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

[2023] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PASTOR -v- AEGIS AGED CARE STAFF PTY LTD [No 3] [2023] WASCA 128

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   25 AUGUST 2023

DELIVERED          :   25 AUGUST 2023

PUBLISHED           :   25 AUGUST 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              :   DISTRICT 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:

Judges - Disqualification - Application to have judges recuse themselves from hearing any further matters in relation to the appeal - Whether participation in prior decision gives rise to a reasonable apprehension of bias

Practice and procedure - Abuse of process - Interlocutory application based on substantially the same facts as previous unsuccessful application - Where no material change in circumstances between earlier and later applications

Legislation:

Nil

Result:

Order that registrar refuse to accept the appellant's application in an appeal dated 20 June 2023 for filing

Category:    B

Representation:

Counsel:

Appellant	:	No appearance
First Respondent	:	B W Ashdown
Second Respondent	:	G J Lee

Solicitors:

Appellant	:	In person
First Respondent	:	Clyde & Co (Perth Office)
Second Respondent	:	Belinda Burke Legal

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

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Food Channel Network Pty Ltd v Television Food Network [2010] FCA 372

Jeffery & Katauskas v SST Consulting (2009) 239 CLR 75

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507

P Dawson Nominees Pty Ltd v ASIC [2009] FCA 413; (2009) 255 ALR 466

Pastor v Aegis Aged Care Staff Pty Ltd [2023] WASCA 13

Pastor v Aegis Aged Care Staff Pty Ltd [No 2] [2023] WASCA 63

QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) WAR 93

Walton v Gardiner (1993) 177 CLR 378

REASONS OF THE COURT:

1. At the hearing on 25 August 2023, we ordered that the registrar refuse to accept the appellant's application in an appeal dated 20 June 2023 for filing on the basis that it is an abuse of process of the court.  We said that we would publish written reasons for that decision later.  These are our reasons for making that order.

Background

1. This is an appeal against orders made by Lonsdale DCJ on 6 September 2022, in effect dismissing the appellant's application in the primary proceedings for leave to commence the primary proceedings outside the 12-month limitation period and entering judgment for both respondents.[1]

   [1] Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2022] WADC 82.

2. In the primary proceedings, the appellant claimed that the second respondent defamed her on 5 September 2018 and 17 September 2018.  The appellant also claimed that the first respondent, as the second respondent's employer, was vicariously liable for the defamatory statements.

3. The District Court writ was issued on 30 August 2019, with the following indorsement of claim:

   [The appellant's] claim is for the defamation of [the appellant's] character in publications sustained in the course of her employment and [the appellant's] claim for damages is $589,500.00 and published public apology.

4. Due to the misidentification of the appellant's and the second respondent's employer, the appellant named Aegis Aged Care Management Pty Ltd (a related company to the first respondent) as the first defendant in the writ.  The writ was served nearly 12 months after its issue.

5. The above indorsement did not comply with O 6 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC), which 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.

6. On 2 June 2021, Flynn DCJ relevantly granted the appellant leave to amend her indorsement of claim.  Pursuant to that leave, the appellant filed an amended writ of summons with the following indorsement:

   [The appellant's] claim is for the defamation of [the appellant's] character in a publications that was made by [the second respondent] on 5 September 2018 sustained which occurred in the course of her employment at Aegis Aged Care Carrington Facility when she said she heard [the appellant] say: 'I hate working with Africans, I can't stand them'.  Later [the second respondent'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.

7. In granting the appellant leave to amend the indorsement in these terms, Flynn DCJ recognised that the amendment would take effect on 2 June 2021, more than one year after the alleged publications on 5 and 17 September 2018. Section 15 of the Limitation Act 2005 (WA) provides for a one-year limitation period from the date of publication, subject to an extension of time being granted under s 40 of the Limitation Act, which 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.

8. Flynn DCJ also made orders requiring the appellant to file and serve any applications to extend the limitation period or change the name of the first defendant within 14 days.

9. On 12 January 2022, the principal registrar of the District Court made orders substituting the first respondent as the first defendant to the primary proceedings.  The registrar also dismissed the appellant's application for an extension of the limitation period and granted summary judgment to the respondents.

