Pastor v Aegis Aged Care Staff Pty Ltd
[2023] WASCA 13
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PASTOR -v- AEGIS AGED CARE STAFF PTY LTD [2023] WASCA 13
CORAM: MURPHY JA
VAUGHAN JA
HEARD: 20 JANUARY 2023
DELIVERED : 30 JANUARY 2023
FILE NO/S: CACV 100 of 2022
BETWEEN: LOREDANA ELENA PASTOR
Appellant
AND
AEGIS AGED CARE STAFF PTY LTD
First Respondent
NIRBIR KAUR MANN
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
Citation: PASTOR -v- AEGIS AGED CARE STAFF PTY LTD [No 3] [2022] WADC 82
File Number : CIV 3320 of 2019
Catchwords:
Practice and procedure - Appeals - Interlocutory applications - First respondent's application to refuse the appellant's application for extension of time to appeal, to strike out grounds of appeal and to dismiss appeal - First respondent's application supported by second respondent - Where appeal concerned primary judge's dismissal of appellant's action following dismissal of an application to extend limitation period in defamation proceedings
Practice and procedure - Appeal - First respondent's application in the alternative for security for costs
Practice and procedure - Appellant's application for procedural orders
Legislation:
Nil
Result:
First respondent's application allowed in part
Appellant's application allowed in part
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | B W Ashdown |
| Second Respondent | : | G J Lee |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Nielsen & Co |
| Second Respondent | : | Australian Nursing Federation, Industrial Union Of Workers' Perth |
Case(s) referred to in decision(s):
Alinta 2000 Ltd v Petkov [2012] WASCA 258
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537
Oze‑Igiehon v Rasier Operations BV [2017] WASCA 107
Robertson v Hollings [2009] QCA 303
JUDGMENT OF THE COURT:
Introduction
On 20 January 2023, we heard the first respondent's application filed 29 November 2022 (1) to refuse the appellant's application for an extension of time to file the notice of appeal, (2) to strike out the grounds of appeal, (3) to dismiss the appeal, and (4) alternatively, for security for costs. The second respondent filed submissions supporting the first three aspects of the first respondent's application. There was no application by the second respondent for security for costs. We also heard an application by the appellant filed 16 January 2023 for certain procedural orders.
In this appeal, the appellant (Ms Pastor) appeals against orders of Lonsdale DCJ dismissing her defamation claim against the respondents in the District Court. Lonsdale DCJ published written reasons: Pastor v Aegis Aged Care Staff Pty Ltd [No 3] (primary decision).[1] The primary decision concerned an appeal de novo from a decision of Principal Registrar Melville in Pastor v Aegis Aged Care Staff Pty Ltd [No 2],[2] pursuant to which the principal registrar also made orders dismissing Ms Pastor's action (Principal Registrar Melville's decision).
[1] Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2022] WADC 82.
[2] Pastor v Aegis Aged Care Staff Pty Ltd [No 2] [2022] WADC 2.
Ms Pastor is self-represented in the appeal. She was legally represented before Lonsdale DCJ, Principal Registrar Melville, and at an earlier interlocutory hearing before Flynn DCJ on 2 June 2021, pursuant to which Flynn DCJ made certain procedural orders in favour of Ms Pastor.[3]
[3] Flynn DCJ's reasons were extempore and given on 2 June 2021 (Flynn DCJ's decision).
The District Court proceedings
Ms Pastor and the second respondent (Ms Mann) were at all material times employed by Aegis Aged Care Staff Pty Ltd (Aegis Staff) at an aged care facility. A related company of Aegis Staff was Aegis Aged Care Management Pty Ltd (Management).
The District Court proceedings concerned claims by Ms Pastor in defamation. Section 15 of the Limitation Act 2005 (WA) (Limitation Act) provides a 12‑month limitation period for defamation actions.
2019
On 30 August 2019, Ms Pastor issued a writ against Ms Mann as second defendant and Management (not Aegis Staff) as first defendant (2019 Writ). The indorsement of claim on the writ read:
[Ms Pastor's] claim is for the defamation of [Ms Pastor's] character in publications sustained in the course of her employment and [Ms Pastor's] claim for damages is $589,500.00 and published public apology.
Order 6 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC) provides:
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.
2020
The 2019 Writ was served nearly 12 months later.[4]
[4] Primary decision [27].
On 25 August 2020, Ms Pastor sought to file an amended writ of summons (2020 Proposed Amendment to Writ) giving certain particulars of the alleged defamatory statements. The document was not accepted for filing. It read as follows:
[Ms Pastor's] claim is for the defamation of [Ms Pastor's] character in a publication that was made by [Ms Mann] on 5 September 2018
sustainedwhich occurred in the course of her employment at Aegis Aged Care Carrington Facility when she said she heard [Ms Pastor] say: 'I hate working with Africans, I can't stand them'. Later [Ms 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.On 4 September 2020, Management and Ms Mann filed appearances.
