Wreford v Castleyheard Pty Ltd [No 3] - [2024] WASCA 2

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WREFORD -v- CASTLEYHEARD PTY LTD [No 3] [2024] WASCA 2
CORAM:   QUINLAN CJ
MITCHELL JA
VAUGHAN JA

HEARD:   11 DECEMBER 2023
DELIVERED          :   18 JANUARY 2024
FILE NO/S:   CACV 56 of 2022
BETWEEN:   JOVANNA WREFORD
Appellant
AND
CASTLEYHEARD PTY LTD
First Respondent
MR JACK RENTON CRIDDLE
Second Respondent
MORAY & AGNEW
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: WREFORD -v- CASTLEYHEARD PTY LTD [2022] WASC 164
File Number            :   CIV 2114 of 2021

Catchwords:

Appeals - Practice and procedure - Appeal against summary dismissal of claims against the respondents - Alleged reasonable apprehension of bias on the part of the decision‑maker - Alleged denial of procedural fairness by decision‑maker to self‑represented litigant - Whether decision‑maker's discretion miscarried - Whether orders were not reasonably open to decision‑maker - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	P D Lovatt
Second Respondent	:	M J Civitella
Third Respondent	:	S F Popperwell

Solicitors:

Appellant	:	In person
First Respondent	:	Jackson McDonald
Second Respondent	:	Mills Oakley
Third Respondent	:	Popperwell & Co

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

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
G v W [2021] WASCA 180
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2023] WASCA 88
House v The King [1936] HCA 40; (1936) 55 CLR 499
Reynolds v Rayney [2023] WASCA 144
Woodley v Woodley [2018] WASCA 149
Wreford v Castleyheard Pty Ltd [2022] WASC 164
Wreford v Castleyheard Pty Ltd [No 2] [2023] WASCA 11
Wreford v Lyle [2018] WADC 173
Wreford v Lyle [No 3] [2021] WASCA 20
Zaghloul v Bayly [2021] WASCA 125
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

JUDGMENT OF THE COURT:

Overview

The appellant, Ms Wreford, appeals against orders providing for the summary dismissal of her claims against the respondents. The primary proceedings the subject of the appeal followed earlier litigation by Ms Wreford in the District Court and this court. The respondents were involved in that earlier litigation as Ms Wreford's solicitor and Mr Wreford's counsel and, in the case of the third respondent, as the solicitors for the defendant in the proceedings.
Ms Wreford challenges the summary dismissal of her claims against the respondents. She alleges reasonable apprehension of bias on the part of the decision‑maker and a failure to accord her procedural fairness. In addition, so far as the decision involved the exercise of a discretion, Ms Wreford alleges discretionary error. Ms Wreford says that the decision‑maker disregarded relevant considerations and took into account irrelevant considerations. Ms Wreford also says that the decision providing for summary dismissal of her claims was unreasonable or plainly unjust.
For the reasons that follow the appeal must be dismissed.

Background

It is convenient to summarise the relevant background by substantially reproducing what was stated in an interlocutory decision of the court in this appeal.[1]
[1] Wreford v Castleyheard Pty Ltd [No 2] [2023] WASCA 11 [3] - [6].
Ms Wreford was hit by a car while cycling. She commenced proceedings against the driver of the car in the District Court. The proceedings were heard by Braddock DCJ who in due course published reasons for judgment: Wreford v Lyle.[2] Braddock DCJ assessed damages at $808,644 but reduced that by 30% for contributory negligence resulting in an amount of $566,050. After taking into account sums already advanced prior to trial, judgment was entered in favour of Ms Wreford in the amount of $458,178.80. This became a matter of concern for Ms Wreford because she had previously rejected an offer under O 24A of the Rules of the Supreme Court 1971 (WA)[3] for $500,000 plus costs.
[2] Wreford v Lyle [2018] WADC 173 (District Court judgment).
[3] Referred to below as RSC.
Ms Wreford appealed in relation to the assessment of damages and the apportionment of liability. The appeal was dismissed: Wreford v Lyle [No 3].[4] Ms Wreford also failed in an application for special leave to the High Court of Australia.
[4] Wreford v Lyle [No 3] [2021] WASCA 20 (appeal decision).
Ms Wreford then brought proceedings in the Supreme Court against:
1.The first respondent (who acted as Ms Wreford's solicitor in the District Court proceedings).
2.The second respondent (who was briefed as Ms Wreford's counsel in the District Court proceedings).
3.The third respondent (who acted as solicitor for the defendant driver in the District Court proceedings).
Among other things, Ms Wreford raised issues concerning the amounts deducted from the assessment of damages and the operation and circumstances relating to the O 24A offer.
On 19 May 2022 Sanderson M made orders dismissing the primary proceedings against all the respondents.[5] The master also, in effect, ordered Ms Wreford to pay the respondents' costs of the primary proceedings to be taxed if not agreed. Ms Wreford now appeals against those orders.

The primary decision[6]

[5] Wreford v Castleyheard Pty Ltd [2022] WASC 164 (primary reasons).

[6] What follows substantially reproduces what was stated in Wreford v Castleyheard Pty Ltd [No 2] [8] - [16].

