Pastor v Aegis Aged Care Staff Pty Ltd [No 3]

[2022] WADC 82

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   PASTOR -v- AEGIS AGED CARE STAFF PTY LTD [No 3] [2022] WADC 82

CORAM:   LONSDALE DCJ

HEARD:   1 AUGUST 2022

DELIVERED          :   6 SEPTEMBER 2022

FILE NO/S:   CIV 3320 of 2019

BETWEEN:   LOREDANA ELENA PASTOR

Plaintiff

AND

AEGIS AGED CARE STAFF PTY LTD

First Defendant

NIRBIR KAUR MANN

Second Defendant

Catchwords:

Practice and procedure - Application for extension of time - Limitation of actions

Legislation:

District Court Rules 2005 (WA), r 15
Limitation Act 2005 (WA), s 15, s 40
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff	:	Ms D Naidu
First Defendant	:	Mr B W Ashdown
Second Defendant	:	Ms G 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):

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341

Cary v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90

Meyer v Solomon [2021] WASCA 168

Noonan v MacLennan [2010] QCA 50

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

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

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Re Pastor [2019] FWC 257

The Commonwealth of Australia v Verwayan (1990) 170 CLR 394

Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953

Wookey v Quigley [No 2] [2010] WASC 209

LONSDALE DCJ:

Introduction

1. Pursuant to r 15 of the District Court Rules 2005 (WA) (DCR) the plaintiff appeals a decision of Principal Registrar Melville to refuse her leave to commence proceedings for defamation outside the 12‑month limitation period provided for in s 15 of the Limitation Act 2005 (WA): Pastor v Aegis Aged Care Management Pty Ltd [No 2] [2022] WADC 2.

Brief overview of the plaintiff's case

1. The plaintiff was employed as a nursing assistant at an aged care facility owned and run by the entity Aegis Aged Care Staff Pty Ltd (the first defendant).  The second defendant was a registered nurse employed at the same facility and by the same entity.

2. The plaintiff asserts that on 5 September 2018 and on 17 September 2018 the second defendant defamed her in the course of her employment and is liable to pay her damages.

3. The plaintiff claims that the first defendant, as the second defendant's employer, is vicariously liable for the defamatory statements of the latter.

Background to proceedings in this court

1. On 30 August 2019 (nearly 12 months after the alleged defamatory statements) the plaintiff issued a writ against the second defendant and naming Aegis Care Management Pty Ltd as the first defendant.  The plaintiff had mistakenly believed that entity to be both her and the second defendant's employer.

2. It is common ground that the plaintiff should have named Aegis Care Staff Pty Ltd as the first defendant.

3. The writ contained a general indorsement which read:

   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 [sic] claim for damages is $589,500 and published public apology.

4. On 18 February 2021, Deputy Registrar Hewitt refused the plaintiff's application to substitute the name of the first defendant with Aegis Aged Care Staff Pty Ltd.  At the same hearing, Deputy Registrar Hewitt granted applications by the first and second defendants to strike out the indorsement on the basis that it contained insufficient particulars of a cause of action: Pastor v Aegis Aged Care Management Pty Ltd [2021] WADC 14.

5. On 2 June 2021 his Honour Judge Flynn set aside the orders of Deputy Registrar Hewitt and made orders, inter alia, giving the plaintiff leave to amend her writ of summons in accordance with the plaintiff's amended writ of summons dated 25 August 2020 and filed on 26 August 2020.[1]

   [1] Transcript of proceedings before Flynn DCJ dated 2 June 2021.

6. The indorsement in the amended writ of summons dated 25 August 2020 pleaded that the plaintiff was defamed on two occasions, namely on 5 and 18 September 2018.  Flynn DCJ noted that the amended writ revealed two new causes of action - and consequently they must be taken as having commenced from the date of the order allowing the amendment.

7. Section 15 of the Limitation Act provides that an action for defamation must be commenced within 12 months.  The time elapsed from the dates that the causes of action arose to the time of the hearing before Flynn DCJ was more than 2 years and 10 months.  It follows, as Flynn DCJ noted, that the two new causes of action had been commenced outside the limitation period and would inevitably be defeated unless the plaintiff obtained leave for an extension.

8. After granting the plaintiff leave to amend the writ, Flynn DCJ made orders, inter alia, granting the plaintiff leave to:

   (i)bring an application for an extension of the relevant limitation period; and

   (ii)to bring an application to amend the name of the first defendant from Aegis Aged Care Management Pty Ltd to Aegis Aged Care Staff Pty Ltd.

9. Flynn DCJ also made orders that the first and second defendants' strike out applications be adjourned to be heard at the same time as the plaintiff's applications for leave.

10. On 3 August 2021 the plaintiff filed a further amended writ of summons together with an application for an extension of the limitation period and an application for leave to amend the name of the first defendant from Aegis Care Management Pty Ltd to Aegis Aged Care Staff Pty Ltd.

The hearing before Principal Registrar Melville

1. The plaintiff's applications came on for hearing before Principal Registrar Melville on 1 October 2021. On 12 January 2022 Registrar Melville, relying on O 21 r 5 of the Rules of the Supreme Court 1971 (WA) allowed the plaintiff's application to substitute the name of the first defendant. However, Principal Registrar Melville dismissed the plaintiff's application for an extension of time within which to commence defamation proceedings. It followed from the dismissal of the plaintiff's applications that the first and second defendants were entitled to summary judgement. Principal Registrar Melville ruled accordingly.