On 11 September 2020, Ms Pastor filed a statement of claim with allegations against Management and Ms Mann.
On 18 September 2020, solicitors for Management wrote to Ms Pastor in relation to, amongst other things, the identity of her employer. The solicitors informed Ms Pastor:
[Y]ou were not employed by [Management]. As shown by your relevant pay slips your employer was [Aegis Staff].
…
it is not possible for two separate entities to be vicariously liable for the same person[.]
…
As a consequence, [Management] cannot be vicariously liable for any of your complaints.
On 24 September 2020, an amended statement of claim was filed by Ms Pastor.
On 25 September 2020, Management filed a chamber summons for summary judgment dismissing Ms Pastor's action, alternatively to strike the amended writ of summons and statement of claim, and for security for costs.
Also on 25 September 2020, Ms Mann filed a defence, and Ms Pastor filed an application for summary judgment.
On 13 October 2020, Ms Pastor filed an amended statement of claim.
On 17 December 2020, Ms Pastor again attempted unsuccessfully to file an amended writ effectively in the same terms as the 2020 Proposed Amendment to Writ.[5] However, filing was again refused.
2021
[5] Flynn DCJ's decision, ts 62 - 63; annexed to Mr Nielsen's affidavit filed 8 December 2022, exhibit EWN1, pages 7 ‑ 8.
On 13 January 2021, Ms Pastor filed a chamber summons for leave to amend her 2019 Writ in accordance with the proposed amended writ of summons dated 17 December 2020 (and thereby effectively on the terms of the 2020 Proposed Amendment to Writ).
Deputy Registrar Hewitt's decision
On 5 February 2021, Deputy Registrar Hewitt heard Management's application dated 25 September 2020 and related applications filed by the parties. The deputy registrar considered that Ms Pastor's indorsement was clearly inadequate, contrary to O 6 r 2 of the RSC, and should be struck out, but he considered that, due to a difference in authority in the District Court which was then under appeal, he ought not strike out the writ. Instead, he stayed the proceedings pending the determination of the other matters under appeal. The deputy registrar published reasons in Pastor v Aegis Aged Care Management Pty Ltd.[6]
The appeal to Flynn DCJ
[6] Pastor v Aegis Aged Care Management Pty Ltd [2021] WADC 14.
On 26 February 2021, Ms Pastor appealed the deputy registrar's decision. The appeal was heard by Flynn DCJ. Also on 7 May 2021, Ms Pastor applied to amend the name of the first defendant to Aegis Staff.[7] That application was also listed before Flynn DCJ.
[7] Flynn DCJ's decision, ts 64; annexed to Mr Nielsen's affidavit filed 8 December 2022, exhibit EWN1, page 9.
By an order made 2 June 2021 (extracted and dated 20 July 2021), Flynn DCJ set aside the deputy registrar's order. Flynn DCJ made orders, including:
1.granting leave to Ms Pastor, within 14 days, to amend the indorsement of claim on the 2019 Writ in accordance with the 2020 Proposed Amendment to Writ;
2.granting Ms Pastor leave, within 14 days, to file an amended statement of claim; and
3.requiring Ms Pastor, within 14 days, to file and serve any applications (1) to extend the limitation period, and (2) to change the name of the first defendant from Management to Aegis Staff.
In Flynn DCJ's decision, his Honour considered that an amendment in accordance with the 2020 Proposed Amendment to Writ would introduce new causes of action, which arose on 5 and 17 September 2018.[8] His Honour said:[9]
[8] Flynn DCJ's decision, ts 66 - 68; annexed to Mr Nielsen's affidavit filed 8 December 2022, exhibit EWN1, pages 11 - 13.
[9] Flynn DCJ's, ts 68 - 70; annexed to Mr Nielsen's affidavit filed 8 December 2022, exhibit EWN1, pages 13 ‑ 15.
I come then to the second of the issues which I identified at the outset of these reasons, and that is whether the new cause of action is one of the clearest of cases that would inevitably be defeated by a limitation defence.
Assuming that leave was granted to allow the proposed amended indorsement, then the date upon which that leave was granted would mark the commencement of proceedings with respect to that cause of action. That would be in relation to causes of action that arose according to the terms of the proposed amended indorsement on 5 September 2018 and 17 September 2018.
The effect of section 15 of the Limitation Act is that those actions could not be commenced if one year had elapsed since publication, that is, on those dates. The defendants in this case have indicated an intention to rely upon section 15 of the Limitation Act.
