Zaghloul v Bayly

[2021] WASCA 125

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ZAGHLOUL -v- BAYLY [2021] WASCA 125

CORAM:   MURPHY JA

MITCHELL JA

VAUGHAN JA

HEARD:   21 JUNE 2021

DELIVERED          :   19 JULY 2021

FILE NO/S:   CACV 70 of 2020

BETWEEN:   HASSAN ZAGHLOUL

Appellant

AND

DAVID JOHN BAYLY

First Respondent

BRADLEY BAYLY HOLDINGS PTY LTD

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BRADDOCK DCJ

File Number            :   CIV 2756 of 2017

Catchwords:

Practice and procedure - Defendant's application for summary dismissal - Claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law and negligence - Summary judgment entered for respondents by primary judge - Whether primary judge erred in failing to grant appellant leave to file a further amended statement of claim - Whether primary judge erred in finding that s 5S of the Civil Liability Act 2002 (WA) provided complete defence to appellant's negligence claim - Extent to which s 5S applies where defendant knows plaintiff is a person with pre‑existing psychiatric illness - Whether a question of law capable of determination on an application for summary judgment - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA) s 5S

Result:

Appeal allowed in part

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	K R Lendich SC
Second Respondent	:	K R Lendich SC

Solicitors:

Appellant	:	In person
First Respondent	:	Popperwell & Co
Second Respondent	:	Popperwell & Co

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) CLR 256

Casella v Hewitt [2008] WASCA 13; 36 WAR 1

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994)

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Hill v Zuda [2021] WASCA 59

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

King v Philcox [2015] HCA 19; (2015) 255 CLR 304

Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44

Monadelphous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383

Nyoni v Patterson [2012] WASCA 171

Optus Administration Pty Ltd v Wright [2017] NSWCA 21; (2017) 94 NSWLR 229

SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138

Smith v McCusker [2005] WASCA 226

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507

Tobin v Dodd [2004] WASCA 288

Wardley Australia Ltd v The State of Western Australia [1992] HCA 55, (1992) 175 CLR 514

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Wicks v State Rail Authority (NSW) [2010] HCA 22; (2010) 241 CLR 60

Zaghloul v Bayly [2020] WADC 84

JUDGMENT OF THE COURT:

Overview

1. The appellant consulted the first respondent, a legal practitioner, in early 2013 seeking legal advice.  The second respondent is an incorporated legal practice of which the first respondent is a director and through which the first respondent, among others, conducted a legal practice.  The appellant retained the second respondent to act for him in a claim to recover damages for personal injuries allegedly suffered in the course of his employment.

2. On 30 July 2017, acting on his own behalf, the appellant commenced proceedings against the respondents in the District Court of Western Australia. Various causes of action were relied on. Relevantly for the purpose of this appeal, the proceedings included claims by way of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL) and negligence.  The respondents applied for summary dismissal of the appellant's action.  The primary judge (Braddock DCJ) granted that application.

3. By this appeal the appellant seeks to set aside the order for summary judgment.  The appellant asks, in substitution, for an order that he have leave to file and serve an amended statement of claim within 21 days.  No minute of proposed amended statement of claim is before the court.  It is apparent, however, that the extent of the claims that the appellant seeks to advance if successful on appeal are much reduced from that which was before the primary judge.

4. The pleading before the primary judge included causes of action for breach of fiduciary duty, misleading or deceptive conduct, unconscionable conduct, breach of contract, breach of the legislation concerning the regulation of legal practitioners in Western Australia, negligence and unjust enrichment. On appeal, the appellant only seeks to persuade the court that he should be allowed to litigate a claim pursuant to s 60 of the ACL (as opposed to s 18) and a claim in negligence. Moreover, the appellant does not seek to argue that the pleading before the primary judge was adequate. Rather, the focus of the appeal is a contention that the primary judge was in error in not allowing leave to amend so that the nominated causes of action could be pursued.

5. For the reasons that follow the appeal should be allowed in part. The appellant has not established discretionary error so far as the primary judge failed to grant leave to re-plead generally. There is no basis for appellate intervention to now permit the appellant to re-plead to pursue a claim based on s 60 of the ACL. However, as to the negligence claim, the primary judge was in error in holding that, for the purposes of summary dismissal, the respondents had a good defence in law as s 5S of the Civil Liability Act 2002 (WA) necessarily defeated the appellant's claim based on a duty to take care not to cause the appellant mental harm.

6. The primary judge should have concluded that the respondents' reliance on s 5S gave rise to a substantial and novel question of law which was inappropriate for summary determination. The summary dismissal of the negligence claim should be set aside. The appellant should have limited leave to re-plead. The questions arising as to the proper construction and application of s 5S of the Civil Liability Act must be resolved at trial.

Background

1. The action in the District Court has not proceeded beyond pleadings.  No facts have been found.  Accordingly, what follows is that which is necessary to place the issues on appeal in context.  However, what is now stated is not and should not be taken to constitute a factual finding.  To the contrary, the matters now recounted, for the most part, constitute a summary of the essential allegations made by the appellant.

2. In the pleading before the District Court, the appellant claimed that:

   1.The appellant was formerly employed by Woodside Energy Ltd (Woodside).

   2.On 13 April 2011 the appellant suffered a workplace psychiatric injury at Woodside.

   3.Between July 2011 and December 2012 the appellant suffered a deterioration in his psychiatric illness because, among other things, he perceived that Woodside had turned his former lawyers against him to avoid legal action by the appellant (those former lawyers being different lawyers to the respondents).

   4.When the appellant met with the first respondent, in early 2013, the appellant informed the first respondent of the background as set out above.  Relevantly:

   (a)the appellant informed the first respondent that Woodside 'bought' his former lawyers in the sense of having those lawyers act to Woodside's benefit and to the appellant's detriment;

   (b)the first respondent replied that the second respondent 'was his company' and that 'no one could buy him'.

   5.The first respondent held himself out to be a specialist in the area of workers' compensation.  However, according to the appellant, the first respondent provided misleading or negligent advice said to be well below the standard of a competent solicitor.

   6.The respondents' conduct between June and August 2013 reinforced the appellant's perception that Woodside had succeeded in turning his former lawyers against him, causing a further deterioration in the appellant's alleged psychiatric illness.

3. In the circumstances, among other things, the appellant alleged that the respondents had contravened the ACL. The ACL claim was advanced as a misleading or deceptive conduct claim being a contravention of s 18 of the ACL. The appellant pleaded at pt F.II of the FASOC[1] that:

   84.[The first respondent] held himself out to be a specialist in workers compensation law.

   85.If [the first respondent's] advice or acts pleaded in pt C and D of this FASOC was not misleading or deceptive, then [the first respondent] was negligent.

   86.In the premises, [the respondents] contravened s 4 [sic] of the Australian Consumer Law in that [the first respondent] held himself out as a specialist and provided legal advice that fell well below the standard of a competent solicitor.

   87.On the balance of probabilities, [the first respondent] engaged in misleading or deceptive conduct rather than being negligent.

   [1] Referring to the appellant's further amended statement of claim dated 7 January 2019.

4. The appellant had earlier pleaded, at par 77 of the FASOC, that by reason of the matters pleaded at pt C and pt D of the FASOC the first respondent had provided misleading legal advice.

5. The appellant also pleaded as follows at pt G.I of the FASOC:

   The aggravation of the recognised psychiatric illness

   104.[The respondents] owed a duty to avoid the risk of further aggravation of the psychiatric condition.

   l05.[The respondents] knew the nature of the relationship between [the appellant] and Woodside and his perception that Woodside was able to 'buy' his former lawyers pleaded in pt B.I.

   106.[The respondents] should have had in contemplation that [the appellant] was vulnerable by reason of his perception of Woodside's ability to 'buy' his lawyers stemming from the psychiatric condition.

   107.The standard of care which [the respondents] were required to achieve in acting for [the appellant] was that which could reasonably be expected of the ordinary, competent and careful solicitor.

   108.A reasonable person would have replied to [the appellant's] allegations and provided an innocent explanation of the legal advice that [the appellant] claimed to benefit Woodside.

   109.[The respondents] failed to reply to [the appellant's] allegation that the legal advice was directed to benefit Woodside which fuelled [the appellant's] perception that Woodside was, once again, able to 'buy' his lawyer.

   110.The conduct on the part of [the respondents] was on the balance of probabilities a material contributing factor in the increased burden, worsening of [the appellant's] psychiatric illness, or the further aggravation of the psychiatric condition.

   Particulars

   (a)Following [the first respondent's] advice relating to a 93K [sic] and for the following 30 months, [the appellant] suffered increased anxiety pain, panic disorder, and severe agoraphobia as he anxiously awaited the decision in the first instance and the appeal.

   (b)During and after the Retainer, [the appellant] was diagnosed with and treated from symptoms associated with severe agoraphobia and persecutory delusional disorder which did not exist before the Retainer.