The master observed that he was dealing with an application by each of the present respondents to strike out the statement of claim by Ms Wreford with leave to replead refused. (The nature of the applications before the master is a matter that is pertinent on this appeal.) The amended statement of claim the subject of the applications was filed on 14 December 2021 and ran to 100 pages. Prior to the hearing Ms Wreford had lodged a document on 14 February 2022 described as 'affidavit of annexure A of the affidavit of the plaintiff', which appeared to be a further reamended statement of claim. The master said that this was 'certainly the way it was treated by counsel for the defendants'. The master described this document in the primary reasons as the 'FRSOC'.[7]
[7] Primary reasons [1].
The master made findings as follows.
Prior to judgment delivery on 17 December 2018, Braddock DCJ provided advance reasons. Accordingly, the parties knew prior to entry of the final orders that: (1) the trial judge had determined Ms Wreford's own contributory negligence at 30%; and (2) the trial judge had made mathematical errors in assessing quantum. At the hearing on 17 December 2018 the mathematical errors were pointed out to the trial judge and the parties were invited to confer. The trial judge indicated that her corrected reasons would be delivered on 19 December 2018.[8]
[8] Primary reasons [3].
The parties conferred and agreed that:
(a)[Ms Wreford's] damages had been assessed at $808,644, inclusive of special damages prepaid by [the Insurance Commission];
(b)from that, 30% was to be deducted to account for contributory negligence which produced a sub‑total of $566,050.80; and
(c)from this figure then had to be deducted advanced [sic] payments made by [the Insurance Commission] to [Ms Wreford] following the accident (being money [Ms Wreford] had already been paid or money that had been paid to service providers on her behalf) which produced a sum of $458,178.80 as [the defendant driver's] outstanding liability to [Ms Wreford].[9]
[9] Primary reasons [4].
A letter to this effect, inviting her Honour to correct the draft reasons conformably with the parties' consensus, was sent by the third respondent to the trial judge. The letter was sent with the approval of the first respondent.[10]
[10] Primary reasons [5].
Prior to trial, the driver (ie the defendant in the District Court proceedings) had made an offer under O 24A RSC for $500,000 plus costs. The terms of the offer were that Ms Wreford would receive $500,000 in hand and keep the advance payments made by the Insurance Commission.[11]
[11] Primary reasons [6].
At the hearing on 19 December 2018, Ms Wreford's trial counsel (ie the second respondent) unsuccessfully sought to have judgment entered for the assessed damages less the 30% contributory negligence without also taking off the advance payments made by the Insurance Commission. The second respondent also unsuccessfully sought to persuade Braddock DCJ that Ms Wreford should not have an adverse costs order made against her.[12]
[12] Primary reasons [7].
It is, at this point, convenient to depart from the master's primary reasons to say something more about Ms Wreford's statement of claim that was then before the court (ie Ms Wreford's further reamended statement of claim dated 14 December 2021). The pleading was not in a conventional form. Ms Wreford recited a number of written laws and legal principles. There was a conspicuous failure to comply with the obligation in O 20 r 8 RSC to plead, and plead only, a statement in a summary form of the material facts on which Ms Wreford relied for her claim. The document was rambling and often unintelligible. Many allegations were said to be made 'without prejudice'. Much of what was narrated had little or no possible relevance to any claim Ms Wreford might have sought to prosecute against one or more of the respondents.
Broadly speaking, Ms Wreford asserted as against each respondent:
1.As to the first respondent (ie Ms Wreford's trial solicitor) - the first respondent breached its duty of care and contract to provide legal services by: (a) failing to tender at the trial or to disclose to the second respondent particular evidence or information; (b) failing to provide advice on the O 24A offer and failing to correct incorrect statements made by the third respondent in relation to the O 24A offer; and (c) not acting for Ms Wreford in the appeal.
2.As to the second respondent (ie Ms Wreford's trial counsel) - the second respondent breached his duty of care by failing to adequately prepare for or conduct the trial and the issues in respect of the O 24A offer.
3.As to the third respondent (ie the defendant driver's trial solicitors) - various breaches of a duty of care owed to Ms Wreford including a failure to correctly calculate the judgment sum as recorded in the letter sent to Braddock DCJ.
We accept that this is an over‑simplification of what appears in Ms Wreford's lengthy document. It is, however, not necessary to embark on a detailed analysis of the further reamended statement of claim dated 14 December 2021. None of Ms Wreford's grounds of appeal challenge the master's conclusion that Ms Wreford did not have a cause of action as pleaded. Ms Wreford did not seek to support the further reamended statement of claim dated 14 December 2021 as providing for sustainable causes of action against one or more of the respondents. Rather, on appeal, so far as error was alleged independently of apprehended bias and procedural unfairness, Ms Wreford challenged the summary dismissal of her claims without providing her with an opportunity to replead. It is, in the circumstances, enough to describe the essence of Ms Wreford's claims in these terms.
Returning to the primary reasons, the master referred to Ms Wreford's claims against each respondent in turn (doing so in reverse order):
1.In relation to the third respondent (ie the defendant driver's trial solicitors):[13]
[13] Primary reasons [9].
(a)There was nothing in the pleading to establish that they owed a duty of care to Ms Wreford.
(b)The driver, through the Insurance Commission and, no doubt, with the advice of the third respondent, made a 'very generous' O 24A offer.
(c)Summary judgment should be entered for the third respondent against Ms Wreford.
2.In relation to the second respondent (ie Ms Wreford's trial counsel):[14]
[14] Primary reasons [10].
(a)He was entitled to advocate's immunity.
(b)In any case, there was no substance in Ms Wreford's allegations that the second respondent had omitted to put relevant evidence to the trial judge or that he was unprepared for trial (as Ms Wreford appeared to allege).
(c)The judgment of Braddock DCJ made it plain that Ms Wreford's case, and all aspects of it, were put before the trial judge. There was nothing in the pleading to suggest otherwise. There was nothing more the second respondent could have done.
(d)No claim lay against the second respondent. Summary judgment should be entered for him.
3.In relation to the first respondent (ie Ms Wreford's trial solicitor):[15]
[15] Primary reasons [11] - [12].
(a)There were three substantive allegations made against the first respondent:
(i)it allegedly failed to tender and disclose certain information or evidence at trial or to counsel;
(ii)it allegedly failed to provide advice on the O 24A offer or to correct false statements made by the defendant driver's trial solicitors (ie the third respondent) with respect to the O 24A offer; and
(iii)it had not acted for Ms Wreford in the appeal against the District Court judgment.
(b)There were no material facts in the statement of claim and nothing in the pleading which indicated that Ms Wreford's trial solicitor had failed in any respect in relation to Ms Wreford's claim at trial.
(c)The issue in relation to the O 24A offer was considered by the Court of Appeal.[16] The court noted that there did not appear to be any misunderstanding on Ms Wreford's part of the offer or its practical effect. That was the end of the matter and the issue could not be revisited.
(d)There was no obligation on the first respondent to act for Ms Wreford in the appeal.
[16] The master referred to appeal decision [329]: primary reasons [12].
The master made two further findings. First, that the proceedings were an abuse of process in that, in substance, they sought to relitigate issues in the District Court action. Second, the master addressed Ms Wreford's submission that there was an error in the trial judge's final calculations in the District Court action. The master said he could not identify such a calculation error and noted that the parties had a chance to confer and agree on the calculations following provision of advance reasons.[17]
[17] Primary reasons [13].
The master concluded '[Ms Wreford's] action is entirely without merit. There should be summary judgment for each of the [respondents] against [Ms Wreford]'.[18] The master was satisfied that Ms Wreford did not have a cause of action either as pleaded or at all.[19]
[18] Primary reasons [14].
[19] Primary reasons [1].

