Prefumo v Teague - [2010] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PREFUMO -v- TEAGUE [2010] WADC 117

CORAM: EATON DCJ

HEARD: 28 JULY 2010

DELIVERED : 9 AUGUST 2010

FILE NO/S: CIV 1298 of 2010

BETWEEN: LOUIS MARCEL ANGELO GILBERT PREFUMO
Plaintiff
AND
CAROLE CHRISTINE TEAGUE
Defendant

Catchwords:

Practice and procedure - Defendant's application for summary judgment - The nature of the plaintiff's cause of action

Legislation:

Limitation Act 1935
Public Sector Management Act 1994

Result:

Judgment for the defendant

Representation:

Counsel:

Plaintiff: In Person
Defendant: Mr A J Sefton

Solicitors:

Plaintiff: Not applicable
Defendant: State Solicitor for Western Australia

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

Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244
O'Connor v SP Bray Ltd (1937) 56 CLR 464

EATON DCJ: On 3 May 2010 the plaintiff commenced an action in this court by writ of summons endorsed with a handwritten "statement of claim" which, in truth, reflects an endorsement of the plaintiff's claim rather than a proper pleading. The claim is for general damages. The plaintiff asserts that the defendant, while discharging the office of manager of occupational health and safety at Westrail, released certain information, being the plaintiff's employment details, to the plaintiff's former spouse. The endorsement of claim alleges that the confidential information so released was used by its recipient in divorce proceedings as between the plaintiff and his former wife in the Family Court of Western Australia at Perth.
On 11 May 2010 the State Solicitor for Western Australia entered an appearance for the defendant.
On 2 June 2010 the defendant filed a chamber summons seeking orders as follows:
1.The time limited for the defendant to file and serve her defence be suspended until further order;
2.Judgment be entered for the defendant;
3.In the alternative to order 2:
(a)the time for the defendant to bring an application to strike out the writ or summons be extended to 2 June 2010; and
(b)the writ of summons be struck out and the action be dismissed,
4.The plaintiff pay the defendant's costs of the application and the action.
The grounds of the application, as set out in the chamber summons, rely upon O 16 r 1 of the Rules of the Supreme Court 1971 or, in the alternative, O 20 r 19(1)(d) of those rules. A further ground relied upon is the inherent jurisdiction of the court.
The defendant asserts that the plaintiff has not given notice to the defendant as required by s 47A(1)(a) of the Limitation Act 1935 (WA) and that the plaintiff is time‑barred and prevented from obtaining leave to bring an application pursuant to s 47A(3)(a) of the Limitation Act. Alternatively, says the plaintiff, the plaintiff's action is time‑barred pursuant to s 38(1)(c)(vi) of the Limitation Act, the action not having been commenced within six years of the alleged cause of action accruing.
The defendant filed, in support of its application, an affidavit of Katie Louise Pope sworn 2 June 2010.
The application came initially before Principal Registrar Gething in chambers who directed that it be adjourned to a special appointment before a judge, that the plaintiff file and serve any affidavit in opposition to the application by 23 June 2010 and that the defendant file and serve any responsive affidavit by 30 June 2010. He reserved the costs of the application.
On 18 June 2010 the plaintiff filed an affidavit sworn by him on 16 June 2010. On 22 July 2010 the plaintiff filed a further affidavit sworn by him on 21 July 2010.
The matter was heard at a special appointment on 28 July 2010. Counsel for the defendant relied upon the affidavit referred to and his oral and written submissions. The plaintiff appeared in person and relied upon his affidavits and oral submissions. At the conclusion of the hearing I reserved judgment.
Notwithstanding that there had been no application by either party to file, following the conclusion of the hearing, supplementary material, the plaintiff wrote to the court a letter dated 28 July 2010. It was clearly, having regard to its content, penned following the hearing. The letter and enclosures sought to put additional material and to make additional submissions. My associate, at my direction, upon receipt of the letter and materials, wrote to the State Solicitor for Western Australia on behalf of the defendant providing a copy of the letter and enclosures and enquiring as to whether the further material should be taken into account notwithstanding its receipt at court following the hearing in the absence of any application or direction for the provision of supplementary material. The State Solicitor has formally advised that there is no objection to me having regard to the additional material. I have, therefore, read and taken into account the letter of 28 July 2010 and its enclosures.