Subject to the application of section 40 of the Limitation Act, the proposed amended indorsement alleges a cause of action that's barred by statute. There is no doubt a limitation defence would defeat those actions and ordinarily the proposed amended endorsement would not be permitted and the writ would be struck out.
However, what I've just said is subject to the application of section 40 of the Limitation Act. I adopt paragraphs 7 to 21 of the judgment of [Kenneth Martin J] in Meyer v Solomon [2019] WASC 458, where the relevant provisions of the Limitation Act concerning an extension application in a defamation action are identified and reproduced.
It's enough for me to make the following observations now. The plaintiff in this case may apply for leave to commence an action based on the proposed amended endorsement even though one year has elapsed since the publication dates. That's the effect of section 40(1).
On such an application, if the court was satisfied that it was not unreasonable in the circumstances for the plaintiff to have commenced the action within one year, the court must extend the time in which the action can be commenced. That's the effect of section 40(2).
However, the extension cannot result in the action being commenced if more than three years has elapsed since publication. That's the effect of section 40(3). I note that more than three years has not elapsed since those publications in September of 2018, although they will elapse in September of this year.
On an extension application the court is to have regard to the matters set out in section 44 of the Limitation Act. On an extension application, as a result of section 79(3) of the Limitation Act, the plaintiff has the burden of proving the court should extend the limitation period.
In relation to the procedure for making such an application, section 43 of the Limitation Act is relevant. It provides for an extension application, amongst other things, which may be determined at any time before or after the issue or close of pleadings.
…
Having regard to everything that I've said, I propose to make an order that the plaintiff have leave to amend the indorsement in terms of the proposed amended indorsement. I think it would be appropriate for the order that I make to identify the terms of the amended indorsement by reference to [2020 Proposed Amendment to Writ]. (emphasis added)
Amendment to writ on 3 August 2021
Pursuant to the leave granted by Flynn DCJ, on 3 August 2021, Ms Pastor filed an amended writ of summons (3 August 2021 Amendment). The first defendant remained Management. The amended indorsement of claim read:
[Ms Pastor's] claim is for the defamation of [Ms Pastor's] character in a publication
sthat was made by [Ms Mann] on 5 September 2018sustainedwhich occurred in the course of her employment at Aegis Aged Care Carrington Facility when she said she heard [Ms Pastor] say: 'I hate working with Africans, I can't stand them'. Later [Ms 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's claim for damages is$589,500.00$750,000.00 and a published public apology.Based on Flynn DCJ's decision, which was not subsequently challenged by appeal, the commencement of the proceedings in relation to the two causes of action nominated in the indorsement is taken to be 2 June 2021 - that being the date leave was granted to allow the 2020 Proposed Amendment to Writ.
Ms Pastor's further applications and Principal Registrar Melville's decision
On 3 August 2021, Ms Pastor filed an application for leave to (1) extend the limitation period pursuant to s 40 of the Limitation Act and (2) amend the name of the first defendant pursuant to O 18 r 6(2) and O 21 r 5(2) of the RSC.
Ms Pastor filed an affidavit in support of the applications dated 10 September 2021, in which she said:[10]
11.The reason I seek to extend the limitation period is due to an oversight as a self‑represented litigant in failing to state sufficient particulars in the indorsement of my writ of summons and listing the wrong entity as First Defendant which was neither deliberate nor an attempt to prejudice the rights of the Defendants.
12.[Management] which is identical to [Aegis Staff] (employer) for unknown reasons portrayed itself as my employer during my worker's compensation claim before I commenced my civil claim. I made an honest mistake in therefore listing [Management] as First Defendant and which I seek to amend at this stage of the proceeding[.]
[10] Ms Pastor's affidavit, 10 September 2021, pars 11 - 12.
Ms Pastor sought leave to amend in terms of a document annexed and marked 'LEP‑04' of her affidavit titled 'Re‑amended writ of summons … dated 3 August 2021'. That document was in the same terms as the 3 August 2021 Amendment, except that it showed the deletion of Management as the first defendant and Aegis Staff in substitution.
On 12 January 2022, Principal Registrar Melville disallowed an amendment to change the name of the first defendant under O 18 r 6(2), but allowed the amendment under O 21 r 5, having regard to cases such as Alinta 2000 Ltd v Petkov.[11] Principal Registrar Melville found that Ms Pastor had always intended to sue her actual employer, and that Ms Pastor's mistake as to the name of her employer was 'not surprising given the representations made to her by her employer that her employer was [Management]' in connection with an earlier worker's compensation claim.[12] Accordingly, Aegis Staff was substituted as first defendant.
[11] Alinta 2000 Ltd v Petkov [2012] WASCA 258.
[12] Principal Registrar Melville's decision [50].