   (c)There was close temporal proximity between the conduct on the part of [the first respondent] and the aggravation of the recognised psychiatric illness.

   111.In the premises, [the respondents] caused the further aggravation of [the appellant's] psychiatric condition.

6. In submissions before the primary judge, the appellant described this aspect of his claim as a claim for compensation for exacerbation of his psychiatric illness caused by the effect of misleading legal advice, alternatively negligence, by cementing his perception that Woodside was able to influence his lawyers.[2]

   [2] Zaghloul v Bayly [2020] WADC 84 (Primary reasons) [31].

7. The reference to s 93K, at par 110(a) of the FASOC, is to s 93K of the Workers' Compensation and Injury Management Act 1981 (WA). An issue as to s 93K arose from litigation that the appellant had commenced against Woodside in the Federal Court of Australia. One of the appellant's complaints was that the first respondent was alleged to have advised him, the appellant, on two occasions in April and May 2013 that Woodside would be successful in a summary judgment application based on s 93K.[3]  The appellant alleged that this advice was negligent.[4]  It appears that the respondents advised the appellant that he, the appellant, should discontinue his proceedings in the Federal Court and instead pursue an action that had been filed in the District Court - advice that the appellant did not follow insofar as, acting on his own behalf, the appellant discontinued the District Court proceedings on 22 August 2013.[5]

   [3] FASOC pars 20, 22.

   [4] Appeal ts 2, 6 - 8, 11 - 12, 24.

   [5] Primary reasons [74], [84], [109].

8. The professional relationship between the appellant and the respondents terminated on 22 August 2013.[6]  In September 2015 (some two years later) Woodside's appeal from a decision refusing to grant summary judgment was dismissed.[7] The appellant pleaded that '[d]uring the 30 months of litigation relating to s 93K [the appellant] suffered further aggravation of the psychiatric illness as he anxiously awaited the judgments'.[8]

   [6] Primary reasons [74].

   [7] FASOC par 24.

   [8] FASOC par 25.

9. Separately, and worthy of mention as it was relied on by the respondents before the primary judge and on appeal, it was common ground that the appellant had been declared a bankrupt on 26 July 2013.

The application before the primary judge

1. The appellant filed the FASOC on 7 January 2019. On 22 March 2019 the respondents made application under O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) for summary judgment. In the alternative, the respondents sought orders pursuant to O 20 r 19 RSC to strike-out the FASOC as disclosing no reasonable cause of action or as an abuse of process. The respondents also sought leave to bring the application insofar as it was filed out of time.

2. On 17 June 2019 the appellant filed:

   1.An affidavit affirmed 17 June 2019 in opposition to the respondents' application.

   2.Submissions in opposition to the respondents' application.

   3.A second further amended statement of claim (Second FASOC).

3. The primary judge heard the respondents' application on 2 August 2019 and delivered written reasons on 11 June 2020.  Her Honour concluded that the respondents succeeded in their application.  Orders were made that the FASOC be struck out and that there be judgment for the respondents with costs.

The primary judge's decision

1. Two aspects of the primary judge's decision should be noted at the outset.  Both are unchallenged on appeal:

   1.First, the primary judge granted the respondents an extension of time for the filing of the application.[9]

   2.Second, the primary judge determined that the application should be addressed by reference to the FASOC rather than the Second FASOC.[10]

   [9] Primary reasons [15].

   [10] Primary reasons [36].

2. The primary judge set out a short chronology[11] and referred to the contents of the appellant's writ.[12]  Her Honour then summarised the structure of the FASOC.[13]  That does not need to be considered in detail in this appeal insofar as the appellant now acknowledges that 'the pleading was ill-structured and obfuscated the causes of action'.[14]  The appellant says that he is 'now clear of the deficiencies in the FASOC'.[15]  Accordingly, rather than address the whole of the FASOC, and the primary judge's careful paragraph by paragraph consideration of the pleading, it is appropriate to concentrate on the aspects of the primary judge's decision relevant to the two causes of action relied on in the appeal: (1) the ACL claim (although, as will be seen, the misleading or deceptive conduct claim was abandoned at the appeal hearing and the appellant sought to pursue a different type of action under the ACL); and (2) the claim in negligence for psychiatric injury.

   [11] Primary reasons [2].

   [12] Primary reasons [3].

   [13] Primary reasons [30].

   [14] Appellant's submissions par 3 WAB 8.

   [15] Appellant's submissions par 3 WAB 8.

3. In these two respects the primary judge identified that:

   From all of the materials and the FASOC, a number of things emerge which featured in oral submissions by [the appellant]:

   …

   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.[16]

   [16] Primary reasons [61].

4. The relevant parts of the FASOC, as were considered by the primary judge, have been reproduced at [9] above (the misleading or deceptive conduct claim) and [11] above (the negligence claim).

5. A little more should be said about the primary judge's reasons generally before turning to how the primary judge addressed these claims.  Two matters are of consequence.

6. First, the primary judge was acutely aware of the appellant's status as a self-represented litigant.  Her Honour addressed, in orthodox terms, the approach that the court should take in relation to documents in which a self-represented litigant articulates his or her claim.[17]  No issue is taken as to the primary judge's understanding of the relevant principles.  Nor, reading the primary judge's reasons as a whole, could any issue be taken as to her Honour's approach to the application of those principles.

   [17] Primary reasons [25] - [27], [50].

7. Second, the primary judge referred to O 16 RSC and O 20 r 19(1) RSC and, more generally, to the principles that apply to the adequacy of pleadings and the circumstances in which the court may order summary dismissal.[18]  Again, no complaint is made as to the primary judge's understanding of the relevant principles or her Honour's approach to the application of those principles to the FASOC.

   [18] Primary reasons [47] - [50], [59], [163] - [164].

8. The primary judge moved to a paragraph by paragraph consideration of the FASOC.[19] Her Honour decided that much had to be struck out - either because the pleas offended the pleading rules under the RSC (eg FASOC pars 3 - 5, 7 - 9, 11 - 12, 23 - 26, 54 - 57, 58 - 74, 77, 93 - 94, 99 - 103, 112 - 118) or because they disclosed no reasonable cause of action (eg FASOC pars 27 - 30, 31 - 32, 33 - 37, 38 - 39, 44 - 53, 54 - 57, 58 - 74, 78 - 82, 88 - 92, 93 - 94, 95 - 96, 98, 99 - 103, 104 - 111, 112 - 118). The primary judge also decided that the respondents had a good defence on the merits to certain aspects of the pleaded claim (eg FASOC pars 40 - 43, 44 - 53).

   [19] Primary reasons [62] - [162].

9. Given the appellant's different approach on appeal, it is, at this stage, only necessary to outline the primary judge's reasoning so far as it concerned the claims for misleading or deceptive conduct and negligence.

10. The misleading or deceptive conduct claim (see [9] above) was contained in pt F.I of the FASOC.  In this regard the primary judge held:

    Both pts F.I and F.II are founded upon pts 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 respondents]. Whilst [the appellant] pleads that [the respondents] charged for services, nowhere is it pleaded that [the appellant] paid any money to [the respondents].[20]

    [20] Primary reasons [128].

1. The primary judge does not expressly state the fate of pars 84 - 87 of the FASOC.  However, reading the paragraph reproduced above in context, and based on her Honour's treatment of the paragraphs in pts C and D as alluded to, it is apparent that this part of the FASOC was struck out on the basis that it did not disclose a reasonable cause of action.  This aspect of the primary reasons is the subject of ground 1 (see [36] below), the appellant contending on appeal, in substance, that the primary judge erred in not granting leave to amend.

2. As to the negligence claim - which the primary judge also described as 'the claim for personal injuries' - her Honour said that there was a good defence in law and no amendment would change the position.  According to the primary judge, this aspect of the appellant's claim 'must fail'.[21]  Earlier, having reviewed the pleading, the primary judge characterised the appellant's argument as one of post hoc ergo propter hoc.[22] However, the primary judge ultimately dismissed this aspect of the claim on the basis that it was not a reasonable cause of action given s 5S of the Civil Liability Act.

   [21] Primary reasons [165].

   [22] Primary reasons [145].

3. Section 5S provides:

   5S.Mental harm: duty of care

   (1)A person (the defendant) does not owe a duty of care to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

   (2)For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

   (a)whether or not the mental harm was suffered as the result of a sudden shock;

   (b)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;

   (c)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;

   (d)whether or not there was a pre-existing relationship between the plaintiff and the defendant.

