BICKER -v- AEGIS AGED CARE STAFF PTY LTD [2024] WADC 117

Catchwords:
Practice and procedure – Pleadings – Rules of the Supreme Court 1971 (WA) O 20 r 19 – Strike out application by second defendant – Appeal from registrar’s decision – Whether plaintiff required to plead factual basis for asserting that second defendant occupied or was in control of premises for purpose of Occupiers’ Liability Act 1985 (WA) – Whether plaintiff required to plead factual basis for asserting that second defendant was in control of premises for purpose of s 22 of Occupational Safety and Health Act 1984 (WA) (repealed)
Practice and procedure – Pleadings – Rules of the Supreme Court 1971 (WA) O 20 r 7(5) – Observations on rule that pleadings be signed – Observations on requirement that there be a factual basis for pleading

[2024] WADC 117
[2024] WADC 117 (MLH) Page 1
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : BICKER -v- AEGIS AGED CARE STAFF PTY LTD [2024] WADC 117
CORAM : STAUDE DCJ
HEARD : 17 DECEMBER 2024
DELIVERED : Ex tempore
PUBLISHED : 30 JANUARY 2025
FILE NO/S : CIV 1096 of 2022
BETWEEN : KELLIE BICKER
Plaintiff
AND
AEGIS AGED CARE STAFF PTY LTD
First Defendant
AEGIS AGED CARE MANAGEMENT PTY LTD
Second Defendant
AEGIS AGED CARE GROUP PTY LTD
Third Defendant
AEGIS HEALTH PTY LTD
Fourth Defendant
AEGIS HEALTH OPERATING PTY LTD
Sixth Defendant
BALMORAL AGED CARE GROUP PTY LTD
Seventh Defendant
[2024] WADC 117
[2024] WADC 117 (MLH) Page 2
Catchwords:
Practice and procedure – Pleadings – Rules of the Supreme Court 1971 (WA) O 20 r 19 – Strike out application by second defendant – Appeal from registrar’s decision – Whether plaintiff required to plead factual basis for asserting that second defendant occupied or was in control of premises for purpose of Occupiers’ Liability Act 1985 (WA) – Whether plaintiff required to plead factual basis for asserting that second defendant was in control of premises for purpose of s 22 of Occupational Safety and Health Act 1984 (WA) (repealed)
Practice and procedure – Pleadings – Rules of the Supreme Court 1971 (WA) O 20 r 7(5) – Observations on rule that pleadings be signed – Observations on requirement that there be a factual basis for pleading
Legislation:
Occupational Safety and Health Act 1984 (WA)
Occupiers’ Liability Act 1985 (WA)
Result:
Appeal dismissed
Statement of claim struck out in part
Representation:
Counsel:
Plaintiff
:
Mr T H Offer
First Defendant
:
Mr J J Sheldrick
Second Defendant
:
Mr J J Sheldrick
Third Defendant
:
No appearance
Fourth Defendant
:
No appearance
Sixth Defendant
:
No appearance
Seventh Defendant
:
No appearance
[2024] WADC 117
[2024] WADC 117 (MLH) Page 3
Solicitors:
Plaintiff
:
Peninsula Personal Injury Lawyers
First Defendant
:
Hall & Wilcox (Perth)
Second Defendant
:
Hall & Wilcox (Perth)
Third Defendant
:
Not applicable
Fourth Defendant
:
Not applicable
Sixth Defendant
:
Not applicable
Seventh Defendant
:
Not applicable
Case(s) referred to in decision(s):
DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Great Australian Goldmining Co v Martin (1877) 5 Ch D 1
Metaxas v Legal Profession Complaints Committee [2020] WASCA 27
Rossen v Airey [2012] WASCA 26
Stewart v Hames [2019] WASCA 127
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright [No 2] [2021] WASC 159
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 4
STAUDE DCJ:
[This decision was delivered extemporaneously on 20 December 2024 and edited from the transcript.]
1
This action involves a claim for damages for personal injury suffered by the plaintiff on 21 March 2019 when, in the course of her employment at premises described as the Aegis Aged Care Facility in Melville, the plaintiff slipped and fell on the wet floor of a kitchen and was injured.
2
The action was commenced by writ of summons on 20 March 2022.
3
The slow progress of the action to this point – it has not yet been entered for trial – appears to be due, at least in part, to the joinder of nine defendants each of whom was alleged in the original statement of claim indorsed on the writ of summons to be the employer of the plaintiff or the owner or occupier of the premises. The plaintiff’s claims against the fifth, eighth and ninth defendants have since been discontinued.