2. The sole issue for my determination in this appeal is whether I should exercise my discretion to set aside the orders of Principal Registrar Melville and grant leave to the plaintiff to extend time within which to lodge defamation proceedings.

Relevant principles concerning an application to extend time to commence proceedings for defamation

1. Section 40 the Limitation Act provides:

   40Court 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.

2. The defences provided by the Limitation Act override the rules of court permitting the addition of a cause of action and the 'relation back' doctrine: Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [36], [43], [46]. Leave can only be granted pursuant to the considerations contained in s 40 of the Limitation Act.

3. 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].

4. 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].

5. 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 Act 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.

6. 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).

The plaintiff should be denied leave to extend time within which to appeal

1. For reasons which follow, the plaintiff has not discharged the burden of demonstrating that it was not reasonable for her to have filed a properly indorsed writ within the limitation period.

2. The plaintiff filed the writ within the 12-month limitation period but it contained (as Registrar Hewitt found) a defective indorsement.  Importantly, the plaintiff did not file the writ until nearly 12 months after the happening of the events in question.  The plaintiff has not given any explanation for why she delayed in filing the writ and there is no apparent reason for the delay.

3. As the statement of claim has since revealed, the plaintiff had first-hand knowledge of the alleged defamatory utterances.  It follows the plaintiff could have issued proceedings soon after the alleged defamatory statements were uttered.  At least, she could have filed the writ much earlier than she did.

4. The fact that the plaintiff 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.  Whatever the plaintiff's subjective beliefs might have been as to the reasons for why she did not commence proceedings earlier, they are not relevant.  The test is an objective one: Meyer [93]; Noonan v MacLennan [19] - [20], [65].

5. After the filing of the writ, the plaintiff engaged in further delay.  The plaintiff waited for nearly a year before the writ was served.  Thus, the plaintiff put her own action in peril by giving herself insufficient time to remedy any defects in the indorsement prior to the expiry of the limitation period: see Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 [52]; Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 [68].

6. Given that the plaintiff's statement of claim reveals she was present at the time the alleged defamatory statements were made, there is no apparent excuse for her failure to particularise the dates of the alleged defamatory utterances in the indorsement - and she has proffered no such explanation.

7. Initially, the plaintiff was unrepresented but she has not sought to explain why she did not seek legal advice prior to filing the writ or within a reasonable amount of time thereafter.  Further, the plaintiff has not produced any evidence as to why she did not attempt to remedy the defect on the indorsement to the writ in a timely manner.

8. The plaintiff submits that, because she was self-represented for a time, she should be afforded some leniency for failing to act in a manner to be expected of a legal practitioner; that is, she should be afforded some leniency for not understanding that, unless the defect in the indorsement was remedied prior to the expiration of the limitation period, then she risked having summary judgment entered against her.  That submission must be rejected.

9. The courts will, where possible, assist an unrepresented party, provided there is no prejudice to the other parties.  However, the test applicable to applications for an extension of time do not differentiate between those plaintiffs who have access to legal advice and those who do not: see Noonan, 543 [24]; Cary v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90 [54]. The fact that the plaintiff sought to delay obtaining legal advice does not assist her in this application.

10. There is a suggestion that the plaintiff may have delayed progressing the defamation proceedings whilst she pursued other litigation relating to her employment - namely proceedings in the Fair Work Commission: see Re Pastor [2019] FWC 257. However, the plaintiff has not submitted that it was not reasonable for her to delay legal proceedings because she chose to pursue other remedies in the meantime.

11. It is also relevant to note that the plaintiff was given notice of the defects in the indorsement as early as 18 September 2020 when the solicitors for the first defendant drew the plaintiff's attention to defects in the original writ - including the plaintiff's failure to correctly name the first defendant.[2]  Even after the defects were brought to her attention, the plaintiff took no action to remedy the defect in a timely manner.

    [2] Affidavit of Grant Leonard Waldron sworn 25 September 2020, page 17.

The plaintiff's submissions

1. In an affidavit dated 10 September 2021 the plaintiff swore that she had been induced into making an error as to the correct identity of her employer because in documentation relating to (unrelated) proceedings for worker's compensation the latter had been described as the entity Aegis Aged Care Management Pty Ltd.

2. The plaintiff now submits that her application for an extension of time under s 40 of the Limitation Act is justified in part on the grounds that, she had been genuinely mistaken as to the identity of her and the second defendant's employer.  That argument must be rejected for the reasons expressed by Principal Registrar Melville - namely, that it was not the plaintiff's error in naming the wrong entity as the first defendant which has caused the plaintiff to fall foul of the limitation period.  Rather, it was the failure of the plaintiff to have properly particularised the cause of action in the indorsement.

3. In this appeal the plaintiff sought to reventilate the circumstances of how she fell into error in the naming of the first defendant but the plaintiff's error in this regard did not operate on her failure to comply with the limitation period: Principal Registrar Melville had allowed the plaintiff's application to rename the first defendant so that mistake could have had no bearing on the issue I am required to determine.

The defendants' application for summary judgment

1. 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.

2. 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.

Orders

1. The plaintiff's application is dismissed.

2. There will be judgment for the first and second defendants.

3. The plaintiff pay the second defendant's costs of the action including any reserved costs to be taxed.

4. The plaintiff pay the first defendant's costs of the action including any reserved costs to be taxed upon an indemnity basis.

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

JS

Associate to the Judge

6 SEPTEMBER 2022