The grounds of appeal

There are four grounds of appeal.
In what follows we recast the grounds slightly so as to better capture the substance of the contentions conveyed by the grounds. Ms Wreford effectively contends that:
1.The master erred in law by failing to accord procedural fairness to Ms Wreford having regard to her position as a self‑represented litigant. (This ground 1 relies on the primary reasons at [1] and [14].)
2.There is a reasonable apprehension that the master's decision was affected by bias against Ms Wreford. (This ground 2 relies on the primary reasons at [1], [9] - [11], [13] - [14].)
3.The master erred in law in exercising his discretion to grant summary judgment in that the master both:
(a)disregarded relevant considerations; and
(b)took into account irrelevant considerations.
(This ground 3 relies on the primary reasons at [1], [12] - [14].)
4.The master erred in law by exercising his discretion to grant summary judgment 'when it was not reasonably open to do so'. (This ground 4 relies on the primary reasons at [1], [9] - [14].)
Ms Wreford's written submissions essentially particularise the various grounds.
There is substantial overlap between the grounds. For example, the allegation of reasonable apprehension of bias relies on many of the things said to have made the conduct of the primary proceedings procedurally unfair. So too, in complaining that the master disregarded relevant considerations and took into account irrelevant considerations, Ms Wreford referred to many of the things she raised in relation to grounds 1 and 2.
Accordingly, before turning to the grounds, it is appropriate to develop the procedural history in a little more detail.

Procedural history in the primary proceedings

Ms Wreford filed a writ on 22 October 2021. Numerous iterations of a statement of claim then followed. The first statement of claim is dated 1 November 2021. Then followed an amended statement of claim dated 23 November 2021, a reamended statement of claim dated 6 December 2021 and the further reamended statement of claim dated 14 December 2021. Also, as was referred to in the primary reasons, on 14 February 2022 Ms Wreford filed an affidavit. The affidavit stated that Ms Wreford sought leave to amend the statement of claim. Attached to the affidavit, as annexure 'A', was a draft statement of claim dated 14 February 2022 that Ms Wreford described as the 'SOREM4' (and the master referred to as the 'affidavit of annexure A of the affidavit of the plaintiff').
In early December 2021 the respondents each made applications in relation to Ms Wreford's then pleading. Relevantly:
1.The first respondent applied by a chamber summons dated 6 December 2021 to strike out the amended statement of claim and the indorsement to the writ pursuant to O 20 r 19 RSC. The first respondent relied, among other things, on the ground that no reasonable cause of action was disclosed by the pleading. The first respondent also sought that the time for it to apply for summary judgment be extended until after the strike out application was determined.
2.The second respondent applied, by chamber summons dated 6 December 2021, for relief substantially in the same terms as the first respondent.
3.The third respondent applied by a chamber summons dated 2 December 2021 for summary judgment pursuant to O 16 r 1 RSC. In the alternative the third respondent sought to strike out the amended statement of claim as disclosing no reasonable cause of action. The third respondent also filed affidavit evidence in support of its application for summary judgment.
The further reamended statement of claim dated 14 December 2021 was filed after the respondents' applications. The action came on for directions at a case management hearing on 16 December 2021. Registrar Whitbread then made orders that:
The plaintiff [ie Ms Wreford] intends to rely on the statement of claim filed on 14 December 2021 and the plaintiff is not permitted to file any further version of the statement of claim except by order of the Court.
The registrar also made orders permitting the respondents to amend their respective applications to refer to the further reamended statement of claim dated 14 December 2021. Duly amended applications were filed on 21 December 2021. It remained the case that the first and second respondents sought to strike out the then current version of Ms Wreford's statement of claim on the basis that it did not disclose a reasonable cause of action. By contrast the third respondent continued to seek summary judgment.
As well as the orders for amendment, the registrar made orders programming the respondents' applications to a hearing at a special appointment. Orthodox programming orders were made. There was provision for the filing of affidavits and submissions in support of the applications, in opposition to the applications and also in reply. The parties filed materials pursuant to the programming orders. In particular, each of the respondents filed written submissions in late January 2022. The first and second respondents' submissions noted that they were filed in support of an application to strike out the further reamended statement of claim dated 14 December 2021. The first respondent submitted that no reasonable cause of action was disclosed, the pleading should be struck out and leave to replead should be refused.[20] The second respondent also sought that Ms Wreford not be permitted to replead.[21] The third respondent's submissions, conformably with the third respondent's application, were couched in terms of the third respondent seeking defendant's summary judgment under O 16 RSC.
[20] First respondent's submissions dated 21 January 2022 par 21 BAB 327.
[21] Second respondent's submissions dated 24 January 2022 par 26 BAB 342.

