Saunders v Department for Communities - [2013] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SAUNDERS -v- DEPARTMENT FOR COMMUNITIES [2013] WADC 113

CORAM: SCHOOMBEE DCJ

HEARD: 10 JUNE 2013

DELIVERED : 18 JULY 2013

FILE NO/S: CIV 3533 of 2012

BETWEEN: WAYNE ANTHONY SAUNDERS
Plaintiff
AND
DEPARTMENT FOR COMMUNITIES
Defendant

Catchwords:

Civil procedure - Application by plaintiff for summary judgment - Application by defendant to strike out writ and statement of claim for failure to disclose a reasonable cause of action and for summary judgment - Whether plaintiff has potential cause of action - Interpretation of s 5S of Civil Liability Act 2002

Legislation:

Civil Liability Act 2002 (WA), s 5S

Result:

Plaintiff's application for summary judgment dismissed
Defendant's application for summary judgment granted

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms R Young

Solicitors:

Plaintiff: Not applicable
Defendant: State Solicitor for Western Australia

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

Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424
Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
McKechnie v Campbell (1966) 17 WAR 62
Michael v Nicholson (Unreported, WASCA, Library No 950660S, 1 December 1995)
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60
Wyong v Shirt (1980) 146 CLR 40
Young v Holloway [1895] P 87

SCHOOMBEE DCJ: This matter concerns four applications. Mr Saunders, the plaintiff, has filed two applications for summary judgment, dated 6 December 2012 and 19 March 2013 respectively. The defendant, who has been named as the Department for Communities, has filed an application, dated 4 December 2012, to strike out the plaintiff's writ on the ground that the Department for Communities is not an entity recognised at law for purposes of being sued. The defendant has brought a further application, dated 21 March 2013, to strike out the amended statement of claim and also for summary judgment.
Mr Saunders filed a writ on 15 November 2012 against the Department for Family and Children's Services. The defendant filed and served a conditional appearance indicating that the defendant had been incorrectly named. The plaintiff then filed an amended writ changing the name of the defendant to 'Department for Communities'.
On 4 December 2012 the defendant filed a chambers summons to strike out the amended writ on the basis that the Department for Communities was also not an entity recognised at law for purposes of being sued and suggested that proceedings should be brought against the Children and Community Services Ministerial Body, alternatively against the State of Western Australia.
Mr Saunders declined to amend the writ once more and filed a chambers summons for summary judgment on 6 December 2012. In support of the application he stated that the Department for Communities had no defence.
On 26 February 2013 Mr Saunders filed an amended statement of claim. The statement of claim has not been drafted in the usual format, but sets out three matters on which Mr Saunders bases his claim. He firstly says that the Department for Communities breached a duty of care to him when they published newsletters which advertised and explained the Redress WA Scheme to potential applicants. The newsletters advised that the Redress WA Scheme was established in 2008 with the purpose of the State Government making ex gratia payments to persons that were abused while in State care. Some of the newsletters showed images of a man or a woman, photographed from behind, with a watermark image depicting the man or woman as a child underneath the photograph.
Mr Saunders claims in his amended statement of claim that he suffered psychological neglect and abuse by the Department for Communities because their conduct of placing images of adults and children in the newsletters triggered memories of childhood trauma in him. Mr Saunders specifically explained at the hearing of the applications that the image of a woman on one of the newsletters had reminded him of a female abuser and one of the watermarks of a child looked as if it had been derived from a photograph of his son when he was younger. Mr Saunders also told the court that people in the community had reported to him that they had recognised him as being one of the men depicted in the newsletters and Mr Saunders said this caused him fear of being identified as a victim of sexual abuse which might make him vulnerable to further sexual abuse by others in the future.
Mr Saunders claimed $500,000 from the Department for Communities for his psychological neglect and abuse arising from the images in the newsletters.
Mr Saunders' second claim is based on psychological abuse by the Department for Communities in that they had created false hope of proper redress for potential applicants by offering a maximum payout of $80,000 and had subsequently reduced that to a maximum payment of $45,000 which caused him to lose all hope of proper redress for sexual abuse suffered by him as a child.
Mr Saunders claims $150,000 for this psychological abuse.
The third claim relied upon by Mr Saunders is that he suffered psychological abuse by reason of the government not dismissing a minister in office, namely the Honourable Minister Troy Buswell, who, according to Mr Saunders committed an act of indecent sexual assault and exhibited lewd conduct while in public office. Mr Saunders explained to the court that applicants under the Redress WA Scheme had been given false hope that sexual abusers and public officers who had covered up such abuse would be brought to justice, whereas the fact that the government had not dismissed the Minister had dashed all such hope by applicants for the Redress WA Scheme and had therefore caused psychological abuse to them.
Mr Saunders claimed $150,000 for this abuse.
Mr Saunders filed another chambers summons for summary judgment on 19 March 2013. The application reiterated the grounds on which his claim is based and stated that the defendant had no defence.
On 13 March 2013 Mr Saunders and representatives from the Department for Communities attended a mediation before a registrar, but the mediation was not successful as the parties remained in disagreement over the merits of Mr Saunders' claim.
On 21 March 2013 the defendant filed a chambers summons to strike out the amended statement of claim and for summary judgment.