   (3)For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

   (4)This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

4. In support of their application for summary dismissal, the respondents contended that, by reason of s 5S(1), no relevant duty of care arose. The primary judge agreed holding that:

   1.It was not foreseeable that an ordinary person of 'normal fortitude' would suffer psychiatric harm from not getting a response to correspondence by solicitors.[23]  Her Honour considered that:

   (a)a person of 'normal fortitude' who encountered a failure by his or her solicitor to answer correspondence might be irritated, angry, disappointed or outraged but would not suffer an injury to his or her mental health;[24]

   (b)the respondents were instructed to advise on matters which were of a technical and procedural nature.  Even allowing for the circumstances that consideration of the course to be followed in litigation may be difficult and stressful for a natural person party, it was not reasonably foreseeable that a 'normal person' would suffer psychiatric injury when faced with unpalatable advice or difficult decisions.[25]

   2.There was no duty on a legal adviser to refute - by providing an 'innocent explanation' - irrational allegations by a client against a solicitor in order not to 'fuel' the client's perception of a form of corruption.[26]

   [23] Primary reasons [149].

   [24] Primary reasons [152].

   [25] Primary reasons [153].

   [26] Primary reasons [150].

5. The primary judge concluded that pars 104 - 111 of the FASOC should be struck out as disclosing no reasonable cause of action.  Her Honour went on to say that no leave to amend was appropriate.  As will be seen, this aspect of the primary reasons is the subject of ground 2 (see [36] below).  The primary judge found that the respondents had a good defence to any action based on these claims, however pleaded.[27]

   [27] Primary reasons [154].

6. The reference to the refusal of leave to amend might be thought to suggest that the appellant had sought such leave before the primary judge.  He did not seek leave to amend except in one respect - the appellant sought to rely on the Second FASOC rather than the FASOC.  Indeed, further amendment would be incompatible with the suggestion - made in the appellant's affidavit affirmed 17 June 2019 - that the appellant believed that the further iteration of his pleading had addressed the issues with the FASOC.[28]

   [28] See Primary reasons [23].

7. So far as the Second FASOC was concerned, it essentially advanced the same sort of case as was posited by the FASOC (see Second FASOC pars 69 - 77).  For example, much like the FASOC, in the Second FASOC the appellant asserted that the respondents owed a duty to take reasonable care to avoid the risk of deterioration of the appellant's psychiatric condition (Second FASOC par 74).

The grounds of appeal and the parties' submissions

The grounds of appeal

1. The appellant's grounds of appeal are as follows:

   1.The learned Judge erred (at [128]) by deciding, in relation to the claim for misleading and deceptive conduct by misrepresentation, that parts C and D of the FASOC 'have not withstood the scrutiny in the light of RSC O 16 and O 20 r 19'. Her Honour should have granted leave to amend the claim for breach of sections 4 and 18 of the Australian Consumer Law 2010 (Cth) [sic].

   2.The learned Judge erred in mixed fact and law, in relation to the claim for negligence, by deciding (at [154]) that 'No leave to amend is appropriate'.  Her Honour should have considered the complained of conduct in context, applied the 'undemanding' test of foreseeability, and granted leave to amend the statement of claim for negligence.

The appellant's written submissions

1. In written submissions the appellant contended that the key issue on appeal was whether a cause of action could be identified to justify the orders wanted on appeal - namely that the appellant have leave to amend the FASOC.[29]

   [29] Appellant's submissions par 2 WAB 7.

2. The appellant contended that leave to amend should be granted in the interests of justice.[30]  He asserted that the respondents provided legal advice or took action that was not in his best interests.  It was said that, as a result, the appellant's perception that Woodside was able to turn his lawyers against him was entrenched and the appellant suffered a further deterioration of his psychiatric illness.[31]  The precise scope of the alleged duty of care, and the nature of the breach thereof, went unarticulated.  In substance, however, the allegation was that the respondents failed to take reasonable care to avoid causing the appellant mental harm by failing to reply to the appellant's allegation that their legal advice was directed to benefit Woodside rather than the appellant.

   [30] Appellant's submissions par 2 WAB 7.

   [31] Appellant's submissions pars 1, 4, 19 WAB 7 - 8, 11.

3. The appellant claimed that he had reasonable causes of action based on misleading or deceptive conduct and negligence.[32]  He alleged loss and damage constituted by the further deterioration of his psychiatric illness and the loss of chance to recover earlier and future earnings.[33]

   [32] Appellant's submissions pars 4, 10, 21 WAB 8, 9, 12.

   [33] Appellant's submissions par 10 WAB 9.

4. In support of ground 1, the appellant submitted that:[34]

   1.The respondents made a representation of expertise in claims of psychiatric injury - the first respondent having held himself out as an expert in common law claims for psychiatric illness.

   2.The respondents had no such experience (carrying the burden to prove otherwise under s 4 and s 18 of the Australian Consumer Law).

   3.The appellant relied on the experience claimed by the respondents.  The appellant said that had the respondents revealed their lack of experience in claims for psychiatric illness he would not have signed a retainer agreement with the respondents.

   [34] Appellant's submissions pars 11 - 12 WAB 10.

5. The appellant seemingly suggested, based on these matters, that the primary judge was in error at [128] of the primary reasons in concluding that no reliance or loss was established.

6. In support of ground 2, the appellant submitted that:[35]

   1.The test of foreseeability is undemanding.

   2.The respondents ought to have known of the risk of further deterioration of the appellant's psychiatric illness.

   3.The High Court has held that 'normal fortitude' is not a pre-condition to liability for negligently inflicting psychiatric injury (referring to Koehler v Cerebos (Australia) Ltd).[36]

   4.The primary judge considered the complained of legal advice and conduct in isolation - the respondents' lack of response to the appellant's allegations concerning Woodside's influence  mattered as it placed the appellant in a position that gave rise to a reasonably foreseeable risk of injury.

   5.The primary judge should have considered the totality of the respondents' conduct, together with the appellant's vulnerable position, when deciding the foreseeability question.

The appellant's oral submissions

[35] Appellant's submissions pars 13 - 20 WAB 10 - 12.

[36] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 [33]. See also [55].

1. The appellant's oral submissions at the appeal hearing departed substantially from his written submissions in his appellant's case.

2. It continued to be the case that the appellant sought leave to re-plead.[37]  The appellant said that, at the core of the case he wished to pursue, he alleged professional negligence which exacerbated an existing psychiatric injury.[38] However, the manner in which the negligence case was put was reformulated as is explained at [47] - [51] below. Moreover, while initially suggesting that he continued to press the kind of misleading or deceptive conduct case advanced in the written submissions in his appellant's case,[39] ultimately the appellant accepted that the respondents had a good defence to that claim based on s 137C(1)(b) of the Competition and Consumer Act 2010 (Cth).[40] Instead of pursuing a misleading or deceptive conduct action pursuant to s 18 of the ACL the appellant sought to invoke the consumer guarantee provision in s 60 of the ACL.[41]

   [37] Appeal ts 2.

   [38] Appeal ts 2, 49 - 50. See also [47] - [51] below.

   [39] Appeal ts 19 - 20.

   [40] Appeal ts 26 – 27.

   [41] Appeal ts 27 - 29.

3. Section 60 of the ACL provides:

   If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

4. The appellant accepted, as he had to, that the nominated ACL claim under s 60 as advanced at the appeal hearing was totally new.[42]  He did not raise that type of ACL claim before the primary judge.[43]  The possibility of a claim under s 60 was raised for the first time at the appeal hearing.[44]

   [42] Appeal ts 28.

   [43] Appeal ts 28 - 29.

   [44] Appeal ts 29.

5. On the negligence action, the appellant said that the respondents' advice and conduct: (1) constituted professional negligence; and (2) caused or materially contributed to him suffering an injury as it exacerbated his pre-existing psychiatric illness.[45]  More specifically, insofar as the respondents' advice and conduct caused the appellant to become perplexed and confused - causing him to fear the loss of his action against Woodside - it cemented the appellant's perception that there was a conspiracy against him and thus aggravated his psychiatric illness.[46]  The appellant continued with his apprehension until the summary judgment application in the Federal Court was finally disposed of on appeal.[47]

   [45] Appeal ts 2 - 3, 5 - 12, 16 - 22, 24 - 26, 49 - 50.

   [46] Appeal ts 7, 17 - 18.

   [47] Appeal ts 9, 24.

6. The appellant contended that the professional negligence as alleged against the respondents manifested in five ways which were reflected in the following parts of the FASOC:[48]

   1.The respondents' advice in relation to s 93K of the Workers' Compensation and Injury Management Act (here relying on FASOC pars 19 - 26).  See generally [13] above.

   2.The respondents filing a writ in the District Court with no clear instructions to do so and then filing the writ with no instructions to do so (here relying on FASOC pars 41, 43).

   3.The circumstance that the writ and statement of claim in the District Court duplicated the claim made in the Federal Court (here relying on FASOC pars 33, 36 - 37).[49]

   4.The respondents' advice to dismiss the claim in the Federal Court and instead maintain and focus on the claim in the District Court (here relying on FASOC pars 44 - 49).  See generally [13] above.