On 14 February 2022, as well as filing her affidavit of that date, Ms Wreford filed her submissions in opposition to the respondents' applications.
By 14 February 2022 the respondents' various applications had been listed for hearing at a special appointment before the master on 15 March 2022. By an email dated 21 December 2021 Ms Wreford had made it clear that for the purpose of that hearing she wished to rely on the further reamended statement of claim dated 14 December 2021. However, Ms Wreford's position changed. By an email dated 28 February 2022 Ms Wreford sought leave to file a fresh statement of claim prior to the hearing on 15 March 2022. That application was heard and refused on 3 March 2022. The master then made orders that Ms Wreford's oral application for leave to file a further substituted statement of claim was dismissed. There is no appeal from those orders. In the circumstances, as was reflected both in the argument at the hearing of the respondents' applications[22] and the primary reasons,[23] the pleading before the master was the further reamended statement of claim dated 14 December 2021.
[22] ts 3, 16, 23, 30. (Unless there is a statement to the contrary all references to transcript are to the transcript of 15 March 2022.)
[23] Primary reasons [1].
The respondents' applications came on for hearing before the master at the special appointment on 15 March 2022.
The master first heard the third respondent's application.[24] Counsel for the third respondent observed that, in distinction to the first and second respondents, the third respondent brought an application for defendant's summary judgment.[25] When counsel for the third respondent finished making his submissions Ms Wreford, at her request, was permitted to immediately respond in opposition to the third respondent's application before the master heard from the first and second respondents on their applications.[26] After hearing from Ms Wreford the master informed her that he, the master, intended to enter summary judgment for the third respondent.[27] Counsel for the third respondent then withdrew.[28]
[24] ts 2 - 21.
[25] ts 2. See also ts 10.
[26] ts 15.
[27] ts 20 - 21.
[28] ts 22.
The master then heard the first and second respondents' applications.[29] Counsel for the first respondent stated, in terms, that the first respondent was 'not seeking summary judgment'.[30] The order that the first respondent sought was that there be no leave to replead and that judgment be entered dismissing the action pursuant to O 20 r 19 RSC.[31] Counsel for the second respondent essentially sought the same relief.[32] (We also note that at the hearing on 3 March 2022 counsel for the second respondent had informed the master that the second respondent had not applied for summary judgment but did say that given the history of the matter leave to replead should be refused.)[33] The master heard from Ms Wreford after hearing from counsel for the first and second respondents.[34] The master then informed Ms Wreford that he, the master, did not consider that she had a claim against the first and second respondents - the master said, in effect, that he would prepare written reasons for his conclusion but would not enter orders until those written reasons were published.[35]
[29] ts 22 - 39.
[30] ts 22.
[31] ts 23.
[32] ts 26.
[33] ts 4 (3 March 2022).
[34] ts 32 - 39.
[35] ts 39 - 40. See also ts 22.

Disposition: Ground 2 - the alleged reasonable apprehension of bias

Ms Wreford's allegation of reasonable apprehension of bias raises an issue about the validity and acceptability of the primary proceedings that must be considered at the outset.[36]
[36] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [3], [117]; Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].
This court recently summarised the principles applicable in resolving an allegation of reasonable apprehension of bias in Reynolds v Rayney.[37] We adopt those principles. It is therefore not necessary to develop the principles at length. Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the relevant judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide. In applying this principle it is necessary to identify what is said might lead the judicial officer to decide a case other than on its legal or factual merits and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.
[37] Reynolds v Rayney [2023] WASCA 144 [28] - [36].
The test is objective and the fair‑minded lay observer is someone who is aware that the person who is being observed is a professional judicial officer whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial. However, the fair‑minded lay observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision‑makers.
Ms Wreford's written submissions did not develop ground 2 by reference to these applicable legal principles. There was, for example, no articulation of the alleged logical connection between the matter which it was said might lead the master to decide the respondents' applications other than according to their legal or factual merits and the feared deviation. Rather, in support of ground 2, Ms Wreford submitted that:
1.The master's conduct was favourably biased towards the respondents. In this respect Ms Wreford said that:
(a)counsel for the third respondent was allowed to act as spokesperson for the other respondents;
(b)the master dismissed the case against the third respondent prematurely without hearing argument from the first and second respondents. The premature dismissal of Ms Wreford's claim against the third respondent was said to have resulted in erroneously granting summary judgment to the first and second respondents by way of 'default proxy';
(c)she had no opportunity to respond to the respondents' arguments and the master's comments throughout the hearing;
(d)she had no opportunity to cross‑examine;
(e)the first respondent was not required to respond to the master or to her pleadings or submissions - in this respect Ms Wreford contended that the master had a 'duty' to ask counsel for the first respondent to clarify doubts about the position of the first respondent.
2.The master denied Ms Wreford a fair hearing (it being put as high as the master having denied Ms Wreford the opportunity to be heard). Ms Wreford complained that the master made the hearing confusing. There was no explanation why Ms Wreford could not rely on the draft statement of claim dated 14 February 2022. Ms Wreford said she was denied the opportunity to make further submissions at the commencement of the hearing. Nor, according to Ms Wreford, was she given the opportunity to advance her case by addressing all relevant pleadings and making oral submissions individually in relation to each respondent. In a variant of this argument, Ms Wreford later submitted that there was no opportunity for her 'right of reply' to the respondents' arguments and opposition to a repleaded substituted statement of claim.
3.Ms Wreford's pleading was not embarrassing (Ms Wreford did not clarify which version of the statement of claim was being relied on in making this submission).
4.The master was under the misapprehension that Ms Wreford was raising issues that had been dealt with by the Court of Appeal in the appeal decision.
5.The master did not give Ms Wreford the opportunity to rectify any deficiencies and deliver cured pleadings.
6.The master denied Ms Wreford the opportunity to supply documentary evidence in support of her allegations.
Many of these complaints are simply misconceived. None of them establish that the conduct of the proceedings gave rise to a reasonable apprehension of bias on the part of the master against Ms Wreford. Ground 2 has no merit.
In terms of misconceptions, counsel for the third respondent did not act as 'spokesperson' for the other respondents. As between counsel for the respondents, counsel for the third respondents simply went first. Nor was there any prematurity in foreshadowing the outcome on the third respondent's application before hearing the other respondents' applications. The third respondent's application was separate and distinct from the other respondents' applications. There was nothing improper, or demonstrative of bias or lack of impartiality on the part of the master, in foreshadowing the outcome on the third respondent's application having heard from counsel for the third respondent and Ms Wreford on that application. The circumstance that the master had resolved to determine the third respondent's application adversely to Ms Wreford provided no basis, reasonable or otherwise, to apprehend that the master might not decide the first and second respondents' applications on their merits.
The complaint that there was no opportunity to cross‑examine assumes, erroneously, that there was a basis for Ms Wreford to cross‑examine at a hearing of the kind before the master. There was not. Nor did the master deny Ms Wreford the opportunity to supply documentary evidence in support of her allegations. To the extent evidence was relevant and admissible (that not being the position on the strike out applications so far as the further reamended statement of claim was said to disclose no reasonable cause of action[38]), the programming orders made by the registrar permitted Ms Wreford to file affidavits in opposition to the applications. Finally, to complain that the master did not explain why Ms Wreford could not rely on the draft statement of claim dated 14 February 2022 overlooks the outcome of the hearing on 3 March 2022.
[38] RSC O 20 r 19(2).
Ms Wreford's main complaint was that she was denied a fair hearing. This is, at bottom, a complaint of denial of procedural fairness which is better considered under the rubric of ground 1. It suffices to say, however, that for the purposes of how the complaint is put in terms of supporting ground 2, having read and considered the transcript of the hearing in full, there is nothing in the conduct of the hearing which establishes any arguable foundation for the contention that the master was either biased favourably towards one or more of the respondents or biased against Ms Wreford. This was an unremarkable hearing in master's chambers where all parties were given a fulsome opportunity to make submissions in support of and against the orders sought in the applications before the court.
Nothing in the conduct of the hearing reveals any basis for a fair‑minded lay observer to reasonably apprehend bias on the part of the master.
The remaining matters relied on in support of ground 2 may be dealt with quite shortly. Whether the pleading was or was not legally embarrassing is not to the point. Nor is whether the master was mistaken about whether Ms Wreford was raising issues that had been determined adversely to her in the appeal decision or was in error in not allowing Ms Wreford to replead. The master did not determine whether the pleading was legally embarrassing. And, while the master did resolve the other matters adversely to Ms Wreford, that alone cannot establish ground 2's allegation of reasonable apprehension of bias. An allegation of reasonable apprehension of bias is not established simply by the bare fact that a judicial officer has determined an issue in the relevant litigation adversely to a litigant.[39] A judicial officer acting without bias or lack of impartiality may nonetheless be mistaken or in error.
[39] G v W [2021] WASCA 180 [62] - [63].
Ground 2 fails.