In relation to the application to extend the limitation period, Principal Registrar Melville said:[13]
The reason Flynn DCJ ordered [Ms Pastor] to bring an application pursuant to s 40 of the [Limitation Act] 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.
[13] Principal Registrar Melville's decision [5].
Principal Registrar Melville also:
1.dismissed Ms Pastor's application for an extension of time within which to commence defamation proceedings, on the basis that the principal registrar was not satisfied that it was not reasonable to file a properly indorsed writ within 12 months from the date of publication; and
2.granted summary judgment in favour of Aegis Staff and Ms Mann, effectively on the ground that the limitation period expired, no extension could be obtained, and there was no evidence from Ms Pastor that suggested a limitation defence was not available.
As regards the limitation question, the principal registrar first noted s 40 of the Limitation Act:
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 principal registrar was not satisfied that it was not reasonable to commence proceedings within 12-months because:
1.The failure to commence the action within 12 months was due to the failure to state the date of defamatory publication in the indorsement on the writ, rather than the error in the naming of the first defendant.[14]
2.Any error in relation to the naming of the first defendant was irrelevant to Ms Pastor's failure to commence her action against Ms Mann within time.[15]
3.Ms Pastor became aware of the allegedly defamatory publications shortly after they were published. Therefore, this was not a case of her becoming aware of the defamation after the limitation period expired, or, becoming aware of it very close to the expiration of the limitation period, such that in a last-ditch attempt, she drafted the writ to commence the action on time.[16]
4.Ms Pastor's status as a self-represented litigant was irrelevant to the test under s 40(2) of the Limitation Act, because the relevant circumstances are those that 'appear objectively to the court, not the circumstances as they appear subjectively to the plaintiff'.[17]
The appeal to Lonsdale DCJ
[14] Principal Registrar Melville's decision [56].
[15] Principal Registrar Melville's decision [57].
[16] Principal Registrar Melville's decision [60] - [61].
[17] Principal Registrar Melville's decision [62] - [65].
On 27 January 2022, Ms Pastor filed a notice of appeal challenging the principal registrar's decision to dismiss the application for an extension of the limitation period.
Ms Pastor also filed an affidavit on 27 January 2022 in support of the appeal against Principal Registrar Melville's decision. Ms Pastor said, in effect, that as a result of the misrepresentations, it was not reasonable for her to commence proceedings against Aegis Staff within the limitation period of 12 months.[18]
[18] Ms Pastor's affidavit filed 27 January 2022, pars 19, 25, 26, 31.
On 1 August 2022, Lonsdale DCJ heard the appeal. At this time, the parties to the action, and the appeal to Lonsdale DCJ, were Ms Pastor as plaintiff, Aegis Staff as first defendant, and Ms Mann as second defendant.
Primary decision
On 6 September 2022, Lonsdale DCJ dismissed the appeal and entered judgment for Aegis Staff and Ms Mann.
Lonsdale DCJ said:
[19]In an application to extend time to lodge defamation proceedings, the onus is on the plaintiff to establish that it would not be reasonable to have commenced proceedings within the limitation period, namely within the first year of publication: Meyer v Solomon [2021] WASCA 168 [45], [90], [92].
[20]That the plaintiff or her solicitors have not acted unreasonably is not the test; the test is more onerous than that: Wookey v Quigley [No 2] [2010] WASC 209 [54]. The test is not to be equated with whether it was reasonable for the plaintiff to have commenced the action within the limitation period; it is more demanding than that: Meyer v Solomon [93].
[21]The circumstances in which it would not be reasonable to file a writ within time have been said to be relatively unusual. In Noonan v MacLennan [2010] QCA 50 [15] the Queensland Court of Appeal, in discussing a similar provision of the Limitation of Actions Act 1974 (QLD), said:
'15.Section 32A(2) of the [Limitation of Actions Act 1974 (QLD)] 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.'
[22]For actions in defamation, the public interest underpinning the short limitation periods contained in the Limitation Act is that of the speedy commencement and determination of actions for defamation. That policy requires the parties to act 'timeously': Wookey v Quigley [No 2] [82] (Kenneth Martin J).
