5 September 2018 and 17 September 2018 was not commenced until 2 August 2021 when the amended writ of summons was filed with the District Court. It is clear from the history of the matter and the decision of Flynn DCJ the failure to commence the action within 12 months was due to the failure to state the date of publication in the general indorsement on the writ and nothing else.
Further, any error in respect of the name or identity of the first defendant is clearly irrelevant to the plaintiff's failure to commence her action against the second defendant within 12 months of publication. There can be no doubt that the reasons for the failure to commence proceedings against the second defendant within 12 months are the same for the failure to commence proceedings against the first defendant.
In the context of an application pursuant to s 40 of the Limitation Act, for me to make an order extending the limitation period, it is necessary for me to be satisfied it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication.
The only purported relevant circumstances are the failure to state the dates of publication of the alleged defamatory comments in the indorsement to the writ when it was first issued.
The plaintiff was aware of the alleged defamation published on 5 September 2018 at the time it was published.[14] The plaintiff also appears to have been aware of the alleged defamation published on 17 September 2018 close to the date it was published, the publishing being by way of a letter addressed to her.[15]
[14] Second re-amended statement of claim, par 9.
[15] Second re-amended statement of claim, par 15.
Accordingly, this is not a case of the plaintiff becoming aware of the defamation at a time by which the 12 months had elapsed or at a time so close to the elapse of 12 months she was, in the circumstances she found herself, left with insufficient time to properly consider her position before commencing the action, and desperately drafted it to the best of her ability and filed it in a last-ditch effort to commence proceedings in time.
Assuming it might be said the failure to file a properly indorsed writ might be due to an oversight or the lack of forensic skills on the part of an unrepresented and non-legally trained litigant, and that the mistake could be seen as the sort of mistake that might in those circumstances reasonably be made, that is not to the point. The test is not whether it was reasonable in 'the circumstances' for the plaintiff not to have commenced proceedings by way of a properly indorsed writ within 12 months. The test is whether it was not reasonable in the circumstances to have commenced proceedings within the 12 months.
In Noonan v MacLennan[16] it was said, in discussing a similar provision of the Limitation of Actions Act 1974 (Qld) the section:
… proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. While s 32A(2) proceeds on this assumption, it is obvious that only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one's rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law.
[16] Noonan v MacLennan [2010] QCA 50 [15].
The 'circumstances' to be taken into account are the circumstances as they appear objectively to the court, not the circumstances as they appear subjectively to the plaintiff.[17]
[17] Noonan v MacLennan [20] and Meyer v Solomon [152].
Further, the fact that the plaintiff might be a layperson and unfamiliar with the procedural or other legal requirements necessary to be satisfied in order to successfully commence litigation does not assist her. The commencement of litigation is no light or trivial matter. It can be extremely disruptive and even destructive to the lives of those involved from an emotional and financial perspective. If anything, it underscores the reasonableness of seeking timely legal advice as to the requirements that need to be satisfied before issuing a writ and the unreasonableness of not doing so.
In the circumstances as they appear to the me, I am not satisfied that it was not reasonable for the plaintiff to file a properly indorsed writ within 12 months of the publication. Accordingly, I refuse leave to commence an action in respect of the publication of defamatory matters on 5 September 2018 and 17 September 2018.