The nature of the plaintiff's claim

On the face of the endorsement in the plaintiff's writ the claim is one in tort, alleging wrongful disclosure of confidential information. In his affidavit of 16 June 2010 the plaintiff refers to the defendant being in breach of s 9 of the Public Sector Management Act 1994 asserting that she was, at material times, an employee in that sector and subject to the provisions of that Act.
Section 9 of that Act provides that the principles of conduct that are to be observed by all public sector bodies and employees are that they are, inter alia, to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities. Section 80 of that Act provides that an employee who contravenes any provision of the Act applicable to him or her commits a breach of discipline. A person alleged to have committed a breach of discipline is to be dealt with in accordance with the provisions of the Act and may be charged and penalised if the charge is proven.
Does a breach of s 9 of the Act give rise to a cause of action for damages? In Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 Wheeler and Le Miere JJ held that the requirements of s 9 of the Public Sector Management Act and related requirements were not mandatory in nature. The context and language of the provisions, said their Honours, suggests that the principles being referred to are in the nature of guidelines.
Certainly, in general terms, a breach of statutory duty may found an action for damages. For that cause of action, negligence is irrelevant. In O'Connor v SP Bray Ltd (1937) 56 CLR 464 Dixon J said (at 477) that the question of whether a private right of action for breach of statutory duty arises must be determined as a matter of construction. He continued:
"The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the cited cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument."
He went on to say:
"… I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, found to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears."
Having regard to the terms of the Public Sector Management Act it would appear to be an Act prescribing, in general terms, the principles of public administration and management applicable in the public sector. For example, s 7 provides that:
"The principles of public administration and management to be observed in and in relation to the public sector are that –
(a)the public sector is to be administered in a manner which emphasises the importance of service to the community;
(b)the public sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities; and
…"
Section 8 deals with the principles of human resource management to be observed in relation to the public sector. Section 9 deals with general principles of official conduct being principles or standards to be observed by all public sector bodies and employees. That section creates an expectation that all public sector bodies and employees should comply with the provisions of the Act itself, with public sector standards and codes of ethics and any code of conduct applicable to the public sector body or employee concerned. It requires further that public sector bodies and employees are to act with integrity in the performance of official duties, are to be scrupulous in the use of official information, equipment and facilities and exercise proper courtesy, consideration and sensitivity in dealings with members of the public and employees.
I am drawn to the conclusion that sections 7, 8 and 9 of the Act were not intended to, and do not found independently, causes of action available to private citizens or other entities whereby they might seek damages for alleged breaches of the provisions of those sections. They are, as suggested by Wheeler and Le Miere JJ above, in the nature of guidelines prescribing, in quite general terms, appropriate conduct for public sector bodies and employees.
There is no contractual nexus between the plaintiff and the defendant. It cannot be said that the plaintiff's claim arises in contract.
In equity there are remedies available for the wrongful use of confidential information. Those remedies vary with the nature of the claim made. Where the basis of the plaintiff's claim is purely in equity with no legal right in question there may be injunctive relief, an account of profits or an order for the delivery up of documents embodying or containing the confidential information. Where the plaintiff claims loss the general principle upon which pecuniary relief is granted in the exclusive jurisdiction of equity is that the miscreant is obliged to do equity by such restitution that the plaintiff is in the same position as he or she would have been if the breach of duty had not been effected (see Meagher Gummow and Lehane's "Equity Doctrines and Remedies", 4^th ed by Meagher, Heydon and Leeming at [41‑135] p 1140).
This court is not a court in which equitable relief alone may be claimed or obtained. Given that the plaintiff has chosen to mount his claim in this court I infer that he has done so because his action is one in tort, it apparently not being an action for damages in equity or an action at law for damages for breach of contract.
In his affidavit of 16 June 2010 the plaintiff alleges that the defendant breached the Public Sector Code of Conduct in divulging information (the breach said to be a contravention of s 9 of the Public Sector Management Act) while she discharged her duties as a Westrail employee. The allegation would appear to be that there was a breach of statutory duty by the defendant giving rise to a claim for damages. A problem for the plaintiff in pursuing the action may be the question of whether or not the Public Sector Management Act does confer a cause of action giving rise to strict liability. The standard of care imposed in cases of breach of statutory duty is one of strict compliance thus creating, in effect, a tort of strict liability. The courts, however, as mentioned, have been slow to assume that a statute confers a cause of action giving rise to strict liability.
Clearly, if the plaintiff's action is a claim in tort it is not in negligence but based on the alleged breach of the statutory obligation said to be created by the Public Sector Management Act.
During the course of the hearing I enquired of the plaintiff as to the nature of his suit and, in particular, as to whether he is suing the defendant in her capacity as an employee of the State. He was at pains to emphasise that he was not suing the State.