Disposition: Ground 1 - the alleged failure to accord procedural fairness

Ms Wreford said that she was a self‑represented litigant with no formal legal training. Ms Wreford asserted that there was a failure to accord her procedural fairness as:
1.The master failed to observe alleged duties owed to her as a self‑represented litigant. In this regard Ms Wreford said that:
(a)the master did not provide her with sufficient information about the court's process and procedures to enable Ms Wreford to make an informed choice about her legal rights. For example:
(i)no information was provided as to basic court procedures or how to address the respondents individually;
(ii)the master did not highlight substantive issues that arose on Ms Wreford's pleading;
(b)the master did not give her information on how to prepare 'extensively' for the hearing - Ms Wreford said that she did not receive a 'tutorial on how to run her case';
(c)the master did not provide her with any procedural considerations having regard to her position as a self‑represented litigant.
2.The hearing was rushed.
3.Ms Wreford was not informed that her pleadings were not in a proper form and not adequately expressed.
4.Ms Wreford was denied the opportunity to replead a substituted statement of claim.
5.The master made no attempt to acknowledge that in amending the statement of claim Ms Wreford had rectified various errors and, in that respect, had 'self‑struck out and amended "cured" defective pleadings'.
6.The master failed to give Ms Wreford reasonable notice that, the applications before the court being to strike out the further reamended statement of claim dated 14 December 2021, the court would treat the hearing as the court's own motion for summary judgment. In that respect, Ms Wreford claimed that the master denied her the opportunity to prepare legal argument in opposition to summary judgment.
A number of these complaints have no arguable evidentiary basis or are otherwise irrelevant.
The hearing was not rushed. On a fair reading of the transcript of the hearing Ms Wreford was accorded a proper opportunity to respond to the oral submissions of the various counsel for the respondents. At no time did Ms Wreford seek more time to develop her arguments in opposition to the applications. In any case, prior to the hearing Ms Wreford had filed written submissions on which she evidently relied and which the master had evidently read. The suggestion that Ms Wreford was not given an adequate opportunity to present her case is without merit.
The submission that Ms Wreford was not informed that her further reamended statement of claim dated 14 December 2021 was defective in form overlooks what was said in the respondents' written submissions. These were provided to Ms Wreford more than six weeks before the hearing by way of special appointment before the master. The respondents' written submissions were comprehensive. Ms Wreford was informed in no uncertain terms of the numerous deficiencies in her pleaded case.[40] Ms Wreford was also informed of the pleading requirements provided for in the RSC.[41] The suggestion that the master did not highlight substantive issues that arose on Ms Wreford's pleading is not to the point. The master did not have to do so. The issues with the further reamended statement of claim dated 14 December 2021 were identified comprehensively in the respondents' written submissions. Ms Wreford was fully informed of the case she had to meet on the respondents' various applications.
[40] First respondent's submissions dated 21 January 2022 pars 10, 12, 16 - 42 BAB 323 - 324, 326 - 331; second respondent's submissions dated 24 January 2022 pars 11 - 14, 16, 25 BAB 336 - 337, 340 - 342; third respondent's submissions dated 21 January 2022 pars 19 - 35 BAB 317 - 321.
[41] First respondent's submissions dated 21 January 2022 par 15 BAB 324 - 326; second respondent's submissions dated 24 January 2022 pars 14, 17 - 23 BAB 336 - 340.
We accept that the master did not acknowledge the amendments made by Ms Wreford to her pleading. But this omission did not cause Ms Wreford any procedural unfairness. The relevant question was the adequacy of the further reamended statement of claim dated 14 December 2021, and whether it disclosed reasonable causes of action that ought to go to trial, not whether Ms Wreford had removed defects in her previous pleadings. It is not to the point that Ms Wreford says that she was not defending embarrassing pleadings.
Three aspects of Ms Wreford's contention by ground 1 remain. First, that Ms Wreford did not receive advice and direction from the master about procedure in relation to the hearing. Second, that Ms Wreford was not provided with an opportunity to replead. Third, that there was procedural unfairness so far as the master dealt with the applications as applications for summary judgment without notice to Ms Wreford.
This court has had many recent occasions to discuss the applicable principles in ensuring procedural fairness to a self‑represented litigant. It is enough to acknowledge, without repeating in full, the statements of principle in Woodley v Woodley[42] and Zerjavic v Chevron Australia Pty Ltd.[43] The court's obligation in the case of a self‑represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair hearing. In a specific case the content of the principle depends on the circumstances of the case. However, as was stated in Zerjavic:
A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised.
All the more so the trial judge's role in providing information to the self‑represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant.[44] (original emphasis)
[42] Woodley v Woodley [2018] WASCA 149 [76] - [77].
[43] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] - [76], [84], [86].
[44] Zerjavic v Chevron Australia Pty Ltd [75.4] - [75.5].
The master was not presiding over a trial. The hearing before the master was a special appointment to consider the respondents' applications for orders as set out in the respondents' applications. Ms Wreford had already been accorded the opportunity to file evidence and written submissions. Ms Wreford had availed herself of those opportunities. The hearing itself was an opportunity to amplify those written submissions, as required, and to address and respond to the matters being raised on behalf of the respondents.
Accordingly, the nature of the hearing did not require the master to inform Ms Wreford, as a self‑represented litigant, of the matters that might usually be raised in respect of a trial. It was not necessary to inform Ms Wreford of the manner in which the hearing would proceed. Ms Wreford had appeared in interlocutory hearings in the primary proceedings on earlier occasions. It was self‑evident that the respondents would make oral submissions in support of their respective applications and Ms Wreford would have the opportunity to respond in opposition to the applications. The distinction between evidence and submissions - something critical in a trial context - was immaterial for the purpose of the hearing insofar as affidavits had been filed and the parties were only being heard for the purpose of persuasive submissions. Nor, unlike a trial, was it necessary to address the right to examine witnesses and to object to evidence.
The master did what was required to ensure that there was a fair hearing. In particular:
1.The master rebuffed attempts by counsel for the second respondent to interrupt Ms Wreford's oral submissions.[45]
2.The master carefully questioned Ms Wreford with a view to seeking to elicit the substance of what she perceived to be her case against the respondents.[46]
3.The master sought to understand how Ms Wreford contended that the calculations submitted by the third respondent to Braddock DCJ were incorrect.[47]
[45] ts 16.
[46] ts 17 - 18, 32 - 36.
[47] ts 18 - 19, 35.

