Zaghloul v Bayly [No 2]
[2021] WADC 123
•13 DECEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ZAGHLOUL -v- BAYLY [No 2] [2021] WADC 123
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 29 SEPTEMBER 2021
DELIVERED : 13 DECEMBER 2021
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:
Leave to file and serve an amended statement of claim - Turns on its own facts
Legislation:
Australian Consumer Law
Fair Work Act 2009 (Cth)
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to file and serve a statement of claim in terms of the minute dated 8 August 2021 is refused
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):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hitchcock v Goldspan Investments Pty Ltd [No 3] [2015] WASC 277
McGrath v Geraldton Meat Exports Pty Ltd [No 2] [2005] WADC 43
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Zaghloul v Bayly [2021] WASCA 125
PRINCIPAL REGISTRAR MELVILLE:
The plaintiff, who is self-represented, commenced his action against the first and second defendants, his former legal advisers, by a writ issued out of the District Court of Western Australia on 31 July 2017. Sadly, now more than four years later we still do not have an adequate statement of claim.
The plaintiff's claim can broadly be summarised as arising out of an alleged psychiatric injury suffered in his workplace whilst employed with Woodside Energy Ltd, in respect of which he subsequently engaged the first and second defendants to represent him and in respect of which he was then allegedly provided with misleading or negligent advice.
Several attempts have been made by the plaintiff to sort out his statement of claim, including a 'further amended statement of claim' filed on 7 January 2019 (the FASOC). The defendants then applied to strike out the FASOC as disclosing no reasonable cause of action or as an abuse of process.
On 11 June 2020 Braddock DCJ made the following orders:
1.The further amended statement of claim filed on 7 January 2019 be struck out.
2.Judgment be entered for the first and second defendants that the plaintiff's action be and is hereby dismissed.
3.The plaintiff do pay the first and second defendant's costs of the application and the action, including costs reserved, to be taxed if not agreed.
The decision of Braddock DCJ was appealed and on 19 July 2021 the Court of Appeal allowed the appeal and made the following relevant orders:
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, provided that it must exclude the matters referred to in par [48.2] of those reasons.[1]
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.
[1] Zaghloul v Bayly[2021] WASCA 125.
The plaintiff has now filed a minute of proposed statement of claim with the District Court and once again the defendants take issue with it, arguing that what has been proposed does not comply with the orders of the Court of Appeal, in particular, order 3 of the Court of Appeal referred to above.
As can be seen, the Court of Appeal has permitted the plaintiff to file a minute of a proposed statement of claim that is conformable with a claim of the type described in [47] - [51] of its reasons for decision with the proviso it excludes the matters referred to in [48.2] of its decision. Paragraphs [47] - [51] of the Court of Appeal's decision are:
47On 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. 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. The appellant continued with his apprehension until the summary judgment application in the Federal Court was finally disposed of on appeal.
48The 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:
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).
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.
49The 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.
50Before 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. 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.
51In 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'.
(footnotes omitted)
It can be seen that [48] of the Court of Appeal's decision cross‑references to identified paragraphs of the FASOC, being pars 19 ‑ 26, 33, 36 - 37, 44 - 49, 71 - 72, and 104 - 110. Those paragraphs allege:
I.Section 93K(4)(c) of the Compensation Act
19.On 16 April 2013, Woodside commenced an application for summary judgement in the Federal Court proceeding on the ground that s 93K(4)(c) prohibited the award of damages by reason of the election being registered after commencement of the Federal Court proceeding.
20.On 17 April 2013, Mr Bayly advised that Woodside would be successful in its application.
21.On 2 May 2013, Mr Lampropolous of counsel advised Mr Bayly that a similar argument to that propounded by Woodside was rejected in the District Court of Western Australia.
22.On 3 May 2013, Mr Bayly confirmed his advice that Woodside would succeed in its application for summary judgement.
23.Mr Bayly knew or ought to have known that Woodside would not succeed in its summary judgement application in the Federal Court proceeding.
Particulars
(i)The Explanatory Notes of Workers Compensation Reform Bill 2004 (WA) explicitly excluded the operation of section 93K to workers with Whole of Person Impairment above 25%: the plaintiff's was 57%.
(ii)There was no authority to support the application for summary judgement, and the authorities were to the contrary.