10. On 6 September 2022, Lonsdale DCJ dismissed an appeal against the registrar's decision.  Her Honour decided that the application for an extension of the limitation period should be refused for a variety of reasons which included:

    [26]The fact that the [appellant] 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 [appellant'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. (citation omitted)

11. In the course of addressing the appellant's submissions, Lonsdale DCJ observed:

    [35]The [appellant] 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 rspondent's] employer.  That argument must be rejected for the reasons expressed by Principal Registrar Melville - namely, that it was not the [appellant's] error in naming the wrong entity as the first defendant which has caused the [appellant] to fall foul of the limitation period.  Rather, it was the failure of the [appellant] to have properly particularised the cause of action in the indorsement.

12. In relation to the respondents' application for summary judgement, Lonsdale DCJ held:

    [37]The [appellant] has no basis to submit that the [respondents] have waived the limitation defence or are estopped from doing so.  Consequently, there is no reason I should not allow the [respondents'] claims for summary judgment. (citation omitted)

Procedural history of the appeal

1. Below we set out the procedural history of the appeal in this court.

Commencement of appeal and amendment of grounds of appeal

1. On 14 October 2022, the appellant filed an appeal notice which included an application for an extension of time in which to appeal and a supporting affidavit.  On 18 November 2022, the appellant filed her appellant's case in the appeal.

2. On 29 November 2022, the first respondent filed an application in an appeal seeking orders either refusing an extension of time in which to appeal or striking out or summarily dismissing the appellant's appeal (First Respondent's Application).

3. On 16 January 2023, the appellant filed an application in an appeal seeking orders for leave to file an amended appellant's case and for the First Respondent's Application to be dismissed (First Application).

4. On 20 January 2023, Murphy and Vaughan JJA made orders relevantly granting the appellant leave to file an amended appellant's case in terms of the appellant's case filed on 16 January 2023.

5. On 30 January 2023, Murphy and Vaughan JJA made orders relevantly striking out grounds 3, 4 and 5 of the appellant's grounds of appeal.  The First Respondent's Application was otherwise generally dismissed, and the appellant's application for an extension of time in which to appeal was referred to the hearing of the appeal.  The court published written reasons for making those orders: Pastor v Aegis Aged Care Staff Pty Ltd.[2]

   [2] Pastor v Aegis Aged Care Staff Pty Ltd [2023] WASCA 13 (Pastor [No 1]).

6. The effect of the orders made on 30 January 2023 was to leave the following two grounds of appeal for the court's consideration:

   1.First, the learned judge erred in law by stating at paragraph 37 of Her decision of 6 September 2022 that 'the plaintiff has no basis to submit that the defendants have waived the limitation defence or are estopped from doing so' and at paragraph 35: ' ... that it was not the plaintiffs 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.'

   2. Second, the learned judge erred in law by stating at paragraph 26: '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'

Respondent's answers

1. The first respondent's answer was filed on 20 February 2023. The first respondent contended that none of the grounds of appeal were established. The first respondent also contended that, even if Lonsdale DCJ erred at [26] and/or [35] of the primary decision, in all the circumstances the appellant has not satisfied section 40(2) of the Limitation Act and no extension to the limitation period should be granted.  Further, the first respondent contended that any extension of the limitation period should be for a period ending no later than 18 December 2020 (prior to the grant of leave to amend the writ).

2. The second respondent's answer was also filed on 20 February 2023.  It contended that neither ground of appeal had any reasonable prospect of succeeding and that the appeal should be dismissed.

The Second Application

1. By amended application in an appeal filed on 15 March 2023, the appellant sought orders in effect preventing the respondents from taking part in the appeal and extending the limitation period by reason of the 'fraudulent' nature of the respondents' submissions in relation to ground 1 of the appeal (Second Application).  Alternatively, the appellant sought orders having the effect of requiring the first respondent to file a substituted respondent's answer conceding ground 1 of the appeal. 

