Zaghloul v Bayly [No 3] - [2023] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ZAGHLOUL -v- BAYLY [No 3] [2023] WADC 105
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   4 MAY 2023
DELIVERED          :   15 SEPTEMBER 2023
FILE NO/S:   CIV 2756 of 2017
BETWEEN:   HASSAN ZAGHLOUL
Plaintiff
AND
DAVID JOHN BAYLY
First Defendant
BRADLEY BAYLY HOLDINGS PTY LTD
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Application to strike out parts of a reply - Order 20 r 5(1), r 9(1), r 15, r 19(1)(c) and r 19(1)(d) - Turns on its facts

Legislation:

Nil

Result:

Application successful

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):

Zaghloul v Bayly [2023] WASCA 64
Zaghloul v Bayly [No 2] [2021] WADC 123

DEPUTY REGISTRAR HARMAN:

By reasons for decision in refusing an application for leave to appeal in Zaghloul v Bayly [2023] WASCA 64, the Court of Appeal provided the following overview of the action:
…
3In general terms, in the primary proceedings, Dr Zaghloul alleged, in effect, that the respondents, in their capacity as his former solicitors, had exacerbated his psychiatric illness as a result of their advice and conduct in relation to claims for personal injury against his former employer, Woodside Energy Ltd (Woodside).
4Dr Zaghloul commenced the primary proceedings in 2017. They have a lengthy and difficult history, including an appeal to this court in relation to pleadings issues and an earlier order by Braddock DCJ summarily dismissing Dr Zaghloul's action. In the earlier appeal to this court, the court found, in effect, that whilst numerous claims by Dr Zaghloul were appropriately struck out, Dr Zaghloul should not have had his claim in negligence summarily dismissed on the basis (as found by Braddock DCJ) that the respondents had a good defence to the action under s 5S of the Civil Liability Act 2002 (WA). The result of that appeal was that Dr Zaghloul was given the opportunity to file and serve a minute of proposed amended statement of claim confined (in general terms) to a claim in negligence, with remitter to the District Court to determine whether to grant leave to file and serve an amended statement of claim in accordance with such a minute. This court published reasons: Zaghloul v Bayly [2021] WASCA 125 (2021 Appeal decision).
5Ultimately, pursuant to the remitter, Dr Zaghloul filed a minute of proposed amended statement of claim for which the principal registrar of the District Court granted leave on 17 January 2022.  On 20 January 2022, Dr Zaghloul, in accordance with the leave granted by the principal registrar, filed a statement of claim designated 'fresh statement of claim'.
The primary proceedings
The claims in the primary proceedings
6In 2008, Dr Zaghloul was employed with Woodside as a structural engineer. On 13 April 2011, he suffered a workplace psychiatric injury in the course of his employment.  Between May 2011 and February 2013, he retained three law firms with a view to commencing legal proceedings against Woodside. Dr Zaghloul developed a perception that his lawyers 'conspired with Woodside' and, as a result, he suffered deterioration of his psychiatric illness. On 27 August 2012, he commenced proceedings in the Federal Court of Australia against Woodside for negligence and breach of contract.  On 5 December 2012, he lodged a workers' compensation form with WorkCover WA to recover the prescribed amount under the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act).  On 31 January 2013, Woodside declined to pay the prescribed amount.  On 5 February 2013, Woodside terminated Dr Zaghloul's employment.
7On 14 February 2013, Dr Zaghloul met with the first respondent (Mr Bayly) and another person at the offices of the second respondent (Bradley Bayly Holdings) in which, amongst other things, Dr Zaghloul expressed his perception that Woodside had 'bought' his former lawyers.  Mr Bayly replied that 'no one could buy him'.
8In or about April 2013, Dr Zaghloul signed a retainer agreement to retain Bradley Bayly Holdings to act for him in relation to his workers' compensation claim.
9On 16 April 2013, Woodside brought a summary judgment application in the Federal Court on the basis that, under s 93K(4)(c) of the Workers' Compensation Act, the court did not have jurisdiction to award damages because Dr Zaghloul had not elected to seek common law damages before commencing the Federal Court proceedings. On 17 April 2013, Mr Bayly advised Dr Zaghloul that Woodside would succeed in its application for summary judgment. Dr Zaghloul alleges that the advice was negligent.
10On 6 May 2013, the respondents filed a writ on behalf of Dr Zaghloul in the District Court of Western Australia against Woodside for negligence and breach of contract.  Mr Bayly advised Dr Zaghloul that the two actions - in the Federal Court and in the District Court - were in conflict, and that the Federal Court proceedings should be dismissed by consent in order to focus on the District Court proceedings.
11In late July and into August 2013, the respondents urged Dr Zaghloul to maintain the District Court proceedings, but Dr Zaghloul instructed the respondents to discontinue the District Court proceedings.
12By emails in late July, August and September 2013 to Mr Bayly, Dr Zaghloul alleged that Mr Bayly had conspired with Woodside to sabotage his claim in the Federal Court by advising him to dismiss the Federal Court proceedings, and that the purpose of the District Court action was to maximise legal fees. Dr Zaghloul requested clarification as to whether his understanding was correct, otherwise he would be 'justified in [his] belief that [Mr Bayly] conspired with Woodside'. The respondents did not reply to these allegations.
13In June and July 2013, Mr Bayly provided a draft statement of claim for the District Court proceedings which, according to Dr Zaghloul, was allegedly deficient in a number of respects, including with reference to one of the Woodside managers.  Dr Zaghloul alleges that a reasonably competent lawyer in the position of the respondents would not have (1) commenced the District Court proceedings, (2) advised Dr Zaghloul to maintain the focus on the District Court proceedings, (3) provided an allegedly deficient statement of claim, or (4) advised Dr Zaghloul to consent to the dismissal of the Federal Court proceedings.  Instead, according to Dr Zaghloul, a reasonably competent lawyer in the position of the respondents would have (1) agreed to represent Dr Zaghloul in the Federal Court proceedings, (2) ensured that any legal advice was properly explained and clarified, (3) acted on Dr Zaghloul's instructions to discontinue the District Court action, and (4) replied to Dr Zaghloul's allegations of conspiracy.
14Dr Zaghloul alleged that by reason of the matters pleaded, he suffered (1) aroused feelings of betrayal, (2) entrenched thoughts of conspiracy with Woodside to sabotage his claim in the Federal Court, (3) further deterioration of his psychiatric illness, and (4) consequential loss of opportunity to future earnings. He alleged that it should have been in the contemplation of the respondents that the conduct pleaded was of such a nature that the risk of further deterioration of his psychiatric illness was a natural or probable consequence if reasonable care was not taken, and that the respondents breached the duty to avoid the risk of further deterioration of his psychiatric illness.
15In his prayer for relief, Dr Zaghloul included claims for damages for loss of chance of future earnings, aggravated damages and exemplary damages.
The defence
16The respondents filed a defence on 18 February 2022.
17In their defence, the respondents (amongst other things):
1.Admitted various parts of Dr Zaghloul's fresh statement of claim, including that they owed a duty to exercise reasonable care and skill in the provision of legal services.
2.Contended that the duty did not require them to take care not to cause him mental harm unless they 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.
3.Denied material elements of the conversation on 14 February 2023 pleaded by Dr Zaghloul (see [7] above).
4.Denied negligence and pleaded various matters, including the obtaining of counsel's advice, in relation to their alleged negligence in advising Dr Zaghloul regarding the Federal Court proceedings and commencing and focusing on the District Court proceedings, instead of pursuing the Federal Court proceedings.
5.Pleaded that on 21 August 2013, Dr Zaghloul terminated the respondents' retainer by filing a notice of intention to act in person in the District Court action.
6.Denied, with some specificity, that the statement of claim filed in the District Court was deficient as alleged, and pleaded that they had provided drafts for prior comment by Dr Zaghloul.
7.Denied Dr Zaghloul's claims of alleged deterioration of his mental health between April 2013 and late 2016.
8.Alleged that Dr Zaghloul's claim against the respondents, insofar as it alleged a deficient statement of claim was filed in the District Court proceedings (see [13] above), relied on a cause of action struck out by Braddock DCJ, and not revived by the 2021 Appeal decision.
9.Alleged that Dr Zaghloul's claim against the respondents was barred as it had been commenced more than three years after his cause of action arose.
10.Alleged alternatively that if any injuries were caused or contributed to by any wrongful conduct of the respondents, then (1) in the assessment of damages, credit must be given for any amounts recovered by Dr Zaghloul from Woodside in the settlement of the Federal Court proceedings, (2) alternatively, if compensation paid by Woodside was less than the amount or value of the damage suffered by Dr Zaghloul, then Dr Zaghloul failed to mitigate his loss, and (3) Dr Zaghloul's action is, further and/or alternatively, an abuse of process in that having recovered compensation for his injuries from Woodside, the present action constituted an impermissible vexation or oppression and unfairness to the respondents.
…
Dr Zaghloul's application to strike out the defence and for summary judgment
20On 10 June 2022, Dr Zaghloul filed a chamber summons seeking orders that the defence be struck out and for summary judgment.
…
The hearing before Deputy Registrar Harman
25Dr Zaghloul's chamber summons filed 10 June 2022 was heard before Deputy Registrar Harman on 10 August 2022. Dr Zaghloul submitted, in effect, that the respondents' defence filed 18 February 2022 contravened O 20 r 8 and r 14 of the Rules of the Supreme Court 1971 (WA) (RSC) for two reasons.  First, the defence simply denied Dr Zaghloul's allegations, rather than also providing 'reason[s]' and 'counterfactual' explanations.  Second, allegations in multiple paragraphs were denied in singular paragraphs, instead of there being a separately paragraphed denial for each allegation.
…
The appeal to the primary judge
29On 19 August 2022, Dr Zaghloul filed a notice of appeal against the deputy registrar's orders, pursuant to pt 2 r 15 of the District Court Rules 2005 (WA) (DCR). The notice of appeal disclosed three grounds. Ground 1 alleged that the deputy registrar erred in law by 'failing to consider' the respondents' 'evasive pleadings and the significant departure from [O 20 of the RSC]'.
…
33[Dr Zaghloul] also submitted that the defence should also be struck out due to 'onerous' breaches of O 20 r 8, r 14 and r 19(1) of the RSC. He submitted that the defence pleaded evidence, rather than facts, and consisted of bare denials which were therefore 'deemed to be admitted'. He alleged that there was no reasonable defence, and the pleadings were embarrassing or evasive.
34He submitted that the pleaded defences were clearly untenable and doomed to fail. He contended that as regards the limitation defence, (1) the respondents did not plead facts to indicate how 'the clock starts' under s 14(1) of the Limitation Act 2005 (WA) (Limitation Act), (2) Dr Zaghloul was under a 'mental disability and with no guardian', thereby 'defeat[ing] the limitation defence' pursuant to s 35(1) of the Limitation Act, (3) Dr Zaghloul did not know he had a cause of action until November 2016, and (4) in any event, the court has discretion to extend time, and Dr Zaghloul seeks leave to extend time under s 39(1) and (4) of the Limitation Act.
35Dr Zaghloul contended that the respondents' defence of 'credit' was not supported by the pleading of facts and was arguably embarrassing. If it were a set off claim, then the defence was 'misconceived' and unjustified, because there were no mutual debts between Dr Zaghloul and the respondents.
36Dr Zaghloul also submitted that the respondents had failed to plead facts with respect to a plea that he had failed to mitigate his loss, thereby offending the surprise rule: O 20 r 9(1)(b) of the RSC. Also, he said that the respondents had failed to plead any facts to 'stand behind' a defence of abuse of process.
37Dr Zaghloul submitted that he had made out a prima facie case, and that the respondents had not demonstrated a triable issue or an arguable defence. He submitted that the court will be 'relieved of the burden of further wasted time', and that the court can, instead, devote time to the 'determination of claims with true legal merit'.
(footnotes omitted)
After canvassing the appeal before Shepherd DCJ, at [41] of its reasons the court stated in relation to ground 2 of the appeal that the appellant contended that the judge had failed to 'determine whether a fair trial is now in jeopardy' because the defence was 'sprawling, disorganised and bloated'; contrary to O 20 the defence was not in summary form which camouflaged and diluted the real issues causing a delay of almost six years; and that the defence should have been struck out.
In relation to the application for leave to appeal, the Court of Appeal recorded as follows:
42In substance Dr Zaghloul submitted that leave to appeal should be granted for three reasons. …
43Secondly if leave to appeal were refused, Dr Zaghloul would suffer substantial injustice. He would be unable to communicate his case, due to the respondents' 'sprawling defence' … In oral submissions, Dr Zaghloul also referred in this connection to certain procedural matters in the District Court relating to … the reply which have arisen subsequent to the primary decision.
In deliberating upon the application for leave, the Court of Appeal recorded at [53] as follows:
… Nor was there any proper basis to contend that the respondents' defence would or may inhibit a fair trial of the action. The defence is adequately pleaded …
The reasons for decision of the principal registrar to grant leave to plead to which the Court of Appeal refers at [5] of its reasons are recorded in Zaghloul v Bayly [2021] WADC 123, the relevant parts of which are as follows:
5… on 19 July 2021 the Court of Appeal allowed the appeal and made the following relevant orders:
1.…
2.…
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.
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.
6The 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.
7As 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 [further amended statement of claim (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)
8It 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:
…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.
…
…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).
…
…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.
…
…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.
…
…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.
9So, 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).

