Zaghloul v Bayly
[2020] WADC 84
•11 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ZAGHLOUL -v- BAYLY [2020] WADC 84
CORAM: BRADDOCK DCJ
HEARD: 2 AUGUST 2019
DELIVERED : 11 JUNE 2020
FILE NO/S: CIV 2756 of 2017
BETWEEN: HASSAN ZAGHLOUL
Plaintiff
AND
DAVID JOHN BAYLY
First Defendant
BRADLEY BAYLY HOLDINGS PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Application to strike out statement of claim and dismiss action - Whether any reasonable cause of action - Effect of bankruptcy of plaintiff - Jurisdiction of District Court - Whether defendants under any duty of care to plaintiff - Scandalous, vexatious and oppressive
Legislation:
Australian Consumer Law (Cth)
Bankruptcy Act 1966 (Cth)
Civil Liability Act 2002 (WA), s 5S
Evidence Act 1906 (WA)
Legal Profession Act 2008 (WA), s 288(2)
Legal Profession Conduct Rules 2010 (WA)
Legal Profession Rules 2009 (WA)
Rules of the Supreme Court 1971 (WA), O 16, O 20
Result:
Judgment for the defendants
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Mr S F Popperwell |
| Second Defendant | : | Mr S F Popperwell |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | Popperwell & Co |
| Second Defendant | : | Popperwell & Co |
Case(s) referred to in decision(s):
Albrecht v Commonwealth Bank of Australia [2015] WASC 167
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Nominal Defendant v Owens (1978) 22 ALR 128
Rayney v The State of Western Australia [2009] WASC 105
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corporation v Anderson [2017] WASC 106
Wilson v Dun's Gazette Ltd [1912] VLR 342
Zaghloul v Jewellery & Gift Buying Services Pty Ltd [2019] FCCA 583
BRADDOCK DCJ:
The plaintiff commenced proceedings in this court against his former solicitor, the first defendant, and the law practice of which the first defendant was a director, the second defendant. A writ was filed on 30 July 2017.
The proceedings did not advance swiftly. I set out below a brief chronology of the significant filings in the action:
31 July 2017
Writ filed with general indorsement
29 September 2017
Statement of claim filed
21 June 2018
Plaintiff's application for summary judgment dismissed
10 August 2018
Amended statement of claim filed
7 January 2019
Further amended statement of claim filed (FASOC)
25 January 2019
Defence to further amended statement of claim filed
22 March 2019
Chambers summons by defendants to strike out FASOC [the Application]
17 April 2019
Chambers summons adjourned
17 June 2019
Plaintiff's submissions, plaintiff's affidavit, and a second further re‑amended statement of claim filed
20 June 2019
Chambers summons heard
The indorsement of claim on the original writ reads as follows:
The plaintiff's claim is for one, a combination of, or all causes of action in breach of fiduciary duty; misleading or deceptive conduct; unconscionable conduct; breach of contract; breach of the Legal Profession Act 2008 (WA) (LPA), and Legal Profession Rules 2009 (WA); professional negligence; conspiracy to injure; or unjust enrichment by total failure of consideration of costs agreement dated 5 March 2013.
Extension of time for application
Pursuant to O 20 r 3(a) of the Rules of the Supreme Court 1971 (WA) (RSC), an application for an order to strike out a pleading must be made within 21 days of service of any pleading, or amended pleading or writ, to which the application refers. The defendants accept that leave is required to bring an application to strike out the FASOC and pursuant to RSC O 16 r 1 to apply for summary judgment.
By a chambers summons dated 22 March 2019 (the Application), the defendants sought orders that:
1.Pursuant to [RSC] O 20 r 19(1), the further amended statement of claim be struck out as disclosing no reasonable cause of action or as an abuse of the process.
2.The plaintiff's action be dismissed.
3.[costs].
4.Further or alternatively to paragraphs 1, 2 and 3:
a.the defendant have leave to apply for summary judgment pursuant to RSC O 16 r 1;
b.the Further amended statement of claim be struck out and judgment be entered for the defendants pursuant to RSC O 16 r 1 alternatively, the Court's inherent jurisdiction;
c.[Costs].
The defendants relied on an affidavit by Phylicia Elizabeth Fenwick, dated 16 April 2019. The affidavit annexes correspondence between the defendants and the plaintiff. This correspondence shows efforts by the defendants to discuss with the plaintiff the FASOC and their intention to move to strike it out. A letter dated 21 January 2019 from the defendants to the plaintiff set out the matters the defendants relied upon, in detail.
The plaintiff filed an affidavit dated 17 June 2019 in opposition to the application. He first referred to an earlier letter of 22 August 2018 which concerned an earlier amended statement of claim. The plaintiff then states that he replied to the defendants' letter of 21 January 2019 in two letters dated 13 February 2019 and 24 February 2019.
In his letter dated 13 February 2019, the plaintiff refers to general legal principles relevant in strike out applications. He makes some general assertions and asks a number of rhetorical questions. He stated he would reply in detail subsequently.
The further reply is a document dated 24 February 2019, which is presented in tabular form. The content is argumentative, in answer to the letter of 21 January 2019 of the defendants. Essentially, the plaintiff asserted that the issues were all matters of fact and law for trial. The document is extensive.
The material in the plaintiff's affidavit generally confirms that, on the Application, the defendants did endeavour to confer with the plaintiff, that it took time, and that the issues were not resolved.
The plaintiff, in his written submissions of 17 June 2019, opposes the extension of time. He founds his argument firstly under RSC O 20 r 19(3) on the Application being 99 days late. Secondly, in relation to the alternative RSC O 16 application, he takes time back to the original date of entering of an appearance by the defendants. He argues that the defendants have been fully aware of the substance of his claim since 29 September 2017, which was the date the first statement of claim was filed.
The plaintiff sought summary judgment based on his first statement of claim. That was dismissed on 21 June 2018. The Application relates to the FASOC of 7 January 2019. In my view, time properly runs from this date, both for the purposes of RSC O 16 and O 20, because the Application relates to this specific pleading.
The court has a discretion to grant leave to bring an application out of time, whether under RSC O 16 or O 20, where such delay is justifiable, understandable, or where there are issues raised on the substantive application and the interests of justice require it.