Lonsdale DCJ relied on the following matters for declining to grant an extension of the limitation period:
1.Based on her pleaded allegations, Ms Pastor had first‑hand knowledge of the alleged defamatory statements, but she did not file the writ until nearly 12 months after the alleged statements were made. She gave no explanation for this, and there was no apparent reason for the delay.[19]
2.The fact that Ms Pastor did issue a writ within the limitation period is itself inconsistent with the proposition that it was 'not reasonable' to issue the writ within time.[20]
3.Ms Pastor engaged in further delay. After filing the writ, she waited for nearly a year before serving it. She put her own action in peril by giving herself insufficient time to remedy the defect before the limitation period expired.[21]
4.Moreover, given that, in Ms Pastor's statement of claim, she alleged that she was present when the defamatory statements were made, there was no excuse for her failure to particularise the dates of those statements in the original indorsement, and Ms Pastor failed to offer any explanation in that regard.[22]
5.Ms Pastor did not adduce evidence as to why she did not attempt to remedy the defect of the indorsement on the 2019 Writ in a timely manner.[23] Her lack of legal advice did not assist her because the test applicable to such applications does not differentiate between plaintiffs who have access to legal advice, and plaintiffs who do not.[24]
6.Although there was a suggestion that Ms Pastor's delay was in part due to her commencing other litigation in relation to her employment in the Fair Work Commission, she did not submit it was not reasonable for her to commence the defamation proceedings on time because she chose to pursue other remedies.[25]
7.Ms Pastor was alerted to the erroneously‑named defendant on the writ as early as 18 September 2020. She took no action to remedy the defect in a timely manner.[26]
8.Ms Pastor's contention that an extension was justified because she had been genuinely mistaken as to the identity of the employer was to be rejected for the reasons given by Principal Registrar Melville, namely that the error in naming the wrong entity as the first defendant was not the cause of the limitation problem, but, rather, it was the failure of Ms Pastor to have properly particularised the causes of action (in respect of the alleged defamatory statements on 5 and 17 September 2018) in the original indorsement.[27]
9.Insofar as Ms Pastor sought to reventilate the circumstances as to how she fell into error in naming the first defendant, Principal Registrar Melville's decision had allowed her to rename the first defendant, and that had no bearing on the limitation question.[28]
[19] Primary decision [24] - [25].
[20] Primary decision [26].
[21] Primary decision [27].
[22] Primary decision [28].
[23] Primary decision [29].
[24] Primary decision [30] - [31].
[25] Primary decision [32].
[26] Primary decision [33].
[27] Primary decision [35]
[28] Primary decision [36].
Her Honour also said:[29]
[37]The plaintiff has no basis to submit that the defendants have waived the limitation defence or are estopped from doing so: cf The Commonwealth of Australia v Verwayan (1990) 170 CLR 394. Consequently, there is no reason I should not allow the defendants' claims for summary judgment.
[38]There is no merit in the plaintiff's application, and it follows that the application should be dismissed, and I should order summary judgment for the first and second defendants.
[29] Primary decision [37] - [38].
The appeal
On 14 October 2022, Ms Pastor filed an appeal notice against the orders of Lonsdale DCJ. Ms Pastor also filed, on 14 October 2022, an affidavit in support of an application to seek an extension of the deadline for filing the notice of appeal. The affidavit said, in effect, that Ms Pastor had been unwell and that was a cause of her not filing the notice of appeal within time.
On 20 January 2023, the court granted leave to Ms Pastor to amend her appellant's case.
Grounds of appeal
The amended appellant's case contains five grounds of appeal.
Ground 1 alleges the judge erred:
1.at [37], in stating Ms Pastor had 'no basis to submit that the [respondents] have waived the limitation defence or are estopped from doing'; and
2.at [35], in finding that 'it was not [Ms Pastor's] error in naming the wrong entity as the first defendant which caused [Ms Pastor] to fall foul of the limitation period. Rather, it was the failure of [Ms Pastor] to have properly particularised the causes of action in the indorsement'.
Ground 2 alleges the judge erred in stating at [26] 'the fact that [Ms Pastor] did issue the writ within the limitation period is inconsistent with any notion of it being 'not reasonable' for her to have commenced the actions now contained in the amended writ.
Grounds 3 - 5 are phrased as questions.
Ground 3 raised the question of whether the judge erred in law in failing to 'apply existing precedents which would' enable the extension of the limitation period on the 3 August 2021 Amendment, pursuant to s 40 of the Limitation Act.
Ground 4 raised the question of whether the first respondent could plead the limitation defence after having engaged 'in a misrepresentation which [Ms Pastor] relied on to her detriment'.
Ground 5 raised the question of whether the first respondent's 'misrepresentation', which allegedly amounted to a 'fraud' and 'unusual practice', provided a reasonable basis to extend the limitation period.
The amended appellant's case also contained submissions provided in support of the grounds of appeal.