10The 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.[1]
11Facts 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.

(footnotes omitted)
[1] RSC O 20 r 8(1).

The reply to which the Court of Appeal referred at [18] and [43] in its reasons for dismissing the application for leave to appeal was then the subject of the application now before the court brought by the defendants to strike out parts of the pleading.
An overview of the relevant pleadings reveals a defence of 11 pages comprised of 31 paragraphs. The reply is 57 pages in length and concludes with par 90 as follows:
Save where expressly admitted or not admitted herein, I deny each and every other allegation in the Defence as if the same were set out separately herein and traversed seriatim.
The application is put as follows:
1.Pursuant to O20 r19, the following paragraphs in the Reply be struck out:
(a)3, 4, 5, 7, 8, 9, 12, 22, 26, 27, 34, 35, 41, 42, 43, 49, 62, 64, 65, 69, 70, 74, 79, 80, 81 and 89 on the basis that are unnecessary given RSC Order 20, rule 5;
(b)6, 14, 23, 45, on the basis they are unnecessary for compliance with RSC Order 20, rule 9;
(c)10, 11, 13, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 36, 37, 38, 39, 40, 44, 48, 50, 54, 58, 60, 63, 66, 67, 68, 71, 72, 73, 75, 77, 78, 82 (bullet point 12 only), 85 (bullet point 5 only), 86, 87, 88 on the basis:
(i)they are unnecessary given what is pleaded is not needed for compliance with Order 20, rule 9; and/or
(ii)they represent an attempt to impermissibly introduce a cause of action into the Reply;
(d)25 on the basis it makes a scandalous allegation;
(e)31, 32, 51, 53, 55, 56 save the admissions in the first sentence of each, are objectionable for the reasons identified in paragraph 10 above;
(f)paragraphs 31, 32, 51, 53, 55, 56, 57, 59 and 61 save the admissions in the first sentence of each, on the basis:
(i)they are unnecessary given what is pleaded is not needed for compliance with Order 20, rule 9; and/or
(ii)they represent an attempt to impermissibly introduce a cause of action into the Reply;
(g)52, save the admission in the first sentence, on the basis what is pleaded is not needed for compliance with Order 20, rule 9 and because it makes a scandalous allegation.
Order 20 r 19 of the Rules of the Supreme Court provides in part as follows:
(1)The court may … order to be struck out … anything in any pleading on the ground that … (b) it is scandalous … or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action or (d) it is otherwise an abuse of the process of the Court.
The rules that relate to the context established by the defence are also expressed at O 20. Rule 5 is in part as follows:
(1)A plaintiff on whom a defendant serves a defence must serve a reply on that defendant if it is needed for compliance with rule 9, and if no reply is served, rule 15(1) will apply.
Rule 9 is in part as follows:
(1)A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality -
(a)which he alleges makes any claim or defence of the opposite party not maintainable; or
(b)which, if not specifically pleaded, might take the opposite party by surprise; or
(c)which raises issues of fact not arising out of the preceding pleading.
Rule 15 is in part as follows:
(1)If there is no reply to a defence, there is an implied joinder of issue on that defence.
(2)Subject to subrule (3) -
(a)there is at the close of pleadings an implied joinder of issue on the pleading last served; and
(b)a party may in his pleading expressly join issue on the next preceding pleading.
(3)…
(4)A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.
Although courts have regarded the phrase 'prejudice, embarrass and delay' expressed at r 19(1)(c) as a singular reason for intervention, for present purposes there is good reason to focus upon the meaning of the word 'embarrass' where it is used in the context of regulation of the pleading process, being to weigh down, impede, complicate or to encumber.
The recipient of a pleading has the opportunity to inform itself and to accept any part of its opponent's pleading. The fact that it is open to a party to file a response to a defence does not justify having such recourse other than in accordance with the rules.
Rule 5(1) reveals an intention to limit the scope for pleading to a defence. Allegations that must be pleaded are those that would establish a case against that raised by the defence. The significance of the illustrations expressed at r 9(1) is that they establish the measure of a matter that must be pleaded.
In this instance three considerations emerge. The first is that it is unlikely that of the illustrations provided by r 9(1), anything other than the issue of limitation would be likely to emerge from the context established by a claim for personal injury. The second is that although matters relevant to the pleadings extended over a significantly greater period than is accounted for by the period of the relationship between the parties, the nature of the relationship is one that suggests that it would be unlikely that there would be any need for the plaintiff to plead to ensure that at trial the defendants would not be taken by surprise. The third is that subject to the first two considerations, but for the prospect that the plaintiff would admit an allegation, the plaintiff's intention to plead as he does at par 90 of the reply would render pleading the balance of the reply unnecessary.
Those observations are particularly apposite in reflecting upon the consequences of the plaintiff having pleaded as he has by par 2 of the statement of claim. Reference will be made to those observations and the conclusions upon which they are founded in dealing with the part of the application that relates to par 3 of the reply.
A reply that does not conform to the scope established by the rules provides the opportunity to consider whether the result is likely to have a significant adverse impact on the interlocutory processes, preparation for trial and trial. A circumstance that is likely to give rise to concern is where a plaintiff presents material that does not respond to an allegation put by the defence. In that event, there would be no good reason to simply attribute such disregard of the rules to some measure of lack of familiarity with the context or perhaps, enthusiasm for a cause, rather than to recognise the default as the portent of adverse consequences for the parties and the court. Such circumstances may present a delicate balance that can only be resolved by judgment informed by the undesirable consequences of accommodation. It is predictable that such consequences are most likely to emerge in circumstances where the drafter of a reply is inexperienced. In a sense it is unfortunate but inevitable that such prospects will emerge where the party is not represented. That party's opponent would not expect that the action would be likely to proceed with what might be loosely described as the usual efficiency, however it is reasonable for it to expect that the court would intervene to rectify rather than to accommodate breaches of the rules that apply to the process of litigation in order to ensure efficiency in undertaking the interlocutory processes, preparing a case for trial and trial. Although much of what lies before the parties will be subject to discretionary judgement, in exercising discretion there would be good reason to consider that in circumstances of default, inexperience would be acknowledged but not accommodated unless with reference to foresight it could only be considered benign.
As parts of the reply and his submissions suggest, the plaintiff has not appreciated that whilst by reply it is open to plead to a case, it is inappropriate to plead a case. To do so would preclude the defendants from pleading a defence. The content of parts of the reply and the plaintiff's submissions also reveal that his motivation in providing parts of the reply had been at least to comment adversely upon if not to criticise the defendants' conduct during the course of their relationship. In some instances, there is some difficulty in discerning that the plaintiff does not thereby put a case.
Again on an overview of the parts of both the reply and the plaintiff's submissions, it is open to consider that a part of the plaintiff's motivation in pleading parts of the reply was to express what may be characterised as his concerns about the manner in which the defendants have responded to the statement of claim and to criticise the response.
During the course of the defendants' oral submissions, the plaintiff drew attention to concessions that he had made in submissions filed on the day prior to the hearing of the application. By par 4 of those submissions, he had conceded that pars 7, 8, 9, 12, 22, 26, 27, 41, 42, 43, 51, 62, 64, 65, 69, 70, 74, 79, 81, 89, the last bullet point at par 25 and the third bullet point from the end of par 53 of the reply, be struck out. The defendants had not then been made aware of those concessions and they were then orally communicated.
By par 5 of the submissions the plaintiff had continued as follows:
The remainder of the Reply is essential to respond fully to the Defence, which is evasive, and is pleaded in a manner that will, if the Reply is struck out, cause unfair trial (sic). The defendants allege that the Reply was 'unnecessary given what is pleaded in paragraph 2'. But, having denied paragraph 2, the defendants need not have pleaded to other allegations, but they did plead facts in the Defence which, on careful examination, are half true, which made it necessary to plead in paragraphs 3, 4, 5, 7, 8, 9, 12, 22, 26, 27, 34, 35, 41, 42, 43, 49, 62, 64, 65, 69, 70, 74, 79, 80, 81 and 89 of the Reply. Otherwise, the defendants may argue that any evidence to counter the Defence is inadmissible or any other defence to avoid the truth coming out in full.
It is apparent that the concession made in relation to all but par 51 could not rest comfortably with the contention at par 5, that unspecified allegations made in those paragraphs had necessarily been pleaded.
As the plaintiff alerted the defendants to the concessions and in doing so had not either referred to or drawn upon the submission outlined by par 5, he did not raise any reason to doubt that at least by the time of the hearing, he had intended to make an unqualified concession that the paragraphs specified at par 4 be struck out. Accordingly, the paragraphs that the plaintiff had conceded were not the subject of submissions and there is no reason to address them in these reasons. The issue raised by par 5 of the plaintiff's submission falls away and each of the conceded paragraphs are struck out.
What remains of the paragraphs of the reply the subject of par 1(a) of the application are 3, 4, 5, 34, 35 and 80. The defendants contend that their content had been unnecessarily pleaded.
At par 2 of the statement of claim, the plaintiff pleads an outline of his case as follows:
2.I seek orders for compensation and damages against the defendants for causing (i) further deterioration of a severe psychiatric injury - contracted in April 2011, and deteriorated between 2011 and 2013 - and (ii) loss of opportunity of future earnings on the grounds that the defendants:
(a)provided legal advice - on section 93K(4) of Workers Compensation and Injury Management Act (Compensation Act) 1981 (WA) - which contradicted the law and precedents, and constituted professional negligence;
(b)commenced an action in the District Court of Western Australia (DCWA) that (i) was, on Mr Bayly's advice, statute barred, and duplicated the proceedings already on foot in the Federal Court of Australia then (ii) repeatedly urged me to 'focus' on and maintain the (statute-barred) DCWA action; (iii) failed to act on my repeated instructions to dismiss the DCWA proceedings; (iv) advised me to dismiss the proceedings in the Federal Court of Australia, which was not statute barred, by consent, thereby raising significant doubts in my mind of conspiracy with Woodside to sabotage my claim against it in the Federal Court of Australia;
(c)provided a statement of claim in the District Court of Western Australia that was (i) seriously deficient; (ii) duplicated the statement of claim in the Federal Court of Australia; and (iii) included the name of a Vice President at Woodside whom I had no interface with, and never mentioned his name to the defendants, which caused my perception of conspiracy with Woodside to be entrenched;
(d)failed to take care, by way of communications with me, to (i) clarify my confusion on the legal advice pleaded above; and (ii) reply to and dispel my reasoned allegations of conspiracy with Woodside, thereby further cementing my perception of conspiracy with Woodside.
By par 2 of their defence the defendants deny each and every allegation in par 2 of the statement of claim. It is not difficult to imagine that when confronted with the need to respond to par 2 of the statement of claim, the defendants had no option other than to leave it to the plaintiff to make what he may of its content at trial.
By par 3 of the reply, the plaintiff pleads as follows:
Save as what follows, I do not plead to paragraph 2 of the Defence because the defendants do not (i) plead material facts to identify what it is that is being denied; or (ii) provide their own version of events; and (iii) merely denied (sic) something, without pleading an alternative or without pleading the point of substance:
•The Defence to paragraph 2(a) of the … statement of claim is pleaded at paragraphs 10.c, 11. a, 11. b. i, 11.b.ii, 12.a, 12.b.i, 12.c.i.1, 12.c.ii, 12.d.i, 12.d.ii, 12.d.iii, 12e.i, 12.f, 13, [and] 26 of the Defence;
•The Defence to paragraph 2(b) of the … statement of claim is pleaded at [41 similarly specified] paragraphs of the Defence;
•The Defence to paragraph 2(c) of the … statement of claim is pleaded at [7 similarly specified] paragraphs of the Defence;
•The Defence to paragraph 2(d) of the … statement of claim is pleaded at [11 similarly specified] paragraphs of the Defence.
By his submissions at par 3, the plaintiff contends as follows:
The Defence to the Fresh Statement of Claim to the 'four matters' is evasive and the Reply nails down the confusion created by the scattered and bloated Defence to focus attention on the key issues and avoid the risk of an unfair trial. The Defence to the four concise matters are pleaded in 15, 42, 7, 11 paragraphs for each matter consecutively, and scattered across the Defence. The Court should reject the defendants' attempt to rule on the Reply without the context of how the Defence was pleaded. Hence, the Reply should not be struck out except for what is being conceded below.
In elaborating upon the content of that paragraph, the plaintiff provides further detail in Annexure 1 to his submissions that identifies particular features of the 15 paragraphs of the defence to which he makes reference at the first bullet point of par 3 of the reply.
Because by par 2 of the defence, the defendants deny par 2 of the statement of claim there is no justification for any reply to par 2 of the defence. The part of par 3 that precedes the colon is no more than the plaintiff's reasoning founded upon his opinion. What follows the colon is clearly wrong: the defence to par 2(a) of the statement of claim is pleaded at par 2 of the defence not at the paragraphs specified at the first bullet point of par 3 of the reply. Similarly, so the contentions specified at the subsequent bullet points are not pleaded in response to pars 2(b), (c) and (d).
The content of par 3 of the reply illustrates the plaintiff's misunderstanding of the purpose and effect of par 2 of the defendants' pleading and of both the need to reply and the scope of the pleading process. In relation to the first point, par 2 of the defence conveys to both the plaintiff and the court that if at trial the plaintiff choses to establish any part of the content of par 2 of the statement of claim, the onus in so doing will be upon him. As to the second point, other than in relation to the limitation defence, objectively there would be no expectation that the plaintiff would contemplate filing a reply. In relation to the third point, the process of pleading does not establish a forum for either commentary or criticism.
According to the plaintiff's submissions, it is open to consider that the plaintiff was motivated to plead par 3 of the reply as he did due to his perception that the defendants had failed to engage with par 2 of the statement of claim.
The content of par 2 of the statement of claim may be regarded as the equivalent of an indorsement of claim on a writ of summons. In granting leave to the plaintiff to plead in terms of par 2, at par 21 of his reasons the principal registrar considered that:
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.
It is open to consider that in reaching that conclusion, the focus of attention had been solely upon the sufficiency of conformity with the scope of the constraint established by the Court of Appeal.
Had a more robust approach been taken to the task; one that had drawn upon adherence to the rules and the likelihood that par 2 could only be denied, it is open to consider that the plaintiff may have gained a better understanding of the pleading process and that such appreciation would have resulted in a saving of time and resources and avoided the generation of costs.
The conclusion that the plaintiff is not obliged to plead the content of par 3 of the reply is informed not only by the context in which it is presented but also by what its content conveys.
The perception that a pleading may qualify as one that may prejudice, embarrass or delay the fair trial of the action inevitably draws upon experience. Where a part or parts of a pleading are so considered the relevant context is not simply that presented by the terms of the pleading, but as the terms of r 19(1)(c) suggest, by the prospect that at later points in the process of litigation, inevitably the consequence of a pleading that detracts from an understanding of the position that the party adopts in relation to an allegation of material fact will generate the need for ongoing consideration, thereby engaging time and resources and generating costs and delay. Where the party responsible for the pleading is presently unrepresented there is good reason to consider that intervention is warranted to the end of establishing clarity.