For reasons which will appear later, the FASOC, at minimum, requires attention. In my assessment, the processes of this court would be prejudiced if it were not reviewed, given my determinations below on the merits of the application itself. The efficient utilisation of the resources of the court could not be guaranteed if time was not extended to address the issues.[1]
[1] Rayney v The State of Western Australia [2009] WASC 105 [46] - [47].
Whilst the rules in relation to the prompt filing of applications are important, the principles of the efficient disposition of the court's business, in this action, make it appropriate to grant an extension of time for the filing of this Application, to the date upon which it was filed with the court, 22 March 2019.
Affidavit filed by plaintiff
In his affidavit in response to the Application, the plaintiff states in par 7:
Between June and December 2013, I brought applications in the Federal Court alleging that the Honourable Justice Gilmour denied me natural justice, and that Deputy Registrar Stanley deliberately delayed my application for leave to appeal. I now acknowledge that the applications were entirely misconceived and should not have been brought. Annexed herein and marked with the letters 'HZ-3' is a true copy of report by Professor Ali, my former treating psychiatrist, dated 12 December 2015 with his diagnosis and treatment of 'persecutory delusional disorder'.
The plaintiff continues, in par 8:
Between 2011 and 2016, as a result of a severe psychiatric illness, I lost the ability to properly manage my affairs and finances, and I was declared bankrupt by a sequestration order. Annexed herein and marked with the letters 'HZ-4' is a true copy of letters to that effect from Dr Denz who has been my general practitioner since 1991.
The annexures suggest that the plaintiff was suffering from delusions of conspiracy and persecution in relation to the Federal Court proceedings (Dr Ali), and that he was, for several periods between 2011 and 2015, 'very unwell or extremely unwell', such that he could not make reasonable judgments (Dr Denz).
The plaintiff deposes to the fact that he has filed an appeal from a refusal to set aside his bankruptcy in the Federal Court, which at the time of the filing of the affidavit had not been determined.
The plaintiff concludes at par 10:
Having received the defendants' submissions on 24 March 2019, I now realise the legal difficulty pursuing the claim as it currently stands, particularly the allegations of 'conspiracy'. Accordingly, I have amended the statement of claim. Annexed herein and marked with the letters 'HZ‑5' to 'HZ-13' a true copy of evidence in support of my submissions filed on 17 June 2019.
The annexures designated HZ-5 to HZ-13 comprise a collection of correspondence between himself and the defendants, many of which may also be found annexed to the first defendant's affidavit. The plaintiff does not depose to any reading, construction or relevance of the particular documents. He does not address directly the evidential material relied upon by the defendants.
It emerges from the correspondence annexed by the plaintiff that the defendants sought to tax their account rendered to the plaintiff for work done during the retainer.
The plaintiff filed a second 'further amended statement of claim', contemporaneous with the filing of his submissions. This document is not marked in any way to show where the amendments have been made, as is customary and helpful. It is clear from the final paragraph in his affidavit that the plaintiff believed that this further pleading had addressed the issues with the FASOC.
The new document runs to 26 pages. It contains essentially the same allegations, albeit set out in an expanded and, arguably more organised manner. It also seeks damages under the Australian Consumer Law (sch 2) Competition Consumer Act 2010 (Cth) (ACL) for exacerbation of psychiatric injury, loss of earnings and 'assets from bankruptcy'. Alternatively, it seeks the same in negligence. It seeks return of legal fees, on various bases, setting aside of the costs agreement, and both aggravated and exemplary damages.
Litigant in person
The plaintiff represents himself in these proceedings. It is well established that a person who is representing him or herself is entitled to some leniency in relation to compliance with court rules. The court will approach documents in which a litigant articulates the claim with some flexibility.[2]
[2] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 [536].
It is important to take an overview of a matter and attempt to ascertain what may be found in the pleadings and endeavour to assist proper matters to be brought to the fore by the litigant.
The object is to assist a litigant in person, so far as possible, without intervening to an extent so as to diminish the position of neutrality which the court must maintain. Certainly, an unrepresented litigant should not be given an advantage over the opposing party.[3] However, bearing those matters in mind, the framework applied to litigation as expressed in the RSC is to be applied in this court.
[3] Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12].
The grounds upon which the defendants seek to strike out the FASOC are set out above, in the terms of the chambers summons. Detailed submissions have been filed. Amongst other matters, the defendants have raised issues of jurisdiction in relation to some of the plaintiff's claims.
The setting for the dispute between the plaintiff and the defendants arises out of the plaintiff's engagement of the first defendant as his solicitor in February/March 2013. Advice was subsequently given. A writ was filed against Woodside. It was subsequently served. No other pleadings were filed. The plaintiff has multiple complaints in the FASOC about the conduct of the defendants. The defendants say that the plaintiff would not act upon advice they gave. The solicitor/client relationship broke down. Before the first defendant's application to get off the record in the District Court could be heard, the plaintiff filed a notice of acting for himself.
The FASOC comprises 20 pages. The plaintiff seeks relief under:
(a)the ACL s 18 for misleading and deceptive conduct, or alternatively unconscionable conduct: ACL s 20 or s 21;
(b)restitution for a total failure of consideration;
(c)to set aside a costs agreement: LPA s 288(2);
(d)a declaration that the defendants were not entitled to fees;
(e)for an account of profits for breach of fiduciary duty;
(f)equitable compensation;
(g)payment of $40,479 under the ACL s 236(1), s 237(1)(a)(i), s 243(d);
(h)penalties under ACL s 244;
(i)exemplary damages;
(j)aggravated damages under ACL s 236(1);
(k)a declaration that the first defendant was involved in unprofessional conduct under the LPA pursuant to ACL s 250(5).
Submissions of the plaintiff opposing the Application
The plaintiff commences his submissions[4] in opposition to the Application thus:
The claim is for (a) compensation and damages for exacerbation of Zaghloul's psychiatric illness caused by the effect of misleading legal advice, alternatively negligence, on cementing his perception that Woodside was able to influence his lawyers; and (h) compensation or restitution of the legal fees ($40,479.69) plus interest.
[4] 17 June 2019, outline of submissions.