First respondent's application
The first respondent's application filed 29 November 2022 was in the following terms:
1.[Ms Pastor's] application to extend the time within which this appeal may be commenced be refused and the appeal thereby be dismissed;
2.The Notice of Appeal be struck out pursuant to rule 43(2)(fa) of the Supreme Court (Court of Appeal) Rules 2005 (WA);
3.The grounds of appeal be struck out and the appeal be dismissed pursuant to rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA);
4.The appeal be dismissed pursuant to rule 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA);
5.[Ms Pastor] pay the First Respondent's costs of the appeal, including the costs of this application and any reserved costs, to be taxed;
In the alternative to orders 1 to 5 above:
6.[Ms Pastor] do give security for the First Respondent's costs of this appeal in the sum of $17,500.00 by payment of that sum into court within 21 days;
7.The Appeal be stayed pending [Ms Pastor's] payment of the security for costs ordered;
8.[Ms Pastor] pay the First Respondent's costs of this application in any event; and
9.In the event that [Ms Pastor] fails to pay the security for costs ordered into court within the time limit provided the appeal be dismissed and [Ms Pastor] pay the First Respondent's costs of the appeal, including any reserved costs, to be taxed if not agreed[.]
By letter dated 8 December 2022, the first respondent notified the court and the parties in writing that it would no longer be pursuing orders 2 and 4.
The first respondent filed an affidavit of Mr EW Nielsen sworn 8 December 2022 in relation to the application. Mr Nielsen annexed certain court documents from the primary proceedings:
1.A transcript of the 2 June 2021 hearing, where orders were made by Flynn DCJ.
2.A copy of Ms Pastor's amended written submissions filed 30 September 2021 in support of an application for an extension of time before Principal Registrar Melville.
3.A copy of Ms Pastor's written submissions filed 20 July 2022 in proceedings before Lonsdale DCJ.
4.A copy of the first respondent's written submissions filed 27 July 2022 in the proceedings before Lonsdale DCJ.
The first respondent also filed an affidavit of Mr G Waldron sworn 29 November 2022, directed, amongst other things, to the question of security for costs. Mr Waldron's affidavit included evidence to the effect that (1) a real estate search of Landgate indicated that Ms Pastor had no real property registered in her name in Western Australia, and (2) Ms Pastor, in seeking reduced fees in the District Court, disclosed, in effect, that she had no income and very limited financial resources. Mr Waldron's affidavit also annexed a draft bill of costs for the appeal, prepared by his solicitor, in the sum of $29,361.
First respondent's submissions
The first respondent submitted, in effect, that:
1.The effect of Principal Registrar Melville's order made 12 January 2022, giving Ms Pastor leave to amend to substitute Aegis Staff as the first defendant, was to backdate the amendment with effect from the date of the issue of the 2019 Writ.
2.The 3 August 2021 Amendment, however, operated to incorporate within the writ the causes of action of 5 and 17 September 2018 with effect from 20 July 2021 (the date of Flynn DCJ's orders), and not from the date of the issue of the 2019 Writ. That was the effect of Flynn DCJ's order: Flynn DCJ decision, ts 68 ‑ 69; annexed to Mr Nielsen's affidavit filed 8 December 2022, exhibit EWN1, pages 13 - 14.
3.There was no appeal against the orders of Flynn DCJ.
4.In Ms Pastor's submissions (filed by her solicitors on 20 July 2022) in the appeal before Lonsdale DCJ, Ms Pastor accepted that the 2019 Writ was amended to incorporate the causes of action on 5 and 17 September 2018, with the amendment effective after the expiration of the limitation period.[30]
[30] Mr Nielsen's affidavit, exhibit EWN3, pars 21 - 22; page 39.
5.Principal Registrar Melville made a finding to the effect in point 2 above: Principal Registrar Melville's decision [5], [8].
6.The primary judge also made a finding to the effect in point 2 above: primary decision [9] ‑ [10].
7.Ms Pastor's grounds of appeal do not challenge the finding of Lonsdale DCJ referred to in point 3 above.
8.Nor do Ms Pastor's grounds of appeal challenge the primary judge's findings (at [35] ‑ [36]) to the effect that:
(a)it was not the error in identifying the correct first defendant which caused the limitation issue, but Ms Pastor's failure to particularise the 2019 Writ to allege the causes of action on 5 and 17 September 2018; and
(b)Ms Pastor's error in identifying the correct first defendant had been overtaken by Principal Registrar Melville's order to substitute Aegis Staff for Management - thus that corrected error did not assist Ms Pastor in her application to extend the limitation period.
9.Ms Pastor's grounds of appeal focused entirely on the representations which, according to Principal Registrar Melville, had, at least in part, induced the mistake as to the correct name of her employer.
10.In these circumstances, the grounds of appeal do not challenge the critical findings of the primary judge and the appeal had no reasonable prospects of success.
The first respondent also pointed to various delays in the primary proceedings and the failure to file the appeal notice within time, and contended that no proper explanation had been given for the late filing of the appeal notice, and, in all the circumstances, including the absence of merit in the appeal, an extension of time to appeal should be refused.