24.On 16 September 2015, Woodside's appeal - from the decision refusing to grant summary judgement - was dismissed.
25.During the 30 months of litigation relating to s 93K, the plaintiff suffered further aggravation of the psychiatric illness as he anxiously awaited the judgements.
26.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.
…
IV.The Statement of Claim in the District Court
33.On or about 17 April 2013, the plaintiff provided Mr Bayly with a copy of the Statement of Claim in the Federal Court proceeding.
…
36.The District Court Statement of Claim duplicated that in the Federal Court proceeding.
37.Mr Bayly, knew or ought to have known that the District Court Statement of Claim was deficient.
Particulars
(i)Mr Bayly did not plead or particularise elements of breach of contract.
(ii)Mr Bayly did not plead any of the elements of negligence, particularly foreseeability which Mr Lampropolous of counsel identified in his letter dated 2 May 2013.
(iii)The High Court held that foreseeability is a precondition to establish liability for negligently inflicting psychiatric injury.
(iv)Mr Bayly did not plead adverse action under the Fair Work Act 2009 (WA).
…
III.The legal advice relating to the District Court proceeding
44.Mr Bayly advised the plaintiff to dismiss the Federal Court proceeding by consent.
45.Mr Bayly knew or ought to have known that the dismissal of the Federal Court proceeding would have denied the plaintiff any remedy against Woodside, and the District Court proceeding was no answer because it was (a) statute barred and (b) and abuse of process.
46.Mr Bayly advised the plaintiff to maintain the District Court proceeding being 'the' proper jurisdiction for the claim in tort and breach of contract.
47.Mr Bayly knew or ought to have known that the Federal Court was not an improper jurisdiction for a Common Law claim in tort, breach of statute, or breach of contract.
48.Mr Bayly advised the plaintiff that the discontinuance of the District Court proceeding might 'create grave difficulties in prosecuting a claim of damages against Woodside'.
49Mr Bayly knew or ought to have known that maintaining the District Court proceeding was to the plaintiff's detriment in that it was liable to be struck out as abuse of process for duplicating the one in the Federal Court and exposed him to costs order on indemnity basis.
…
III.The legal advice was to the interest of Woodside
71.On 30 July, 21 August, 24, 25 September 2013, the plaintiff emailed Mr Bayly and alleged that his advice to dismiss the Federal Court proceeding and 'focus' on the District Court proceeding was in Woodside's benefit and to his detriment.
72.Mr Bayly did not reply to the plaintiff's allegations above in time, or at all.
…
I.The aggravation of the recognised psychiatric illness
104.The defendants owed a duty to avoid the risk of further aggravation of the psychiatric condition.
105.The defendants knew the nature of the relationship between the plaintiff and Woodside and his perception that Woodside was able to 'buy' his former lawyers pleaded in Part B.I.
106.The defendants should have had in contemplation that the plaintiff 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 defendants were required to achieve in acting for the plaintiff was that which could reasonably be expected of the ordinary, competent and careful solicitor.
108.A reasonable person would have replied to the plaintiff's allegations and provided an innocent explanation of the legal advice that the plaintiff claimed to benefit Woodside.
109.The defendants failed to reply to the plaintiff's allegation that the legal advice was directed to benefit Woodside which fuelled the plaintiff's perception that Woodside was, once again, able to 'buy' his lawyer.
110.The conduct on the part of the defendants was on the balance of probabilities a material contributing factor in the increased burden, worsening of the plaintiff's psychiatric illness, or the further aggravation of the psychiatric condition.
Particulars
(a)Following Mr Bayly's advice relating to a 93K and for the following 30 months, the plaintiff 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 plaintiff 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 Mr Bayly and the aggravation of the recognised psychiatric illness.
So, in essence, the Court of Appeal has permitted the plaintiff to continue his action against the defendants insofar as the FASOC pleaded the plaintiff has suffered an injury in the nature of a psychiatric condition as a result of the professional negligence of the defendants constituted by:
(a)advice in respect of Woodside's application in the Federal Court to strike out his action having regard to the provisions of s 93K of the Workers' Compensation and Injury Management Act 1981 (WA) (FASOC pars 19 - 26);
(b)filing a statement of claim in the District Court which was deficient and which duplicated the proceedings already on foot in the Federal Court (FASOC pars 33, 36 - 37);
(c)advice relating to the merits of continuing or not as case may be the action in the Federal Court compared to continuing or not as the case may be the action in the District Court (FASOC pars 44 - 49); and
(d)failure to take care, by way of its communications with the plaintiff, to dispel his concerns that his lawyers were being bought off by Woodside (FASOC pars 71 - 72 and 104 - 110).