He seeks permission to have the matter determined on his latest filed pleading, of 17 June 2019, saying in par 3:
Zaghloul, like most self‑represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity ... therefore stand in a position of great disadvantage in legal proceedings of all kinds.
The second FASOC dated 17 June 2019 removes the conspiracy pleas; it is not necessary that the defendants had intended to mislead or deceive.
The court has reviewed the second FASOC. It maintains allegations of undisclosed communication with Woodside, and an allegation of negligence in failing to explain the appearance of the name Stephen Brameld in the draft statement of claim, whilst asserting no undisclosed communication with Woodside. It contains allegations in relation to the costs agreement and seeks that it is set aside. It maintains an allegation of charging for unsolicited services.
It no longer contains allegations of breach of the LPA, breach of fiduciary duty, or any complaint in relation to referring the plaintiff to an occupational therapist.
This Application was brought in relation to the FASOC filed on 7 January 2019. That is the application which is to be determined. I decline the request of the plaintiff to deal with the matter on his subsequently filed document. That would be inappropriate and prejudicial to the defendants, whose Application is under consideration. However, where the plaintiff has not persisted in a particular pleading, I will take that as a concession by the plaintiff that he does not seek to maintain that part of the pleading.
The plaintiff claims that the first defendant issued a writ in the District Court against his instructions and failed to act on his instructions to obtain pre-action discovery.
The plaintiff also alleges that the conduct of the defendants amounted to a breach of professional duty, negligence, misleading and deceptive conduct and caused him personal injury by exacerbating his psychiatric condition. The plaintiff alleges that the defendants, in effect, conspired with Woodside, the plaintiff's former employer, against his interests in the litigation.
In oral submissions, counsel for the defendants relied upon the plaintiff's bankruptcy to counter any financial claim. That argument is relevant in the alternative, RSC O 16 application. There is documentary evidence that the plaintiff was bankrupt between 30 July 2013 and 13 August 2016. This is impliedly admitted by the plaintiff in his affidavit, where he deposes that he is appealing from an order refusing to set the bankruptcy aside. It was argued that any and all property of the plaintiff vested in the trustee in bankruptcy, including any choses in action. The plaintiff's causes of action, would be choses in action. It was submitted by the defendants that the only viable claim was for personal injuries, pursuant to s 60(4) of the Bankruptcy Act1966 (Cth).
The defendants also argued that the claim for personal injuries could not be maintained. Pursuant to s 5S of the Civil Liability Act2002 (WA), a defendant did not owe a duty of care to a plaintiff not to cause mental harm, unless the defendant ought to have foreseen that a person of normal fortitude might suffer psychiatric illness if reasonable care were not taken.
In addition, the defendants argued that the claim for personal injury was statute barred, by at least 21 August 2016, due to the plaintiff's symptoms manifesting at latest by August 2013.
The plaintiff in his submissions referred to his application for summary judgment which was dismissed on 21 June 2018. That decision has no bearing upon the issues currently before the court. Such a finding, on application by the plaintiff, meant no more than the judge considered there was an issue to be tried on the then existing statement of claim. This is not the same statement of claim and this is now the defendants' Application.
The plaintiff disputed a limitation defence due to his claimed incapacity, as a psychiatric patient, for a period which he described as existing from 2011 through to 2016.
The plaintiff referred to his application to set aside his bankruptcy in the Federal Court. In February 2019, an application to annul the bankruptcy was dismissed.[5] The plaintiff has pursued his rights of appeal. At the time of writing, no judgment in relation to that appeal has been delivered.
[5] Zaghloul v Jewellery & Gift Buying Services Pty Ltd [2019] FCCA 583.
The plaintiff said it would be unjust to permit his claim to fail because the underlying issues (whatever they may be) partly caused his bankruptcy. Further, in his written submissions, he contends that this court might grant him leave to prosecute the claim under the Bankruptcy Act s 134(1)(m). This misconstrues the jurisdiction of this court. The provision which he cites does not assist him. It would in any event be extraordinary for any judicial authority to authorise a former bankrupt to conduct litigation where, on his own evidence, he was not competent during the relevant period.
The plaintiff's written submissions otherwise mostly repeat 'arguments' in his pleadings. In oral submissions, the plaintiff emphasised that his negligence claim was detailed and complex. He said that his claim has always been for negligence and the total failure of consideration. In summary, the plaintiff argued that it was not a clear case which lent itself to being struck out.
The Application
RSC O 20 r 19(1) provides:
The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
RSC O 20 r 8(1) provides that every pleading must contain, and contain only, a statement in summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved and the statement must be as brief as the nature of the case permits.
RSC O 16 provides:
1.Application by defendant for summary judgment
(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order -
(a)that judgment be entered for the defendant with or without costs; or
(b)that the plaintiff shall proceed to trial without pleadings,
or if all parties consent, may dispose of the action finally and without appeal in a summary manner.
(2)An application under subrule (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based.
(3)Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
The requirements of RSC O 20 r 8 are matters which may cause non‑lawyers difficulty, both in distinguishing facts from the evidence and facts from argument. The current FASOC poses a number of challenges in the light of this rule. In determining the Application it is therefore necessary to bear in mind that the plaintiff is a litigant in person, albeit an obviously well‑educated and articulate one.
Application of the rules to FASOC
The FASOC is a complex and lengthy document. It certainly fails to comply with the requirement to contain material facts and only material facts.
In parts, the statement of claim has the character of submissions. It is remarkable for having a 'table of contents'. It states first the details of the parties to the proceedings.[6] That much is usual and correct pleading.
[6] FASOC, par 1.
The FASOC then proceeds under the heading 'background' to deal with the history of the relationship between the plaintiff and his former employer, Woodside Energy Limited (Woodside). Those events go back to 2008. It gives detail of the plaintiff's litigation against his former employer, in the Federal Court of Australia.
The plaintiff consulted the first defendant in February 2013. He sought advice. He pleads that he sought legal services to 'recover the prescribed amount and 1,188 equity shares' in Woodside.[7] He pleads that he entered into a costs agreement 'retainer' with the defendants. He pleads that he was advised.
[7] FASOC, par 14.
