Pastor v Aegis Aged Care Staff Pty Ltd [No 4]
[2024] WASCA 24
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PASTOR -v- AEGIS AGED CARE STAFF PTY LTD [No 4] [2024] WASCA 24
CORAM: MITCHELL JA
HALL JA
VANDONGEN JA
HEARD: 23 JANUARY 2024
DELIVERED : 13 MARCH 2024
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:
For File No: CACV 100 of 2022
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:
Defamation - Limitation of actions - Where plaintiff commenced proceedings within 12 months of the publication of allegedly defamatory statements but a corporate defendant was misdescribed and the allegedly defamatory statements were not identified in the indorsement of claim - Where amendments made more than 12 months after alleged publication corrected description of corporate defendant and identified the allegedly defamatory statements - Where limitation period was one year after publication unless an extension of time in which to commence proceedings was granted - Whether plaintiff commenced proceedings relating to the publication of defamatory matter within one year from the publication - Whether an extension of time to commence proceedings should be granted on the basis that the court is 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 - Whether summary judgment properly entered on the basis of a limitation defence
Legislation:
Limitation Act 2005 (WA), s 15, s 40
Result:
Application for an extension of time refused
Appeal dismissed
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):
Alinta 2000 Ltd v Petkov [2012] WASCA 258
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Commonwealth v Verwayen (1990) 170 CLR 394
Hoffmans (A Firm) v Ahmed [2021] WASCA 210
Meyer v Solomon [2021] WASCA 168; (2021) 58 WAR 464
Pastor v Aegis Aged Care Management Pty Ltd [No 2] [2022] WADC 2
Pastor v Aegis Aged Care Staff Pty Ltd [2023] WASCA 13
Pastor v Aegis Aged Care Staff Pty Ltd [No 2] [2023] WASCA 63
Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2022] WADC 82
Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2023] WASCA 128
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
JUDGMENT OF THE COURT:
We are considering an appeal against orders refusing to extend the limitation period for the appellant to bring an action in defamation against the respondents and granting summary judgment to the respondents. For the following reasons, the appeal should be dismissed.
Factual and procedural background
The appellant (Ms Pastor) and the second respondent (Ms Mann) were both employed by the first respondent (Aegis Staff) at an aged care facility.
Ms Pastor claims that, on 5 September 2018, Ms Mann said to Ms Pastor that she (Ms Mann) had heard Ms Pastor say that she (Ms Pastor) hated working with Africans and could not stand them.[1] This comment by Ms Mann was allegedly said in the hearing of a third Aegis Staff employee. Ms Pastor alleges that the statement conveyed the defamatory imputation that Ms Pastor is a racist, segregationist and white supremacist.[2]
[1] Ms Pastor's Amended Indorsement of Claim (Blue AB 57).
[2] Ms Pastor's Statement of Claim (Blue AB 61).
Ms Pastor alleges that Ms Mann's statement was repeated by a fourth Aegis Staff employee to further Aegis Staff employees on 17 September 2018. It appears as though Ms Pastor alleges that on that occasion, the fourth employee stated 'You [Ms Pastor] also made racial remarks (Did not like working with African)' in a letter addressed to Ms Pastor that was disseminated to other Aegis Staff employees.[3]
[3] Ms Pastor's Amended Indorsement of Claim (Blue AB 57).
Ms Pastor claims that Ms Mann, as original publisher, is liable for the publication of the defamatory statement on 5 September 2018 and its republication on 17 September 2018. Ms Pastor claims that Aegis Staff is vicariously liable for the conduct of its employee. She claims damages and an order for a public retraction and apology to be published by the respondents in an Australian newspaper.
Ms Pastor commenced proceedings in the District Court of Western Australia by writ of summons filed on 30 August 2019. The writ misdescribed Aegis Staff as 'Aegis Aged Care Management Pty Ltd' (Aegis Management), which was a related company in the Aegis Aged Care group. It contained the following indorsement of claim:[4]
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] Ms Pastor's Indorsement of Claim (Blue AB 53).