The Rules of the Supreme Court 1971 (WA) (RSC) by O 20 prescribe the basis upon which a party's statement of claim or defence is to be pleaded. Relevantly to this case, the rules provide that every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim, 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 admits.[2]
[2] RSC O 20 r 8(1).
Facts that are obviously material, are those facts that establish the elements of the relevant cause of action, in this case, a cause of action in negligence based around the matters, or in conformity with the matters, identified by the Court of Appeal.
In my view to plead a cause of action in negligence requires a plaintiff to plead facts which demonstrate (or will be argued to demonstrate) the plaintiff is a person who is so closely and directly affected by the acts of the defendant that the defendant should have the plaintiff in contemplation as someone who may be harmed when the defendant is directing his mind to the act or omission is called in question, what the defendant did or did not do that he ought to have done or ought not to have done to avoid injuring the plaintiff, what injuries and losses the plaintiff suffered and how they were caused by or materially contributed to by the defendant's acts or omissions.[3]
[3] Tame v New South Wales [2002] HCA 35 [9] - [16] (Gleeson CJ), [46], [53] - [54] (Gaudron J), [88] - [90], [99] (McHugh J); (2002) 211 CLR 317.
Pleadings not uncommonly are the subject of attack by opposing parties. More so are pleadings drafted by laymen who are unfamiliar with what are the essential ingredients of a cause of action and hide whatever material facts they do plead under layers of irrelevant facts, statements of evidence, expressions of opinion, submissions as to the law and arguments as to what legal conclusions should be drawn from that mishmash of information. However, I must be alert to the possibility that beneath inadequately expressed and often irrelevant material, there may lurk an arguable case. That being said, there nevertheless are limits to the allowances that can be made.[4] Those limits include considerations of fairness to the other party and, in this case, the limits expressly imposed by the Court of Appeal.
[4] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
It is necessary to consider the functions of pleading and in this regard the comments of the Court of Appeal in EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd are apposite:[5]
124Pleadings have two functions. First, to ensure a fair trial by putting the other party on notice of the case to be met. Secondly, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. See Williams v Australian Telecommunications Commission (1988) 52 SASR 215, where King CJ said:
'The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the Rules as to res judicata and issue estoppel. The second function is to give to the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise.'
See also Mick Skorpos Petrol Discount King Pty Ltd v The Shell Company of Australia Ltd (1997) ATPR 41-556, 43,693 ‑ 43,694 (Mansfield J).
[5] EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78 [124].
Provided the pleadings fulfil their fundamental purpose courts should be reluctant to spend time debating the issue.[6]
[6] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 [7] (Barclay Mowlem); Hitchcockv Goldspan Investments Pty Ltd [No 3] [2015] WASC 277 [16].
The general gist of the defendants' opposition to the minute of proposed amended statement of claim is that it offends the rules of pleading in so far as it raises irrelevancies, is in parts repetitious, in parts pleads evidence rather than facts, in parts is used as a vehicle to convey arguments, opinions and conclusions and, more importantly, seeks to plead causes of action that exceed what is permitted by the Court of Appeal.
Conversely, the plaintiff's submission is that he can plead whatever the Court of Appeal has not prohibited. This attitude has pervaded his minute and the submission does no more than beg the question, what has the Court of Appeal prohibited? The answer to that question is that the Court of Appeal has prohibited all but a negligence claim that is 'conformable with a claim of the type described in pars [47] - [51]'.[7] The Court of Appeal went on to say '... nothing the subject of these reasons is to be reagitated before the District Court'.[8]
[7] Zaghloul v Bayly [130].
[8] Zaghloul [131].