He alleges that he repeatedly instructed the first defendant to discover 'the Meridian report' pre-action. He alleges that the second defendant filed the writ against Woodside in the District Court of Western Australia on 6 May 2013, without explicit or unqualified instructions to do so. He alleges that the first defendant failed to act on his instructions to discontinue the District Court action. He says the first defendant unilaterally terminated the retainer.
He goes on to allege[8] that the first defendant, in effect, conspired with an employee of Woodside to the plaintiff's detriment.
[8] FASOC, pars 58 - 64.
The above matters are a very brief sketch of the FASOC, which does not lend itself to succinct summary. It pleads matters that could only be described as evidence. It gives, as 'particulars', materials that clearly are not and are at times argumentative.
The defendants filed a defence on 25 January 2019, prior to the strike out application. That defence attempts to plead to the allegations contained in the further amended statement of claim. An application to strike out may still be made in such circumstances.[9]
[9] Wilson v Dun's Gazette Ltd [1912] VLR 342 [344].
On an application to strike out pleadings pursuant to RSC O 20 r 19(1)(a), as disclosing no reasonable cause of action, no evidence is to be admitted. The facts pleaded by the plaintiff must be taken to be capable of being established and taken at their highest. Evidence may have relevance where a question of an abuse of process is raised: RSC O 20 r 19(1)(d).
Both the plaintiff and the defendants filed affidavits on this Application, which are germane to both the extension of time, the application to strike out and the alternate application, pursuant to RSC O 16, where the defendants seek judgment against the plaintiff.
From all of the materials and the FASOC, a number of things emerge which featured in oral submissions by the plaintiff:
1.The plaintiff wishes to pursue a claim for breach of contract against his former solicitors. He wants his money back.
2.The plaintiff alleges negligence in giving advice or, in the alternative, misleading and deceptive conduct contrary to the ACL, in respect of advice given.
3.The plaintiff wishes to pursue a claim in negligence for the aggravation of his psychiatric condition by the solicitors he formerly instructed.
The FASOC in detail
For the purposes of this Application, it is expedient to address the FASOC section by section, as designated in the pleading.
A. The parties
The first section of the FASOC commences with those details in par 1; this is unexceptionable.
B. Background
I. The plaintiff's relationship with Woodside
A significant proportion of this section pleads evidence, which may or may not be relevant by way of background. Evidence of background offends RSC O 20 r 8. Paragraph 2 pleads that the plaintiff was employed by Woodside. Given that the action the subject of the dispute between the parties involved Woodside, it is relevant and may stand. Paragraphs 3 to 5, 7 to 9, 11 and 12 are matters of evidence, which may be background to the plaintiff's claim against Woodside but should not be pleaded in the FASOC and are struck out: RSC O 20 r 8.
Paragraphs 6 and 10 may stand. The former pleads that the plaintiff suffered an injury in his employment and the latter states he commenced proceedings in the Federal Court in relation to it. Both are factual and connected to the matters in issue.
II. The initial contact with the defendants
Paragraph 13 pleads the initial meeting between the plaintiff and defendants and is relevant and factual. Paragraphs 14(a), (b), and (c) are evidential in character. Paragraph 14(b) may however be relevant to the pleading of psychiatric injury. Paragraph 14(d) pleads that the plaintiff sought legal services 'to recover the prescribed amount and 1,188 equity shares that Woodside had inappropriately cancelled, and discover the Meridian report'. This is factual and relevant. Paragraph 14 may stand.
III. The retainer agreement
Paragraphs 15 to 18 relate to this and may stand, with the excision of the so‑called particulars, which are irrelevant and confusing. The plaintiff has in par 15 defined 'retainer', which par 17 pleads that he signed. Paragraph 18 pleads that the first defendant owed the plaintiff a fiduciary duty. This is legally correct but has no relevant purpose.
C. The legal advice
I. Section 93K(4)(c) of the Compensation Act
Paragraph 19 refers to a summary judgment application in the Federal Court proceedings by Woodside. It is factual and relevant to the plaintiff's business with the defendants. Paragraphs 20 and 22 plead that the first defendant gave advice that Woodside would succeed in its summary judgment application. Paragraph 21 refers to counsel's advice on the matter. It is currently irrelevant, effectively pleads evidence, but is not embarrassing and may stand.
Paragraph 23 does not plead fact or law and must be struck out. It is in the form 'Mr Bayly knew or ought to have known' and is not saved by the supposed particulars. From the later section F 'causes of action', the plaintiff alleges that this was misleading advice and/or negligent. At its highest, the plaintiff's pleading is that the result in the Federal Court turned out contrary to the advice given. There is no pleading that the plaintiff relied upon or acted upon the advice to his detriment. Rather the complaint follows in pars 25 and 26.
Paragraph 24 is a non sequitur, logically, but relates to par 22. Paragraph 24 pleads that, Woodside did not succeed in its summary judgment application. This was determined on appeal some two years after the termination of the relationship between the plaintiff and defendants. It is irrelevant.
Paragraph 25 pleads:
During the 30 months of litigation relating to s 93K, the plaintiff suffered further aggravation of the psychiatric illness as he anxiously awaited the judgments.
This broad statement can only be a reference to the Federal Court proceedings.
Paragraph 26 states:
The dismissal of the plaintiff's case on the basis of s 93K in the Federal Court carried grave consequences and deprived him of any remedy against Woodside.
Paragraphs 25 and 26 are not directly relevant to any claim the plaintiff might have against the defendants in this court. It is not in dispute that the defendants gave advice upon the interplay of proceedings in the District Court of Western Australia and the Federal Court. Their view was that the plaintiff should discontinue his proceedings in the Federal Court and pursue his action in the District Court of Western Australia. The defendants so advised in writing. The plaintiff did not follow this advice. The professional relationship between the parties subsisted from February 2013 to 22 August 2013. It is ironic that had the plaintiff followed the defendant's advice he would not have suffered what is alleged in par 25.
The evidence is that the defendants did not accept instructions to represent the plaintiff in the Federal Court action. The defendants specifically and in writing refused such instructions. Paragraph 26 is unrelated to any reasonable cause of action against the defendants. It is prejudicial to any fair trial. It also reveals that the plaintiff's claim is that the entirety of the period of the Federal Court proceedings caused him injury.
Paragraphs 23 to 26 are struck out.