By striking out par 3 of the reply, par 2 of the statement of claim will remain a pleading that serves no useful purpose to which there is a not inappropriate response. The reason to strike out par 3 of the reply is that it burdens the process of pleading with the issue of the plaintiff's opinion of the appropriateness of the defendants' response to par 2 of the statement of claim. At each point it is patent that the plaintiff's opinion is founded upon error. The content of par 3 is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 4 of the reply the plaintiff refers to par 1(b) of the defence by which the defendants do not admit an allegation. By par 4 of the reply, the plaintiff pleads matters that bear upon an allegation that the defendant does not admit. The content of par 4 of the reply is not needed for the purpose of complying with r 5 and is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 5 of the reply, the plaintiff refers to par 1(c) of the defence by which the defendants do not admit an allegation and plead an allegation.
By par 5 of the reply the plaintiff repleads the allegation that is not admitted. He then pleads an allegation that may be taken to be contrary to that put by the defendants.
Compliance with r 5 does not establish need for the plaintiff to plead those allegations. Being an unnecessary pleading in the context established by the extent of the reply, even taking into account the plaintiff's concessions, there is reason to consider that it may prejudice, embarrass or delay the fair trial of the action. Accordingly the whole of the content of par 5 of the reply is struck out.
By par 34 of the reply the plaintiff responds to the contention at par 12(d)(i) that particular advice had been tenable.
By the reply the plaintiff denies that the content of par 12(d)(i) supports the defendants' contention that the advice was reasonable. The defendants do not so allege. However, there is no need to consider the intricacies of the parties' pleadings. By par 34 of the reply the plaintiff foreshadows his submissions. There is no reason to consider that r 9 would establish need for the plaintiff to plead his submissions. Although the plaintiff's submissions serve no useful purpose as a pleading, due to the dimensions of the reply, there is good reason to consider that it is appropriate to strike out an unnecessary pleading. The whole of par 34 is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 35 of the reply the plaintiff refers to par 12(d)(ii) of the defence by which the defendants would establish support for their opinion by reference to particular authority.
By par 35 of the reply the plaintiff denies the defendants' contention and introduces information that extends to a page of text to justify his denial. For the same reason that r 9 had not established the need for the plaintiff to plead to par 12(d)(i) of the defence, there was no need to plead in response to par 12(d)(ii). There was no need to justify the denial. It follows that the whole of the content of par 35 of the reply is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 80 of the reply the plaintiff pleads as follows:
I do not plead to paragraph 26 of the Defence because the defendants do not (i) plead material facts with specificity to identify what it is that is being denied; or (ii) provide their own version of events; and (iii) merely denied something, without pleading an alternative or without pleading the point of substance.
But for identifying the paragraph to which par 80 relates, the terms of par 80 are identical to other paragraphs of the reply, each of which have been conceded by the plaintiff.
It is evident from the terms of par 80 that the defendants have denied an allegation made by the statement of claim. By par 26 the defendants deny each and every allegation put by the plaintiff in a series of paragraphs of the statement of claim. The content of par 80 suggests that the plaintiff perceived an expectation that he would respond to par 26. The rules would not engender such an expectation. There is nothing in the content of par 80 that suggests that there had been any need to plead. Because the content of par 80 is not needed, it may prejudice, embarrass or delay the fair trial of the action. The whole of par 80 is struck out for that reason.
The paragraphs of the reply the subject of par 1(b) of the application are 6, 14, 23 and 45. The defendants contend that the content of those paragraphs is unnecessary for the purposes of compliance with r 9.
By par 6 of the reply the plaintiff refers to par 3 of the defence by which the defendants make an admission. They repeat an allegation made at par 1(c) of the defence and add an allegation but otherwise they do not admit each and every other allegation in par 3 of the statement of claim.
By par 6 of the reply the plaintiff denies the repeated allegation. He reasserts the allegation made by par 9 of the statement of claim and by par 5 of the reply. He alleges that he provided the defendants with a copy of a document and that a reasonably competent expert would have contemplated that the plaintiff was vulnerable and at risk of further deterioration of his psychiatric illness by the termination of his employment and by the provision of advice that Woodside would succeed in its first application for summary judgment. He further contends the risk of further deterioration of his psychiatric illness had been not insignificant.
It is not possible to discern whether by his references to a reasonably competent expert, the plaintiff's vulnerability and risk, the plaintiff would either put a claim against or criticism of the defendants. As a claim is inappropriately included in a reply and criticism is inappropriately pleaded, it is not necessary that a conclusion is reached. Otherwise there was no need for the plaintiff to plead in response to par 6 of the defence. The content of par 6 of the reply extends to half a page of text.
The whole of the content of par 6 of the reply is struck out. To the extent of the allegations that may amount to either criticism or a claim, the reason to do so is that they are an abuse of process. Alternatively and in any event the balance of the material is struck out as it may prejudice, embarrass or delay the fair trial of the action.
The pleading by par 14 of the reply refers to par 10(b)(ii) of the defence by which the defendants assert that at a particular meeting the plaintiff instructed them that on 13 April 2011 he had suffered his first panic attack.
By par 14 of the reply the plaintiff denies that he suffered his first panic attack on that date. It appears that he has failed to appreciate the defendants' contention.
He then proceeds to provide information that may bear upon his contention.
The significant consideration is that pleading to an allegation that he had informed the defendants that the event happened on a particular date is not a matter for which r 9 would suggest need to respond. The whole of the content of par 14 of the reply is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 23 of the reply, the plaintiff refers to par 11(a) of the defence.
By par 11(a) of the defence, the defendants plead that Woodside had sought summary judgment on the plaintiff's claims brought in the Federal Court action to the extent that the plaintiff was seeking damages in tort and contract for mental and physical injury.
The allegation that the application was so limited is denied. The plaintiff then provides half of a page of pleading that has no bearing upon the limitation but only goes to what implicitly would be conceded: that the application had been made. That it had been made had been pleaded by the plaintiff in the statement of claim. What emerges from the contest between the content of par 14 of the statement of claim and par 11(a) of the defence is that it presents an issue upon which either party might choose to seek a determination at trial. There is no reason for the plaintiff to burden the issue generated by those parts of the pleadings with either a denial of the limitation pleaded by the defendants or the allegations presented by the reply that extend for half a page of text that appear to have no connection with the limitation and incidentally, no connection with the content of par 14 of the statement of claim.
There is no reason to consider that there was any need for the plaintiff to assert further allegations by the reply. The denial of the allegation made by the defendants was not necessary. The whole of par 23 is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 45 of the reply, the plaintiff refers to par 17(b) of the defence. By par 17 of the defence the defendants plead to pars 22 and 23 of the statement of claim. By par 17(b) they refer to a letter dated 8 July 2013 and plead that thereby the second defendant had provided specified advice to the plaintiff.
By par 45 of the reply the plaintiff provides the best part of a page of information that does not respond to any allegation made by par 17(b) of the defence. By one particular part of its content the plaintiff refers to features of the content of a communication from the solicitor representing Woodside to which neither party has referred in the previous pleadings and which has no bearing upon the content of pars 22 and 23 of the statement of claim.
No part of the content of either par 17(b) of the defence or par 45 of the reply suggests the need for a reply. The whole of the content of par 45 is struck out as it may prejudice, embarrass or delay the fair trial of the action.