This limits what the plaintiff can plead although I am of the view it provides a broader scope for pleading than that submitted by the defendants who seem to seek to narrow the scope of what can be pleaded to almost a verbatim repetition of the existing pleadings referred to by the Court of Appeal at [45] - [51]. In my view the Court of Appeal in allowing the plaintiff to file a minute of proposed amended statement of claim which is 'conformable with' a claim of 'the type' described in [47] - [51] intended to allow the plaintiff a greater scope to plead facts not already pleaded so long as they relate to a negligence claim based on psychiatric injuries suffered by the plaintiff as a result of professional negligence in relation to the areas identified by the Court of Appeal that I have paraphrased at [9] above (emphasis added in italics).
In this case the defendants have identified a large number of paragraphs in the minute of proposed amended statement of claim which, they say in their written submissions, plead matters beyond which the order made by the Court of Appeal permits. I agree with most of the defendants' objections.
The individual paragraphs of the minute of proposed statement of claim dated 8 August 2021 to which the defendants take objection and my view on the merits of their objection are addressed as follows:
Paragraph 2
By this paragraph the plaintiff broadly sets out what he wants and why he wants it. The defendants submit the pleading contains unnecessary commentary and is irrelevant to the matters referred to by the Court of Appeal. Whilst criticisms can be made of what is pleaded and whilst what is pleaded might offend a pleading purist, in my view the reasons advanced for the compensation the plaintiff says he wants are sufficiently conformable to what he has been permitted to plead and having regard to the comments of Martin CJ in Barclay Mowlem I would not strike it out.
Paragraph 12
In this paragraph the plaintiff refers to correspondence relating to waiver of legal fees for so long as the Retainer Agreement was not terminated. I agree the paragraph is irrelevant and should be struck out. Accordingly, the heading 'The no-win, no-fee Agreement' should also be struck out.
Paragraph 13
By this paragraph the plaintiff pleads that he relied on various representations made by the defendants, namely having expertise in common law claims for psychiatric illness and that Woodside could not 'buy' the defendants. The defendants say the pleading is irrelevant and not related to what the Court of Appeal will allow the plaintiff to plead. I am unable to agree with that submission. It appears to me the pleaded facts may be relevant to determining the nature of the relationship between the parties, and whether the defendants were or should have been aware of any vulnerabilities in the plaintiff, which facts may in turn be relevant to a conclusion as to whether the defendants owed the plaintiff a duty of care, the nature and extent of that duty of care and whether any breach of the duty of care had a causal connection with any subsequent alleged injury.
Paragraph 14
By this paragraph the plaintiff pleads that the defendants owed him a fiduciary duty and a duty to exercise the care and skill expected of a lawyer professing to have special skill. The plaintiff is not permitted to bring a claim based on breach of a fiduciary duty and accordingly that allegation is irrelevant and raises a false issue. The remainder of the paragraph appears to me to be unobjectionable. I would strike out the words 'fiduciary duty'.
Paragraphs 22 and 23
I agree that what is pleaded at those paragraphs is more in the nature of a description of the evidence proposed to be advanced in order to prove the alleged material facts rather than a pleading of material facts. I would strike these paragraphs out.
Paragraph 33
By this paragraph the plaintiff alleges a breach of fiduciary duty, unconscionable conduct and professional misconduct. I agree with the defendants' submissions that these pleadings are beyond that permitted by the Court of Appeal.
Paragraph 34
As par 33 should go it follows the opening words of par 34 'In the alternative' become redundant and should be struck out.
Paragraphs 37 and 38
By these paragraphs the plaintiff again complains of professional misconduct and unconscionable conduct which go beyond that permitted by the Court of Appeal. They should be struck out.
Paragraph 39
By this paragraph the plaintiff avers he left Perth on medical advice that being in Perth significantly increased his anxiety symptoms. The defendants submit this is a plea of evidence rather than a material fact. I agree. The paragraph should be struck out.
Paragraph 40
By this paragraph the plaintiff complains of unconscionable conduct and a breach of the Australian Consumer Law. In my view this pleading is made for the purpose of establishing causes of action independently of a cause of action framed in negligence and therefore is clearly beyond that permitted by the Court of Appeal.
Paragraph 41
The defendants submit that what is pleaded is irrelevant to what the Court of Appeal has permitted to be pleaded. However in my view the allegations in so far as they complain about the advice that was given to the plaintiff to agree to a consent dismissal of the Federal Court proceedings and a failure to properly explain and clarify advice impacting on the plaintiff's concerns such as allegations of conspiracy, fall within the permission the Court of Appeal has given to the plaintiff to plead a cause of action based on pars 44 - 49 of the FASOC. That is, the allegations pleaded are, to use the words of the Court of Appeal, 'conformable with a claim of the type' described in those paragraphs.