In the alternative to the primary submission (that the appeal be dismissed), the first respondent submitted that security for costs should be ordered in the sum of $17,500.[31] The first respondent referred to the evidence of the absence of any assets to meet an adverse costs order, and to its contention that Ms Pastor had no real prospects of success on the appeal. The first respondent also contended that Ms Pastor had delayed taking steps to institute and progress the proceedings in the District Court, that she had been afforded opportunities to raise any arguable basis to extend the limitation period but had failed to do so, and that she had failed before Principal Registrar Melville and Lonsdale DCJ. Also, the first respondent had made the application for security promptly.
Second respondent's affidavit and submissions in support of the first respondent's application
[31] First respondent's submissions filed 8 December 2022, par 60.
Ms Mann filed an affidavit, which she affirmed on 8 December 2022, to the effect that she had not been properly served with the notice of appeal.[32]
[32] Affidavit of N K Mann sworn 8 December 2022 in support of the second respondent’s application.
Ms Mann did not have an application seeking to strike out the grounds of the appeal, or the appeal, separately against her, as opposed to the more general dispositive orders sought by the first respondent. Nor did Ms Mann seek security for costs. In general terms, Ms Mann made submissions broadly in accordance with the submissions made by the first respondent in relation to the grounds of appeal, the application to extend time to appeal, and the proposed summary dismissal of the appeal.
Appellant's affidavits in opposition to the first respondent's application
Ms Pastor filed an affidavit sworn 21 December 2022 in which she deposed to the truth of the matters annexed in what she described as a 'notice to admit' dated 21 December 2022. The 'notice to admit' effectively outlined the alleged defamatory statements and allegations as to the 'misrepresentation' by Management, as well as what was contended to be the legal effect of the law of estoppel.
Ms Pastor also filed an affidavit sworn 22 December 2022 in opposition to the application. In that affidavit, Ms Pastor referred to (1) the conditions at the aged care facility, (2) the sustaining of a shoulder injury in the course of her employment, (3) an application she made to the Fair Worker's Trade in October 2018, (4) the making of a worker's compensation claim in November 2018 and the progress of that claim, (5) the misrepresentations which she said were made as to the identity of her employer.
Also, Ms Pastor filed, with leave, an affidavit of 16 January 2023.
Appellant's submissions in opposition to the application
Ms Pastor filed submissions on 22 December 2022. Ms Pastor submitted that she had filed a notice to admit facts on 22 December 2022, with the statutory consequence that the first respondent 'had no case'. She also filed, with leave, amended submissions on 16 January 2023.
Although the submissions were, with respect, not always easy to follow, they appeared to include submissions to the effect that:
1.Management and/or Aegis Staff had misrepresented the true name of the employer in connection with the worker's compensation claim by Ms Pastor.
2.Ms Pastor had objectively discharged the burden of showing that it was not reasonable to have commenced the action against Aegis Staff within the limitation period against Aegis Staff because of the misrepresentation as to the identity of the employer, which became an 'unusual circumstance'.[33]
[33] With reference to Robertson v Hollings [2009] QCA 303 [1], [7]; Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 [8], [30].
As to the second point referred to in the preceding paragraph, (and bearing in mind that Ms Pastor is a self-represented litigant) the thrust of the argument appeared to be along the lines that it was not reasonable to commence an action against Aegis Staff within one year because:
1.She had been induced, by misrepresentation, to believe that Management was the employer.
2.The effect of the misrepresentation lasted throughout the limitation period.
3.It followed that it was not reasonable to sue Aegis Staff within the limitation period.
4.The fact that she had issued the 2019 Writ against Management with unparticularised allegations did not alter the fact that it was not reasonable to sue Aegis Staff within the 12 months - to the contrary the circumstance that she had, in reliance on the misrepresentation, sued Management, demonstrated that it was not reasonable to sue Aegis Staff within the 12 months.
Ms Pastor also submitted that the filing of the notice of appeal was not deliberate and was only 17 days late, and was a consequence of her ill health. Also, she submitted, the respondents had no reasonable prospect of defending the appeal, and were unlikely to suffer prejudice as a result of the delay.
Disposition of first respondent's application
In our view, and bearing in mind that Ms Pastor is not legally represented, an argument along the lines referred to in [64] above appears arguably capable of supporting at least the second aspect of ground 1, and ground 2. The argument does not appear to us to be so untenable that those appeal grounds should be struck out and the appeal dismissed summarily. In our view, it could not be said that in relation to grounds 1 and 2, this was the clearest of cases, one where there was a high degree of certainty about the ultimate outcome of the appeal if it went to hearing, such that summary dismissal of the appeal ought properly be granted. Rather, in relation to these grounds, it appears to us to have reasonable prospects of success in the relevant sense.
However, grounds 3, 4 and 5, which are raised as questions for consideration, are not proper grounds of appeal. Making due allowance for Ms Pastor's position as a self‑represented litigant, they are grounds which do not arguably provide any coherent basis for the prosecution of the appeal, and they should be struck out.