Delay in bringing the defendant's application to strike out and for summary judgment

The defendant's application to strike out the amended statement of claim and for summary judgment is out of time. Pursuant to O 20 r 19(3) of the Rules of the Supreme Court 1971 an application to strike out a pleading must be made within 21 days of the service of the amended pleading to which the application refers. The amended statement of claim was filed and served on 26 February 2013. The application to strike out the amended statement of claim was only filed on 21 March 2013. This means that it was a few days out of time.
Pursuant to O 16 r 1(1) an application by a defendant for summary judgment must be made within 21 days after the appearance has been filed. In this case the defendant filed its memorandum of appearance on 20 November 2013. The application for summary judgment was therefore out of time by some four months.
The defendant applied for leave of the court to bring the application to strike out the amended statement of claim and for summary judgment out of time. The defendant filed, together with its application, a memorandum pursuant to O 59 r 9 explaining the steps that had been taken to date by each party. These explanations were not on affidavit.
Any explanation for why an application for summary judgment was not made within the time allowed should be on affidavit and the failure to do so may be fatal to the application: Michael v Nicholson (Unreported, WASCA, Library No 950660S, 1 December 1995) (Kennedy ACJ and Rowland J); Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186 [18] – [25].
Counsel for the defendant explained that she had thought it sufficient to set out the reasons for the delay in bringing the application in a memorandum pursuant to O 59 r 9, because an affidavit in support of an application to strike out a statement of claim is generally not allowed. However, an explanation for delay in bringing a summary judgment application should be on affidavit. Nevertheless, because the defendant had provided an explanation for the delay in the memorandum filed pursuant to O 59 r 9, I gave leave to the defendant's solicitors to file an affidavit to the same effect to support the application for summary judgment. The affidavit was filed on 11 June 2013. Mr Saunders was given leave to reply and filed an affidavit stating that the explanation by the defendant's solicitor was inadequate.
The affidavit by the defendant indicates that although the defendant initially only sought to strike out the writ and statement of claim on the basis of the incorrect naming of the defendant, the defendant already outlined its position on the merits of the plaintiff's claim to Mr Saunders by letter dated 30 January 2013. At that time the defendant's solicitor suggested to Mr Saunders that the parties attempt to find a resolution by way of a mediation conference. The mediation conference took place on 13 March 2013. Once that had turned out to be unsuccessful, the defendant filed its application to strike out the amended statement of claim and for summary judgment on 21 March 2013.
It also appears from the affidavit that the defendant had not been served with all pleadings and applications by the plaintiff and only obtained copies of some of these documents at the District Court registry on 14 January 2013.
Taking into account all these matters it does not appear that the defendant has acted unreasonably in delaying the application to strike out the amended statement of claim and for summary judgment and I will grant leave for bringing both applications out of time.