This indorsement of claim was defective in that it failed to identify the critical events which gave rise to the relief claimed or contain sufficient factual information to predetermine the limitation outcome.[5]
[5] See Hoffmans (A Firm) v Ahmed [2021] WASCA 210 [16] - [18].
The limitation issue was significant in this case. Section 15 of the Limitation Act 2005 (WA) provides that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication. This rule is qualified by s 40 of the Limitation Act, which provides:
(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 detail of steps taken in the District Court are set out in this court's decision on an interim application to strike out grounds of appeal, with which these reasons should be read.[6] For present purposes, the most important parts of that history are that:
[6] Pastor v Aegis Aged Care Staff Pty Ltd [2023] WASCA 13 (strike out decision) [4] - [39].
1.After commencing the primary proceedings on 30 August 2019, almost a year since publication of the allegedly defamatory statements, Ms Pastor waited nearly a further year before serving the writ of summons on the respondents.
2.On 18 September 2020, solicitors for Aegis Management wrote to Ms Pastor indicating that Aegis Staff was the relevant employer.
3.On 2 June 2021, Flynn DCJ gave Ms Pastor leave to amend the indorsement on her writ to identify the allegedly defamatory statements of 5 and 17 September 2018. Flynn DCJ required Ms Pastor to file and serve applications for leave to extend the limitation period under s 40 of the Limitation Act and to amend the name of the first defendant. Ms Pastor filed an amended writ and respective applications on 3 August 2021.
4.On 12 January 2022, Principal Registrar Melville:
(a)gave Ms Pastor leave to amend the name of Aegis Management to Aegis Staff;
(b)refused Ms Pastor's application under s 40 of the Limitation Act for leave to commence the action after one year; and
(c)granted summary judgment to the respondents on the basis that the action was clearly statute barred.
5.On 6 September 2022, Lonsdale DCJ confirmed the orders referred to in par (4)(b) and (c) above on appeal from the Principal Registrar's decision. There was no challenge to the order referred to at (4)(a) above. Her Honour published written reasons for making that decision.[7]
[7] Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2022] WADC 82 (primary decision).
The appeal to this court
Ms Pastor now appeals to this court against the orders made by Lonsdale DCJ on 6 September 2022, on the following grounds:
1.Ground 1 alleges Lonsdale DCJ erred:
(a)in stating Ms Pastor had 'no basis to submit that the [respondents] have waived the limitation defence or are estopped from doing so';[8] and
(b)in finding that:[9]
[I]t 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.
2.Ground 2 alleges Lonsdale DCJ erred in stating:[10]
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.
[8] Primary decision [37].
[9] Primary decision [35].
[10] Primary decision [26].
Three other grounds of appeal were struck out by this court in the strike out decision.
Aegis Staff has filed a notice of contention. Ground 1 of that notice contends the appeal should be dismissed on the basis that the court should not be satisfied that it was not reasonable in the circumstances for Ms Pastor to have commenced an action within one year of the alleged publication of the defamatory statements. Ground 2 contends the appeal should be dismissed on the basis that any extension should be for a period ending no later than 18 December 2020, which would be insufficient to enable Ms Pastor to overcome the respondents' limitation defence.
During the course of the appeal, Ms Pastor made a series of unsuccessful applications in effect seeking to strike out the respondents' answers.[11]
[11] See Pastor v Aegis Aged Care Staff Pty Ltd [No 2] [2023] WASCA 63 and Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2023] WASCA 128.
Ms Pastor did not attend the hearing of the appeal on 23 January 2024. We were satisfied that notice of the hearing had been sent to Ms Pastor's email address. This email address was the address for service given in court documents filed by Ms Pastor. Ms Pastor has previously used this email address in communications with the court.