4
On 12 March 2024 Registrar Kubacz gave the plaintiff leave to amend the ‘writ of summons indorsed by statement of claim’. The amended document was filed on 13 March 2024 and purported wrongly to amend the date of the writ itself. It should be observed with respect that where a statement of claim has been indorsed on a writ in the manner permitted by the Rules of the Supreme Court 1971 (WA) (RSC) O 6 r 3, it thereafter stands alone as the statement of claim. It can be amended without having to reproduce the writ of summons on which the original was indorsed.
5
It should also be observed that neither the original statement of claim indorsed on the writ nor the amended statement of claim filed 13 March 2024 complies with the RSC. They are not signed. Though no point has been taken hitherto, it is important to insist upon observance of this rule because it serves an important purpose.
6
By signing a pleading, a legal practitioner, whether counsel or a solicitor, vouches that it is not a fiction, that there is a factual basis for it: see Great Australian Goldmining Co v Martin (1877) 5 Ch D 1, 10. It holds the person who settled the pleading responsible for it. It is a rule of professional conduct that fact should not be pleaded that the pleader is not believe on reasonable grounds will be capable of support
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 5
by available evidence: see
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA) r 21(3), formerly, the Legal Profession Conduct Rules 2010 (WA) r 36(4). See also Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 [67].
7
RSC O 26A provides for pre-action discovery. The authors of the Red Book observe at par 20.7.3 that this rule is aimed at ensuring that parties do not commence litigation in the hope that something might turn up in the discovery process.
8
The amended statement of claim filed on 13 March 2024 alleges in par 3 that the plaintiff was employed by the first defendant at the premises. It also alleges in par 4 that at all material times the seventh defendant owned the premises and operated a private aged care facility as an approved provider of aged care services under the Aged Care Quality and Safety Commission Act 2018 (Cth).
9
The amended statement of claim also alleges in par 5(i):
The First Defendant and/or the Second Defendant and/or the Third Defendant and/or the Fourth Defendant and/or the Sixth Defendant and/or the Seventh Defendant, and any of them, were occupiers of the Premises pursuant to section 2 of the Occupiers Liability Act 1985 (OLA).
10
By par 6 the plaintiff alleged that at all material times the defendants (or any one or more of them) were a person in control of the premises for the purposes of s 19 and s 22 of the Occupational Safety and Health Act) 1984 (WA) (OSHA).
11
Paragraphs 7, 8, 9, 10 and 11 set out the alleged duty of care of the first defendant as the plaintiff’s employer and as the occupier of the premises, pars 10 and 11 also pleading a contractual obligation on the part of the first defendant as employer in similar terms to the alleged duty of care.
12
Paragraphs 12, 13 and 14 set out the alleged duty of care of the second, third, fourth and sixth defendants: par 12 alleges that those defendants owed a duty of care to the plaintiff to prevent the foreseeable risk of injury or harm whilst she was engaged by the first defendant to work at the premises; par 13 that those defendants owed a statutory duty of care to the plaintiff pursuant to s 22 of the OSHA to provide to the plaintiff and maintain a work environment in which she would not be exposed to hazards; and par 14 that by reason of the
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 6
matters pleaded in pars
3 and 5, those defendants owed a statutory duty of care to the plaintiff pursuant to s 5(1) of the OLA.
13
Paragraph 20 alleges that the incident was caused ‘by the negligence and/or breach of contract and/or breach of statutory duty of the defendants’.
14
By chamber summons filed 4 April 2024 the first and second defendants applied for orders that pars 5(i), 6, 12, 13, 14 and 20 of the amended statement of claim be struck out on the grounds that pars 5(i), 6, 12, 13 and 14 disclosed no reasonable cause of action and they prejudiced, embarrassed or delayed the fair trial of the action and that par 20 may prejudice, embarrass or delay the fair trial of the action.
15
Although the application is made by the first and second defendants jointly, the relief sought in the chamber summons is for the second defendant only. The chamber summons ought to have been amended in that respect.
16
This application was opposed. It was heard by Registrar Nairn on 29 August 2024. On 4 September 2024 the learned registrar delivered ex tempore reasons for allowing the application. The learned registrar struck out pars 5(i), 6, 12, 13, 14 and 20 of the amended statement of claim and granted leave to the plaintiff to file and serve a re-amended statement of claim.
17
That decision was appealed by notice filed on 13 September 2024. The matter came before Registrar Kubacz for directions on 29 October 2024. On that occasion the learned registrar ordered that the plaintiff file and serve a minute of proposed amended statement of claim, in fact a re-amended statement of claim (as I will refer to it) that was filed on 15 November 2024.