Defendant's submissions on application to strike out and for summary judgment

I will first deal with the defendant's application to strike out the amended statement of claim and for summary judgment. This is because the defendant filed affidavits in support of that application and dealing with the content of these affidavits makes it easier to understand the factual position. The defendant filed an affidavit of Ms Narrell Lethorn, the director of the Department for Communities, and an affidavit by Ms Stephanie Withers, the former executive director for the Redress WA Scheme run by the Department for Communities.
Ms Narrell Lethorn states in her affidavit that as the director of the Department for Communities she had been involved in the closing down of the Redress WA Scheme and had access to the department's internal document system. The records of the department indicate that Mr Saunders had applied for compensation under the Redress WA Scheme on or about 5 March 2009. On 2 September 2009 he had called the department stating that he was upset about being on the front cover of a Redress WA Scheme newsletter, but the officer who took the call was unable to ascertain the newsletter Mr Saunders was concerned about. On 15 July 2010 the department sent a letter to Mr Saunders informing him that he was most likely not eligible for a payment under the scheme as he had never been placed in State care. Mr Saunders was asked to provide any further information within 28 days. No further response was received from Mr Saunders to indicate that he was eligible and the Department for Communities then sent him a letter telling him that he was ineligible for any payments.
During the hearing of these applications Mr Saunders agreed that he had never been placed in State care, although he explained to the court that he should have been when he was approximately 9 years old. Mr Saunders expressed the view that he had been both sexually and emotionally abused by at least one parent.
Ms Lethorn attached two Redress WA Scheme newsletters to her affidavit, one dated 1 August 2009, the other, 3 February 2010. She stated that these two newsletters were issued in the period when Mr Saunders telephoned to complain about them. Mr Saunders confirmed during the hearing that the female depicted in the August 2009 newsletter was the woman who reminded him of an abuser and that the watermark image of a boy on the newsletter dated 3 February 2010 resembled his son.
Ms Stephanie Withers stated in her affidavit that the content of the newsletters had been prepared by the Department for Communities but that the production of the newsletters, including the choice of the images used, had been done by an advertising agency employed by the department. Ms Withers stated that the images used in the newsletters were chosen with her in consultation with the advertising agency. She advised that she was told by the advertising agency that the images of persons used in the newsletters came from models who were paid to provide their photographs to the agency and allowed the agency to use them.
Counsel for the defendant submitted that the amended statement of claim should be struck out on the basis that it disclosed no reasonable course of action or was scandalous, frivolous or vexatious. Counsel for the defendant explained that the first claim relied on by Mr Saunders, namely that he suffered psychological abuse because the newsletters published by the Department for Communities contained images of adults and children which triggered childhood trauma memories for him was not a claim which had any prospect of succeeding in law. Counsel for the defendant submitted that Mr Saunders had not provided any facts on the basis of which it could be found that the Department for Communities had a duty of care to make sure that he did not suffer impairment to his psychological health by reason of the use of the images on the newsletters. Counsel for the defendant submitted that this was particularly so because Mr Saunders was not even eligible to apply for compensation under the Redress WA Scheme. Counsel for the defendant also argued that even if the department had such a duty of care it did not do anything unreasonable which could have breached such a duty of care. Further, Mr Saunders had not provided facts to indicate that he had suffered a compensable injury and that such injury was caused by the conduct of the department.
For the same reasons counsel for the defendant submitted that summary judgment should be granted to the defendant as Mr Saunders' first claim was frivolous or vexatious and should be disposed of summarily.
Counsel for the defendant further submitted that Mr Saunders' second claim based on the reduction of the maximum payout available under the Redress WA Scheme suffered from similar problems. Again, Mr Saunders had not pleaded any grounds which gave rise to a duty of care by the department to him, nor any facts which indicated that the department had acted unreasonably. Counsel for the defendant stressed that the Redress WA Scheme was based on ex gratia payments to be made to persons who fell within the scheme's operation.
The newsletter of 1 August 2009 explained that when the scheme was first established in 2008 a total budget of $114 million was allocated to administer the scheme. $90.2 million of this funding was set aside for ex gratia payments. However, an early evaluation of the applications following the closing date showed that a large number of claims had been made and that they involved severe abuse. Because of this the State Government made the difficult decision to adjust the maximum ex gratia payment from $80,000 to $45,000.
Counsel for the defendant submitted that the decision made by the government to reduce the maximum payment was not justiciable by a court. Counsel for the defendant argued that in any event Mr Saunders had not provided any facts which indicated or proved the injury that he had suffered or showed that the injury came about as a result of the conduct by the department in reducing the maximum payouts.
Counsel for the defendant lastly submitted that Mr Saunders' third claim regarding the failure to dismiss the Honourable Minister Buswell did not disclose a reasonable cause of action and was scandalous, frivolous or vexatious. Counsel for the defendant relied on case law indicating that the appointment or dismissal of a minister was not a justiciable matter. In any event, counsel argued, Mr Saunders had not provided any facts which supported a duty of care by the department, a breach of such a duty, the injuries suffered by Mr Saunders and the causal link between the injury and the conduct by the department.
Counsel for the defendant submitted that the second and third claims should also be struck out as not disclosing a reasonable course of action or as being scandalous, frivolous or vexatious, alternatively that summary judgement should be granted to the defendant in respect of all the plaintiff's claims.