The paragraphs of the reply the subject of par 1(c) of the application are 10, 11, 13, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 36, 37, 38, 39, 40, 44, 48, 50, 54, 58, 60, 63, 66, 67, 68, 71, 72, 73, 75, 77, 78, 82 (bullet point 12 only), 85 (bullet point 5 only), 86, 87, 88. The defendants apply on the basis that the content of each paragraph is unnecessary given what is pleaded is not needed for the purpose of compliance with r 9; and/or they represent an attempt to impermissibly introduce a cause of action.
By the defendants' second contention they express the appropriateness of pleading a claim by a reply. If at the point of drafting a reply a plaintiff would put a different claim the appropriate course to take would be to amend the statement of claim. In the context presented by this action it is open to consider that the effect of the determination of the Court of Appeal is that the plaintiff would require leave to add a claim to the statement of claim.
By par 10 of the reply the plaintiff responds to par 8 of the defence by which the defendants deny an allegation, make an allegation and otherwise admit par 8 of the statement of claim.
By par 10 of the reply the plaintiff denies his rendition of the allegation put by par 8. By that rendition the plaintiff adds an allegation that may be the justification for his denial.
In effect the plaintiff asserts a matter that was neither pleaded in the statement of claim nor the defence.
The plaintiff then pleads a number of allegations that he records over two pages and at one of 10 bullet points he states:
In the premises the defendants' failure as pleaded above constituted professional negligence.
At the preceding bullet points the plaintiff establishes grounds for that contention and at the subsequent bullet point, he alleges the result of the contended negligence.
By those parts of par 10 the plaintiff has inappropriately pleaded a claim in a reply. Each of those parts of the content of par 10 of the reply is struck out as an abuse of process. Alternatively along with the contended denial and the balance of the material they are struck out as they may prejudice, embarrass or delay the fair trial of the action.
By par 11 of the reply the plaintiff refers to par 9 of the defence. By par 9 of their defence, the defendants respond to par 9 of the statement of claim by pleading an allegation and otherwise denying each allegation.
By par 11 of the reply the plaintiff denies the defendants' allegation. He then puts allegations that extend for the best part of a page of text.
Some of the allegations put by par 11 relate to particular policies of the plaintiff's former employer. The relevant policy is already pleaded by each party.
Although by the balance of par 11 the plaintiff does not explicitly plead a case against the defendants, at one of the 7 bullet points by which he presents allegations, he alleges what a reasonably competent expert would have advised him in relation to particular matters and at another, that the defendants did not advise him as a reasonably competent expert would have done.
In a context where the plaintiff's case is drawn from a contended worsening of his psychiatric disability, by another of the bullet points he pleads that had the defendants acted as a reasonably competent expert would, he would have felt some relief. He specifically pleads the consequential avoidance of the further deterioration of his psychiatric illness.
There is good reason to consider that by the content of those parts of par 11 the plaintiff either inappropriately pleads a case or criticises the defendants. Those parts of par 11 are struck out as an abuse of process.
As the content of par 90 of the reply would operate as a denial of the allegations put by par 9 of the defence, there is no need for the plaintiff to plead the denial at par 11.
An alternative ground to strike out the inappropriate allegations and to strike out the balance of par 11 is that its content may prejudice, embarrass or delay the fair trial of the action.
By par 13 of the reply the plaintiff refers to pars 10(b)(i) and 10(b)(ii) of the defence.
Those paragraphs of the defendants' pleading emerge in a context established by a meeting between the parties held on 14 February 2013. By par 10(b)(i) the defendants plead that at the meeting the plaintiff had provided particular instructions.
By par 13 of the reply the plaintiff denies a feature of those instructions. He then proceeds to plead matters that extend to two pages of text. A review of the content of that material reveals that it is not needed for the purpose of complying with r 9. There is no reason for the plaintiff to justify his denial of an allegation. As by par 90 of the reply there is a sufficient denial of general application, there is no need for the denial pleaded at par 13. The whole of par 13 is struck out as its content may prejudice, embarrass or delay the fair trial of the action.
By parts of the material pleaded at par 13 the plaintiff introduces allegations that he puts against the first defendant. Those allegations include the contention that had the first defendant acted in a particular manner, the plaintiff could have been spared further deterioration in the psychiatric illness and that a reasonably competent practitioner would have had that risk in contemplation at the relevant time.
Thereby the plaintiff impermissibly either introduces a case or criticism by the reply. In either event the additional reason to strike out those parts of par 13 is that they constitute an abuse of process.
By par 15 of the reply the plaintiff refers to par 10(b)(iii) of the defence by which the defendants relate a particular instruction that they received at the meeting on 14 February 2013.
By par 15 the plaintiff admits the information conveyed by the instruction but other than by par 90, he is silent as to the instruction. He then pleads further deterioration of the psychiatric illness around July 2013. That date is clearly outside the scope of the point of reference provided by par 10 of the defence. The plaintiff then makes various allegations upon which he draws to contend at the last of five bullet points that a reasonably competent practitioner would have had in contemplation risk of further deterioration of psychiatric illness.
By those allegations the plaintiff inappropriately puts either a case or criticism against the defendants.
Upon review of the balance of the material, there is no allegation that engages with the scope for pleading in reply indicated by r 9. The whole of the material is struck as it may prejudice, embarrass or delay the fair trial of the action. To the extent that by that material the plaintiff puts a case or criticism of the defendants, alternatively it ought to be struck as an abuse of process.
By par 16 of the reply the plaintiff refers to par 10(c) of the defence, by which the defendants outline the qualifications of the first defendant. Paragraph 16 of the reply extends for three pages. The plaintiff commences by contending the negligence of the defendants. None of the allegations put by par 16 purport to engage with the defendants' pleading but rather, present a case or cases.
The whole of the content of par 16 of the reply is struck out as an abuse of process, alternatively because it may prejudice, embarrass or delay the fair trial of the action.
By par 17 of the reply the plaintiff refers to par 10(d)(i) of the defence by which the defendants plead that by letter dated 5 March 2013 the first defendant offered to represent the plaintiff in a claim for damages for personal injuries suffered by him as a result of Woodside's alleged wrongful conduct. By par 17 of the reply, the plaintiff denies the allegation and pleads allegations over two pages, the scope of which extends far beyond the communication specified by the defendants. The content of that material suggests at least criticism of the defendants and should be struck out as an abuse of process. None of the material is necessarily provided to justify the denial. The denial itself is not necessary due to that of general application pleaded by par 90.
None of the allegations advanced by the plaintiff are needed for the purposes outlined by r 9. There is no justification for pleading the content of par 17. The whole of the content of par 17 is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 18 of the reply the plaintiff responds to par 10(d)(ii) of the defence by which the defendants plead that by signing and returning the second defendant's retainer and costs agreement, the plaintiff accepted the second defendant's offer to represent him in a claim for damages for personal injuries suffered as a result of Woodside's alleged wrongful conduct.
By par 18 the plaintiff denies his qualified rendition of the defendants' pleading. Over the best part of two pages of text he pleads grounds from which he draws to contend that a reasonably competent expert would not have followed a particular course in undertaking the provision of services within the scope of the retainer.
By that material the plaintiff inappropriately presents either a case or cases against or criticism of the defendants and that material is struck out as an abuse of process. The denial pleaded is not of the allegation made by the defendants. It along with the balance of the material is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 19 of the reply the plaintiff responds to par 10(d)(iii) of the defence by which the defendants plead that the plaintiff had retained the second defendant to represent him in a claim for damages for personal injuries suffered as a result of Woodside's alleged wrongful conduct.
By par 19 of the reply the plaintiff denies his rendition of the allegation and then proceeds to plead material to justify his denial that extends to one page.
The whole of the content of par 19 is struck out as it may prejudice, embarrass or delay the fair trial of the action. Paragraph 90 provides a sufficient denial of the allegation put by par 10(d)(iii) of the defence.