In the context of this hearing, nothing further was required. It was not necessary for the master to inform Ms Wreford how she should prepare for the hearing. Nor, all the more so, was the master required to provide Ms Wreford with a tutorial on how to run her case. Doing so would have posed significant difficulties given the necessity that the master maintain a position of neutrality and impartiality as between the parties. The principles extracted from Zerjavic and reproduced at [55] above are apposite.
There is a lack of clarity to Ms Wreford's complaint about being denied the opportunity to replead. Insofar as Ms Wreford is concerned with the orders of 16 December 2021 and 3 March 2022 (see [30] and [34] above) it is enough to say that there is no appeal against those orders and it has not been established that those orders affected the final result. Nor has Ms Wreford sought to establish that the draft statement of claim dated 14 February 2022 pleaded sustainable causes of action against one or more of the respondents. Insofar as Ms Wreford is concerned with the entry of judgment against her, there being no leave to replead, the complaint is one to be assessed in terms of whether discretionary error is established in the master so ordering. That is considered under the rubric of grounds 3 and 4. This is not a potential issue of lack of procedural fairness.
There is, however, a more substantial question about Ms Wreford's last point - this being whether there was a denial of procedural fairness because the master dealt with the respondents' applications as applications for defendant's summary judgment without notice to Ms Wreford.
This point does not arise against the third respondent. The third respondent unambiguously brought an application for defendant's summary judgment under O 16 RSC. But that was not the case for the first and second respondents. Their applications were to strike out Ms Wreford's statement of claim without leave to replead. Ms Wreford said that, consequently, she was prepared to answer strike out applications. However, according to Ms Wreford, the master treated the first and second respondents as having applied for summary judgment and entered judgment against her on that basis.
There is some support for the master having so treated the applications. In the primary reasons the master said that '[t]here should be summary judgment for each of the [respondents]'.[48] The formal order is also consistent with an order for summary judgment so far as it provides that the action as against all defendants is dismissed.
[48] Primary reasons [14]. See also [10].
Ultimately, reading the primary reasons fairly and as a whole - in the context of the parties' respective applications and the written and oral submissions - we are not satisfied that the master erroneously treated the first and second respondents as having made applications for defendant's summary judgment under O 16 RSC. That is not how the master commenced his primary reasons. The master referred to there being applications to strike out Ms Wreford's statement of claim with leave to replead refused.[49] The master went on to say that he was satisfied that Ms Wreford did not have a cause of action as pleaded or at all.[50] Similarly, in considering the first and second respondents' respective applications, the master evaluated whether the material facts pleaded in the further reamended statement of claim dated 14 December 2021 disclosed a reasonable cause of action.[51] In other words the master used the language of whether the pleading should be struck out under O 20 r 19(1) RSC rather than whether there should be defendant's summary judgment under O 16 RSC.
[49] Primary reasons [1].
[50] Primary reasons [1].
[51] Primary reasons [10] (the second respondent), [11] - [12] (the first respondent).
This court does not approach a judicial officer's exercise of discretion with an eye keenly attuned to the perception of error. Nor, similarly, is it concerned with looseness of language or unhappy phrasing.[52]
[52] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2023] WASCA 88 [11].
There was a lapse in language so far as, in relation to the first and second respondents, the master referred to the entry of summary judgment. But that lapse does not make out Ms Wreford's contention that the first and second respondents' applications were determined against her on a basis other than the basis on which they had been advanced. Rather, for the reasons we have given, we are satisfied that the master evaluated whether the further reamended statement of claim dated 14 December 2021 disclosed a reasonable cause of action against the first and second respondents. Having resolved that issue against Ms Wreford the master had to consider what should follow. Practically speaking this turned on whether there should be leave to replead. In the absence of leave to replead the action ought to be dismissed. In determining that leave to replead ought to be refused the master had regard to the absence of merit in the claims as they had been explained by Ms Wreford in the course of her submissions.
The master did not deal with the first and second respondents' applications as applications for defendant's summary judgment without notice to Ms Wreford. There was no denial of procedural fairness in the manner asserted by Ms Wreford.
Ground 1 fails.