Legal principles regarding application to strike out and summary judgment application by defendant

Pursuant to O 20 r 19(1) a court may at any stage of the proceedings strike out a pleading on the ground that it does not disclose a reasonable cause of action or that it is scandalous, frivolous or vexatious.
An action may be frivolous or vexatious because it is obviously unsustainable and an abuse of the process of the court: Young v Holloway [1895] P 87, 90; Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225, 230. It is not necessary that the plaintiff intended to annoy or harass the defendant for an action to be described as 'vexatious'.
The principles to be applied in considering an application to strike out a pleading on the basis that it does not disclose a reasonable cause of action were summarised in Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) as follows:
(1)The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course: Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191 per Burnside J. at p 195.
(2)On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable; Niven v Grant (1903) 29 VLR 102 per Holroyd J at p 106.
(3)Great care must be exercised to ensure that a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 per Barwick J at 130.
(4)But the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed. ibid:
(5)As a general rule, a plaintiff is entitled … as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out: Dalgety Australia Ltd v Rubin (1984, Unreported, Library No 5485) per Burt CJ.
(6)A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1982‑1983) 44 ALR 365 per Master Allen at 373.

In determining such an application the court should not limit itself to the facts specifically set out in the pleading, but ask itself whether it would be open to the plaintiff upon the claim set out in the pleading to prove facts at the trial which would constitute a cause of action: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405, 414. A court should also ensure that in a possibly ill‑expressed and unstructured statement of claim by a litigant in person there is no viable cause of action which, with appropriate amendment and a little assistance from the court, could be put into proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536.
I have considered Mr Saunders' claim set out in the amended statement of claim by bearing in mind these principles.
Pursuant to O 16 r 1(1) of the Rules of the Supreme Court a court may grant a defendant summary judgment if it is satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily. Before a court will grant a defendant summary judgment the defendant must show that there is no serious question to be tried on any cause of action raised by the plaintiff: Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424, 74,756, 74,757. The power to order summary judgment should be exercised with great care and should never be utilised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. It is not competent for a court to dismiss an action as frivolous and vexatious or an abuse of process if it appears that there is a real question to be determined, whether of fact or law: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91.
Pursuant to O 16 r 1(2) the defendant must file an affidavit verifying the facts upon which the application for summary judgement is based.

Has Mr Saunders pleaded claims which disclose a reasonable, or at least potentially reasonable, cause of action or is there no serious question to be tried?