By par 20 of the reply the plaintiff responds to par 10(e) of the defence by which the defendants contend that according to the terms recorded in a letter dated 11 June 2013 from the second defendant to the plaintiff, the retainer was varied.
The plaintiff denies the variation and raises allegations that extend to more than a page, the content of which has no bearing upon the allegation put by the defendants. The material included at the last two bullet points suggests that the plaintiff either puts a case against or criticism of the defendants. Paragraph 90 of the reply establishes that the denial is not needed.
To the extent that by the content of par 20 the plaintiff puts either a case or criticism, that content is struck out as an abuse of process alternatively and otherwise the balance of the content is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 21 of the reply the plaintiff refers to par 10(g) of the defence by which the defendants plead the extent of the duty that they owed to the plaintiff.
By par 21 of the reply the plaintiff denies his rendition of the defendants' pleading and puts allegations that extend for over a page that would establish foreseeability of the risk of further deterioration of psychiatric injury. The material does not need to be pleaded for the purposes of r 9. By its content the plaintiff puts either a case or criticism against the defendants. Neither is appropriate and the relevant material ought to be struck out as an abuse of process. Otherwise along with balance of the material, it ought to be struck out as it may prejudice, embarrass or delay the fair trial of the action.
The allegation of the defendants is sufficiently denied by par 90 of the reply. The whole of the content of par 21 of the reply is struck out.
By par 24 of the reply the plaintiff responds to par 11(b)(i) of the defence. By that subparagraph the defendants refer to an application for summary judgment brought in the context of proceedings commenced by the plaintiff in the Federal Court. The defendants refer to the affidavit of Jacqueline Elizabeth Young upon which the applicant relied and at subparagraph (i) identify a letter attached to the affidavit and plead a contention put by that letter.
By par 24 the plaintiff admits that contention and proceeds to plead allegations at four bullet points, by one of which he states that in the premises, the defendants were negligent. The plaintiff impermissibly puts a case against the defendants.
But for the admission, the content of par 24 is struck out as an abuse of process alternatively that it may prejudice, embarrass or delay the fair trial of the action.
By par 25 of the reply the plaintiff responds to par 11(b)(ii) of the defence. By par 11(b)(ii) the defendants refer to an email attached to the affidavit of Young in which the plaintiff stated to Woodside that he would seek to register an election under the Workers' Compensation Act and once it was registered, commence proceedings in the District Court of Western Australia for damages.
By par 25, the plaintiff admits the email and that by the email he had advised that he would commence proceedings in the District Court. He then denies allegations not put by the defendants, the first that he understood the election requirement and the second, that the proposed proceedings in the District Court would be an abuse of process and vexatious because it duplicated the claim in the Federal Court of Australia. He then pleads allegations that relate to his understanding of the content of his communication with the solicitors representing Woodside and that the defendants were aware of the email and did not provide advice.
There is no reason to consider that those allegations needed to be pleaded for the purposes of complying with r 9. The contended failure to provide advice suggests that the plaintiff puts a case against the defendants alternatively criticises the defendants.
But for the admissions, the content of par 25 is struck out; the denials because they may prejudice, embarrass or delay the fair trial of the action, the balance as an abuse of process alternatively that the material may prejudice, embarrass or delay the fair trial of the action.
By par 28 of the reply the plaintiff responds to par 12(a) of the defence by which under cover of their denial to each and every allegation made by the content of pars 15, 16 and 17 of the statement of claim, the defendants plead that under s 93K(4) of the Workers' Compensation and Rehabilitation Act 1981 the plaintiff had been required to register an election.
The plaintiff denies that allegation. By a page of text he puts allegations one of which is that the defendants were negligent.
The pleading by par 90 of the reply renders the denial at par 28 unnecessary. To the extent of the allegation of negligence it is inappropriately pleaded and is struck out as an abuse of process. The balance of the content of par 28 is unnecessarily pleaded and is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 36 of the reply the plaintiff responds to par 12(d)(iii) of the defence. By that pleading the defendants contend that advice given to the plaintiff was tenable as it was consistent with particular authority.
By his response at par 36 the plaintiff denies a contention that the defendants did not make at par 12(d)(iii) and proceeds to present allegations over the course of a page of text. At the penultimate bullet point the plaintiff contends that the advice of the defendants was negligent and at the last bullet point, the effect of the defendants' negligence.
As the denial is not consistent with the defendants' allegation and in any event by par 90 of the reply, the plaintiff would deny the allegation, the denial is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action. The allegations that relate to the authority cited by the defendants are not needed for the purposes of compliance with r 9. Those allegations are struck out as they may prejudice, embarrass or delay the fair trial of the action. The allegations that constitute a case are inappropriately put in a reply and are struck out as an abuse of process, alternatively that they may prejudice, embarrass or delay the fair trial of the action.
By par 37 of the reply the plaintiff responds to par 12(e)(i) of the defence by which the defendants refer to advice received from a barrister.
By par 37 the plaintiff admits the allegation made by the defendants and then adds half a page of allegations and at the last of six bullet points puts the allegation that the defendants did not advise the plaintiff and as a consequence he suffered further deterioration of his psychiatric illness. By that allegation the plaintiff impermissibly puts either a case against or criticism of the defendants and is struck out as an abuse of process. Alternatively and in any event the balance of the allegations are unnecessarily pleaded and are struck out as they may prejudice, embarrass or delay the fair trial of the action.
By par 38 of the reply the plaintiff responds to par 12(e)(ii) of the defence. By that paragraph the defendants refer to the advice of a barrister, that in the circumstances that they plead, had been that it may be appropriate to issue proceedings in the District Court.
By par 38 the plaintiff denies his inaccurate rendition of the allegation pleaded by the defendants. He then proceeds to plead allegations at four bullet points. That material concludes with an allegation of failure on the part of the first defendant to identify an issue and advise in relation to it. It suggests that by par 38 the plaintiff puts a case alternatively criticism of the first defendant.
The whole of par 38 of the reply is struck out. The denial may prejudice, embarrass or delay the fair trial of the action. Insofar as the balance amounts to either a case or criticism inappropriately put against the defendants, it is struck out as an abuse of process otherwise it along with what remains is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 39 of the reply the plaintiff responds to par 12(f) of the defence whereby the defendants plead that on or about 7 May 2013 the plaintiff was provided with a copy of the advice of the barrister.
By par 39 the plaintiff admits that he was provided with a copy of the letter but says nothing about the defendants' allegation of the timing of its provision. He goes on to plead allegations that extend to a page. None of those allegations give any precision to the timing of receipt of the letter. By the material at the last of eight bullet points the plaintiff suggests either a case against or criticism of the defendants.
The allegations that convey the case or the criticism of the defendants are struck out as an abuse of process. The balance of the material is not needed to establish the date of the provision of the letter and is otherwise objectively unnecessarily pleaded. But for the admission the balance of the content of par 39 of the reply is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 40 of the reply the plaintiff does not admit that allegation and raises allegations of material fact that extend to a page. By the last of seven bullet points the plaintiff contends a failure on the part of the defendants to act. Thereby the plaintiff indicates that he either puts a case against or criticism of the defendants.
Because by par 90 of the reply the plaintiff puts a sufficient response to the defendants' allegation, the whole of the content of par 40 is struck out; the case or criticism, as it is an abuse of process, alternatively and in any event, the balance as it may prejudice, embarrass or delay the fair trial of the action.
By par 44 of the reply the plaintiff pleads in response to par 17(a) of the defence. The defendants thereby respond to allegations of the plaintiff put by pars 22 and 23 of the statement of claim and further plead that the plaintiff had communicated with the second defendant by email sent on 5 July 2013. By that email the plaintiff had informed the second defendant that Justice Gilmour of the Federal Court had requested clarification of the nature of the District Court writ and the plaintiff had asked whether it embodied a claim for workers' compensation or was a common law claim.
The plaintiff admits the communication and that Justice Gilmore had sought clarification of the nature of the proceeding in the District Court but then proceeds to put allegations recorded at five bullet points that bear upon or are drawn from the context in which the communication had been provided. At the last bullet point the plaintiff refers to the risk of further deterioration of his psychiatric illness.
The allegations are sufficient to convey that the plaintiff either constitutes a case against or criticism of the defendants.
In any event, as the allegation of the defendants is admitted, there is no reason for the plaintiff to plead the additional material at par 44. All but the admission pleaded by par 44 of the reply is struck out. The case or criticism is struck out as an abuse of process. Alternatively it is struck out as it may prejudice, embarrass or delay the fair trial of the action. Because there is no need to plead the balance of par 44, it is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 48 of the reply the plaintiff responds to par 17(e) of the defence by which the defendants plead a meeting held on 10 July 2013 attended by the plaintiff, the defendants and a barrister at which the barrister recommended prosecuting the District Court action.
By par 48 of the reply, the plaintiff does not admit the recommendation. He goes on to allege that the defendants never provided him with advice of the merits of commencing proceedings in the District Court; that the District Court action would be considered statute barred; and that in any event the defendants had commenced those proceedings without replying to a question raised in his email dated 3 May 2013.
Although none of those matters are raised by par 17(e) of the defence, objectively the allegations are not needed for the purpose of complying with r 9. Paragraph 90 of the reply is a sufficient response to par 17(e) of the defence.
The whole of the content of par 48 of the reply is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 50 of the reply the plaintiff responds to par 18(a) of the defence by which the defendants plead a communication sent by the plaintiff to the second defendant on 16 July 2013 in which he asked the defendants to consider a specific strategy.
By par 18(a) the defendants have pleaded a feature of one of those instructions.
By the reply the plaintiff denies that he understood the implementation of the strategy. The defendants had not so contended. The plaintiff then pleads allegations that extend to roughly a page of text at seven bullet points. Those allegations provide grounds to consider that the plaintiff had been confused by the context that he confronted. At the last bullet point he puts an allegation of the risk of further deterioration of his psychiatric illness.
The context in which those allegations are put strongly suggests that thereby the plaintiff inappropriately puts a case against or criticism of the defendants. Whether or not that was the plaintiff's intention, objectively the plaintiff does not need to plead any of the material for the purpose of responding to par 18(a) of the defence.
The denial and the allegations are struck out as an abuse of process, alternatively that they may prejudice, embarrass or delay the fair trial of the action.
By par 54 of the reply the plaintiff responds to par 18(e) of the defence by which the defendants refer to an instruction sent by the plaintiff to the second defendant by email of 30 July 2013. The defendants plead that the instruction had been to discontinue the District Court action on the basis that if the proposed mediation was unsuccessful there could be a discussion about issuing another action in the District Court that involves only workers' compensation issues.
By par 54 of the reply the plaintiff denies that the instruction to discontinue the District Court action had been on the basis that he contends that the defendants had alleged. He then proceeds to plead the best part of a page of material that it is open to consider is impermissibly put as either a case against one or other of the defendants or as criticism of one or other of them. In any event, it is not material that bears upon the contention put by the defendants in par 18(e) of their defence.
As the denial does not respond to the terms by which the allegation is put, the denial is struck out. To the extent that the plaintiff puts a case or criticism, the allegations are struck out as an abuse of process. Otherwise and to the extent of the balance of the material, it is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 58 of the reply the plaintiff responds to par 18(i) of the defence by which the defendants refer to a letter dated 6 August 2013 from the second defendant to the plaintiff, by which the second defendant sought specific instructions by 7 August 2013.
By par 58 of the reply the plaintiff does not plead to the allegation but rather refers to advice that he received from an unspecified source to maintain the District Court proceedings. The reply does not respond to the defence. Otherwise by par 58 the plaintiff pleads allegations at six bullet points by which he presents either a case against or criticism of the defendants. The allegations are not needed in order to respond to par 18(i) of the defence. The whole of the content of par 58 is struck out: the case or criticism of the defendants as an abuse of process, alternatively and in any event, the balance because it may prejudice, embarrass or delay the fair trial of the action.
By par 60 of the reply the plaintiff responds to par 18(k) of the defence.
By par 18(k) the defendants admit that the second defendant did not discontinue the District Court action but allege that it was entitled to apply to the District Court for an order that it cease to act for the plaintiff.
By par 60 of the reply the plaintiff denies the claimed entitlement of the second defendant to get off the record. He qualifies the denial by reference to an expectation that he would be provided with an explanation of a feature of some advice that had been provided by the defendants. He provides an unclear allegation in relation to the amount of $40,000 that the defendants withdrew from the plaintiff's trust account with the defendants. Otherwise the plaintiff either pleads a case against the defendants or provides criticisms of the defendants.
There is no reason to consider that the content of par 60 of the reply needed to be pleaded for the purpose of complying with r 9. Accordingly the whole of the content of par 60 is struck out: the case against or criticism of the defendants as an abuse of process, alternatively and in any event, the balance because it may prejudice, embarrass or delay the fair trial of the action.
By par 63 of the reply the plaintiff responds to par 19 of the defence. By par 19 the defendants admit the content of par 27 of the statement of claim except for the identity of the addressee of the relevant memorandum.
By par 63 of his reply the plaintiff introduces several allegations that could not possibly bear upon the admission and say nothing in relation to the identity of the addressee of the memorandum the subject of the defendants' admission. To the contrary, at the conclusion of the passage the plaintiff pleads the defendants' negligence. That part of the material is struck out on the basis that presenting the case in the reply is an abuse of process. The balance of the material is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 66 of the reply the plaintiff responds to par 22(c) of the defence by which the defendants refer to a letter dated 25 September 2013 emailed to the plaintiff by which the second defendant stated that allegations made by the plaintiff in his email of 24 September 2013 were wrong in fact.
By par 66 of his reply the plaintiff admits that the first defendant denied the allegations. He goes on to plead that the defendants did not provide an explanation for what he contends was inconsistent advice relating to the District Court proceedings. He specifies what implicitly the inconsistent advice had been along with a case of negligence at 13 bullet points that extend to more than one page.
As the plaintiff admits par 22(c) of the defence there is no need for the plaintiff to plead any allegation. Other than the admission, the content of par 66 is struck out. To the extent that the plaintiff pleads a case, it is struck out on the basis that it is an abuse of process, alternatively, on the basis that the material may prejudice, embarrass or delay the fair trial of the action. The balance of the material is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 67 of the reply the plaintiff responds to par 22(d) of the defence by which the defendants plead that by an email sent to the second defendant on 25 September 2013 the plaintiff sought further advice from the defendants on the merits of discontinuing the Federal Court action.
The plaintiff pleads at par 67 that he denies that he sought 'further advice' on the merits of the District Court action.
The only conclusion open on the reply is that the plaintiff has misread the allegation put by the defendants.