We proceeded with the hearing, receiving oral submissions from counsel for the respondents. We directed that the transcript of the appeal hearing be sent to Ms Pastor. We ordered that, by 4.00 pm on 13 February 2024, Ms Pastor may file and serve supplementary written submissions in relation to her grounds of appeal and Aegis Staff's notice of contention. The transcript and order were emailed to Ms Pastor on 25 January 2024. Ms Pastor has not filed any supplementary submissions pursuant to this court's order of 23 January 2024.
Disposition
For the following reasons, none of Ms Pastor's grounds of appeal are established, and in any event ground 1 of Aegis Staff's notice of contention is established. Ground 2 of the notice of contention does not arise for consideration in those circumstances.
Why an extension of time was required
It is important to identify at the outset why Ms Pastor required an extension of the limitation period under s 40 of the Limitation Act. She had commenced the primary proceedings on 30 August 2019, within 12 months of the alleged publications in September 2018. She would not require an extension of time unless the substitution of a party or amendment of the writ of summons gave rise to a new cause of action beyond the scope of the original writ. Any new cause of action introduced to the proceedings after the expiry of the 12-month limitation period would be statute barred.
The relevant principles were summarised in Belgravia Nominees Pty Ltd v Lowe Pty Ltd:[12]
(a)limitation legislation, and the defences provided by limitation legislation, operate by reference to the commencement of proceedings in relation to a cause of action, and not by reference to subsequent steps in the course of proceedings, unless that subsequent step is seen as the 'commencement' of a proceeding by the addition of a new cause of action;
(b)if an amendment does not involve the addition of a new cause of action, no question of limitation arises;
(c)in assessing, as a matter of impression and degree, whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly;
(d)if the amendment does involve the addition of a new cause of action after the time for commencement of proceedings in respect of that cause of action has expired, no doctrine of 'relation back' or rule of court can prevent a defendant from invoking and relying upon a limitation defence;
(e)a statutory limitation bars the remedy rather than right, must be pleaded to be invoked, and can be waived;
(f)however, in a case in which a defendant indicates an intention to plead a limitation defence to a cause of action barred by statute at the time it is proposed to be added by amendment, the court will disallow the amendment if there is no doubt that such a defence would defeat the claim.
[12] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [46].
In Hoffmans, this court emphasised that the question is whether a cause of action the subject of an amendment falls within the parameters or framework of the original indorsement. It may do so even though that original indorsement may have been defective. The answer to this question is essentially a matter of impression, turning on questions of degree. In determining what the words of an indorsement expressly or impliedly convey, the court is entitled to look beyond the terms of the writ.[13]
[13] Hoffmans [25] - [28].
In the present case, the substitution of Aegis Staff for Aegis Management as a defendant did not introduce any new cause of action. It was apparent from the terms of the original indorsement, which referred to 'publications sustained in the course of her employment', that Ms Pastor intended to sue the entity that was her and Ms Mann's employer. The present case is similar to Alinta 2000 Ltd v Petkov,[14] where the wrong company in a corporate group was named in an action commenced within the limitation period and the error was not identified before the limitation period had expired. In that case Martin CJ observed:[15]
It would have been patently obvious to any reasonable reader of the writ and statement of claim cognisant of the Alinta group's corporate structure and of the terms of the contract with consumers that the plaintiffs intended to sue the entity responsible for selling and supplying gas. Such a reader would have known that that entity was Alinta Sales Pty Ltd. Any argument to the contrary was always doomed to fail.
[14] Alinta 2000 Ltd v Petkov [2012] WASCA 258.
[15] Alinta 2000 [8].
Similarly, in the present case, it would have been patently obvious to any reasonable reader of the writ cognisant of the Aegis Age Care group's structure and employment contracts that the entity Ms Pastor sought to sue was Aegis Staff. Principal Registrar Melville properly allowed the substitution of Aegis Staff for Aegis Management. He did so on the basis that Ms Pastor always intended to sue the employer of Ms Pastor and Ms Mann. She was merely mistaken as to the name of the entity who answered that description.[16] In those circumstances, the substitution of Aegis Staff as a defendant did not involve the introduction of any new cause of action.