2. On 20 April 2023, this court (Murphy & Vaughan JJA) considered and dismissed the Second Application for reasons published in Pastor v Aegis Staff Care Pty Ltd [No 2].[3]  The substantive part of the court's reasons was as follows:[4]

   [3] Pastor v Aegis Aged Care Staff Pty Ltd [No 2] [2023] WASCA 63.

   [4] Pastor [No 2] [9] - [12].

   In each of the respondent's answers, ground 1 of the amended grounds of appeal is broken down into its separate components (the alleged error at [37] of the primary decision and the alleged error at [35] of the primary decision) and is designated, for the purposes of the respondents' submissions, 'ground 1(a)' and 'ground 1(b)', respectively.

   By her amended application, Ms Pastor, in substance:

   1.took issue with the respondents addressing the separate components of ground 1 and designating the separate components 'ground 1(a)' and 'ground 1(b)', respectively; and

   2.contended that there was a finding at the earlier interlocutory hearing in relation to Pastor [No 1] that the first respondent had made a representation, the effect of which was that it had no limitation defence, and on the basis of which this court should now order that the limitation period be extended for three years.

   Ms Pastor's amended application was misconceived.  There is nothing misleading in the respondents addressing ground 1 by its component parts and designating the first component 'ground 1(a)' and the second component 'ground 1(b)'.

   Further, this court made no finding that any misrepresentation had been made to Ms Pastor.  Rather, the court observed, in Pastor [No 1], that 'the thrust of the argument' presented by Ms Pastor appeared to be along the lines that she had been induced, by misrepresentation, to believe that Management was the employer.   Even if such a finding had been made, the judgment was interlocutory and no issue estoppel in that regard would have been created.  Insofar as Ms Pastor relied upon an exchange with counsel for the first respondent at the earlier interlocutory hearing in relation to Pastor [No 1], questions and propositions put to counsel for consideration are not findings and can have no bearing on the proper disposition of the appeal.

Third and Fourth Applications

1. By amended application in an appeal filed on 4 May 2023, the appellant sought orders having the effect of requiring the first respondent to file a substituted respondent's answer conceding ground 1 of the appeal (Third Application).  Alternatively, the appellant sought an order that the first respondent 'prove in an affidavit and a written submission unequivocally that they possess a limitation defence'.

2. On 9 June 2023, the appellant filed an application to stay the Third Application and the appeal proceedings (Fourth Application).  The Fourth Application contained an allegation that the first respondent's refusal to concede that they possess no limitation defence because of an earlier misrepresentation of their identity contravened certain provisions of the Criminal Code (WA). The Fourth Application also contained the appellant's request that the matter be determined on the papers.

3. On 16 June 2023, this court (Mitchell & Vaughan JJA) considered and dismissed both the Third Application and the Fourth Application.  The court provided oral reasons for dismissing those applications.  While the appellant did not attend that hearing, the court was satisfied that she had been given notice of the hearing.  The substantive part of the court's oral reasons was as follows:[5]

   To the extent that the application seeks orders having the effect of requiring the first respondent to file a substituted respondent’s answer conceding ground 1 of her appeal, it is a repetition of the application dismissed by this court on 20 April 2023.  There is no evidence of any material change in circumstances since this court's previous orders. That is a sufficient basis for dismissing the current application.

   In any event, there is no proper basis for this court to require the first respondent to concede a ground of appeal.  Whether ground 1 of the appellant's appeal should succeed and the merit or lack thereof of the respondent's responses to that ground are properly assessed at the hearing of the appeal rather than at this interlocutory stage.  Further, there is no proper basis for this court to compel the first respondent to seek leave to file an affidavit as additional evidence in the appeal.  There is no merit in the claim for alternative relief sought in the appellant's application filed on 26 April 2023 and amended on 4 May 2023.

   In addition, on 9 June 2023 the appellant filed a further application in an appeal seeking orders staying her earlier application and the appeal until a 'Criminal complaint' which she proposes to make has been determined.  The affidavit in support of that most recent application shows no proper basis for staying the present proceedings.  The application in appeal filed on 9 June 2023 should also be dismissed.

   [5] Appeal ts 18 - 19.