The plaintiff then pleads a number of allegations at three bullet points that do not address the issue raised by the defendants. They suggest a case of failure to act that 'caused further deterioration of the psychiatric illness'. Otherwise the allegations have no bearing upon the defendants' contention and accordingly could not be within the scope provided by the rules. According to par 90 of the reply, the allegation at par 22(d) of the defence is denied.
The whole of the content of par 67 is struck out: to the extent that the plaintiff puts either a case or criticism of the defendants, as an abuse of process alternatively as it as it may prejudice, embarrass or delay the fair trial of the action; to the extent that he does not, because the material may prejudice, embarrass or delay the fair trial of the action.
By par 68 of the reply the plaintiff responds to par 22(e) of the defence by which the defendants contend they did not reply to the plaintiff's email of 25 September 2013 and were under no obligation or duty to do so.
The plaintiff denies that the defendants had no obligation to reply and he provides allegations that extend to eight bullet points that account for a substantial part of a page of text, by the first of which he refers to the Civil Liability Act 2002 from which he draws a contention of there having been an obligation on the part of the defendants to take reasonable care to avoid harm to the plaintiff.
Other than the denial, the whole of the content of par 68 suggests that the plaintiff puts a case or criticism of the defendants. The whole of the content of par 68 is struck out as an abuse of process alternatively that it may prejudice, embarrass or delay the fair trial of the action.
By par 71 of the reply the plaintiff responds to par 24(a) of the defence by which the defendants plead an allegation.
By par 71 of the reply the plaintiff admits the allegation. He then proceeds to plead a number of allegations that extend to a significant proportion of a page. Some of the allegations repeat allegations he makes by the statement of claim, others elaborate upon the allegations made by the statement of claim. Due to the admission and the limited scope provided by r 9 for pleading a reply, none of the allegations pleaded by the reply are needed.
But for the admission, the content of par 71 of the reply is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 72 of the reply the plaintiff pleads a response to par 24(b) of the defence by which the defendants plead that the plaintiff had not identified the second defendant's mistake in part of the content of the statement of claim prepared by the defendants on his behalf.
By par 72 of the reply the plaintiff denies that the defendants had made a mistake. The plaintiff then provides the best part of a page of material to justify his denial.
There is no need for a party to justify a denial. Paragraph 90 provides a sufficient denial of the allegation made by the defendants. Each part of par 72 of the reply is struck out as it may prejudice, embarrass or delay the fair trial of the action.
By par 73 of his reply the plaintiff further pleads in relation to par 24(b) and also in relation to par 24(c) of the defence. The contention put by par 24(c) of the defence is the failure of the plaintiff to identify the mistake over an extended period of time.
By par 73 of the reply the plaintiff effectively puts the same denial as that put by par 72 and he then puts allegations at 13 bullet points over more than one page of text that extends or elaborates upon the allegations that he put at par 72 of the reply.
The additional allegations put by par 73 are not needed for the same reason as that given in relation to the content of par 72. Paragraph 90 is a sufficient denial of the allegation made by the defendants. Features of the allegations provide reason to consider that the plaintiff inappropriately puts a case or criticism of the defendants. Each part of par 73 of the reply is struck out: to the extent of the allegations that put the case or criticism, on the basis that to do so is an abuse of process, otherwise and as for the balance, on the basis that they may prejudice, embarrass or delay the fair trial of the action.
By par 75 of the reply the plaintiff pleads to par 25(a) of the defence. By par 25(a) the defendants specify that on or about 7 June 2013 the second defendant stated that at it intended to cease to act for the plaintiff in the District Court action.
By par 75 of his reply the plaintiff admits that fact and then puts allegations at four bullet points that may be taken to somehow bear upon the admission.
Because the plaintiff admits the allegation, no further pleading is needed. All the allegations put by par 75 are struck out as they may prejudice, embarrass or delay the fair trial of the action.
By par 77 of the reply the plaintiff pleads to par 25(c) of the defence.
By par 25(b) of the defence the defendants refer to the plaintiff's email to the second defendant dated 7 June 2013 by which he had directed an enquiry to the defendants. The defendants plead at par 25(c) that in response to that request, they reported some detail to the plaintiff.
By par 77 of his reply the plaintiff denies that that the defendants' response to his communication was sufficient to alienate his perception of conspiracy between the defendants and Woodside. He then makes several allegations that extend to more than half a page of text in which he raises the prospect of a case against or criticism of the first defendant.
The denial put by the plaintiff is not put to any contention pleaded by the defendants and is struck out as it may prejudice, embarrass or delay the fair trial of the action. The allegations that suggest a case against or criticism of the first defendant are struck out as an abuse of process alternatively may prejudice, embarrass or delay the fair trial of the action. The balance of the allegations are unnecessary as they do not engage with the allegation raised by par 24(c) of the defence but rather, extend considerations that emerge from the pleading of the defendants' reply to the communication from the plaintiff. They are struck out as they may may prejudice, embarrass or delay the fair trial of the action.
By par 78 of the reply the plaintiff responds to par 25(d) of the defence by which the defendants plead that by an email from the plaintiff to the second defendant sent on 11 June 2013 the plaintiff requested the second defendant agree to continue to act for him in the District Court proceedings.
By par 78 of the reply the plaintiff pleads a qualified denial of the allegation and proceeds to put allegations against the defendants.
The allegations suggest that he puts a case against, alternatively criticism of the defendants. Neither is appropriately pleaded. To do so is an abuse of process. Paragraph 90 of the reply provides a clear denial of the allegation of the defendants.
The whole of the content of par 78 is struck out. To the extent that the plaintiff puts a case against or criticism of the defendants, as an abuse of process. Otherwise and in any event as for the balance, on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 82 of the reply the plaintiff refers to par 28 of the defence by which the defendants plead that any injury suffered by the plaintiff as a result of any wrongful conduct of the defendants is statute barred.
The only part of par 82 the subject of the application is the content of the material at the twelfth bullet point. At that point the plaintiff alleges that a perception drawn from the defendants' advice and conduct left him with an entrenched perception that 'Woodside succeeded once more in turning my lawyers against me'.
The allegations made at five paragraphs at that point suggest that the plaintiff puts either a case against or criticism of the defendants. Neither is appropriately pleaded and is struck out on the basis that it is an abuse of process to so plead. Alternatively the material is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 85 of the reply the plaintiff responds to par 29(c) of the defence. By par 29(c) the defendants assert that in any assessment of the plaintiff's damages credit must be given for any amounts paid by Woodside to the plaintiff in settlement of the Federal Court proceedings.
By par 85 the plaintiff denies that assertion and puts several allegations at eight bullet points, at one of which he contends that the defendants carry the onus to disentangle the damage caused by their negligence and that caused by Woodside. At the preceding bullet point, the only part of par 85 that is a subject of the defendants' application, the plaintiff pleads that in the event that the court awards damages, yet Woodside is found to have paid more than its share of the damages then the defendants' liability is not reduced and Woodside may seek to recover the 'excess' payment. As the action is presently configured there is no scope for such a determination to be made.
Due to the denial pleaded by par 90 of the reply there is no need for the plaintiff to so plead. The content of par 85 of the reply recorded at the fifth bullet point is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
Although not a part of the application, reference has been made to the allegation of negligence at the following bullet point. That allegation is struck out on the basis that to so plead is an abuse of process.
By par 86 of the reply the plaintiff addresses the defendants' pleading at par 29(d) by which they contend that if the compensation paid by Woodside was less than the amount or value of the damage suffered by the plaintiff, the plaintiff failed to mitigate his loss.
By par 86 of his reply, the plaintiff puts a qualified denial of the defendants' allegation. The result generates lack of clarity. By par 90 he has pleaded a satisfactory denial of general application. He also asserts the defendants' negligence.
A review of the content of the balance of the material reveals that objectively the plaintiff does not need to plead. The content of par 86 of the reply is struck out as it may prejudice, embarrass or delay the fair trial of the action. To the extent that he pleads negligence, the additional reason to strike out that allegation is that to so plead in a reply is an abuse of process.