   5.The respondents' failure to respond to the appellant's correspondence requesting clarification about the legal advice provided and steps taken by the respondents (here relying on FASOC pars 71 - 72, 104 - 110).  See generally [8.6] and [11] above and [102] below.

   [48] Appeal ts 2 - 3, 11, 13 - 16, 20 - 26.

   [49] The appellant also mentioned FASOC pars 34, 35.  However, these pleas may be put to one side as dealing with a subject matter different to the nature of the writ and statement of claim in the District Court.

7. The appellant relied on these five matters as having either individually or collectively caused or materially contributed to the exacerbation of his pre-existing psychiatric illness.[50]

   [50] Appeal ts 50.

8. Before the primary judge, and in his appellant's case, the appellant advanced the negligence case on the basis that, had the respondents exercised reasonable care, the respondents would have replied to the appellant providing an innocent explanation for the advice and conduct.  The appellant said that he had reformulated his proposed negligence case on appeal so as to additionally encompass the whole of the respondents' advice and conduct as identified - this collectively causing the appellant such concern and anxiety so as to exacerbate his pre-existing psychiatric illness.[51]  However, when questioned, the appellant confirmed that it was not part of his proposed negligence case that the first respondent had a duty to refute the allegations made about the former solicitors and provide an innocent explanation for the legal advice received from them.[52]

   [51] Appeal ts 19 - 20.

   [52] Appeal ts 20.

9. In any case, it was not just the lack of reply on the part of the respondents which gave rise to the appellant's posited cause of action but rather the 'confusing advice … with no clarification'.[53]

The respondents' submissions

[53] Appeal ts 19.

1. The court was conscious that the respondents were having to deal orally with matters that departed from the written appellant's case.  The court suggested that it might facilitate the determination of the appeal if the appellant was to file and serve a minute of the proposed amended statement of claim the appellant said he ought to have leave to file.  The respondents could then deal with the pleading in a concrete form making any available arguments as to why it would not be appropriate to grant leave.  The respondents declined that opportunity, electing instead to respond orally to the matters raised by the appellant.[54]

   [54] Appeal ts 48 - 49, 51 - 52.

2. Accordingly, what follows summarises the respondents' written and oral submissions taken as a whole after eliminating submissions overtaken by the appellant's abandonment of a misleading or deceptive conduct claim in favour of a claim based on s 60 of the ACL.

3. As a preliminary point, the respondents argued that the appeal was incompetent insofar as the FASOC was struck out - this being an interlocutory order and there being no application for leave to appeal.[55] However, the primary judge also ordered that final judgment be entered for the respondents under O 16 RSC. Leave to appeal is not required in that respect.[56]  In the circumstances, the respondents' preliminary point is without any substantial utility and need not be further considered.

   [55] Respondents' submissions par 6 WAB 19.

   [56] District Court of Western Australia Act 1969 (WA) s 79(1)(a).

4. The respondents essentially supported the reasons of the primary judge.  They contended that the decision was without error - it was said that the FASOC did not reveal a viable cause of action and the primary judge was correct not to give the appellant an opportunity to re-plead his claims.  This was not, according to the respondents, a case where a self-represented litigant's advocacy was obfuscating an arguable claim.  It was not a case where a pleading could, with appropriate amendment and a little assistance from the court, be put in a proper form.  Finally, by reference to the appellant's challenge to the primary judge's refusal of leave to amend, the respondents submitted that there was no discretionary error in the exercise of the primary judge's discretion and there should be no appellate interference with the primary decision.  In any event, according to the respondents, no amendment would have improved the appellant's case.

5. As to ground 1, the respondents pointed out that, irrespective of the terms of the first sentence of the ground, no submissions had been advanced challenging the striking-out of virtually all the pleas in pts C and D of the FASOC.[57]  The respondents also said that:

   1.The sort of claim now posited on appeal was not advanced before the primary judge.[58]

   2.A claimant could not obtain damages for personal injury for a breach of s 60 of the ACL.[59]  (This contention need not be examined given the view we have come to on ground 1.)

   [57] Respondents' submissions par 29 WAB 27 - 29.

   [58] Appeal ts 33; Respondents' submissions par 32 WAB 30.

   [59] Appeal ts 33 - 36.

6. On ground 2, the respondents said that the primary judge was correct to strike out the claim and give summary judgment for the reasons as stated by her Honour.[60] The respondents submitted that there was no misapplication of the statutory provision or other error insofar as the primary judge held that the appellant's claim must fail having regard to s 5S of the Civil Liability Act. The respondents were said to have a complete defence to this claim by reason of s 5S. There was no relevant duty to take care not to cause the appellant mental harm.[61]

   [60] Appeal ts 36.

   [61] Respondents' submissions pars 39 - 46 WAB 32 - 34.

7. As to each of the five areas of the FASOC relied on by the appellant at the appeal hearing, senior counsel for the respondent primarily relied on s 5S of the Civil Liability Act as precluding any relevant duty of care.[62] Otherwise the respondents said that (here responding seriatim to the five matters raised by the appellant as mentioned at [48] above):

   1.The primary judge found that there was no reasonable cause of action so far as the appellant complained about the respondents' s 93K advice at FASOC pars 19 - 26.[63]  There was, in this respect, no reasonable prospect that the appellant would establish that the advice was negligent.[64]  The respondents also raised a limitation point.[65]

   2.The primary judge found that there was a good defence on the merits to the allegations that the respondents filed and served the writ without instructions.  The respondents also raised the same limitation point as with the preceding matter.[66]

   3.The primary judge found that there was no reasonable cause of action in relation to the allegation that the process in the District Court duplicated that in the Federal Court and that the allegation was embarrassing.  Moreover, there was nothing to connect the alleged damage suffered by the appellant to the alleged negligence.[67]

   4.The primary judge found that there was no reasonable cause of action as to the allegation about discontinuing the Federal Court action and proceeding instead with the District Court action.  Further, in the respondents' submission, there could be no loss as the appellant did not rely on the respondents' advice, instead continuing with the Federal Court action and discontinuing the District Court action.  The respondents also raised the limitation point.[68]

   5.Some of the appellant's correspondence was sent after the respondents ceased to act for the appellant - it was suggested that the respondents could not be held responsible for not responding to that correspondence.  The respondents also raised the limitation point.[69]

   [62] Appeal ts 36 - 51.

   [63] Appeal ts 37.

   [64] Appeal ts 38, 44.

   [65] Appeal ts 45. This is dealt with at [66] - [70] below.

   [66] Appeal ts 45 - 46.

   [67] Appeal ts 47 - 48.

   [68] Appeal ts 49 - 50.

   [69] Appeal ts 51.

1. The limitation point cannot sustain the summary dismissal of the appellant's negligence claim. See [66] - [70] below.

2. However, we accept, as to [58.2] above, that the primary judge found that there was clear evidence contradicting the appellant's allegations such that: (1) there was no reasonable prospect of an action based on par 41 (the allegation that the District Court writ was filed without instructions) or par 43 (the allegation that the District Court writ was served without instructions) being successful; and (2) the respondents had a good defence on the merits to these allegations.[70]  There is no challenge to these findings.  Accordingly, the appellant's continued reliance on pars 41 and 43 of the FASOC is misplaced and cannot sustain an arguable cause of action.

   [70] Primary reasons [97] - [99].

3. The respondents' submissions at [58.1] and [58.3] - [58.5] above do not have the same force.

4. We accept that most of the nominated pleas were struck out.  Those struck out were FASOC pars 23 - 26[71] (apparently on the basis that they were embarrassing), pars 33, 36 - 37[72] (both as disclosing no reasonable cause of action and also as being frivolous or vexatious and embarrassing), pars 44 - 49[73] (as disclosing no reasonable cause of action and on the basis that the respondents had a good defence on the merits) and pars 71 - 72[74] (as offending the pleading rules and on the basis that they disclosed no reasonable cause of action).  But, in each case, this was referrable to what the appellant was then contending for by his claim in negligence.

   [71] Primary reasons [76].

   [72] Primary reasons [86].

   [73] Primary reasons [104] - [105].

   [74] Primary reasons [120] - [121].

5. The appellant's claim has been reformulated on appeal in the manner explained at [47] - [51] above. In this respect, as to FASOC pars 33, 36 - 37 and pars 44 - 49, it does not matter that the appellant did not act on the respondents' advice. The claim as articulated at the appeal hearing was based on the alleged consequential effect that the respondents' advice and conduct had on the appellant's existing psychiatric illness rather than on what the appellant did in reliance on the respondents' advice and conduct. So understood, while the relevant pleas should be recast to better observe the pleading rules, it should be accepted that pleas of the type found in FASOC pars 19 - 26, 33, 36 - 37, 44 - 49, 71 - 72 and 104 -110 could arguably support a negligence claim of the type advanced by the appellant at the appeal hearing. This presupposes, however, that s 5S of the Civil Liability Act does not preclude such a claim.