II. The discovery of the Meridian report
Paragraphs 27 to 29 claim that the defendants failed to act on instructions to seek discovery of this report. Paragraph 30 pleads that the second defendant knew or ought to have known such report could be discovered under RSC O 26A or O 26. There is no pleading of any loss or damage flowing from this alleged failure to act, neither in this section of the pleading nor later in the part headed 'causation and loss or damage'. These allegations are not repeated in the second FASOC. Therefore, it is inferred they are not maintained by the plaintiff.
Paragraphs 27 to 30 are struck out as disclosing no reasonable cause of action.
III. The advice on causation
Paragraph 31 states that the first defendant advised there were 'causation issues'. Paragraph 32 states that he knew or ought to have known that:
the Supreme Court, Court of Appeal held that the words 'resulting from' - used in Woodside's letter accepting liability dated 31 January 2013 -established a causal connection.
This section is nonsensical. It does not disclose any reasonable cause of action. Even assuming it to be an allegation that the advice was wrong, there is no indication that it had any consequences, or resulted in any loss.
Paragraphs 31 and 32 are struck out as disclosing no reasonable cause of action.
IV. The statement of claim in the District Court
Paragraph 33 pleads that the plaintiff gave the first defendant a copy of the Federal Court statement of claim on 17 April 2013. Paragraph 34 repeats the allegation of instructions to discover the Meridian report, this time before starting the statement of claim. Paragraph 35 pleads that a statement of claim was provided, and par 36, that it duplicated the Federal Court proceedings. Then par 37 states that the first defendant 'knew or ought to have known the statement of claim was deficient', followed, under the heading 'particulars' with allegations which are criticism of the statement of claim.
Paragraphs 33 to 37 do not set out any adverse consequence arising from this allegation. Later, in section 'F. Causes of Action' subparagraph I general allegations of misleading or deceptive conduct are made 'by reason of the matters in parts C and D', with an alternative plea, in negligence. No clear pleading of what was misleading is given, nor is any reliance upon it set out. No specific aspect of the pleading in pars 33 to 37 is linked to any alleged consequence adverse to the plaintiff, either in section F or the following section G headed 'causation loss or damage'.
From the evidence of the second defendant, the statement of claim was a draft document which was never filed. The plaintiff does not plead otherwise. No negative outcome from the statement of claim is pleaded. The plaintiff discontinued the action in the District Court on 22 August 2013.
It is frivolous and vexatious to plead such matters in a 'scattergun approach'. It impedes the identification issues and resolution of the action. This section discloses no reasonable cause of action and is embarrassing: RSC O 20 r 19(a), O 20 r 19(b) and O 20 r 19(c).
Paragraphs 33 to 37 are struck out.
V. The therapist
Paragraph 38 pleads that the first defendant advised an assessment by an occupational therapist and claims the first defendant knew or ought to have known that such an assessment would be inadmissible under s 79C of the Evidence Act 1906 (WA). It gives further matters under the heading 'particulars', which manifestly are not particulars of the matters pleaded in pars 38 and 39. It pleads no loss save an allegation of increased legal fees.
This section discloses no reasonable cause of action. The implication is the advice was wrong, but that is not set out in terms. The plaintiff's misunderstanding of the law is unhelpful to him. Firstly, such assessments are routinely admitted in personal injury actions, by calling the therapist, not using the document. Secondly, the evidence is that there was no assessment, the appointment was cancelled, deposit returned and no loss ensued. This is clear on the correspondence annexed to the first defendant's affidavit.[10] If any issue of costs arose, it was a taxation matter. The plaintiff effectively has conceded this point as it does not feature in the second FASOC document.
[10] Affidavit of David John Bayly dated 13 November 2017, annexure DJB-81.
Paragraphs 38 and 39 are struck out.
D. District Court of Western Australia proceedings
I. Scope of the retainer
Paragraph 40 pleads that the retainer was 'to recover the prescribed amount and 1,188 inappropriately cancelled shares'. This echoes par 14(d). Under the heading 'particulars' many matters are listed, which are not particulars of the paragraph. They are confused, argumentative, in part plead evidence and include a claim that the first defendant refused to act in the Federal Court, which he had no duty or obligation to do.
The entire section headed 'particulars' of ten subparagraphs is struck out as frivolous and vexatious: RSC O 20 r 19(b) and O 20 r 19(c). It would prejudice or delay the fair trial of the action.
The pleading in par 40 may link to D. IV, in par 50, which concerns the plaintiff's understanding. The plaintiff frames his claim here so as to exclude any common law action. This is inconsistent with the evidence of correspondence passing between the parties and produced by the first defendant.[11] It is also, leaving to one side the shares, lacking any logic. The evidence shows that the plaintiff had been paid the maximum entitlements by Woodside under the Workers' Compensation and Injury Management Act 1981 (WA) by this time.[12]
II. The commencement of District Court proceedings
[11] Affidavit of David John Bayly dated 22 March 2019, annexure DJB-106 and annexure DJB-108.
[12] Affidavit of David John Bayly dated 22 March 2019, annexure DJB-116 (21/06/13).
Paragraph 41 pleads that the writ was filed without explicit and unqualified instructions. There follow 'particulars' which are not what is usually understood by that term. I will treat all the matters included by the plaintiff under headings of this kind as parts of his pleading, in a general way. The matters listed however, in the three subparagraphs are argumentative or evidential and are struck out.
Paragraph 42 alleges the first defendant knew or ought to have known that the District Court proceeding was statute barred. Apart from referring to a medical report of Dr Denz, dated 15 May 2012 which gave a diagnosis in September 2009, the other matters in this paragraph are argumentative. They, again, complain that the first defendant would not represent the plaintiff in the Federal Court. Further it claims that the District Court proceedings were an abuse of process. This is vexatious in context, where the plaintiff instructed the defendants to file the writ and the defendants were under no obligation to act in the Federal Court.
There is no pleading of any consequence flowing from matters set out in pars 41 and 42, or loss resulting. There is evidence that counsel had advised that, on the limitation aspect, there was the possibility of an extension of time.[13] There is evidence that the writ was filed to protect the plaintiff's position in this regard and he was so advised.
[13] Affidavit of David John Bayly dated 22 March 2019, annexure DJB-107.