4. The hearing on 16 June 2023 commenced at 10.34 am and concluded at 10.43 am.  At 10.40 am on 16 June 2023, the appellant sent an email to the Chief Justice, copied to persons including the associates to Mitchell and Vaughan JJA, which read as follows:

   I am sick and unable to attend Court today and have made an application in an appeal to be determined on the papers, I also file an affidavit in support of the said application under oath stating that the First Respondent engaged in sharp practice and committed an offence under the criminal code WA.

   It is a criminal offence to allege that someone has committed an offence under oaths; however, this is a fact, and I am sick and tired of the promotion of criminality.  The First Respondent has not filed any affidavit in response to my application for stay of both my previous application in an appeal and the appeal.

   I look forward to the matter being determined on the papers and it would not deter my pursuit of criminal action against the First Respondent and bring such matter to relevant authorities, including the office of the Prime Minister.

5. Copies of the orders made on 16 June 2023 and the transcript of the hearing were subsequently emailed to the parties.

The current application in an appeal

1. On 20 June 2023, the appellant lodged an application in an appeal (Fifth Application) for filing.  The relief sought in paragraphs 1 and 2 appear to be, in substance and effect, in the same terms as the Fourth Application.  In addition, the appellant seeks an order that 'Justice Murphy and Justice Vaughan disqualify themselves from hearing any further matter in relation to [the appeal] given that they have continued to [undermine] the rule of law'.  The Fifth Application also asks for the matter to be determined on the papers.

2. Also on 20 June 2023, the appellant lodged her supporting affidavit sworn on 19 June 2023.  In that affidavit, the appellant asserts that the following statement in the first respondent's submissions dated 15 May 2023 in response to the Third Application was false:

   The First Respondent is not obliged to concede, and does not concede, that the statutory limitation period must be extended, nor that the First Respondent is prohibited from relying upon the limitation period.

3. The appellant then asserts that the first respondent does not possess a limitation defence and should have conceded ground 1 of the appellant's appeal.  The appellant also asserts that by filing 'fraudulent submissions' on 15 May 2023, the first respondent and its lawyers contravened various provisions of the Criminal Code.  The appellant indicates that she seeks a stay to enable her to make a 'criminal complaint' against the first respondent, and to allow for that complaint to be determined.

1. The appellant's affidavit also states:

   On 16 June 2023, the application to stay the application in an appeal dated 26 April 2023 and the Appeal dated. Justice Murphy and Justice Vaughan did not give a reason for their decision despite knowing that the First Respondent had engaged in an offence, annexed hereto and marked 'LEP-30' is a copy of the orders made without any reasons for judgement provided dated 16 June 2023.

   I request Justice Murphy and Justice Vaughan to recuse or disqualify themselves from subsequent applications as they have undermined the rule of law.  I was sick and unable to attend and did inform the Court of Appeal by email, annexed hereto and marked 'LEP-31' is a copy of the email correspondence on 16 June 2023.

2. By notice to attend dated 26 June 2023, the Court of Appeal registrar gave notice of a hearing on 25 August 2023 for the purpose of the appellant to:

   [S]how cause why the Court of Appeal Registrar ought not to refuse to accept the appellant's application in an appeal dated 20 June 2023 for filing on the basis that it is an abuse of process of the court or a frivolous or vexatious proceeding.

3. The appellant did not attend the hearing on 25 August 2023.  We were satisfied that the appellant was given notice of the hearing and that it was appropriate to proceed in her absence.

Recusal application

1. Paragraph 3 of the Fifth Application seeks to have Murphy and Vaughan JJA disqualify themselves as 'they have continued to [undermine] the rule of law'.  In context, this statement appears to be in reference to the hearing on 16 June 2023, at which we constituted the coram.  Murphy JA retired as a judge of this court on 1 May 2023 and did not participate in the hearing on 16 June 2023. 

2. An allegation that a judge has continued to undermine the rule of law is not a recognised ground for recusal.  We will treat this as an application that we recuse ourselves on grounds of apprehended or actual bias.  Given that the question of bias is a challenge to the court's jurisdiction, and we are required to be satisfied of our jurisdiction,[6] we address this question at the outset.  We have considered the recusal application, individually and collectively, and are of the view that we should not recuse ourselves for the following reasons.