6. In the course of argument, senior counsel for the respondents accepted, quite properly and in our view correctly, that it was the application of s 5S which arguably meant that FASOC pars 19 - 26 did not disclose a reasonable cause of action. The respondents did not put that, irrespective of s 5S, pars 19 - 26 disclosed no arguable cause of action.[75]  To our mind the matters that informed that concession also hold good for FASOC pars 33, 36 - 37, 44 - 49, 71 - 72 and 104 -110.  FASOC pars 41 and 43 are in a different category, however, given the primary judge's findings that, on the evidence, there was a good defence on the merits to those allegations.

   [75] Appeal ts 44 - 45.

7. Accordingly, the substantive question for determination on ground 2 is whether s 5S of the Civil Liability Act necessarily precludes the respondents owing a duty to take care not to cause the appellant mental harm in the circumstances pleaded in pars 19 - 26, 33, 36 - 37, 44 - 49, 71 - 72 and 104 -110 of the FASOC as read in the context of the uncontentious background pleas in the FASOC.

8. The respondents advanced two other contentions of general application.  First, that as the appellant was declared bankrupt on 26 July 2013, any cause of action the appellant may have had, other than one for personal injury, was vested in the appellant's trustee in bankruptcy and could not be maintained by the appellant.  Second, as has already been adverted to, that the claim in negligence was statute barred.[76]

   [76] Respondents' submissions pars 9, 38, 47 WAB 20, 31 - 32, 34 - 35.

9. The respondents relied on both contentions before the primary judge.  However, the primary judge did not address them.  It was not necessary for her Honour to do so.  To the extent that, on appeal, a respondent seeks to uphold the primary court's decision on a ground not relied on by the primary court, the respondent must file a notice of contention.[77]  The respondents never took the step of filing a notice of contention.  In the absence of any notice of contention, the respondents' further contentions are without proper foundation.  Accordingly, they may be put aside.

   [77] Supreme Court (Court of Appeal) Rules 2005 (WA) r 33(4)(c)(ii).

10. In any case, the right of a bankrupt to recover damages or compensation for personal injury is not divisible property in the bankruptcy.[78]  As the appellant sought to formulate his claim, the appellant only sought to recover for his alleged personal injury.[79]

    [78] Bankruptcy Act 1966 (Cth) s 116(2)(g).

    [79] Appeal ts 26, 58 - 59.

11. In response to the limitation point it is appropriate to repeat the words of the plurality in Wardley Australia Ltd v The State of Western Australia:

    We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.  Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.[80]

    [80] Wardley Australia Ltd v The State of Western Australia [1992] HCA 55, (1992) 175 CLR 514, 533.

12. The present case is not, in our view, one fitting the description of 'the clearest of cases'.  The point at which, on the appellant's case, the alleged psychiatric injury was exacerbated so as to complete the claimed cause of action, meaning that the time for commencing proceedings had commenced, is fact sensitive.  It is not an issue that is suitable for summary determination.

Ground 1: No appellable error in not granting leave to re-plead

1. Ground 1, read strictly, might have been thought to challenge the primary judge's observation that much of pts C and D of the FASOC had been struck out.  That observation was not in error; it could not ground a successful appeal.  The statement at [128] of the primary reasons simply reflected, factually, what her Honour had previously found - findings which were unchallenged on appeal.  In any case, the appellant's submissions made it plain that the true gravamen of the ground was not her Honour's observation that pts C and D of the FASOC had not withstood scrutiny - or that the misleading or deceptive conduct claim had been struck out as not disclosing a reasonable cause of action.  Instead the appellant complained that the primary judge had not allowed the appellant leave to amend.

2. Having found, correctly, that the misleading or deceptive conduct action should be struck out as not disclosing a reasonable cause of action, there were, in the circumstances of this case, only two real options by way of disposition:

   1.The relevant parts of the FASOC could be struck out allowing the appellant leave to re-plead.

   2.The relevant parts of the FASOC could be struck out without allowing the appellant leave to re-plead.

3. Often there will be a third or fourth option.  A pleading may be deficient for want of particularisation.  Alternatively, with minor excision and modification, what is deficient as it stands may be put in a proper form.  This was not such a case.  The fundamental deficiencies in the FASOC were not capable of being cured by particularisation or amendments.

4. In deciding, in a case such as the present, whether the offending parts of a pleading should be struck out with or without leave to re-plead, the court exercises a discretion. 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.

5. As the decision concerns the exercise of a discretion, appellate intervention requires consideration of the principles in House v The King.[81]  This presents an initial difficulty for the appellant in terms of the grounds of appeal.  Ground 1 does not allege, in terms or at all, any kind of identifiable discretionary error.  This difficulty is compounded by the circumstances that:

   1.The appellant did not, before the primary judge, contend that if the relevant parts of the FASOC were struck out he should nevertheless be allowed leave to re-plead.

   2.The appellant did not, before the primary judge, articulate the kind of ACL claim that was initially advanced in the appeal - or that, if the pleaded misleading or deceptive conduct claim was struck out as not disclosing a reasonable cause of action, there was another form of claim under the ACL that he should be allowed to pursue.

   [81] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

6. Indeed, the position evinced by the appellant before the primary judge was that the Second FASOC set out the appellant's case having addressed the issues within the FASOC.  The primary judge assessed the application by reference to the FASOC rather than the Second FASOC.  However, the primary judge considered the Second FASOC.[82]  The Second FASOC did not advance the ACL claim in the way in which it is put on appeal (either as to the abandoned misleading or deceptive conduct claim or the s 60 consumer guarantee claim as advanced at the appeal hearing).[83]  Rather, the thrust of the claims then advanced was that: (1) in various ways the respondents' legal advice or representation was misleading or deceptive; or (2) the respondents induced the appellant to retain them as his lawyers by a misrepresentation to the effect that there was a cap or limit on the legal fees.

   [82] Primary reasons [34].

   [83] See Second FASOC pars 19, 27, 32, 43, 52, 69 - 73, 78, 80 - 88.

7. It was reasonably open to the primary judge to strike out the misleading or deceptive conduct claim without granting leave to re-plead.  The FASOC was the third iteration of a statement of claim on the part of the appellant.[84]  The claim had been on foot for nearly two years at the time that the respondents' application came on for hearing.  The appellant did not seek leave to re-plead if the claim was struck out.  Nor, despite filing the Second FASOC, did the appellant suggest to the primary judge that there was some other viable misleading or deceptive conduct claim or some s 60 consumer guarantee claim.  In all the circumstances it was reasonably open to the primary judge to take the view, in the interests of justice, that the appellant had been afforded a reasonable opportunity to plead his claim and that - the appellant not having pleaded a reasonable cause of action - the private interests of the 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 re-plead.

   [84] Primary reasons [2].

8. The appellant has not identified any discretionary error on the part of the primary judge such as may sustain appellate intervention.  Ground 1 should be dismissed.

9. We have, in so rejecting ground 1, chosen to deal with the substantive merits of the appellant's argument rather than the formal terms in which ground 1 was expressed. Ground 1 was defective in form when regard is had to the argument ultimately pursued at the appeal hearing. It alleged error in not allowing leave to amend to plead a misleading or deceptive conduct claim (in breach of s 18 of the ACL) rather than the claim the appellant wished to pursue in accordance with s 60 of the ACL.

Ground 2: Disposition

1. Ground 2 is also framed in terms of alleged error in failing to grant leave to re-plead. There is, however, a material difference between how the primary judge addressed the misleading or deceptive conduct claim and how her Honour addressed the negligence claim. The former was struck out as disclosing no reasonable cause of action under O 20 r 19(1)(a) RSC. That was also the case with the negligence claim. In addition, however, the negligence claim was summarily dismissed by entry of judgment under O 16 r 1(1)(a) RSC. The primary judge held, in substance, that by reason of s 5S of the Civil Liability Act the respondents had a good defence on the merits as the respondents did not owe a relevant duty of care to the appellant not to cause him mental harm.

2. It is well-established that:

   It is not for the court, on an O 16 application, to identify or accept some other cause of action, not pleaded, which the evidence before it might arguably support and which, possibly for good reason, was not relied on by the plaintiff in his statement of claim and to then allow the statement of claim to remain on foot in reliance on a possible subsequent amendment. The action is as identified by the statement of claim. If that action must fail it will be regarded as frivolous or vexatious.[85]

   [85] Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994), 7.

3. That passage is concerned with an entirely separate and discrete unpleaded cause of action rather than a nuance or variant on the basic cause of action as pleaded.  The cause of action as pleaded may be approached with some flexibility (especially where, as here, the pleading is the work of a self-represented litigant).[86] Accordingly, the statement reproduced at [81] above remains the approach of the court to an application under O 16 RSC, but with the added understanding that the statement of claim is construed broadly and generously and that ambiguities are either clarified or assumed in favour of a plaintiff and provided that no reasonable application to amend is rejected.[87]

   [86] See:  Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537; Tobin v Dodd [2004] WASCA 288 [15]; Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]; Nyoni v Patterson [2012] WASCA 171 [35].