18
When the matter came before me on 17 December 2024, Mr Offer, for the plaintiff, confirmed that the re-amended statement of claim was filed pursuant to Registrar Kubacz’s order, not the order of Registrar Nairn.
19
As the plaintiff’s minute of proposed re-amended statement of claim was filed and served at the direction of a registrar in the appeal, I consider that the issues with respect to the second defendant’s application should be determined on the basis of that minute, even though leave to amend as such has not been granted.
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 7
20
The minute of proposed re-amended statement of claim addresses a defect observed by Registrar Nairn in par 5(i) of the amended statement of claim. The learned registrar took the view that this subparagraph pleaded a conclusion of law, pointing out in his reasons that the term ‘occupier of premises’ is defined by s 2 of the OLA to mean ‘a person occupying or having control of land or other premises’. So the plaintiff proposes to amend par 5(i) to plead that the defendants ‘occupied and/or had control of the premises and accordingly were occupiers …’.
21
While the learned registrar was prepared to strike out par 5(i) for the reason that it pleaded a legal conclusion, he was not prepared to find that any more had to be pleaded than that the defendants occupied or were in control of the premises. The second defendant maintains, however, that the proposed amendment is still inadequate to enable it to know the factual basis on which the plaintiff alleges it owed her a duty of care.
22
The plaintiff also proposes that par 20 be amended to distinguish the basis for the first defendant’s liability as the plaintiff’s employer and as an occupier from the basis for the other defendants’ liability as mere occupiers of the premises by pleading that the plaintiff’s fall, defined as ‘the accident’, was caused by ‘the negligence and/or breach of contract and/or breach of statutory duty of the first defendant, and/or the negligence and/or breach of contract and/or breach of statutory duty of the second to seventh defendants’. Mr Offer conceded that the minute contains an obvious mistake in that respect as no contractual claim is made against those defendants.
23
As an appeal from a decision of a registrar this is a hearing de novo of the second defendant’s application. Such appeals are governed by District Court Rules 2005 (WA) r 15(6) which provides that the appeal is to be by way of a new hearing of the matter before the registrar. There is no requirement on the appellant to show that the registrar made an error of law or principle. Even so the appellant has the right as well as the obligation to open the appeal: Stewart v Hames [2019] WASCA 127 [8].
24
I should say that as well as being assisted by oral submissions by counsel at the hearing of the appeal I have also had regard to the plaintiff’s written outline of submissions filed 28 August 2024, the first and second defendants’ submissions filed 26 August 2024 and
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 8
the
transcript of Registrar Nairn’s reasons for decision delivered 4 September 2024.
25
Essentially what is in issue is whether the rules of pleading require the plaintiff to plead the factual basis upon which it alleges that the second defendant was an occupier of the premises.
26
This question turns upon the application of the relevant principles. These are not in issue and were concisely stated by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] in a manner approved by the Court of Appeal in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56].
27
Of those four are particularly relevant:
(a) the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
…
(d) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. …;
…
(i) pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case that the party in question with reasonable particularity, or they raise a case in terms which are simply too general;
…
(citations omitted)
28
The second defendant’s contention is that pars 5(i), 6, 12, 13 and 14 disclose no reasonable cause of action.
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 9
29
In Rossen v Airey [2012] WASCA 26 [30] Newnes JA with whom Pullin JA and Allanson J agreed, held:
A ’cause of action’ is the factual situation which will entitle a person to approach the court for relief: Morgan v Banning (484). That is, it is the facts which would entitle the plaintiff to judgment, but not the evidence which would be necessary to prove those facts: Read v Brown (1888) 22 QBD 128. It is the facts which would entitle the plaintiff to judgment that are critical in determining the cause of action, not any legal characterisation which might be given to the facts. As Wheeler JA observed in Morgan v Banning (485), a principal purpose of a cause of action is to enable a defendant to know with finality what fact or facts are said to give rise to the action against him, rather than what label may be conveniently applied to those facts. …
30
It is critical to a cause of action for breach of a duty of care imposed by the OLA to plead that the defendant at the material time occupied or was in control of the premises. Proof of either of those facts would establish that the defendant was an occupier and therefore subject to the OLA.
31
The second defendant’s position is that it does not know the factual basis upon which the plaintiff asserts that it occupied or was in control of the premises. In DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170 Beech J, as he then was, observed that:
A statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet. Whether it is sufficient to plead simply that one thing caused another, or whether further facts must be pleaded to establish a causal link, will depend on the pleaded facts and circumstances.