Paragraph 43 pleads that the writ was served without instructions to do so. There is no pleading of loss or damage flowing from this. In the absence of any pleading of loss or damage the paragraphs do not disclose reasonable cause of action for damage which could lead to recovery in this court, but more significantly, they are quite contrary to the evidence as follows.
From the affidavit of the first defendant filed 22 March 2019 it is clear that:
1.The plaintiff gave written instructions in an email on 3 May 2013 to file the writ, the only qualification being that the first defendant was prepared to continue to act for the plaintiff[14] contrary to the unsupported assertions of the plaintiff. By the defendants continuing to act for the plaintiff, this precondition was plainly fulfilled.
2.There were reasons concerning the injury which might lead to an extension of time for action against Woodside, counsel so advised and the first defendant informed the plaintiff of counsel's advice and its significance in writing on 7 May 2013.[15]
3.The plaintiff gave specific instructions to serve the writ in writing by email on 11 June 2013.[16]
[14] Annexure DJB-130 to affidavit of first defendant.
[15] Annexure DJB-132.
[16] Annexure DJB-139.
The plaintiff has not, in his affidavit or submissions, produced any evidence contrary to that of the first defendant or the documents on these points. His pleading is a mere assertion, unsupported by any facts. In light of that clear evidence, there is no reasonable prospect of any action based on pars 41, 42 and 43 being successful, even if damage and causation were pleaded.
The defendants accordingly have a good defence in relation to pars 40 to 43 and are entitled to judgment in relation to these allegations, under RSC O 16 r 1.
III. The legal advice relating to District Court proceedings
In pars 44 to 49 it is alleged that the first defendant advised the plaintiff to dismiss the Federal Court action by consent and that the District Court was the proper jurisdiction for the action by the plaintiff. The first defendant cautioned against discontinuing the action in the District Court.[17] It is alleged that the first defendant 'knew or ought to have known' that the action was liable to be struck out as an abuse of process for duplicating the Federal Court proceedings. There is no plea of any consequences to the plaintiff or loss or damage as a result. The plaintiff did not act upon the advice.
IV. The plaintiff's understanding of the scope
[17] Affidavit of David John Bayly dated 22 March 2019, annexure DJB-128.
In pars 50 to 52 the plaintiff alleges that the first defendant ought to have known that the plaintiff understood that the retainer was for a workers' compensation claim not at common law and the first defendant failed to ensure that the plaintiff understood the advice before filing the writ.
The evidence filed by the first defendant shows extensive correspondence, discussion and advice about the matters relevant to pars 44 to 52. This encompasses the relationship between proceedings in the two jurisdictions, the Federal Court strike out application and the evidence available. The plaintiff responded to correspondence in detail. It was clearly spelt out that the claim in the Federal Court included one for damages at common law and that there would be overlap with the District Court.[18] The plaintiff suggested he could seek different aspects of damages in the different jurisdictions.[19]
[18] Annexure DJB-106 - annexure DJB-110, annexure DJB-132 and annexure DJB-133.
[19] Annexure DJB-109.
The correspondence is clear evidence that the action under discussion was for negligence and breach of contract and not restricted to workers' compensation payments. The fact that the correspondence is headed 'workers' compensation claim' does not establish otherwise, in light of the detailed discussion to which the plaintiff was a party. The plaintiff specifically sought confirmation that the jurisdiction of the District Court in personal injury matters was not limited.[20] The plaintiff's engagement in the correspondence is detailed and shows an educated and articulate man.
[20] Annexure DJB-109.
Paragraphs 44 to 53 inclusive do not disclose any reasonable cause of action, despite the broad allegation of negligence in par 53. No consequential loss or damage is pleaded in this section or later in the FASOC. The plaintiff ignored the defendants' advice.
In addition, the evidence before the court, referred to above, shows that the defendants have a good defence to these allegations on the facts and they are entitled to judgment pursuant to RSC O 16 r 1.
V. The unilateral termination of the retainer
In pars 54 to 57 the plaintiff pleads that he instructed the first defendant to discontinue the action in the District Court on numerous occasions and that the defendants did not do so. The defendants accept that they did not act upon instructions to discontinue. They advised strongly against it. It is pleaded that subsequently the defendants unilaterally terminated the retainer.
The relevant correspondence between the parties is annexed to the affidavit of the first defendant.[21] It culminated in a letter of 6 August 2013 from the first defendant to the plaintiff confirming the defendants' advice to maintain proceedings in the District Court and indicating that if the plaintiff persisted in his instructions to discontinue, the first defendant would cease acting as solicitor and seek to get off the record.[22]
[21] Affidavit of David John Bayly dated 22 March 2019, pars 49 - 54.
[22] Annexure DJB-154.
The plaintiff responded confirming his instructions to discontinue (and also to negotiate with Woodside). This was not the first occasion that the defendants had had discussion and written confirmation with the plaintiff about the basis upon which they would continue to act for him.
Contrary to the defendants' advice, the plaintiff filed a notice of acting in person on 22 August 2013 and discontinued the action.[23]
[23] Annexure DJB-156.
On 15 August 2013, the first defendant swore an affidavit seeking leave to withdraw from acting.
A legal practitioner has no obligation to continue to act for a client when the relationship of trust and confidence has broken down. Where a client refuses to take reasonable advice and urges the practitioner to act in a manner which is contrary to the client's interests, the practitioner is placed in an invidious position. The appropriate course is to cease to act. This is in accordance with the Legal Profession Conduct Rules.[24]
[24] Legal Profession Conduct Rules 2010, s 27(1)(f).
Paragraphs 54 to 57 fail to disclose any reasonable cause of action. In the light of the evidence, the pleading is also a misrepresentation of the facts and vexatious. It was the plaintiff who determined the retainer by proceeding to discontinue the District Court action and filing his notice of acting in person. The defendants had advised and warned him of the consequences of discontinuance. The defendants were under no obligation to continue to act once the relationship broke down, upon giving reasonable notice.
These paragraphs are struck out: RSC O 20 r 19(a)(b).
E. The relationship with Woodside
This section comprises three subsections with allegations of interactions between the first defendant and Woodside contrary to the plaintiff's interests. The allegations are not supported by fact, but appear to be conclusions that the plaintiff has drawn from random pieces of information. They do not, in logic, establish the propositions he asserts.