   [87] Smith v McCusker [2005] WASCA 226 [37].

4. Nevertheless, the passage confirms that, in assessing a claim for summary dismissal under O 16 RSC, the plaintiff is bound by his or her essential pleaded case. If there is a good defence on the merits to the claim viewed in this manner - meaning that the plaintiff's action must inevitably fail - there can be no utility in leave to re-plead. The action should be dismissed. So understood the real issue raised by ground 2 is whether the primary judge was in error in concluding that the respondents had a good defence to any action based on the negligence claim, however pleaded.

5. Part 1B of the Civil Liability Act, in which s 5S is found, has the heading 'Mental harm'. Subject to certain exceptions (none of which are presently relevant) pt 1B applies to any claim for personal injury damages for mental harm (s 5R(1)). As has been seen - and as formed the basis for the summary dismissal of the appellant's claim - pt 1B of the Civil Liability Act imposes restrictions on the circumstances in which a person owes a duty of care to another in relation to mental harm.

6. Section 5S of the Civil Liability Act has been reproduced at [31] above.  The provision includes various defined terms.  Relevantly, by s 5Q:

   consequential mental harm means mental harm that is a consequence of a personal injury of any kind;

   mental harm means impairment of a person's mental condition;

   pure mental harm means mental harm other than consequential mental harm.

7. The appellant made a claim for pure mental harm. Accordingly, for the purpose of the application of s 5S(1), the 'circumstances of the case' included those matters specified in s 5S(2).

8. The New South Wales equivalent of s 5S is found in s 32 of the Civil Liability Act 2002 (NSW) (NSW Act). Section 32 of the NSW Act was discussed by the High Court in Wicks v State Rail Authority (NSW).[88]  The following propositions may be drawn from Wicks:

   [88] Wicks v State Rail Authority (NSW) [2010] HCA 22; (2010) 241 CLR 60 [16] - [30]. See also King v Philcox [2015] HCA 19; (2015) 255 CLR 304 [75] - [85] (in relation to s 33 of the Civil Liability Act 1936 (SA)).

   1.Section 5S defines or controls what would otherwise be a duty of care arising at common law: Wicks [22].

   2.However, s 5S does not positively identify when the duty arises. Section 5S(1) is cast negatively; it provides that a duty is not to be found unless a condition is satisfied: Wicks [22].

   3.The relevant statutory condition for establishment of a duty of care is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken: Wicks [22].

   4.The determination of whether the defendant ought to have foreseen such mental injury to a person of normal fortitude must be made with regard to 'the circumstances of the case' - these including, in relation to 'pure mental harm', the four kinds of circumstance prescribed in s 5S(2). However, s 5S does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances. While these circumstances bear upon whether a defendant ought to have foreseen that a person of normal fortitude might have suffered a recognised psychiatric illness if reasonable care was not taken, the occurrence of one or more of the prescribed circumstances is neither a necessary nor sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintiff pure mental harm: Wicks [23], [27] - [28], [31].

   5.Section 5S must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated in Tame v New South Wales:[89] Wicks [24].

   6.Tame held that the central question in deciding whether a defendant owes a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury is reasonably foreseeable.  A majority of the court rejected the propositions that concepts of 'reasonable or ordinary fortitude', 'shocking event' or 'directness of connection' were additional pre-conditions to liability: Wicks [25].

   7.Consistently with Tame:

   (a)s 5S assumes that foreseeability is the central determinant of whether a duty of care arises: Wicks [26] (although subsequently it has been suggested that foreseeability, alone, is not enough);[90]

   (b)the concept of 'shocking event' and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant are considerations relevant to foreseeability (although not necessary to find a duty of care): Wicks [26].

   8.Contrary to Tame, s 5S provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric injury: Wicks [26].

   9.The focus of s 5S is 'mental harm' (ie impairment of a person's mental condition) and a 'recognised psychiatric illness' not mental or nervous shock: Wicks [29].

   10.The question of foreseeability must be judged before the relevant incident happened: Wicks [33].

   [89] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317.

   [90] King v Philcox [79].

9. There is one material difference between pt 1B of the Civil Liability Act and the equivalent part in the NSW Act. The Western Australian legislation has no analogue to s 29 or s 30 of the NSW Act - those provisions using the expression 'mental or nervous shock' in the context of dealing with recovery for personal injury arising from mental or nervous shock (s 29) and limiting recovery for pure mental harm arising from shock (s 30). The term 'mental harm' as used in pt 1B of the Civil Liability Act is not restricted to something in the nature of a sudden and disturbing mental impact; it may include adverse mental conditions which develop over time.[91]

   [91] King v Philcox [77].

1. Basten JA (Hoeben JA agreeing) has observed that the NSW equivalent to s 5S requires a different approach to duty of care from that arising under general law principles.[92]  His Honour has stated that one effect of the statutory provision:

   is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm.  The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that 'a person of normal fortitude' might (b) 'in the circumstances of the case' suffer (c) 'a recognised psychiatric illness', if reasonable care were not taken.[93]

   [92] Optus Administration Pty Ltd v Wright [2017] NSWCA 21; (2017) 94 NSWLR 229 [35].

   [93] Optus Administration Pty Ltd v Wright [36].

2. Because it is necessary to assess whether a person of normal fortitude would suffer a recognised psychiatric illness 'in the circumstances of the case', it is necessary to specify the critical event with a degree of precision.[94]  There must be identification of the nature of the risk which might give rise to mental harm.[95]  In Optus Administration Pty Ltd v Wright Basten JA gave an illustration to explain why this was the case.  His Honour identified that a course of conduct involving bullying or abuse directed at an individual employee may satisfy the criterion.  However, an individual instance of abuse in an otherwise harmonious workplace may not.[96]

   [94] Optus Administration Pty Ltd v Wright [54], [100].

   [95] Optus Administration Pty Ltd v Wright [69], [100].

   [96] Optus Administration Pty Ltd v Wright [54].

3. The parties did not direct the court to any authorities considering the meaning of the term 'normal fortitude'.  The 'fortitude' with which the statutory provision is concerned is mental or emotional fortitude.[97]  The concept of 'normal fortitude' is one which has been examined in the general law of negligence as it applies to psychiatric illness.[98]  A distinction is drawn between a person of 'normal emotional fibre' and a person 'sensitive, susceptible and more easily disturbed emotionally and mentally',[99] ie the 'abnormally susceptible'[100] or the 'unduly sensitive or abnormally nervous'.[101]

   [97] Optus Administration Pty Ltd v Wright [59].

   [98] For example, see generally Tame v New South Wales.

   [99] Tame v New South Wales [94] (referring to Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 405 - 406).

   [100] Tame v New South Wales [112].

   [101] Tame v New South Wales [201].

4. Part 1B was one of the reforms introduced following the Final Report of the Review of the Law of Negligence - September 2002 (more commonly referred to as the 'Ipp Report' after the Hon. D A Ipp who was the chairperson of the panel responsible for the preparation of the report).[102]  The section of the Ipp Report dealing with mental harm states among other things that:

   [P]eople vary in terms of psychological vulnerability … as a general rule, it is unreasonable to expect others to take greater precautions than would be necessary to protect the normally vulnerable (that is, people of 'normal fortitude').  It is essential to understand that while the incidence of various mental illnesses in the general population may be relevant to the concept of 'normal fortitude', this concept is ultimately a legal, not a scientific, one.  It is no more scientific than the concept of the reasonable person.  It has a significant evaluative element, and its function is to allocate legal responsibility for mental harm rather than to assist in the diagnosis of mental illness for clinical or epidemiological purposes.[103]

   [102] Section 5S of the Civil Liability Act reflecting Recommendation 34 of the Ipp Report.

   [103] Ipp Report [9.15].

5. A person of 'normal fortitude' is one who has a normal vulnerability or susceptibility to impairment of his or her mental condition.  It is to be understood by reference to the community's general knowledge of the effect of stressors on ordinary persons.

6. It is not a precondition to the existence of a duty of care not to cause mental harm that the plaintiff be a person of normal fortitude. Section 5S(1) only requires that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care.

7. Having regard to the terms and effect of s 5S of the Civil Liability Act, it is apparent that much of the appellant's submissions in support of ground 2 are misplaced.

8. It is true, particularly in the context of breach of duty, that the test of foreseeability has been described as undemanding. In relation to s 5S, however, the court must address the qualification to the test of reasonable foreseeability as identified by Basten JA in the passage reproduced at [89] above. Where it applies, s 5S of the Civil Liability Act imposes a condition on when a duty to take care not to cause mental harm will arise. Thus the issue is not simply whether the respondents ought to have known of the risk of further deterioration of the appellant's psychiatric illness. Assuming its application to the facts of the negligence case as alleged by the appellant - a matter considered more fully at [107] - [127] below, s 5S instead requires consideration of what ought to have been foreseen in relation to a person of normal fortitude in the circumstances of the case.