   [6] See QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [26] - [28], [66], [102] ‑ [103], [133].

3. Where there is an application for disqualification, two different types of bias may be alleged: actual or apprehended.  Actual bias requires proof that a decision-maker in fact approached the issues with a closed mind or had prejudged them such that he or she was 'so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented'[7].  Apprehended bias requires consideration of whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question.[8]

   [7] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507.

   [8] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8].

4. There is no arguable basis demonstrated in the appellant's supporting affidavit for us to recuse ourselves for actual or apprehended bias.  It seems that the primary concern raised by the appellant is that this court 'did not give a reason for their decision'.  As set out at [27], oral reasons were given at the hearing on 16 June 2023 and a transcript of the reasons was provided to the parties. 

5. The appellant also refers to the email she sent on 16 June 2023 indicating that she was unwell.  That email was sent after the commencement of the hearing.  The appellant gave no prior notice to the court that she would not be attending.  In any event, the email sent during the hearing asked that the matter be determined on the papers, which is what occurred.  There is no basis for a suggestion that a failure to accord procedural fairness to the appellant gave rise to a reasonable apprehension of bias.

6. The appellant's assertion that we acted knowing that the first respondent had committed a criminal offence is rejected. The allegation that the first respondent's statement quoted at [31] above constituted an offence has no reasonable foundation. Nor does the allegation that we knew an offence had been committed.

7. The appellant's affidavit discloses no arguable basis for a contention of apprehended or actual bias, or any other arguable reason why we should recuse ourselves.  We therefore declined to do so.

Abuse of process

1. The court has an inherent power to prevent an abuse of process arising from the misuse of its procedure.[9]

   [9] See Walton v Gardiner (1993) 177 CLR 378, 393; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J); Jeffery & Katauskas v SST Consulting (2009) 239 CLR 75 [27] (French CJ, Gummow, Hayne & Crennan JJ).

2. Abuse of process is incapable of being described exhaustively.  However at least one of the following three characteristics will be apparent in many cases of abuse of process:[10]

   1.The court's processes being invoked for an illegitimate or collateral purpose;

   2. The use of the court's procedures being unjustifiably oppressive to a party; or

   3.The use of a court's procedures bringing the administration of justice into disrepute.

   [10] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) WAR 93 [4] - [11] (Buss JA).

3. It is ordinarily an abuse of process to make repeated applications for interlocutory relief where there has been no material change of circumstances and where there is no fresh evidence available at the second hearing which could not, with reasonable diligence, have been available at the first.[11]

   [11] See, for example, Food Channel Network Pty Ltd v Television Food Network [2010] FCA 372 [16] (Jagot J) adopting P Dawson Nominees Pty Ltd v ASIC [2009] FCA 413; (2009) 255 ALR 466 [49] (Goldberg J). See also Bethell v Minister for Immigration [2021] FCA 771 [30] (Logan J).

4. The only discernible difference between the Fifth Application and the appellant's previous applications is the additional order seeking that we recuse ourselves, which we have addressed above.

5. The appellant is otherwise seeking to re-agitate the same matters that were considered and adversely determined against her by this court in dismissing the Second, Third and Fourth applications.  There is, in any event, no substance in the appellant's allegations.  The Fifth Application relying on the same materials is vexatious and an abuse of process.  It should not be accepted for filing.

Orders

1. For the above reasons, at the hearing on 25 August 2023 we made orders that:

   1.The appellant's application in an appeal filed on 20 June 2023 not be accepted for filing.

   2.The appellant is to pay the first respondent's costs of the hearing on 25 August 2023 fixed in the amount of $  500 forthwith and in any event.

   3.The appellant is to pay the second respondent's costs of the hearing on 25 August 2023 fixed in the amount of $500 forthwith and in any event.

   The fixed costs were in an amount which appeared reasonable to us in all the circumstances.

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

RL

Associate to the Honourable Justice Mitchell

25 AUGUST 2023