Disposition: Ground 3 - the allegation that the master's exercise of discretion miscarried

Ms Wreford submitted that the master disregarded relevant considerations and took into account irrelevant considerations.
As to disregarding relevant considerations, Ms Wreford submitted that:
1.The master was aware, but failed to deal with the circumstance, that Ms Wreford had 'self‑struck out' and amended, thereby curing, defective pleadings.
2.The master did not require the first respondent to answer any of Ms Wreford's pleadings.
3.The master did not give Ms Wreford the opportunity to show supporting evidence.
4.There was no opportunity for Ms Wreford to make further submissions.
5.The first and second respondents' applications were only to strike out the further reamended statement of claim dated 14 December 2021 - there was no application for summary judgment by these respondents.
6.The master did not take into consideration the respondents' argument that the pleading was defective (this seemingly being raised in support of the master having not considered Ms Wreford's submissions of having attempted to address the deficiencies in the pleading).
In challenging the master's exercise of discretion, Ms Wreford's complaint was essentially directed towards two matters (these being the only material ways in which the master exercised a discretion). First, whether there should be leave to replead. This, it is fair to say, was the focus of Ms Wreford's complaint. Ms Wreford contended that she should have been permitted to replead. Second, whether the residual discretion to enter judgment should have been exercised in favour of the respondents and against Ms Wreford.
When these matters are understood to be the focus of Ms Wreford's complaint it is apparent that there is no substance in the various complaints of discretionary error by the alleged disregard of relevant considerations.
A number of the matters said to have been disregarded are really concerned with an alleged lack of procedural fairness (see those matters mentioned at [70.3] - [70.5] above). Ms Wreford's reliance on those matters has already been considered, and rejected, in the context of dealing with grounds 1 and 2. Two of the matters - those at [70.3] and [70.4] above - are not made out on the procedural history. Likewise the third (ie that mentioned at [70.5] above) is misplaced - the master expressly recorded that there were applications to strike out Ms Wreford's pleading with leave to replead refused.[53] But, in any case, as these matters are concerned with alleged denial of procedural fairness rather than the master's reasoning process in dismissing Ms Wreford's claim, none of these matters establish that the master's exercise of discretion miscarried because the master did not take into account some material consideration.
[53] Primary reasons [1].
The allegation that the master did not require the first respondent to answer any of Ms Wreford's pleadings goes nowhere. The absence of any response to a statement of claim is not a material consideration on an application to strike out the pleading as failing to disclose a reasonable cause of action. The statement of claim either does or does not disclose a reasonable cause of action; and, in the latter case, there either is or is not a proper basis for the claimant to have leave to replead. Neither enquiry is affected by the circumstance that the defendant has not been called upon to answer the pleading.
As to [70.1] above, the master was well aware that Ms Wreford had amended her pleadings on multiple occasions. We are satisfied that this was taken into consideration in the exercise of the master's discretion. The master had made the ruling on 3 March 2022 refusing leave to file an amended statement of claim. The respondents made much of Ms Wreford's numerous attempts to plead a statement of claim.[54] Ms Wreford herself, in written and oral submissions, made reference to having prepared multiple iterations of the pleading.[55] She said, among other things, that she had removed three quarters of what was in the pleading because it had no place in the claim.[56]
[54] ts 3, 22 - 23, 26; first respondent's submissions dated 21 January 2022 par 21 BAB 327; second respondent's submissions dated 24 January 2022 par 24 BAB 340.
[55] ts 16; appellant's submissions dated 14 February 2022 par 17 BAB 347.
[56] ts 16.
The master referred to both of the further reamended statement of claim dated 14 December 2021 and the draft statement of claim dated 14 February 2022 in the primary reasons.[57] Indeed, as to the latter document - which was the more recent document that Ms Wreford sought to rely on - the master observed that '[i]f anything' it was an even more difficult document to understand than the further reamended statement of claim dated 14 December 2021.[58]
[57] Primary reasons [1].
[58] Primary reasons [1].
It may be inferred from the master's reasons that he considered that, contrary to Ms Wreford's submissions, the multiple attempts to amend did not warrant providing Ms Wreford with a further opportunity to replead insofar as she had demonstrated a willingness to attempt to comply with the requirements of the RSC. Rather, in the master's view, the continued failure to plead a reasonable cause of action despite numerous attempts to do so tended against exercising the discretion to allow yet a further attempt to plead a reasonable cause of action. That conclusion was well open to the master. The circumstance under consideration, like many discretionary factors, had relevance in different respects which pointed in opposite directions. There is no single correct answer as to the relative weight to be accorded to the factor's tendencies to count in favour of, or against, leave to replead. The weight to be accorded to the factor was properly a matter for the master and cannot ground an allegation of discretionary error.
In the circumstances we do not accept that the master disregarded the circumstance that Ms Wreford had amended and had sought to further amend her statement of claim. The master had regard to the consideration - it told against the favourable exercise of the discretion to replead.
The remaining matter relied on (ie [70.6] above) is difficult to understand. It is self‑evident that, contrary to Ms Wreford's contention, the master did take into consideration the respondents' arguments that Ms Wreford's pleading was deficient. That is why the master determined the applications favourably to the respondents and adversely to Ms Wreford. To the extent that Ms Wreford raised this in support of her contention, referred to at [70.1] above, that the master did not consider her submission that she had attempted to address the deficiencies, we have already dealt with that matter (see [75] - [78] above).
The complaint that the master disregarded relevant considerations does not succeed.
As to taking into account irrelevant considerations, Ms Wreford submitted that the master allowed counsel for the second respondent and counsel for the third respondent to make arguments on obsolete and irrelevant pleas. Ms Wreford said that these matters were immaterial because she was not defending them. In that respect Ms Wreford contended that she was not defending any embarrassing pleading.
Ms Wreford's complaint is misdirected. Whether one or more of the respondents' counsel made irrelevant arguments is besides the point. In contending that an exercise of discretion miscarried because a decision‑maker allowed an extraneous or irrelevant matter to guide or affect him or her it is necessary to show that the decision‑maker took an irrelevant consideration into account. That will appear from, or sometimes will be inferred from, the decision‑maker's reasons. There must, however, be an error of this kind by the decision‑maker from which it can be seen that he or she allowed the extraneous or irrelevant matter to guide or affect the exercise of discretion. A discretionary error of this type does not arise simply because the other party pressed an irrelevant consideration on the decision‑maker. Indeed, the circumstance that a decision‑maker's reasons do not make mention of an irrelevant consideration pressed on him or her by the other party will commonly mean that, quite properly, the decision‑maker has not taken the irrelevant consideration into account in the exercise of the discretion.
Ms Wreford did not point to anything in the master's reasons which was said to constitute an extraneous or irrelevant matter. The complaint that the master took irrelevant considerations into account does not succeed.
Ground 3 fails.

