Solomon v Psychologists Board of Western Australia - [2005] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SOLOMON -v- PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2005] WASCA 235

CORAM: PULLIN JA

HEARD: 23 NOVEMBER 2005

DELIVERED : 23 NOVEMBER 2005

FILE NO/S: CACV 31 of 2005

BETWEEN: JULIA SOLOMON
Applicant
AND
PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CRISFORD DCJ
Citation  :SOLOMON -v- THE PSYCHOLOGISTS REGISTRATION BOARD OF WA [2005] WADC 35
File No  :CIV 2215 of 2000

Catchwords:

Practice and procedure - Application for leave to appeal an interlocutory decision in the District Court - Turns on own facts

Legislation:

District Court of Western Australia Act1969 (WA), s 79(1)

Result:

Application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr I R Freeman

Solicitors:

Applicant: In person
Respondent: Phillips Fox

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

Friday v Australian National Airlines Commission, unreported, FCt SCt of WA, Library 8502; 24 September 1990
Solomon v Psychologists Board of Western Australia [2005] WADC 35
Wilson v Metaxas [1979] WAR 285

Case(s) also cited:

Nil

PULLIN JA: This is an application for leave to appeal against the judgment of Judge Crisford dated 1 March 2005. Her Honour dismissed an appeal by the appellant against an order of a Deputy Registrar of the District Court. The Deputy Registrar had dismissed the appellant's application to strike out a number of paragraphs in the respondent's defence to an action brought by the appellant against the respondent.
The appeal to her Honour concerned only the Deputy Registrar's decision relating to par 11 of the amended defence, although I notice that in the notice of appeal from the Deputy Registrar's decision one of the grounds was that the plaintiff, that is, Dr Solomon, was denied leave to amend par 2.2 of the current statement of claim. I will deal with that aspect of the matter a little later. At the moment I note that her Honour said that the appeal only concerned the Deputy Registrar's decision relating to par 11 of the amended defence.
The background is set out in her Honour's reasons in Solomon v Psychologists Board of Western Australia [2005] WADC 35, and there is no need for me to repeat all that is set out in those reasons. Section 79(1)(b) of the District Court of Western Australia Act provides that:
"A party to an action or matter who is dissatisfied with -
…
(b)a judgment that is not a final judgment … may by leave of the Court of Appeal, appeal to the Court of Appeal".
The judgment of Crisford DCJ, being an interlocutory judgment, is not a final judgment and, therefore, leave is necessary. If leave is to be granted, the appellant must show that the decision of Crisford DCJ was attended with sufficient doubt to justify the grant of leave, and that substantial injustice would be done if it remains unreversed - see Wilson v Metaxas [1979] WAR 285 and Friday v Australian National Airlines Commission, unreported, FCt SCt of WA, Library 8502; 24 September 1990.
I will now turn, therefore, to the merits of the decision under review to see whether it is attended with sufficient doubt to justify the grant of leave. In relation to the action which Dr Solomon has brought, her Honour said:
"10The plaintiff's action relates to allegations of misfeasance in public office and defamation. They arise out of the publication by the Psychologists Registration Board of Western Australia ('the Board') of certain matters following from a disciplinary hearing ('the inquiry') against the plaintiff.
11Paragraph 2.2 of the amended statement of claim describes allegations that were said to have been made during the course of the inquiry against the plaintiff. Paragraph 11 of the amended defence seeks to inform about the inquiry and the basis upon which it was held.
12Paragraph 11 of the amended defence relates specifically to par 2.2 of the amended statement of claim filed 8 June 2004. The general heading and content of paragraph 2 pleads:
'2.Misfeasance in public office
2.1On 16 September 1994 the defendant Board published its findings (the "findings") of an inquiry into the conduct of the plaintiff in respect to the defendant Board's view that certain psychological services provided by her were not rebateable by the private health insurance fund, HBF (WA) Inc ("HBF").
2.2The defendant Board alleged at the inquiry (finding pages 1 and 2; paragraphs (a, b, c) that accounts for 16 of the plaintiff's psychological services (Findings p 2 line 30) to three of the plaintiff's clients were raised for the purpose of recovery of a combined total rebate of $320 (HBF Rebate Schedule 1993) "from HBF as if the psychological services were rebateable services provided by her (Dr Solomon) when … in fact they were no".'
13Paragraph 11 of the amended defence comes under the general heading … 'Context' which includes par 10 and pleads:
'10.The defendant admits paragraph 2.1 of the amended statement of claim, and says further that the said inquiry was held on 19 and 20 April 1994 and on 4 August 1994.
11.The defendant does not admit paragraph 2.2 of the amended statement of claim … and says further that the inquiry was held following receipt of a written complaint ("the complaint") dated 27 May 1993 from Hospital & Benefit Fund of WA Inc ("HBF"), which alleged that the plaintiff had:
11.1"Changed the name of the patient in her accounts in order to attract further benefits"; and