The first defendant's application for summary judgment

The first defendant applies for summary judgment pursuant to the provisions of RSC O 16 r 1(1). This provides that the court if satisfied that an action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily, may order that judgment be entered for the defendant. Order 16 r 1(2) provides that the application 'shall' be made by summons supported by an affidavit verifying the facts upon which the application is made.
RSC O 16 r 2 provides that a plaintiff may show cause against any such application by affidavit. In doing so, the plaintiff assumes an evidentiary onus to show there exists a triable issue and must condescend upon particulars, although the defendant at all times carries the legal onus of proving the matters referred to in O 16 r 1(1).[18]
[18] Gerovich v Maxwell John Gerovich (as executor of the estate of Anthony Gerovich) [2018] WASC 153 [30].
In bringing such an application the Court of Appeal has stated that:[19]
… the defendant must demonstrate that, on the material before the court, the action should not be permitted to go to trial in the ordinary way because it is apparent that the action must fail. The power to order the summary dismissal of a claim must be exercised with 'exceptional caution' (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 (Barwick CJ)) and 'should never be exercised unless it is clear that there is no real question to be tried' (Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane & Dawson JJ)).
[19] Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213 [86].
Dixon J in Dey v Victorian Railways Commissioners said:[20]
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.
[20] Dey v Victorian Railways Commissioners [1949] HCA 1 [13].
In this case the first defendant argues it has a good defence on the merits, namely that the claim is statute barred and that the alleged defamatory comments are, in any event, the subject of qualified privilege.
As observed above, the first defendant refers to s 15 of the Limitation Act which provides that an action cannot be commenced in relation to the publication of defamatory material if more than one year has elapsed since the date of publication.
This provision does not extinguish the plaintiff's cause of action but bars the remedy. To rely on this defence ordinarily the limitation defence must be pleaded.[21] It is said that generally speaking limitation defences are best decided at trial. One of the reasons for this is that it can be very difficult at times to determine just when a cause of action accrues. Until it is known when a cause of action accrues, it cannot be known when the limitation period expires.
[21] Meyer v Solomon [86].
However, this is not necessarily the case in an action brought for defamation.[22]
[22] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [47] (Belgravia Nominees Pty Ltd).
In Rossen v Airey,[23] the plaintiff sued the wrong defendant in defamation. The plaintiff then applied to amend the writ to substitute 'The Post Newspaper' for 'Community Newspapers'. The application to amend was refused on the basis that it would introduce a new, statute barred, cause of action, there being 'no doubt that the relevant limitation period has expired'.[24]Whilst unlike this case the court in Rossen was dealing with an application to strike out, the Court of Appeal in Belgravia Nominees Pty Ltd observed that Rossen was a case in which a broader principle was engaged, characterising it '… as a futile and inefficient use of the limited resources of the parties and the court to allow a party to advance a claim which is no reasonable prospect of success'.[25]
[23] Rossen v Airey [2012] WASCA 26 (Rossen).
[24] Rossen [39].
[25] Belgravia Nominees Pty Ltd [45].
In Belgravia Nominees Pty Ltd the Court of Appeal concluded that because of the possibility the plaintiff might succeed in obtaining an extension of the relevant limitation period which would overcome any pleaded limitation defence, it was not a case in which the judge should have concluded the 'foreshadowed limitation defence would necessarily succeed …'.
In this case the affidavit evidence filed in support of the first defendant's application foreshadows a limitation defence.[26] The plaintiff does not seek to show cause that the limitation defence is not applicable, for example, by way of estoppel or waiver or anything of the type discussed in The Commonwealth of Australia v Verwayen.[27]
[26] Affidavit of Grant Leonard Waldron sworn 25 September 2020, par 19.
[27] The Commonwealth of Australia v Verwayen [1990] HCA 39.
Further, given I have refused the plaintiff's application for an extension of the limitation period it is now known that the plaintiff cannot succeed in obtaining an extension. Given in this case it is known that the limitation period has expired and that no extension can be obtained, and that there is no evidence from the plaintiff to suggest a limitation defence is not available, the first defendant's claim for summary judgment is made out and the plaintiff's action should be dismissed.

The second defendant's application

When the second defendant brought her application on 25 September 2020 it was for an order striking out the indorsement on the writ of summons as disclosing no reasonable cause of action. Events overtook the second defendant's application with Flynn DCJ granting leave to the plaintiff to amend the indorsement.
When the matter came before me the second defendant moved for an amendment to her chamber summons by deleting the application insofar as it sought orders striking out the indorsement and substituting it with an application for orders for summary judgment and dismissal of the plaintiff's claim.[28]
[28] ts 109.
The second defendant's application for summary judgment was based on the same arguments as advanced by the first defendant.[29] In circumstances in which the initial application had been made redundant through no fault of the second defendant, in which Flynn DCJ adjourned the hearing of the application for determination at the same time as the hearing of the plaintiff's applications and the fact that the second defendant's argument for summary judgment was the same as the first defendant's, I could see no prejudice to the plaintiff by firstly, allowing the application to amend, and secondly, proceeding to hear it.
[29] ts 110.
For the same reasons I gave for allowing the first defendant's application for summary judgment I allow the second defendant's application for summary judgment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RB
Court Officer
11 JANUARY 2022