Disposition: Ground 4 - the allegation that the orders were not reasonably open

Ms Wreford's submissions in support of ground 4 were succinct. Ms Wreford submitted that:
1.The master's decision did not make any sense having regard to grounds 1 - 3. Those matters established that the decision was wrong in principle and that the decision itself was wrong. Ms Wreford said that the master's decision denied her procedural fairness.
2.Ms Wreford was not defending embarrassing pleadings. It defied logic not to give Ms Wreford an opportunity to have her case heard on relevant pleadings. On the facts the result is unreasonable or plainly unjust.
Grounds 1 - 3 have failed. Accordingly, it is only the argument summarised at [85.2] above that remains for determination. This essentially alleges outcome error. Ms Wreford contends, in substance, that the result is so wrong that this court ought to conclude that there has been some misapplication of principle by the master in his exercise of discretion. As was explained in House v The King:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[59]
[59] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
It is not enough to persuade this court that it may, or even would, have exercised the discretion differently to the master. In order to succeed on ground 4 Ms Wreford must establish that the master's exercise of his discretion was unreasonable or plainly unjust - in other words that it was a decision not reasonably available on the evidence.
The issue should first be considered by reference to the denial of leave to replead. This court discussed some of the relevant considerations in deciding to strike out a pleading without leave to replead in Zaghloul v Bayly.[60] Where, as here, a statement of claim should be struck out as not disclosing a reasonable cause of action, there are two primary options by way of disposition:
1.The statement of claim may be struck out allowing the claimant leave to replead. In those circumstances it is not appropriate to enter judgment against the claimant.
2.The statement of claim may be struck out refusing the claimant leave to replead. In those circumstances it is ordinarily appropriate to enter judgment against the claimant. The striking out of the statement of claim, with refusal of leave to replead, is dispositive of the claim.
[60] Zaghloul v Bayly [2021] WASCA 125 [72] - [75], [77].
Having determined that a statement of claim fails to disclose a reasonable cause of action - an issue to which the correctness standard of appellate review applies - a primary court then exercises a discretion in deciding whether the pleading should be struck out with or without leave to replead. The discretion is to be exercised in the interests of justice informed by the goal and objects in O 1 r 4A and O 1 r 4B RSC.
In relation to the first and second respondents, it was reasonably open to the master to strike out the further reamended statement of claim dated 14 December 2021 without granting leave to replead. The pleading was the fourth iteration of a statement of claim on the part of Ms Wreford. Ms Wreford's subsequent attempt to plead her claim, by the draft statement of claim dated 14 February 2022, was assessed - correctly in our view - to be an even more difficult document to understand. The master found, and it is not challenged by any ground of appeal, that: (1) so far as Ms Wreford alleged that the first respondent failed to provide proper advice with respect to the O 24A offer this court found, in the appeal decision, that there did not appear to be any misunderstanding on Ms Wreford's part of the offer or its practical effect.[61] Nor was there any error in the calculations which led to the judgment in the District Court action being entered in the amount of $458,178.80;[62] and (2) the second respondent was entitled to advocate's immunity and there was no substance in the core factual allegations that Ms Wreford alleged against the second respondent.[63] The combined force of these matters, as they applied to each of the first respondent and the second respondent, meant that this was one of the clearest of cases where there was a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial. It was clear there was no real question to be tried as against either the first respondent or the second respondent.
[61] Primary reasons [12].
[62] Primary reasons [13].
[63] Primary reasons [10].
In all the circumstances it was reasonably open to the master to take the view, in the interests of justice, that Ms Wreford had been afforded a reasonable opportunity to plead her claim and that - Ms Wreford not having pleaded a reasonable cause of action - the private interests of the first and second respondents in having the claim finalised and the public interest in the efficient use of the resources of the court militated against the grant of leave to replead.
That leaves the residual discretion in determining whether to enter judgment. Having decided there should be no leave to replead as against the first and second respondents there were no discretionary factors arising that might militate against judgment being entered in their favour. So too, as concerns the third respondent, having established a proper basis for summary dismissal under O 16 RSC, nothing was advanced which might have precluded the entry of judgment in the exercise of a residual discretion. There was nothing unreasonable or plainly unjust in this aspect of the master's exercise of discretion.

Ground 4 fails.

Conclusion and orders

For these reasons the appeal must be dismissed. The parties should be heard on the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AR
Associate to the Honourable Justice Vaughan
18 JANUARY 2024