| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SOLOMON -v- THE PSYCHOLOGISTS REGISTRATION BOARD OF WA [2005] WADC 35 CORAM : CRISFORD DCJ HEARD : 4 FEBRUARY 2005 DELIVERED : 1 MARCH 2005 FILE NO/S : CIV 2215 of 2000 BETWEEN : DR JULIA SOLOMON Plaintiff
AND
THE PSYCHOLOGISTS REGISTRATION BOARD OF WA
Defendant
ON APPEAL FROM:
For File No : CIV 2215 of 2000 Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : DEPUTY REGISTRAR HEWITT File No : CIV 2215 of 2000 Result : Application dismissed Catchwords: Appeal - Procedure - Application to strike out defence
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Legislation:
Supreme Court Rules (WA) O 20 r 19(1)
Result: Appeal dismissed Representation:
Counsel:
Plaintiff : In person
Defendant : Mr I Freeman
Solicitors:
Plaintiff : In person
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6461; 25 August 1986
Case(s) also cited:
Clark v Richards & Anor [2000] WASC 49
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1 CRISFORD DCJ: This is an appeal from a decision of a Deputy Registrar of 15 October 2004 refusing to strike out a number of paragraphs of an amended defence filed 24 June 2004 and ordering the plaintiff to pay the defendant's costs of the strike out action.
2 The plaintiff has previously sought to strike out a defence in this action. Her first application was filed on 16 April 2003 and was an attempt to strike out the whole of a defence filed 28 March 2003. The application came before Deputy Registrar Hewitt on 29 April 2003 and was dismissed. 3 This first defence was pleaded in relation to an amended statement of claim of the plaintiff filed 30 July 2002. This amended statement of claim was not in exactly the same wording as the present one. However, in substance it was much the same, in particular in pars 2.1 and 2.2. 4 No appeal was filed against the orders of the learned Deputy Registrar. 5 The defendant says the present application is a back door attempt to relitigate a matter which should properly have been the subject of an appeal if the plaintiff felt aggrieved by the decision of 29 April 2003. The time limit for appealing has expired. The defendant argues the present application is an abuse of process of this Court. 6 For reasons set out hereunder I find it unnecessary to decide this point. It was not argued as a preliminary issue. The plaintiff is a litigant in person. I have proceeded to decide her application on the merits as they now stand. 7 The appeal before the Court is in the nature of a hearing de novo. The plaintiff does not have to demonstrate some error in the exercise of discretion or some error of judgment on a matter of fact or law. The matter is simply argued afresh as if for the first time: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. 8 It was clarified at the commencement of this hearing that the plaintiff sought only to appeal the learned Deputy Registrar's determination relating to par 11 of the amended defence filed 24 July 2004. This accorded with her outline of submissions filed 2 February 2005. 9 The whole object of pleadings is to define the issues between the parties. Matters properly pleaded reduce the element of surprise at trial and ensure the full benefit of the process of discovery.
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10 The 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.
11 Paragraph 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. 12 Paragraph 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 2.1 On 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"). 2.2 The 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 not'." 13 Paragraph 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.
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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: 14 The 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". 15 The 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. 16 The 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
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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. 17 Whilst 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. 18 The 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. 19 The 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.
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20 A 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.
21 I do not accept that the pleadings of the defendant point to the need to relitigate the inquiry or a previous civil matter. 22 The very nature of the claim and the defence to it revolve around the outcome of the inquiry and what the Board did. The trial process itself will focus on what is relevant from an evidentiary point of view. 23 I see nothing in paragraph 11 of the amended defence that offends O 20 r (19) and thus should be struck out. I therefore dismiss the application. 24 The orders I make are: 25 I will hear the parties in relation to the costs of the appeal.
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