[16] See Pastor v Aegis Aged Care Management Pty Ltd [No 2] [2022] WADC 2 [45] - [54].
That is, Ms Pastor's misidentification of Aegis Management as a defendant in the original writ was not a reason why Ms Pastor's cause of action was statute barred. That misidentification was not a reason why Ms Pastor required an extension of time in which to bring proceedings under s 40 of the Limitation Act. The respondents did not contend to the contrary in this appeal.
Rather, the only reason why Ms Pastor required an extension of time was the failure of the indorsement on the original writ, either considered alone or in context of any previous correspondence in evidence, to identify, even deficiently, any cause of action. This contrasts with the position found to exist in Hoffmans, where the amendment was found to merely particularise, clarify or expand the cause of action identified in the indorsement on the original writ.[17] Therefore, the cause of action based on publication of a defamatory statement by Ms Mann on 5 September 2018 was first advanced in the amended writ filed on 3 August 2021.
[17] Hoffmans [31].
Consequently, the amendment to the indorsement permitted on 2 June 2021 introduced a new cause of action relating to the publication of defamatory matter. That new cause of action was introduced to the primary proceedings after more than one year had elapsed since the alleged publication in September 2018. Therefore, s 15 of the Limitation Act provides the respondents with a limitation defence to the new cause of action unless an extension of time is granted under s 40 of that Act.
Whether the court was empowered and required to grant an extension
Under s 40(2) of the Limitation Act, the court is only empowered and required to extend the time in which an action can be commenced 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. As this court recognised in Meyer v Solomon,[18] once that state of satisfaction is reached the court must grant an extension but has a discretion as to the length of the extension to be granted up to a limit of three years since the publication of the allegedly defamatory statement.
[18] Meyer v Solomon [2021] WASCA 168; (2021) 58 WAR 464.
Further, as Buss P (Murphy JA agreeing) observed in Meyer:[19]
The condition for engaging the court's power to extend time under s 40(2) … is more demanding than, and is not to be equated with, whether it was reasonable in the circumstances for the plaintiff not to have commenced the action within the one year period. The condition for engaging the court's power under s 40(2) relates to the period of one year from publication and not to any period after one year from publication. This reflects, no doubt, the short and strict time limit under s 15 for the commencement of a defamation action. The condition for engaging the court's power under s 40(2) is objective in character. The circumstances referred to in s 40(2) are the circumstances as found objectively by the court and not the circumstances as they appeared subjectively to the plaintiff. For example, the condition for engaging the court's power under s 40(2) is not satisfied by the plaintiff merely establishing a belief that he or she had good reason not to commence the action within one year from publication.
[19] Meyer [93].
In the present case, there was no evidence capable of satisfying the primary court that it was objectively not reasonable in the circumstances for Ms Pastor to have commenced an action relating to defamatory statements published in September 2018 within one year from the publication.
Both statements made on 5 and 17 September 2018 were directed to Ms Pastor. She therefore knew both of the fact of publication and the content of the publication from the time of the alleged publication.
Ms Pastor may have been under a misapprehension as to the name of her and Ms Mann's employer, which she alleges was induced by the conduct of Aegis Management and/or Aegis Staff. However, that fact did not make it unreasonable for her to have commenced an action within one year from publication of the statements allegedly made in September 2018. If Ms Pastor had identified the statements of September 2018 in the indorsement, the issue of the writ against Aegis Management would have constituted the commencement of a cause of action against Ms Pastor's employer relating to the publication of those statements for limitation purposes.
The misidentification of the corporate defendant was not a reason why Ms Pastor could not reasonably have commenced the action within one year of publication. Indeed, Ms Pastor did commence the primary proceedings within one year of the publication of the alleged defamatory statements in September 2018. The only additional step which she was required to take to commence a cause of action relating to the publication of those defamatory statements was to identify the content of the statements and the time at which they were made in the indorsement to her writ. There was nothing which made it unreasonable for Ms Pastor to have taken that additional step. We do not accept the assertion in ground 2 of the appellant's appeal that Lonsdale DCJ erred in having regard to the fact that Ms Pastor was able to commence the primary proceedings within one year.