In pars 64, 70 and 74 each conclude one of the subsections. The words 'it is reasonable to infer that' appear in each. Paragraph 64 reads:
It is reasonable to infer that the defendants met with Mr Steven Bramweld without the plaintiff's knowledge to commit an unlawful act; giving legal advice to the plaintiff with a predominant purpose of causing him harm and denying him a remedy.
And, par 70:
It is reasonable to infer that Mr Bayly's resistance of the plaintiff's request to provide his file was to avoid the risk of the plaintiff finding out evidence of undisclosed communications with Woodside.
And, par 74:
It is reasonable to infer that the defendants' benefited from its relationship with Woodside at the expense of the plaintiff.
Such phrasing has no place in any statement of claim. It does not plead either fact or law. The conclusions do not reasonably or inevitably follow. They are a 'guess a theory or conjecture'.[25]
[25] Nominal Defendant v Owens (1978) 22 ALR 128, 132.
It would not be unreasonable to conclude that such thinking is consistent with the diagnosis of Dr Ali and the plaintiff's concessions in his affidavit,[26] that allegations in the Federal Court should not have been pursued because of his mental state. The same might be said here. The time periods of the action in the Federal Court and these events almost exactly correspond. The overall allegation is that the first defendant conspired with Woodside to harm the plaintiff.
[26] Affidavit of Hassan Zaghloul dated17 June 2019, par 7.
Section E offends RSC O 20 r 19(a) and O 20 r 19(b). It discloses no reasonable cause of action. It is a scandalous allegation, unsupported by facts. It is also an enquiry which would prejudice or delay any fair trial of the action: RSC O 20 r 19(c).
The entirety of pars 58 to 74 are struck out, together with the associated pleas for relief in pars H(4), H(5), and H(7).
F. Causes of action
I. Misleading and deceptive conduct
Paragraph 75 pleaded that the defendants owed the plaintiff a duty of care as solicitors. That is unexceptionable. Paragraph 76 pleads the first defendant held himself out as a specialist in workers' compensation. These paragraphs may stand.
Paragraph 77 pleads that, by reason of parts C and D ie: pars 19 ‑ 57, the first defendant provided misleading advice. No particulars are given. Parts C and D relate to a wide range of differing allegations, some of which are not relevant to advice. No pleading of reliance is made.
There is no attempt to set out in a clear factual way what aspects of the 'advice' were misleading. The majority of parts C and D have already been struck out: RSC O 20 r 19 or judgment has been given for the defendant, above. Making an allegation of 'misleading' without specifics does not remedy the defects in the pleading.
Paragraph 77 is struck out: RSC O 20 r 19.
Paragraphs 78 to 82 make allegations about the terms of the retainer, specifically that such fees were 'capped' and only recoverable on judgment or settlement. It is then alleged that this constituted misleading and deceptive conduct under, inter alia, s 18 of the ACL.
II. In the alternative, negligence and misrepresentation
Paragraph 85 alleges that, if the advice or acts pleaded in parts C and D was not misleading, then Mr Bayly was negligent. Paragraph 86 alleges a contravention of s 4 of the ACL and par 87 concludes the subsection by settling on an allegation of misleading or deceptive conduct 'rather than being negligent', on a 'balance of probabilities'.
Both parts F.I and F.II are founded upon parts C and D which have not withstood scrutiny in the light of the RSC O 16 and O 20 r 19. Nowhere is it pleaded that consequences flowed from any, or which, alleged default of the defendants. Whilst the plaintiff pleads that the defendants charged for services, nowhere is it pleaded that the plaintiff paid any money to the defendants.
III. Asserting the right to payment for unsolicited services; and
IV. Breach of contract and conduct rules
Paragraphs 88 to 92 allege that the legal services in relation to the District Court were unsolicited services and that the defendants contravened s 40 of the ACL. These allegations are not repeated in the second FASOC. I therefore conclude that the plaintiff does not seek to maintain the pleading. It is, in the context of the relationship between legal practitioner and client, nonsensical. The District Court proceedings were distinctly part of a professional relationship for which fees were to be charged.
Paragraphs 88 to 92 are struck out: RSC O 20 r 19(a).
Paragraphs 78 to 82, 95 and 96 concern legal fees and the basis of charges by the defendants. The jurisdiction to set aside or otherwise deal with solicitor's costs agreements resides in the Supreme Court of Western Australia.[27] These agreements are not reviewable in the District Court. Issues of the proper fees chargeable in litigation, whether under an agreement or otherwise, are dealt with on taxation, if required. It appears from documents filed by the plaintiff that any account has already been taxed. At par 95(i) the plaintiff pleads only that a bill of costs was filed in the Supreme Court at $40,479.69.
[27] LPA s 288(2).
These paragraphs disclose no reasonable cause of action in this court and are struck out: O 20 r 19(a).
Paragraph 93 pleads breach of contract, based upon parts C to E. This form of pleading is prejudicial and embarrassing. As already noted, these parts contain many distinct assertions. This style entirely circumvents the purpose of pleadings: to clearly set out the claim, and contain a statement in summary form of the material facts relied on as briefly as possible: RSC O 20 r 8(1).
Paragraph 94 asserts an implied term that work would be done efficiently. This must be an implied complaint of overcharging although it does not so plead. It is related to nothing else in the FASOC and no details or consequences are given. It discloses no reasonable cause of action.
Both pars 93 and 94 are struck out: RSC O 20 r 19(a) and O 20 r 19(c).
Paragraph 98 details alleged breaches of the Legal Profession Conduct Rules. Misconduct in breach of the LPA does not give rise to any remedy which may be pursued in the District Court. Allegations of professional misconduct are dealt with in accordance with the procedures set out in the LPA, and are justiciable in the State Administrative Tribunal.[28]
[28] LPA s 409 - s 447.
Paragraph 98 is struck out.
V. Unconscionable conduct
Paragraphs 99 to 103 plead unconscionable conduct, based upon parts C to E of the FASOC.
These paragraphs are unsupported by factual relevant pleading. They rely upon the untenable allegation of an agreement between the defendants and Woodside, allege benefits from such agreement which are unspecified and make claim to multiple remedies including penalties under s 224(1) of the ACL.