Paragraph 42
By this paragraph the plaintiff pleads he suffered injury as a result of the acts and omissions pleaded in earlier paragraphs, some of those paragraphs being paragraphs that I would strike out, namely pars 23, 37 and 38. Accordingly the paragraph cannot remain in its current form and would need to be redrafted to delete reference to the struck out portions.
Paragraphs 43 - 45
The defendants submit these paragraphs pleaded a claim for a 'loss of opportunity for a better medical outcome, being a claim that is not recognised by law, not open to a formerly bankrupt plaintiff and not a claim that the plaintiff told the Court of Appeal he wanted leave to make'.
Paragraphs 43 - 45 commence under the heading 'The loss of opportunity to early recovery from the psychiatric illness'.
By par 43 the plaintiff pleads the first defendant emailed him a draft statement of claim for the District Court action that was seriously deficient and goes on to particularise its deficiency. Insofar as this constitutes an allegation that the statement of claim prepared by the defendants was deficient and caused or aggravated his psychiatric condition, it is my view it is a claim that falls within what is permitted by the Court of Appeal.
However, in his particulars as to how the statement of claim was deficient, the plaintiff avers it failed to identify or plead 'breach of the Racial Dissemination [sic] Act (RDA) 1975 (Cth) by dismissal for sickness'. This is a particular that was not included in the FASOC and it introduces a claim that is not 'conformable' with a 'claim of the type described in pars [47] - [51] of the reasons …' of the Court of Appeal. I would strike that particular out.
Further, under cover of the particulars provided for the breach of the protection provisions of s 340 of the Fair Work Act 2009 (Cth), the plaintiff appears to introduce a new complaint, namely a failure, and I summarise, to provide legal advice on the operation of s 340, s 370 and s 361 of the Fair Work Act 2009 (Cth). These particulars should be struck out because the Court of Appeal has permitted the claim to be brought on the basis of a defective pleading, not a failure to provide advice in this area.
The rest of par 43 may remain.
The pleading at par 44 of the minute alleges that a reasonably competent lawyer would have advised on the procedure to invoke the general protection under s 370 of the Fair Work Act. To that extent it follows on from the claim established in the particulars found in par 43 and given I have now struck those particulars out it follows par 44 should also be struck out.
The plaintiff then pleads at par 45 that as a result of what is pleaded at par 43 he suffered the loss of an opportunity for a better outcome, health wise and financially.
Mindful that the plaintiff is a self‑represented litigant, it appears to me the plaintiff is alleging that but for the negligence of the defendant in preparing a deficient statement of claim in the District Court proceedings he would likely have recovered wholly or partially from the psychiatric illness at an earlier point in time and not have suffered the same degree of loss of earning capacity. In short, the negligence of the defendant was causative of increased or prolonged pain and suffering and loss of earning capacity. To that extent the claim falls within the parameters set by the Court of Appeal.
However, the plaintiff then particularises the loss of opportunity in the following terms:
Particulars
The loss of opportunity was to come about by the strengthening of the FCA SoC, which would have most likely resulted in (i) an early resolution of my FCA claim, (ii) early recovery from the psychiatric illness, (iii) avoidance of the pain and suffering associated with the further development of the psychiatric illness, and (iv) loss of chance to return to work, thereby (v) loss of future earnings.
The reference in the particulars to the FCA SoC and FCA claim is bewildering when one tries to see their relevance to what the Court of Appeal has permitted to be pleaded. It appears the plaintiff by these particulars introduces a claim for pure financial loss as a result of professional negligence in relation to the Federal Court proceedings, a claim that goes above and beyond the complaints about negligent advice in respect of Woodside's application in the Federal Court to strike out the action that is alleged to have caused personal injury. Having regard to what the Court of Appeal has permitted to be pleaded, the plaintiff can only plead financial loss that flows from the psychiatric injury caused by the professional negligence of the first defendant conformable with a claim of the type I have paraphrased at [9] above.