By par 87 of the reply the plaintiff pleads to par 29(e) of the defence by which the defendants put a further or alternative case that the action is an abuse of process in circumstances where having recovered compensation for his injuries from Woodside, the action against the defendants constitutes an impermissible vexation or oppression and unfairness to the defendants.
By par 87 the plaintiff denies those allegations and justifies the denial by the best part of a page of text. The plaintiff does not need to justify the denial. As a denial of general application is put by par 90 of the reply, that pleaded at par 87 is not needed. Each part of par 87 is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action.
By par 88 of the reply the plaintiff responds to par 30 of the defence by which the defendants contend that in the premises the plaintiff is not entitled to the relief claimed or to any relief.
By par 88 of the reply the plaintiff denies the allegation and then alleges matters that extend to two pages of text that commences by reference to the liability of the defendants to pay damages.
Upon review of the content of par 88 there is no need for the plaintiff to so plead. Each part of par 88 of the reply is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action. To the extent that by par 88 the plaintiff puts a case against the defendants, the additional reason to strike out that part of par 88 is that it constitutes an abuse of process.
The paragraphs of the reply the subject of par 1(e) of the application are 31, 32, 51, 53, 55, 56, 57, 59 and 61. The defendants seek to have all but the admissions conveyed by those paragraphs struck out on the basis that they are unnecessary given what is pleaded is not needed for compliance with O 20 r 9; and/or they represent an attempt to impermissibly introduce a cause of action into the reply.
By par 31 of his reply the plaintiff refers to par 12(c)(i)(2) of the defence.
At that point the defendants refer to a communication of the first defendant for himself and on behalf of the second defendant dated 17 April 2013 by which the first defendant expressed the opinion that the proper jurisdiction for the prosecution at the plaintiff's common law claim against Woodside was the District Court of Western Australia.
By par 31 the plaintiff admits the advice and then proceeds for a page of pleading to contend a number of allegations. Due to the admission, there was no need to plead any of those allegations. Each part of par 31 other than the admission is struck out as it may prejudice, embarrass or delay the fair trial of the action.
As it is open to consider that by the allegations the plaintiff either puts a case or criticism against the defendants, the additional reason to strike out that material is that to so plead is an abuse of process.
By par 32 of the reply the plaintiff refers to par 12(c)(ii) of the defence by which, with reference to the same communication to which the admission at par 31 relates, the defendants plead that the first defendant said that he would provide further advice upon receipt of an identified barrister's opinion.
By par 32 of the reply the plaintiff admits the allegation but then proceeds at six bullet points to provide allegations that relate to the advice. None of those allegations needs to be pleaded for the purpose of responding to the allegation of the defendants.
Each part of par 32 other than the admission is struck out because it may prejudice, embarrass or delay the fair trial of the action. Because part of the material pleaded by the plaintiff suggests a case or criticism of the defendants, to that extent an additional reason to strike out that material is that it amounts to an abuse of process.
By par 53 of the reply the plaintiff pleads to par 18(d) of the defence by which the defendants plead that by letter dated 30 July 2013 the defendants advised the plaintiff that if he did not have an action on foot in the District Court then the mediator was unlikely to agree to mediate and in the circumstances they discouraged the discontinuance of the District Court proceedings.
At par 53 the plaintiff admits that was the effect of the defendants' advice. Nonetheless he pleads allegations that bear upon the admission that comprise two pages of text. Due to the admission, none of those allegations needs to be pleaded.
Each part of par 53 other than the admission is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action. As parts of the material suggest a case or criticism of the defendants, the alternative reason to strike out those parts is that they constitute an abuse of process.
By par 55 of the reply the plaintiff refers to par 18(f) of the defence by which the defendants contend that by letter dated 31 July 2013 the defendants advised the plaintiff that discontinuance of the District Court action may well create grave difficulties for the plaintiff in prosecuting a claim against Woodside and the plaintiff should reconsider his position.
By par 55, the plaintiff admits provision of the advice and goes on to plead various allegations at three bullet points. None of those allegations needs to be pleaded and they are struck out as they may prejudice, embarrass or delay the fair trial of the action. Alternatively as the content of the material suggests that the plaintiff puts a case against or criticises the defendants it is struck out as it is an abuse of process.
By par 56 the plaintiff addresses par 18(g) of the defence by which the defendants refer to an email sent to the second defendant by the plaintiff with instructions to discontinue the District Court action. By the reply the plaintiff admits the instruction but not the method of its communication. He then provides allegations that extend to half of a page that may be taken to establish a case against or criticism of the defendants.
It is unnecessary for the plaintiff to do more than admit the defendants' allegation. The allegations are struck out on the basis that they may prejudice, embarrass or delay the fair trial of the action. To the extent that by the allegations the plaintiff puts a case against or criticism of the defendants alternatively they are struck out as an abuse of process.
By par 57 of the reply the plaintiff pleads to par 18(h) of the defence. By par 18(h) the defendants refer to a letter dated 2 August 2013 to the plaintiff by which they communicated their acknowledgement of his instructions to discontinue the District Court action. The plaintiff admits the instruction to discontinue the District Court action but not the communication. Thereafter he pleads allegations that do not bear upon either the admission or the balance of par 18(h) of the defence. There is no need for the plaintiff to plead those allegations and they are each struck out as they may prejudice, embarrass or delay the fair trial of the action. To the extent that by those allegations the plaintiff presents a case against or criticism of the defendants, the additional reason to do so is that they amount to an abuse of process.
By par 59 of the reply the plaintiff refers to par 18(j) of the defence by which the defendants plead an email sent to the second defendant by the plaintiff instructing the defendants to discontinue the District Court action. The plaintiff admits the instruction. He then proceeds to plead allegations that have no bearing upon the content of par 18(j) of the defence. There is no need for the plaintiff to plead those allegations and they are each struck out on the basis that they may prejudice, embarrass or delay the fair trial of the action. To the extent that by the allegations the plaintiff puts a case against or criticism of the defendants, alternatively they are struck out as an abuse of process.
By par 61 of the reply the plaintiff addresses par 18(1) of the defence whereby the defendants contend that on 21 August 2013 the plaintiff terminated the retainer by filing a notice of intention to act in person in the District Court proceedings. By par 61 the plaintiff admits filing the notice. He then proceeds to allege at seven bullet points matters that bear upon him filing the notice. Due to the admission, there is no need for the plaintiff to plead any of those allegations. Each of those allegations is struck out as it may prejudice, embarrass or delay the fair trial of the action. Because by the content of some of the allegations it is open to consider that the plaintiff inappropriately puts a case or criticism of the defendants, alternatively those allegations are struck out as an abuse of process.
The last feature of the application relates to par 52 of the reply. By par 52 the plaintiff refers to par 18(c) of the defence by which the defendants refer to an email sent by the plaintiff to the second defendant dated 29 July 2013 by which he instructed the defendants to discontinue the District Court action.
The plaintiff admits the instruction but then proceeds for half a page of text to introduce allegations including that the defendants were not acting in his best interests including by maximisation of billable hours, sabotaging his claim in the Federal Court and receipt of an unspecified benefit.

By the application the defendants seek to have all but the admission pleaded at par 52 struck out on the basis that what is pleaded is not needed alternatively that it makes a scandalous allegation.
Because the plaintiff makes the admission there is no need for the contested allegations. Other than the admission each part of par 52 of the reply is struck out on the basis that it may prejudice, embarrass or delay the fair trial of the action. To the extent that by the contested allegations the plaintiff puts a case against or criticism of the defendants, an additional reason to strike out that material is that it amounts to an abuse of process. To the extent that the plaintiff contends that the defendants were acting in accordance with particular sinister motives, the material is struck out as it is scandalous.
By way of summary, paragraphs 3 to 23, 26, 27, 28, 34 to 38, 40 to 43, 45, 48, 50 to 54, 58, 60, 62 to 65, 67 to 70, 72, 73, 74, 77 to 81, 86, 87, 88, and 89 are each struck out. The material recorded at the 13th bullet point of par 25, at the 12th bullet point of par 82 and at the 5th and 6th bullet points of par 85 is also struck out. But for the admissions made by pars 24, 25, 31, 32, 39, 44, 52, 53, 55, 56, 57, 59, 61, 66, 71, and 75, the balance of those paragraphs is struck out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Registrar
15 SEPTEMBER 2023