Paragraphs 99 to 103 are struck out under RSC O 20 r 19, as they offend against each subsection of RSC O 20 r 19.
The defendants' application for summary judgment
There are further matters specifically where the defendants seek judgment under RSC O 16.
G. Loss and damage
Part I, in summary, at par 111, alleges a further aggravation of the plaintiff's psychiatric condition, apparently by reason of matters pleaded in pars 104 to 110. It refers back to section B.I of the FASOC which is the 'Background' with Woodside. This is an alleged claim in negligence.
Part II deals with the retainer and alleges a total failure of consideration in pars 112 to 117. It seeks essentially, a return of money paid by the plaintiff to the defendants.
The facts pleaded in pars 105, 106, 108 to 110 allege that the defendants knew that the plaintiff had a perception that Woodside could 'buy' lawyers, which the defendants should have contemplated made the plaintiff vulnerable and that the defendants should have provided innocent explanations to refute the perception.
It is alleged that the conduct pleaded in pars 105 to 109 was a contributor to the worsening of the plaintiff's illness, or a further aggravation of it. His particulars refer to diagnoses of pain, panic disorder, agoraphobia and persecutory delusional disorder, said not to have existed before the retainer. It is clear however, that he is referring in par 110(a) to the Federal Court proceedings. The argument seems to be, at its highest, post hoc propter hoc.[29]
[29] It came after therefore it was because of.
The defendants submitted that the plaintiff had been diagnosed prior to the retainer, based upon the medical evidence.[30]
[30] Annexures DJB-157 - DJB-161.
Further, the defendants argued that in relation to some of the correspondence relied upon by the plaintiff (in his earlier pars 71 and 72), that those letters or emails mostly post‑dated the retainer, thus their duty to the plaintiff had determined.
Most significantly, the defendants argue that s 5S of the Civil Liability Act 2002 (WA) defeats entirely the plaintiff's claim based on any breach of duty. Such a duty only arises in relation to the foreseeability of mental harm where a person of normal fortitude would have been caused psychiatric injury in the circumstances. For this reason, inter alia, the defendants argue they are entitled to judgment on this claim.
In my view, it is not foreseeable that an ordinary person of 'normal fortitude' would suffer psychiatric harm from not getting a response to correspondence by solicitors.
Moreover, there can be no duty upon a legal advisor to refute - by providing an 'innocent explanation' - irrational allegations by a client against the solicitor in order not to 'fuel' the plaintiff's perception of, in this instance, corruption.
Paragraphs 105 to 100 do not disclose a reasonable cause of action even accepting that the defendants knew the plaintiff had suffered and sued on a psychiatric injury previously, as pleaded in pars 6 and 10, and alleged that he told the first defendant of his view that Woodside had 'bought' his former lawyers in par 14(b).
A person of 'normal fortitude' who encountered a failure by his solicitor to answer correspondence might be irritated, angry, disappointed or outraged at the rudeness, but would not suffer an injury to mental health.
The defendants were instructed to advise on matters which were of a technical, legal and procedural nature. Consideration of which course to adopt in litigation can be difficult for a party and stressful. It is not reasonably foreseeable that a normal person will suffer psychiatric injury when faced with unpalatable advice or difficult decisions.
Paragraphs 104 to 111 will be struck out as disclosing no reasonable cause of action. No leave to amend is appropriate. The defendants have a good defence to any action based upon these claims, however pleaded.
There will be judgment for the defendants on the claim for personal injury.
Part G.II defeats itself and is contradictory. Paragraphs 112 and 113 appear to plead that a term of the retainer was for fees to be payable at the conclusion of the litigation. Whereas par 114 pleads the defendants were entitled to fees if the plaintiff terminated instructions before the claim was completed.
The evidence shows that the plaintiff terminated the retainer by failing to accept the defendants' advice and filing a notice of acting in person on 21 August 2013. Accordingly, the defendants, on the plaintiff's pleadings, were entitled to charge him.
Paragraph 115 pleads that the defendants did not provide the benefit or the 'contemplated state of affairs'. It gives particulars, which are nonsense, on the evidence. Paragraphs 116 and 117 claim that the plaintiff lost consideration and the defendants were unjustly enriched.
It is in effect a pleading that the plaintiff did not get the desired result and therefore should not pay.
The whole section is contradictory, not based on fact and discloses no reasonable cause of action and is struck out: RSC O 20 r 19(a)(c).
In section H.I(2), the plaintiff is really seeking to set aside the retainer or costs agreement and recover the money he was charged. This court has no jurisdiction to make such orders. Nowhere does the FASOC plead that the plaintiff actually paid any money to the defendants. It would be remarkable, if he did pay, given he pleads he was declared bankrupt on 26 July 2013 and not discharged until three years later.
Section H is the prayer for relief. It however contains further pleadings, eg: at par (4). It is a composite list of remedies, some of which are outside this court's jurisdiction and none of which are supported by the pleaded facts in the FASOC as it now stands.
Conclusions
The principles in relation to summary judgment are well established in that a party should not ordinarily be denied the opportunity to have a case determined after trial.[31]
[31] Westpac Banking Corporation v Anderson [2017] WASC 106 [50] - [54].
Under O 16 a defendant may apply for summary judgment on the basis set out in the rule. In opposing such an application a plaintiff is confined to the pleadings. It is not for the court to find some other cause of action that might arise. However, as indicated earlier, latitude is given where a litigant in person is involved.[32]
[32] Albrecht v Commonwealth Bank of Australia [2015] WASC 167 [39] - [41].
This court has considered the plaintiff's FASOC both in overview and detail. Where indicated, the FASOC offends RSC O 20 r 19 and O 20 r 8. In relation to the claim for personal injuries, there is a good defence in law and no amendment will change this. Therefore, even allowing latitude to the plaintiff, his action must fail.
For all the reasons given above, the defendants succeed in their applications. There is nothing salvageable from the FASOC.
The orders of the court are that:
1.FASOC is struck out;
2.judgment for the defendants;
3.the plaintiff pay the defendants' costs of this application and the action to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZB
Associate to her Honour Judge Braddock11 JUNE 2020
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