The remainder of the particulars of the material fact pleaded at par 45 are really nothing more than a repetition of the material fact. They add nothing and therefore are irrelevant. They should be removed.
Paragraphs 46 - 48
In these paragraphs the plaintiff complains that the defendants' response to his communications regarding his concerns as to whether an officer of Woodside and the defendants had been in communication with each other, was evasive, so increasing his psychiatric injury. The defendants submit this pleading is irrelevant in so far as it exceeds the metes and bound of what the Court of Appeal has permitted to be pleaded. However, in my view the pleading falls within the matters alleged within pars 71 - 72 and 104 - 110 of the FASOC, described by the Court of Appeal as the respondent's failure to respond to the appellant's correspondence requesting clarification about the legal advice provided and steps taken by the defendants. Whilst it might be argued that an 'evasive response' is a response, I consider the proposition that an evasive response is not a response falls within the pleading parameters set by the Court of Appeal.
Paragraph 49
Given I have struck out portions of par 42 and require it to be repleaded, and that I have struck out the particulars referred to in par 45 on which the existence of par 49 relies, par 49 in its current form should be struck out and repleaded. Whilst like par 42, par 49 alleges negligence causing further deterioration of the psychiatric illness, par 42 pleads consequences arising from the defendants' acts and omissions pleaded in paragraphs that are different to the paragraphs referred to in par 49. It appears to me that if par 42 is repleaded as I require, it will not render par 49 superfluous as submitted by the defendants in their objection.
Paragraphs 50, 52, 54, 55, 56, 58 and 59
The defendants in their written submissions submitted these paragraphs are unnecessary and constitute submissions, not statements of material facts. However, in oral submissions the objection raised in respect of par 50 was not maintained.
Accordingly, apart from allowing par 50 to stand, I would strike out the paragraphs referred to above from the minute on the basis that, I agree the paragraphs are unnecessary, and are in the nature of submission rather than the pleading of material facts.
Paragraph 57
The defendant complains that this paragraph is repetitious and is further objectionable because it refers to the 'loss of opportunity' being a reference to the previously pleaded claim for a loss of opportunity for a better outcome health wise. With or without the reference to 'loss of opportunity', I agree the paragraph is repetitious insofar as it pleads the conduct materially contributed to the further deterioration of the psychiatric illness. It should be removed from the minute as all it does is clutter up the pleading making it difficult to read without adding value.
Paragraphs 60 - 63
The defendants complained that these paragraphs plead matters relating to unconscionable conduct. They clearly do and exceed the parameters within which the Court of Appeal has allowed the plaintiff to bring an action in negligence. They should be removed from the minute.
The prayer for relief
The prayer for relief seeks seven remedies. The defendants have no difficulty with the claim for damages or compensation caused by loss of chance for future earnings, interest and costs, but object to the remaining claims being pleaded on the basis they exceed the parameters within which the Court of Appeal has allowed the plaintiff to bring an action framed in negligence. Those remaining claims are for:
1.Damages or compensation under the Australian Consumer Law or 'equitable compensation'.
2.Aggravated damages under the Australian Consumer Law.
3.Exemplary damages based on allegedly deliberate wrongdoing and contraventions of the Legal Profession Act 2008 (WA).
4.A declaration that the defendant's conduct contravenes certain provisions of the Legal Profession Act.
I agree with the defendant's submissions that the claims numbered 1 ‑ 4 referred to immediately above introduce claims that exceed the parameters permitted by the Court of Appeal.
I would add, in respect of the claim for exemplary damages, it is to be noted that exemplary damages are 'parasitic' on a claim for compensatory damages.[9] In those circumstances it is my view that a claim for exemplary damages that is directly connected to an award of compensation for personal injury caused by negligence could come within the ambit of what the Court of Appeal has allowed when it said the plaintiff may bring a claim for personal injuries caused by professional negligence.
[9] McGrath v Geraldton Meat Exports Pty Ltd [No 2] [2005] WADC 43 [23].
However, in this case the plaintiff's 'particulars' of the claim for exemplary damages reveal that he argues for an award of exemplary damages based, not on those matters the Court of Appeal has permitted to be pleaded to establish negligence, but on other matters.
I would refuse leave to file a statement of claim in terms of the plaintiff's minute dated 8 August 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RB
Court Officer
13 DECEMBER 2021
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