(citations omitted)
32
In many cases involving claims for breach of duty of care, the relationship giving rise to the duty of care, whether by statute or common law, will be obvious. For example, in this case, the fact that the plaintiff was employed by the first defendant at the premises and that the seventh defendant owned the premises afford a clear factual basis upon which to assert that they owed a duty of care to the plaintiff. As against the second defendant, however, the statement of claim gives no clue as to the factual basis upon which the plaintiff asserts that the second defendant occupied or was in control of the premises.
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 10
It
does not allege that the second defendant carried on business there or that it had a lease of the premises or a licence to occupy the premises.
33
That observation by the court was put to counsel for the plaintiff in the course of the hearing. Counsel responded that the plaintiff is not able to plead as a matter of fact the basis upon which the second defendant was an occupier other than to assert that it occupied and was in control of the premises. The plaintiff expects that discovery will reveal a basis for the assertion.
34
Implicit in this response is an admission that the plaintiff lacks a factual basis for the claim against the second defendant which suggests that the claim against the second defendant is speculative.
35
In my view, the pleading of the basis of the pleaded causes of action, being negligence at common law and breach of duty under the OLA, must be sufficient to inform the second defendant of the basis upon which it is said to be liable for the plaintiff’s alleged injury and loss. The plaintiff may not plead evidence but is required by RSC O 20 r 8 to plead in summary form the material facts on which she relies for her claim.
36
In Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright [No 2] [2021] WASC 159 [425] Le Miere J held:
The question whether a pleading states a party’s case sufficiently clearly to allow the other party a fair opportunity to meet it raises questions of degree. A judgment needs to be made whether a defendant has pleaded their case with sufficient clarity to allow the plaintiff a fair opportunity to meet that case. Whether or not the defendant has done so is to be determined as a matter of practical justice. …
(citations omitted)
37
This dictum has application in this case where there is no conspicuous or admitted relationship between the second defendant and the premises as there is in the case of the first and seventh defendants.
38
It is clear from counsel’s concession that the plaintiff would be unable to answer a request for further and better particulars of par 5(i).
39
While it may be sufficient in some cases to plead simply that the defendant occupied or was in control of premises in order to ground a cause of action, in this case such a bare allegation is insufficient such
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 11
that it is likely to prejudice, embarrass or delay the fair trial of the
action as against the second defendant.
40
Accordingly, I consider that reference to the second defendant in par 5(i) should be struck out.
41
Paragraph 6 relevantly pleads that at all material times the second defendant was the person in control of the premises for the purposes of the OSHA. It is not an allegation that the second defendant can answer in the absence of a pleaded relationship between the second defendant and the premises.
42
In this case the OSHA applies as the incident in question occurred prior to the repeal of the Act by the Work Health and Safety Act 2020 (WA). Section 22 imposed duties on persons who have control of workplaces. Section 22(1) provided:
A person that has, to any extent, control of –
(a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b) the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
43
Section 22(2) goes on to provide that a person shall be treated for the purposes of s 22(1) as being a person that has control of the workplace where that person has, by virtue of a contract or lease, an obligation of any extent in relation to the maintenance or repair of the workplace.
44
The inadequacy of par 6 of the amended statement of claim is patent. The reference to the second defendant in par 6 should be struck out.
45
Paragraphs 12, 13 and 14 plead respectively that the second defendant owed a duty of care to the plaintiff at common law, pursuant to s 22 of the OSHA and pursuant to s 5 of the OLA. By reason of the defects identified in pars 5(i) and 6 there is no pleaded factual basis for any of these alleged duties.
[2024] WADC 117
STAUDE DCJ
[2024] WADC 117 (MLH) Page 12
46
In the absence of such a factual basis no reasonable cause of action is disclosed. The references to the second defendant in these paragraphs should be also struck out.
47
It follows from my finding that there is no adequately pleaded basis for alleging a duty of care to the plaintiff on the part of the second defendant that the breach allegation against the second defendant in par 20 should be struck out.
48
I would allow the plaintiff the liberty to file and serve a re-amended statement of claim in the event that the cause of action against the second defendant can be pleaded with adequate particularity. I will allow the plaintiff until 31 January 2025 to do so.
49
Subject to hearing from counsel I would propose orders that:

1. The appeal be dismissed.
2. Paragraphs 5(i), 6, 12, 13, 14 and 20 of the amended statement of claim be struck out as against the second defendant by deleting the references to the second defendant in those paragraphs.
3. The plaintiff does have leave to file and serve a re-amended statement of claim in conformity with the court’s reasons by 31 January 2025.
   I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
   DC
   Associate to Judge Staude
   30 JANUARY 2025