It seems that what Mr Saunders is essentially alleging is that the Department for Communities had a duty of care to prospective applicants to the Redress WA Scheme to advertise and administer the scheme in a manner which would not cause psychological distress to them. Mr Saunders alleges that the Department for Communities breached such a duty of care by using images in the newsletters which might have reminded potential applicants of sexual abusers or might have triggered memories of sexual abuse in applicants. Further the department breached its duty by first raising the hope of potential applicants of receiving proper redress for sexual abuse suffered and then dashing all such hope by reducing the maximum payout allowed under the scheme. Mr Saunders also claims that in retaining the Honourable Minister Buswell, in respect of whom allegations of inappropriate conduct with sexual connotations had been made, the department was sending an implied message that it was not prepared to fully uncover and acknowledge sexual abuse suffered by potential applicants to the scheme and that this had caused psychological distress to such applicants, including Mr Saunders.
The claims made by Mr Saunders need to have a proper legal basis before they can possibly lead to any successful outcome of the proceedings instituted by him. It seems to me that the only potential cause of action that could apply to Mr Saunders' claims is an action in negligence for breach of a duty of care. However, an action in negligence which is not based on physical injuries suffered, but on mental harm, is only viable in law where the conduct of the defendant has resulted in a recognised psychiatric illness by the plaintiff. In Australia a person is not liable in negligence for being a cause of distress, alarm, fear, anxiety, annoyance or despondency Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 [7] and [285].
Accordingly, Mr Saunders would only have a claim in negligence if the conduct by the Department for Communities has caused him to suffer a recognised psychiatric illness. Mr Saunders explained to the court during the hearing that he had been diagnosed with post‑traumatic stress syndrome in 2007. According to the affidavit by Ms Lethorn, Mr Saunders only made an application under the Redress WA Scheme in or about March 2009. Mr Saunders told the court that the conduct by the Department for Communities had caused him psychological distress. There is no indication that Mr Saunders developed a psychiatric illness or that his existing post‑traumatic stress syndrome was exacerbated in a material aspect by the conduct of the Department for Communities. This alone shows that there is no serious question to be tried should Mr Saunders' claims proceed to trial.
There is another aspect of Mr Saunders' claims which shows that he does not have a reasonable cause of action or that his action is frivolous and vexatious in the context of it being obviously unsustainable. This is because s 5S of the Civil Liability Act 2002 (WA) provides that a defendant does not owe a duty of care to a plaintiff to prevent mental harm occasioned to the plaintiff unless the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken.
The full wording of s 5S is as follows:
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following —
(a)whether or not the mental harm was suffered as the result of a sudden shock;
(b)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(c)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(d)whether or not there was a pre‑existing relationship between the plaintiff and the defendant.
\(3)For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4)This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
In Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 [22] – [26] the High Court interpreted s 32 of the Civil Liability Act 2002 (NSW) which is in exactly the same wording as s 5S. The High Court came to the conclusion that the relevant section did not replace the common law of negligence in relation to psychiatric injury but defined or controlled what would otherwise be a duty of care arising at common law. The High Court held that the common law test laid down in Tame v New South Wales was still applicable. Pursuant to that test a defendant owes a plaintiff a duty to take reasonable care to avoid a recognisable psychiatric injury if the risk of the plaintiff sustaining such an injury was reasonably foreseeable. The majority in Tame had held that concepts such as 'shocking event' or 'directness of connection' or 'normal fortitude' were not pre‑conditions to liability but considerations relevant to foreseeability: Wicks [25].
However, as explained in Wicks at [26] the Civil Liability Act (NSW) has not only reflected the state of the common law as identified in Tame but has added the specific rider that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.
The same rider is embodied in s 5S(1) of the Civil Liability Act (WA). This means that a plaintiff will have to show that the defendant ought to have foreseen that a person of normal fortitude, in the circumstances of the case, including the nature of the pre‑existing relationship between the plaintiff and the defendant, might suffer a recognised psychiatric illness if reasonable care were not taken by the defendant.
In Tame v New South Wales, McHugh J, who delivered a minority judgment and would have made the concept of 'normal fortitude' a determinant of the duty of care, explained when a defendant would have a duty of care taking into account the normal fortitude of potential plaintiffs. McHugh J held at [114] as follows:
Ordinarily, as I have indicated, the law imposes a duty of care only when an actor knows or ought to know that the probability of his or her causing damage multiplied by the gravity of its occurrence is high enough for a reasonable person to contemplate eliminating or reducing the risk. Even then, the law will impose no liability ‑ will find no breach of duty ‑ unless it is reasonable to incur the cost and inconvenience of eliminating or reducing the risk of damage. It is in accord with principle, therefore, to hold that, in the absence of a pre-existing duty-relationship, a person has a duty to take care in a nervous shock case only when a reasonable person in the defendant's situation would realise that his or her conduct might cause psychiatric illness. What is reasonable is to be judged by reference to the community's general knowledge of the effect of stressors on ordinary persons of normal fortitude.