In the primary proceedings, Ms Pastor also relied on the fact that she was a self-represented litigant which led to the defective indorsement on the writ.[20] However, if Ms Pastor wished to act for herself in commencing the proceedings it was incumbent on her to ascertain the correct procedure for doing so. The fact that she chose to commence proceedings close to the expiry of the one-year limitation period and then not serve the writ for almost a year limited the opportunity for her to be advised of the defective indorsement before the limitation period expired. The fact that Ms Pastor was self‑represented does not mean that it was not reasonable in the circumstances for Ms Pastor to have commenced an action within 12 months from the date of publication. As noted above, the test is objective and does not turn on Ms Pastor's subjective appreciation of her rights and obligations.
[20] Affidavit of Ms Pastor sworn 3 August 2021, par 10 (Green AB 59).
No other circumstance was advanced on appeal as justifying the conclusion that it was not reasonable in the circumstances for Ms Pastor to have commenced an action in relation to Ms Mann's allegedly defamatory statement within one year from the publication of that statement.
It follows from the above conclusions that the primary court was neither required nor empowered by s 40 of the Limitation Act to extend the time for Ms Pastor to have commenced an action relating to the publication of defamatory material in September 2018. Ground 1 of Aegis Staff's notice of contention is established.
Summary judgment
It is established that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[21] In particular, it is generally undesirable that limitation questions should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.[22]
[21] Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] - [55].
[22] Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, 533.
In our view, the present case is one of the clearest of cases in which it is appropriate to decide the limitation question on a summary judgment application. The cause of action in respect of the statements allegedly published in September 2018 was clearly not commenced within one year of publication of those statements. There is no proper basis on which it was open to the court to extend the time for commencing an action under s 40 of the Limitation Act. Although the respondents have not yet filed defences in the primary proceedings, they have indicated that they intend to rely on a limitation defence.
Ms Pastor's submissions assert that Aegis Staff is estopped from relying on a limitation defence. This is on the basis that misrepresentations as to the identity of her employer caused Ms Pastor to assume that Aegis Management was the correct defendant and suffer a detriment as a result. In some circumstances a defendant might be estopped from relying on a limitation defence.[23] If Aegis Staff had induced Ms Pastor to accept that Aegis Management was her employer and she relied on that fact to her detriment in commencing the primary proceedings, Aegis Staff might be estopped from pleading a limitation defence based on her having brought proceedings against the wrong entity. However, that is not the basis of Aegis Staff's limitation defence. Further, the misdescription of the corporate defendant was not a reason why proceedings were brought outside the limitation period. Ms Pastor has been permitted to amend the name of the corporate defendant. The respondents accept that the amendment of the corporate defendant's name does not give rise to a limitation defence. In these circumstances, Ms Pastor suffers no relevant detriment which might arguably give rise to an estoppel.
[23] See generally Commonwealth v Verwayen (1990) 170 CLR 394.
It follows that, in our view, no error was involved in the passages of the primary decision sought to be impugned by ground 1 of Ms Pastor's appeal.
Proceeding against Ms Mann
We also note there is nothing to suggest that Ms Pastor was ever under any misapprehension as to Ms Mann's identity. Even if there had been merit in Ms Pastor's submissions based on her misapprehension of the identity of Aegis Staff, there could be no basis for concluding it was not reasonable for Ms Pastor to commence proceedings against Ms Mann within 12 months of publication of the alleged defamatory statements. Nor could there be any arguable basis on which Ms Mann might be estopped from asserting a limitation defence.
Orders
Ms Pastor requires an extension of time in which to commence this appeal. In the circumstances, there would be no utility in granting an extension. For the above reasons, we order that:
1.The appellant's application for an extension of time to commence the appeal is refused.
2.The appeal is dismissed.
We would hear from the parties on the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
13 MARCH 2024
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