9. In this regard, while the appellant has accurately described what was summarised by the plurality in Koehler v Cerebos (Australia) Ltd as being a consequence of Tame, s 5S is acknowledged in Wicks to provide (contrary to what was decided in Tame) that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.

10. As to the remainder of the appellant's submissions, we do not accept that the primary judge considered the respondents' advice and conduct in isolation. The primary reasons should be read as a whole. The primary judge considered the totality of the circumstances, as pleaded, as part of the 'circumstances of the case' in terms of s 5S(2), but having done so inevitably focussed on whether there was an arguable claim that the statutory condition in s 5S(1) was met - addressing whether the respondents ought to have foreseen that a person of normal fortitude might, in the pleaded circumstances, have suffered a recognised psychiatric illness.

11. That said, whether the primary judge was incorrect in her approach is a matter of little moment on this appeal. The question of duty of care is a question of law. The correctness standard applies. This court should determine for itself whether there was a good defence on the merits as, on the pleaded case, s 5S(1) necessarily had the effect that the respondents did not owe a duty to the appellant to take care not to cause him mental harm. In now considering this issue it is convenient to again outline the nature of the appellant's pleaded case (omitting any reference to FASOC pars 41 and 43 given what is concluded at [60] above).

12. The culmination of the relevant part of the appellant's pleading is reproduced at [11] above. There are some earlier relevant pleas. The appellant pleads his relationship with Woodside and, in particular, having suffered a psychiatric injury as a result of bullying conduct and going on sick leave (FASOC pars 2 - 6). The appellant also referred to the Federal Court proceedings, an assessment that he had suffered whole of person impairment to the extent of 57% and Woodside having accepted liability for anxiety, further or alternatively depressive disorder, causing total incapacity to work from 13 April 2011 (FASOC pars 11 - 12).

13. Thereafter the appellant pleads out having retained the respondents as his solicitors including, in that context, having informed the first respondent that Woodside had 'bought' his former lawyers in the sense that those lawyers acted to Woodside's benefit and to the appellant's detriment (FASOC pars 13 - 18). That is followed by mention of the respondents' legal advice including the advice as to s 93K of the Workers' Compensation and Injury Management Act (FASOC pars 19 - 26).  The alleged advice also included advice concerning the appellant's depressive and psychological symptoms (FASOC par 31).  Mention is made of the writ and statement of claim in the District Court proceedings (FASOC pars 33, 36 - 37).  The respondents also alleged to have advised the appellant to consent to the dismissal of the Federal Court proceedings and instead to maintain the District Court proceedings (FASOC pars 44 - 49).

14. At pt D.III of the FASOC, the appellant refers to emails he sent the first respondent on 30 July, 21 August, 24 September and 25 September 2013.  In that correspondence the appellant alleged that the first respondent's advice to dismiss the Federal Court proceedings and instead focus on the District Court proceedings was to Woodside's benefit and to the appellant's detriment.  The appellant says that the first respondent never replied to those allegations (FASOC pars 71 - 72).

15. The latter two communications (ie those of 24 and 25 September 2013) occurred after the respondents ceased to act for the appellant.

16. The nature of the appellant's negligence claim is then found in pt G.I of the FASOC as is largely reproduced at [11] above.

17. The appellant says that the respondents knew of the nature of the relationship between Woodside and the appellant and the appellant's perception that Woodside was able to 'buy' his former lawyers (FASOC par 105).  It followed, according to the appellant, that the respondents should have had in contemplation that the appellant was vulnerable (FASOC par 106).  In the circumstances, on the appellant's case, the respondents owed a duty to avoid the risk of further aggravation of the appellant's psychiatric condition (FASOC par 104) and a reasonable person would have replied to the appellant's allegations and provided an 'innocent explanation' for the legal advice that the appellant claimed to benefit Woodside (FASOC par 108).  The failure to do so was alleged to have fuelled the appellant's perception that Woodside was again able to 'buy' his lawyer and was a material contributing factor in a further aggravation of the appellant's psychiatric condition (FASOC pars 109 - 111).

18. The pleaded failure to reply should now be understood as being part only of the alleged breach - the appellant having, at the appeal hearing, enlarged the alleged negligent advice and conduct said to have caused or materially contributed to the exacerbation of his psychiatric illness (see [47] - [51] above).

19. The primary judge found that s 5S necessarily precluded a duty to take care not to cause the appellant mental harm. Her Honour did so without: (1) expressly identifying, in terms, the relevant 'circumstances of the case' - a significant omission given the statutory text of s 5S(1) - (3); or (2) specifying, with a degree of precision, the critical events so as to identify the nature of the risk which might give rise to mental harm. Section 5S(1) requires, however, that there be identification of the 'circumstances of the case' before positing for consideration the question of whether the defendant ought to have foreseen that a person of normal fortitude might have suffered a recognised psychiatric illness if reasonable care was not taken.

20. Moreover, it is apparent that the primary judge implicitly assumed that s 5S, properly construed, applied even if the relevant plaintiff had an existing psychiatric illness and it was known to the defendant that the plaintiff had an existing psychiatric illness - that being one of the unusual features of the appellant's alleged negligence claim.

21. Senior counsel for the respondents informed the court that she had not been able to identify any authorities that deal with s 5S (or its equivalents in other jurisdictions) where, to the knowledge of the defendant, the plaintiff was susceptible to mental harm due to an existing psychiatric illness.[104] Nor have we been able to locate any such authorities. There is, however, some relevant discussion in the context of the general law as preceded the introduction of s 5S of the Civil Liability Act.

    [104] Appeal ts 39.

22. For example, in Jaensch v Coffey[105] Brennan J (as his Honour then was) observed that it was generally recognised that what will induce a psychiatric illness in one person may leave another unaffected.  Some people are naturally more robust - or less sensitive - than others.  Nevertheless, as reasonable foreseeability was an objective criterion, a general standard of susceptibility was to be postulated.  His Honour endorsed a 'normal standard of susceptibility'[106] but in so doing noted an exception:

    Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility.[107]  (emphasis added)

    [105] Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 568.

    [106] Jaensch v Coffey (568).

    [107] Jaensch v Coffey (568).

23. Brennan J's observations were noted by Gaudron J in Tame v New South Wales.[108]  Her Honour understood Brennan J to be pointing out that the normal fortitude rule was 'not a universal rule determinative of foreseeability'.[109]  Gaudron J rejected the proposition that 'normal fortitude' is or could be the sole criterion of foreseeability of risk of psychiatric injury - something readily apparent once it was appreciated that there were potentially special features of relationships 'including knowledge of the particular susceptibility of the plaintiff, that render the risk of psychiatric injury to the plaintiff foreseeable, even though it would not be foreseeable in the case of other persons'.[110]

    [108] Tame v New South Wales [60].

    [109] Tame v New South Wales [60].

    [110] Tame v New South Wales [61]. See also [62].

24. In Tame, Gleeson CJ also referred to Brennan J's observations in Jaensch v Coffey.  In seeking to identify an objective criterion of duty of care to avoid mental harm Gleeson CJ put 'to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff'.[111]  His Honour stated:

    The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to 'a normal standard of susceptibility' as one of a number of 'general guidelines' in judging reasonable foreseeability.  This does not mean that judges suffer from the delusion that there is a 'normal' person with whose emotional and psychological qualities those of any other person may readily be compared.  It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm.  Such people might include those who, unknown to a defendant, are already psychologically disturbed.[112]  (emphasis added)

    [111] Tame v New South Wales [16].

    [112] Tame v New South Wales [16].

25. In Wicks, as has been seen, it was stated that the NSW equivalent of s 5S must be understood against the background provided by the common law of negligence in relation to psychiatric injury. As is apparent from what is recorded at [109] - [112] above, one such matter concerned differentiating from the usual position the situation where, to the defendant's knowledge, a plaintiff had a peculiar susceptibility to psychiatric illness; for example, because he or she already suffered from a psychiatric illness.

26. Senior counsel for the respondents rejected the proposition that, properly construed, s 5S was confined in its operation in any way. It applied, according to the respondents, to all circumstances irrespective of whether the plaintiff had a pre-existing psychiatric illness and irrespective of whether the defendant knew that the plaintiff was susceptible to mental harm due to an existing psychiatric illness. There was, according to the respondents, no reasonably arguable construction of s 5S to the contrary that was open in the context of a summary judgment application. In this respect senior counsel for the respondents relied on s 5S(4) and s 5(1)'s reference to 'the circumstances of the case'.[113]

    [113] Appeal ts 41 - 43.