Limitation periods

The plaintiff indicated that he is aware of limitations on the commencement of actions accepting, during the course of the hearing, that it was an obstacle to be overcome. He was clearly aware of a limitation period of six years.
The relevant Act is not the 2005 legislation but rather the Limitation Act 1935. In his supplementary material submitted after the hearing the plaintiff made reference to the Limitation Act 1935, making it clear that, in his submission, he could commence his action provided that he could demonstrate "good cause" for doing so. Section 38(1)(c)(vi) provides that in general terms actions founded on tort must be commenced within six years.
I put to the plaintiff, in the course of the hearing, the proposition that his understanding was that he could commence his action against the defendant notwithstanding that some 10 or 11 years since the events complained of had expired. He responded in the affirmative. I asked him why he claimed to be in a position to commence proceedings notwithstanding the passage of such a long period of time. He replied:
"I got told if you got a good cause, which I have, that I was not the actual – two things. I could not – I wasn't able to afford to actually service the storage fees of where the storage of my belongings were, which included the actual documents, and I got those documents in July 2007. And I got under a good cause because it wasn't – if I'd been able to get those papers earlier, I would have started earlier, but I could not because – well, I'm on a disability pension, and it's very hard. And also Legal Aid does not give you at all, any monies or even attention. But what I can say is, this is what I've been given and this is what I've taken. My grounds are, I got an access to cartons which were in storage containing legal papers in September 1998 in mid‑July 2007 … then I sought legal advice from the firm of Godecke & Griffiths from 30 July 2007 to 13 March 2008 on my very limited funds. And from there, I just go to the Citizens Advice Bureau to get anything out of them because I cannot afford the actual fees of a lawyer."
Later Mr Prefumo said:
"I am only looking for justice, your Honour. That's all. If there is a limitation period in there which I overlooked, well, it wasn't overlooked by me it was overlooked by a lawyer which gave me the advice. I paid for the advice. I paid $25 for 30 minutes of time."
The defendant submits that even if a cause of action could be established (which is denied) the plaintiff's claim will inevitably fail by reason of non‑compliance with limitation requirements. On its face, says the defendant, the action relates to the alleged actions of the defendant in the course of her duties performed as a public officer. The plaintiff failed to give notice to the defendant as required by s 47A(1)(a) of the Limitations Act. The plaintiff is, says the defendant, now time‑barred and cannot obtain leave to bring an action pursuant to s 47A(3)(a) of that Act. Alternatively, the plaintiff's action, says the defendant, is time‑barred pursuant to s 38(1)(c)(vi) of that Act the action not having been commenced within six years of the alleged cause of action accruing.
Section 47A of the Limitation Act provides for the protection of persons acting in execution of statutory or other public duty. It is very clear that the defendant was, at the material time, an employee of Westrail and was acting in the execution of her duties in the public sector. Section 47A provides that no action shall be brought against any person for an act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action would be based and his name and address and that of his solicitor or agent, if any and the action is commenced before the expiration of one year from the date on which the cause of action accrued.
The section provides further that a person may consent to the bringing of an action against him or her at any time before the expiration of six years from the date on which the cause of action accrued whether or not the notice required by subsection (1) has been given.
In the matter before me there is no suggestion that the defendant has ever provided consent in writing to the action brought against her.
The section also provides that application may be made to a court which, but for the provisions of the section, would have jurisdiction to hear the action for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued whether or not the notice required by subsection (1) has been given to the prospective defendant. If the court entertaining such an application considers the failure to give the required notice or the delay in bringing the action, as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by failure or delay the court may, if it thinks just to do so, grant leave to bring the action, subject to such conditions as it thinks just to impose.
It is the case that the plaintiff has failed to give the notice required of him or to make application for leave to bring the action. He has, however, commenced an action by the filing of a writ. He is labouring under the misapprehension that he may do so if he has "just cause".
It does seem to me that the defendant's submissions in the light of the foregoing analysis are correct. The defendant would, if required to file a defence, be in a position to plead an insurmountable defence that being the expiry of all applicable limitation periods.
By O 16 r 1 of the Rules of the Supreme Court a defendant to an action may within 21 days after appearance or at any later time by leave of the court apply to the court for summary judgment and the court, if satisfied that the action is frivolous or vexatious, the defendant has a good defence on the merits, or that the action should be disposed of summarily with or without pleadings, may order that judgment be entered for the defendant with or without costs. The order provides that the plaintiff may show cause against such application by affidavit.
Having considered the matters put before me at the hearing of the defendant's application and the material provided by both parties preceding that hearing I conclude that the defendant has a good defence on the merits and that judgment should be entered for the defendant. I accept that the action is not frivolous or vexatious but rather that the plaintiff is, to a degree, misguided, perhaps by reason of inappropriate advice or perhaps by his misunderstanding of appropriate advice. Whatever be the case, the action is forlorn and must be terminated.
Before leaving the question of the plaintiff's legal advice and his understanding of it, I do note that, in the supplementary materials provided to me, there is a copy of a letter dated 4 September 2007 written to the Director of Legal Aid by the firm Griffiths and Godecke, mentioned by the plaintiff as being, at one stage, his solicitors. The letter accompanied the plaintiff's application for legal aid. It concluded with the following passage:
"We seek a grant of legal aid in order to advise our client and investigate the possibility of setting aside the orders pursuant to Section 79A of the Family Law Act together with any other relevant grounds".

The orders referred to were said to have been made on 17 September 1998 in the Family Court of Western Australia, some nine years before the application for legal aid. The letter from the plaintiff's solicitors just mentioned made no reference to the provisions of the Limitation Act 1935 or to any proposed action in law or equity against the defendant for damages. It may be that the application for legal aid was refused. It is the case that some two and a half years later the plaintiff filed his writ of summons in this court. For the reasons already outlined the action has no prospects of success and cannot be allowed to continue.
The defendant seeks an order that the plaintiff pay her costs of the application and the action. My only concern in that regard is the contention by the defendant that he is impecunious. During the course of the hearing he told me that he had, in the past, slept on park benches and that he had resorted to Saint Bartholomew's House, it being a charitable facility that offers secure accommodation and support services for adults experiencing homelessness. Given the defendant's claims of impoverishment I consider it appropriate that I should hear further from the defendant as to the application for costs.