11.2"Was also itemising children's reading lessons as psychology services and that the reading classes were often run by teachers or other educational workers and not Dr Solomon herself".'
14The plaintiff says that par 11 has no relevance to the cause of action. Her application to strike out the pleading filed 15 July 2004 states that 'the true complaint and the proof of the true complaint is contained in par 2.2 of the amended statement of claim filed 2 March 2004'.
15The matter at the hearing was generally argued as if it fell within all or any of O 20 r 19(1)(a), (b), (c) and (d) of the Supreme Court Rules.
16The principles to be applied in considering an application that there is no reasonable cause of action or defence were summarised in Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6461; 25 August 1986:
(a)The rule is intended to apply only to cases which are really not arguable and not the cases where under the previous practice demurrer would have been the proper course: Packard v Transport Trading & Agency Co Ltd and Weir (1912) 12 WALR 191 per Burnside J at p 195.
(b)On the application, not only must all the facts alleged in the statement of claim be accepted as being true, but it must be taken for granted that in all other points the pleading is unassailable: Niven v Grant (1903) 28 VLR 102 per Holroyd J at 106.
(c)Great care must be exercised to ensure that the 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 of NSW (1964) 112 CLR 125 per Barwick CJ at p 130.
(d)However, 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.
(e)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 a legal conclusion contended for by the plaintiff that the pleadings should be struck out: Dalgety Australia Ltd & Anor v De Vahl Ruben & Ors, FCt SCt of WA (Burt J); Library No 5484; 24 August 1984.
(f)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; Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365 per Master Alan.
17Whilst this summary of the cases is directed at a statement of claim the general principles apply equally to the striking out of parts of a defence.
18The defendant's position is that par 11 of the amended defence provides further material facts essential to its defence. It says par 11 provides some contextual or background factual material within which both the statement of claim and defence can be understood. It pleads the inquiry and the matters before the Board. The trial process itself can, if necessary, deal with any relevant factual dispute.
19The defendant says that the factual issues raised in par 11 are relevant to the pleaded defences of immunity and privilege as set out at pars 21, 22 and 28 of the amended defence.
20A defence must state those facts which will put a plaintiff on notice about the defences intended to be raised against her claim at trial. The factual context of those defences are not irrelevant. At this stage there is nothing in any of the arguments put to me to suggest these matters are untenable. The trial will resolve any factual dispute. This is not the object of pleadings."
The appellant said in oral submissions that part of her appeal to this Court concerned Crisford DCJ's failure to deal with a ground of appeal which was in the notice of appeal before her, namely that the plaintiff was denied leave to amend par 2.2 of the current statement of claim.
There was then some debate about exactly what this amendment was, and finally Dr Solomon revealed that in fact there was no formulated amendment to par 2.2 which the Deputy Registrar was asked to approve.
In those circumstances, clearly there was nothing to review on appeal before Crisford DCJ and it is, therefore, not surprising that she dealt only with the issue which remained which was, given the existence of par 2.2 in its present form, whether or not par 11 of the amended defence should be struck out or not.
Her Honour concluded that nothing in par 11 of the amended defence offended against O 20 r 19. Her Honour, therefore, dismissed the appellant's appeal against the Deputy Registrar's decision not to strike out par 11 of the amended defence. In my opinion her Honour was correct to make that decision, and I agree entirely with the reasons given by her Honour. They do not, in my opinion, require further amplification. In my opinion, the decision of Crisford DCJ is, therefore, not attended with any doubt.
Having reached that conclusion, leave should not be granted for that reason. In any event, if par 11 remained in the defence and in fact the decision could be shown to be attended with doubt, it has not been shown that substantial injustice would be done if the decision remained unreversed.
Dr Solomon says that she would suffer injustice in the sense that there would be additional time spent at the trial and that would increase costs. In my opinion that would not amount to substantial injustice. Often there are issues raised at trial which can produce extra time in hearing which upon analysis at the end may have been thought unnecessary and may have increased costs to some degree, but that is the nature of the trial process.
The fact that there is no substantial injustice shown also leads me to the conclusion that leave to appeal should be refused. So I would dismiss the appellant's oral application for leave to appeal. Without leave the appeal is incompetent and, as a result, I should, therefore, dismiss the appeal against Crisford DCJ's decision.