In this case Mr Saunders would have to prove that the Department for Communities knew or ought to have known that if it placed images of adults or children on its newsletters these might resemble persons known to potential applicants to the scheme and might cause applicants of normal fortitude to suffer a psychiatric injury. In order for Mr Saunders' claim regarding the reduction of the maximum payment to succeed he would have to prove that the department knew or ought to have known that announcing such a reduction might cause applicants of normal fortitude to suffer a psychiatric illness. The same argument applies with regard to Mr Saunders' claim that the government has not dismissed the Honourable Minister Buswell.
There was no pre‑existing relationship between Mr Saunders and the Department for Communities. However, it might be argued that the Department for Communities knew that potential applicants to its scheme might include people who had already suffered psychiatric illnesses by reason of the sexual abuse that they had been exposed to and that they might not be persons of normal fortitude. However, it seems to me that even if a defendant knows that it is dealing with an unusually vulnerable class of persons who could potentially be affected by its conduct, s 5S still provides that in the absence of a pre‑existing relationship a defendant does not owe a duty of care unless it ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness by reason of its careless conduct.
This means that there is no prospect for Mr Saunders succeeding in his claim for damages from the Department for Communities, because Mr Saunders will not be able to establish that the department owed him a duty of care in the circumstances that apply to his claims. It should be noted that the department did not use images of potential applicants, but images of models which had been supplied by an advertising agency. There is no basis upon which a court will find that the department ought to have foreseen that a person of normal fortitude might, because of similarities between the images and people known to that person, suffer a recognised psychiatric illness. Similarly, a court will not find that the department should have foreseen that a person of normal fortitude might suffer a psychiatric illness after being told of the reduction in the maximum payout under the Redress WA Scheme or that a person of normal fortitude might suffer a psychiatric illness because of the failure by the government to dismiss the Honourable Minister Buswell.
Even if Mr Saunders would be able to establish that he suffered a psychiatric illness by reason of the department's conduct such that the department owed him a duty of care, he would still have to show that that duty was breached. In considering whether there was a breach of a duty of care, a court has to take into account the magnitude of the risk of injury, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibility which the defendant may have: Wyong v Shirt (1980) 146 CLR 40, 47 – 48. In balancing the degree of probability of the occurrence of a mental illness in a potential applicant and the other conflicting responsibilities which the Department for Communities has, there is no serious possibility that the department would be held to have breached its duty of care. The department did not act unreasonably in using images of models.
In reducing the maximum payout the department had to balance the available funds against the number of applicants to the scheme and make the best decision under the circumstances. There is no prospect that it could be proven that it was not reasonable for the department to make this decision, particularly if one takes into account the small risk of a potential applicant of normal fortitude developing a psychiatric illness as a result of such a decision.
The decision by a government department whether a specific minister should be dismissed because of inappropriate conduct would be based on many factors of which the impact of a failure to do so upon applicants of the Redress WA Scheme might, if at all, have only been one of many. There is also the problem of Mr Saunders having provided no basis upon which it could be said that the Department for Communities had control over the dismissal of the Honourable Minister Buswell.
Mr Saunders' claims are therefore so untenable that they can be rightly described as frivolous and vexatious, in the sense of unsustainable, and the court should dispose of the action summarily before more of the court's time is taken up and the defendant is put to further trouble and expense.
Although it is a grave step to summarily dismiss proceedings or strike them out as an abuse of process, once the factual and legal basis for such an approach has been made out, the court has a duty to intervene: McKechnie v Campbell (1966) 17 WAR 62, 75.
The current proceedings do not have the hall mark of a case which could with some further probing or assistance to an unrepresented litigant be shaped into a viable claim. There is therefore no point in granting the strike-out application and giving Mr Saunders a right to re-amend his statement of claim. In the circumstances the appropriate order is to grant summary judgment to the defendant.
Accordingly, the defendant's application for summary judgment succeeds.

The plaintiff's application for summary judgment

Having explained why there is no proper cause of action in law disclosed in the claims made by Mr Saunders in his amended statement of claim, it follows that Mr Saunders cannot be granted summary judgment in respect of his statement of claim. The statement of claim does not plead the material facts on the basis of which a duty of care by the Department for Communities could be found, nor does it explain how the department breached that duty. The amended statement of claim further does not plead that Mr Saunders suffered a psychiatric illness or provide material facts to explain how the department caused that psychiatric illness. In all the circumstances a summary judgment for the plaintiff would be totally inappropriate.
Accordingly, the plaintiff's applications for summary judgment are dismissed.