27. In seeking to uphold the order for summary judgment it was necessary for the respondents to satisfy the court that the primary judge's implicit construction of s 5S was correct and no other construction was reasonably open.

28. The principles to be applied on an application for summary judgment are well established.[114]  The critical issue is whether it is clear that there is no real question to be tried.[115]  The issue is framed in this manner as it is only in the clearest of cases, where there is a high degree of certainty about the outcome if the proceedings were allowed to go trial, that summary judgment ought properly to be granted.[116]  The exercise of powers to summarily terminate proceedings must always be attended with caution.[117]

    [114] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

    [115] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.

    [116] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) CLR 256 [46].

    [117] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24].

29. There are cases where the court has considered it appropriate to determine questions of law on a summary judgment application.[118]  There should be summary judgment if the facts are undisputed and the law is clear.  In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument.[119]  It will usually be appropriate to leave the determination of such questions for trial.[120]

    [118] See eg Theseus Exploration NL v Foyster[1972] HCA 41; (1972) 126 CLR 507, 514 - 515.

    [119] Casella v Hewitt [2008] WASCA 13; 36 WAR 1 [36]. See also Monadelphous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176 [121].

    [120] SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20].

30. The present case is not one where the facts are undisputed.  The question of statutory construction that arises was not considered by the primary judge.  There was only limited argument before this court.  The point was only exposed for consideration in the course of the respondents' oral submissions.  In the circumstances it would not be appropriate to take the 'anomalous course'[121] of determining the proper construction of s 5S unless, on examination, only one construction was reasonably open.

    [121] Hill v Zuda [2021] WASCA 59 [2].

31. There is obvious force in the respondents' preferred construction. It is consistent with an ordinary and natural reading of the statutory provision. By s 5S(1) determination of whether a duty of care is negated directs attention to whether a person of normal fortitude in the position of the plaintiff might suffer a recognised psychiatric illness in the absence of reasonable care. There are, however, some textual indicators potentially to the contrary. We will mention three. The first two are concerned with aspects of s 5S that were relied on by the respondents in contending that their preferred construction was the only available construction that was reasonably open.

32. First, s 5S(4) acknowledges that s 5S does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. This suggests, as we will come to next, that if s 5S(1) applies to the situation under consideration the defendant's knowledge of the plaintiff's existing psychiatric illness may be one of the circumstances of the case. That presents a logical conundrum for the principled operation of s 5S(1).

1. Similarly, it might be thought difficult to discern a reasonable or comprehensible rationale for equating an identified plaintiff - known by the defendant to be a person with an existing psychiatric illness - with a person of normal fortitude. However, that, on the respondents' construction of s 5S(1), is how the provision is to be approached. Section 5S(4) arguably suggests to the contrary in stating that s 5S does not require the court to disregard what is known about the plaintiff's fortitude.

2. Second, s 5S(1) directs attention to the 'circumstances of the case'. Senior counsel for the respondents advanced the proposition that, in a case of this kind, a defendant's knowledge that the plaintiff was susceptible to mental harm due to an existing psychiatric illness was a relevant circumstance for the purpose of s 5S(1).[122] That is consistent with s 5S(4). But this recognition poses difficulties for the practical operation of s 5S(1). Such an existing susceptibility and sensitivity is personal to the plaintiff - it is not, axiomatically, something to be attributed to a person of normal fortitude. How is the court to apply the objective criterion of foreseeability by reference to a person of normal fortitude when one of the circumstances of the case is that, to the defendant's knowledge, the plaintiff is not of normal fortitude because he or she is susceptible to mental harm due to an existing psychiatric illness? This suggests, arguably, that s 5S either does not apply or has a somewhat narrower ambit where there is a known susceptibility due to a pre-existing psychiatric illness.

   [122] Appeal ts 41 - 42.

3. Third, s 5S(1) is concerned with foreseeing whether a person might suffer a psychiatric illness. It could, arguably, be read and understood as positing that the plaintiff does not, at the relevant time, suffer a recognised psychiatric illness - thus excluding the situation where the defendant knows that the plaintiff already suffers from a psychiatric illness.

4. The respondents' preferred construction might also be thought to lead to inconvenience or improbability of result. An example given in the course of the appeal hearing provides an illustration. A patient with a known existing psychiatric illness consults a psychiatrist. It is reasonably foreseeable that if the psychiatrist does not take reasonable care in the provision of his or her medical services the patient's psychiatric illness may be exacerbated. But, on the respondents' construction, s 5S(1) would preclude a claim because a person of normal fortitude would not have the same foreseeable risk of injury.

5. Wicks establishes that s 5S must be construed in the background of the common law of negligence in relation to psychiatric injury as stated in Tame v New South Wales.  In Tame a majority of the High Court held that 'normal fortitude' was not a precondition to liability for negligently inflicting psychiatric injury.[123] In that respect, s 5S(1) is to be seen as a legislative response to Tame.  But, at least arguably, it is a legislative response to the common law legal rule as reached on the facts in Tame - where there was no known susceptibility to psychiatric illness. As such, having regard to the potential textual indicators we have referred to and the potential inconvenience or improbability of result of the literal construction relied on by the respondents, we consider that the contrary construction of s 5S(1) is reasonably open for present purposes. It is reasonably arguable that, properly construed, s 5S(1) of the Civil Liability Act does not apply or is of restricted ambit where, to the knowledge of the defendant, a plaintiff is susceptible to mental harm due to an existing psychiatric illness.

   [123] Tame v New South Wales [16], [61] - [62], [201].

6. In the context of a summary dismissal application, for the reasons already given, it is unnecessary and inappropriate to go on and determine the point of statutory construction that arises as to s 5S. It is sufficient to conclude, as we do, that an alternate construction of s 5S(1) to that implicitly assumed by the primary judge is reasonably open. It follows, in our opinion, that this was not a case where a negligence claim should have been summarily dismissed by entry of judgment under O 16 r 1(1)(a) RSC. In the circumstances pleaded in pars 19 - 26, 33, 36 - 37, 44 - 49, 71 - 72 and 104 -110 of the FASOC, as read in the context of the uncontentious background pleas in the FASOC, it is not the case that s 5S of the Civil Liability Act necessarily precludes the respondents owing a duty to take care not to cause the appellant mental harm.  Whether that is the position should be determined at trial.

7. The primary judge was in error in concluding to the contrary and entering judgment under O 16 RSC. The appellant's negligence claim should have been allowed to proceed to trial insofar as a substantial and novel question of law arose as to the proper construction and application of s 5S of the Civil Liability Act.  Ground 2 should be upheld and the appeal allowed to this extent.  Necessarily, as the appellant accepted, this would require that the statement of claim be re-pleaded.  But, in this respect, the acknowledged deficiencies are ones that may be put in a proper form by appropriate amendment.

Conclusion and orders

1. This court should now make the orders that should have been made by the primary judge.

2. It is inappropriate that the appellant have leave to re-plead generally.  The appellant's success on ground 2 entitles him to leave to re-plead but only as to the negligence claim.  Accordingly, this court should make orders to facilitate the eventual filing of a statement of claim which propounds a negligence claim of the type described by the appellant before this court at the appeal hearing.  The order for summary dismissal of the action must be set aside.  So too, to enable the matter to be considered in light of the outcome on appeal, we would set aside the costs orders made below.  Paragraph 1 of the orders made below should stand.  The appellant did not seek to revive the FASOC in its totality.

3. We propose orders to the following effect:

   1.The appeal is allowed.

   2.Paragraphs 2 and 3 of the orders of the District Court of Western Australia made 11 June 2020 in action CIV 2756 of 2017 are set aside.

   3.Within 21 days after the date of these orders the appellant file and serve a minute of proposed statement of claim, such statement of claim to be conformable with a claim of the type described in pars [47] - [51] of these reasons provided that it must exclude the matters referred to in par [48.2] of these reasons.

   4.The question of whether to grant the appellant leave to file and serve a statement of claim in the form of the minute of proposed statement of claim is remitted to the District Court of Western Australia.

4. The intention underlying the remitter as proposed is twofold.  First, the District Court may have to determine whether the minute of proposed statement of claim is conformable with a negligence claim of the type described by the appellant before this court at the appeal hearing.  Second, there may be additional pleading points that arise which ought to be resolved before leave is finalised.  It should be understood, however, that nothing the subject of these reasons is to be reagitated before the District Court.

5. The parties should be heard on the question of costs on delivery of these reasons.  Our provisional view as to costs is that, as significant parts of the FASOC were correctly struck out and the appellant sought and has now obtained leave to re-plead having re-formulated his proposed negligence claim, the respondents should still have the costs of the application before the primary judge.  However, the appellant has been successful in disturbing the order for summary dismissal.  Accordingly, the appellant should have his disbursements on the appeal and there should otherwise be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

OE

Associate to the Honourable Justice Vaughan

19 JULY 2021