In relation to the question of an extension of time to appeal, we are not satisfied that the delay was so egregious and the explanation for it is so lacking in merit that, at this point, it should be determined that leave to appeal should be refused. The question of leave should be referred to the hearing of the appeal.
In relation to security for costs against an individual, the principles were not in dispute.[34] In summary:
1.The power to order security is exercised to serve the interests of justice.
2.The discretion to order security is unfettered but must be exercised judicially. 'Special circumstances' do not have to be shown before an order for security for costs is made against an appellant.
3.An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favour of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor.
4.Impecuniosity is not in itself generally the sole ground for the making of an order for security. Even where the appellant is impecunious, in all the circumstances, the interests of justice may properly be served by not making such an order.
5.Other factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs.
6.Ultimately, each case will turn on its own circumstances, and it is not possible to set out an exhaustive list of the relevant considerations.
7.Where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary.
[34] See George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56 [41] - [48]; Oze‑Igiehon v Rasier Operations BV [2017] WASCA 107 [13].
Whilst we accept that the evidence indicates that the appellant is of limited means, impecuniosity is not, in itself, generally the sole ground for the making of an order for security (see [69.4] above).
On the evidence, an order for security would stifle an appeal which appears to have reasonable prospects of success. Further, with the striking out of grounds 3 ‑ 5, the appeal will likely involve a consideration of a relatively discrete point. Moreover, the relevant arguments have been rehearsed twice in the District Court. The costs are likely to be confined and we are not, in any event, satisfied that the sum sought by the first respondent would, in all the circumstances, be reasonable. It is not in the interests of justice for security for costs to be ordered in favour of the first respondent. As noted earlier, the second respondent does not seek an order for security for costs.
Ms Pastor's application filed 16 January 2023
In her application filed 16 January 2023, Ms Pastor sought a number of procedural orders which this court allowed on 20 January 2023. They were that (1) she have leave to file an amended appellant's case in terms of the amended appellant's case filed on 16 January 2023, (2) she have leave to amend her submissions in response to the first respondent's application in an appeal filed 29 November 2022, in terms of the amended submissions filed 16 January 2023, and (3) she have leave to rely on and file an outline of submissions in terms of her outline of submissions provided to the court on 20 January 2023.
The court on 20 January 2023 dismissed pars 5 and 7 of Ms Pastor's application filed 16 January 2023. Paragraph 5 sought a vacation of the hearing on 20 January 2023. We were satisfied that there was no proper basis to adjourn that hearing. Paragraph 7 sought an order that the application and the appeal be determined on the papers. There was no proper basis to make such an order. We heard the application on 20 January 2023 and the appeal itself requires a hearing on the merits in the ordinary way.
Other orders sought by Ms Pastor in her application filed 16 January 2023 were that (1) the first respondent be directed to strike through orders 2 and 4 of its application filed 29 November 2022, (2) the first respondent's application be dismissed for not having a reasonable prospect of succeeding, and (3) the respondents be directed to file respondents' answers pursuant to the Supreme Court (Court of Appeal) Rules 2005 (WA).
We would dismiss Ms Pastor's application in respect of the first two matters in the preceding paragraph. As to the first, it was unnecessary, in the circumstances, to order that those paragraphs be struck through. There was no doubt as to the scope and effect of the first respondent's application after the notification referred to in [50] above. As to the second matter, the first respondent's application has been dealt with on the merits in accordance with the reasons given earlier. As to the third matter, although probably not strictly necessary, it is convenient, for the orderly future conduct of the matter, to order that the respondents' answers be filed and served within three weeks.
The other matter raised by Ms Pastor in her application filed 16 January 2023 is that the costs of the application be in the cause. We will hear the parties on the question of costs of each of the applications on the delivery of these reasons.
Conclusion
The court's orders will be:
1.The appellant's application for an extension of time to appeal is referred to the hearing of the appeal.
2.Grounds 3, 4 and 5 of the appellant's grounds of appeal and the appellant's submissions in relation to grounds 3, 4 and 5 of the amended appellant's case dated 16 January 2023 and any consequential references therein are struck out.
3.The Court of Appeal registrar be directed to strike through the amended appellant's case in accordance with order 2, and the amended appellant's case, as struck through, shall stand as the amended appellant's case for the purposes of the appeal.
4.The first respondent's application filed 29 November 2022 is otherwise dismissed.
5.Each of the first and second respondents is to file and serve any respondent's answer within 21 days of these orders.
6.Save as provided for in order 5 above and in the orders made on 20 January 2023, and save as to the question of costs, the appellant's application filed 16 January 2023 is dismissed.
We will hear the parties on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
30 JANUARY 2023
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