BIDAS -v- REDINK HOMES PTY LTD [2025] WADC 21

Catchwords:
Practice and procedure – Pleadings – Application to strike out statement of claim – Plaintiff unrepresented – Approach to be adopted where party is unrepresented – Lack of jurisdiction asserted – Whether jurisdictional objection raises a pleadings point – Principles to be applied – Pleadings rolled up and inadequate – Leave to re-plead – Turns on own facts

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION : PERTH
CITATION : BIDAS -v- REDINK HOMES PTY LTD [2025] WADC 21
CORAM : PRINCIPAL REGISTRAR MCGIVERN
HEARD : 11 FEBRUARY 2025
DELIVERED : 9 APRIL 2025
FILE NO/S : CIV 4806 of 2024
BETWEEN : JAN BIDAS
Plaintiff
AND
REDINK HOMES PTY LTD
Defendant
Catchwords:
Practice and procedure – Pleadings – Application to strike out statement of claim – Plaintiff unrepresented – Approach to be adopted where party is unrepresented – Lack of jurisdiction asserted – Whether jurisdictional objection raises a pleadings point – Principles to be applied – Pleadings rolled up and inadequate – Leave to re-plead – Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)
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Result:
Application allowed
Representation:
Counsel:
Plaintiff
:
In person
Defendant
:
Ms A Sultana
Solicitors:
Plaintiff
:
Not applicable
Defendant
:
Lavan
Case(s) referred to in decision(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Dare v Pulham (1982) 148 CLR 658
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Lewis v Garvey [2017] WADC 76
McGavin v McGavin [2024] WASC 408
Northern Territory of Australia v John Holland Pty Ltd (formerly known as John Holland Construction & Engineering Pty Ltd) [2008] NTSC 4
Nyoni v Patterson [2012] WASCA 171
Pigozzo v Mineral Resources Ltd [2022] FCA 1166
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Re Rules of the Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237
Snelgrove v Great Southern Managers Australia Ltd (in liq) (Receiver and Manager Appointed) [2011] WASC 103
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Tobin v Dodd [2004] WASCA 288
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
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PRINCIPAL REGISTRAR MCGIVERN:
1
Mr Bidas is unrepresented. He has commenced an action against Redink Homes Pty Ltd (Redink). In broad terms, Mr Bidas alleges that Redink was contracted to build a home for him and, by failing to build that home, Redink has breached the contract and has caused him to suffer various losses.
2
Redink has applied1 to strike out Mr Bidas’s statement of claim,2 on the grounds that:
(a) the District Court lacks jurisdiction to deal with the subject matter of the action (jurisdictional objection); and
(b) the plaintiff’s pleadings are inadequate or improper (inadequacy objections).
3
In dealing with the application, I will consider the following issues:
(a) What version of the statement of claim is the application concerned with?
(b) What is the proper approach to a strike-out application when, as here, the plaintiff is unrepresented?
(c) Is the jurisdictional objection properly dealt with in an application to strike out the statement of claim?
(d) Are any of the inadequacy objections made out and, if so, to what extent?
(e) If all or part of the statement of claim is struck out, should Mr Bidas be given leave to re-plead?
4
For the reasons that follow, the statement of claim is struck out and Mr Bidas has leave to file a further statement of claim.
What version of the statement of claim is the application concerned with?
5
Mr Bidas commenced proceedings by filing a writ indorsed with a statement of claim on 22 October 2024.
1 Pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC). In these reasons, any reference to a rule is a reference to the RSC unless otherwise specified.
2 As outlined below, the application is taken to be an application to strike out the amended statement of claim filed on 11 December 2024.
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6
Redink has filed an unconditional appearance, but has not filed a defence. Rather, on 12 November 2024, Redink applied to strike out the whole of the statement of claim. The grounds for the application, as set out in the chamber summons, are that:
If allowed to stand in its present form, the Statement of Claim disclose [sic] no reasonable cause of action, alternatively, is scandalous, frivolous or vexatious, alternatively may prejudice, embarrass or delay the fair trial of the action, alternatively it is otherwise an abuse of the process of the Court in the terms of Order 20 rule 19(1)(a) and/or (b) and/or (c) and/or (d) of the Rules of the Supreme Court 1971 (WA).
7
On 11 December 2024 (that is, after the application was filed), Mr Bidas filed an amended statement of claim (ASOC).3
8
The application was heard at a special appointment, at which hearing:
(a) Redink’s counsel submitted that:
(i) the ASOC did not materially differ from the statement of claim and its objections to the pleadings remained essentially the same; and
(ii) the application should be treated as an application to strike out the ASOC; and
(b) Mr Bidas did not object to that submission.
9
Noting that each of the parties had filed their written submissions in the application after the date of the ASOC,4 and addressed the later pleading, I accepted Redink’s submission and the hearing proceeded on that basis.
10
Accordingly, the application is to strike out the ASOC which, for ease of reference, is annexed to these reasons.
3 At the hearing of the application, the defendant clarified that the same pleadings objections arose and the application should be treated as an application to strike out the ASOC. I accepted that submission and proceeded on that basis.
4 The defendant’s outline of submissions was filed 24 January 2025 (defendant’s written submissions); and the plaintiff’s outline of submissions was filed 2 February 2025 (plaintiff’s written submissions).
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What approach should be taken in dealing with the application?
11
The court may strike out a pleading under O 20 r 19(1), on the grounds that:
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court …
12
Redink relies on each of those four grounds and I will deal with the meaning and application of their terms in my reasons for the disposition of the application that follow.
13
However, I begin by noting that where, as here (where the application is to strike out the entirety of the statement of claim), the effect of the application is to deprive a plaintiff of the opportunity to run a case:
(a) any decision to strike out should be approached with significant caution;
(b) the applicant will bear a heavy onus in satisfying the court that such an outcome is warranted; and
(c) the task should not be approached in an overly technical manner.5
14
The need to approach such an application with caution is amplified when the plaintiff is unrepresented.6
15
Nevertheless, while a degree of leniency and flexibility is proper, it remains the case that all litigants, including unrepresented litigants, are bound to comply with the rules of the court, which are designed to
5 Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 (Gates) [24], [26]; Re Rules of the Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237 [25].
6 As has often been repeated, courts should approach the peremptory determination of litigation by an in-person litigant with special care, to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action: Tobin v Dodd [2004] WASCA 288 [70].
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enhance the efficiency and economy of litigation and reduce the
unnecessary expenditure of private and public resources.7 In short:8
[T]he Court must respect an individual’s right to resort to the justice system in person, whilst also ensuring not to penalise an opposing party for seeking representation.
(footnotes omitted)
Is the jurisdictional objection properly dealt with as a pleadings objection?
16
As to the jurisdictional objection, Redink contends that:
(a) the pleaded contract is a home building work contract within the meaning of that term in the Home Building Contracts Act 1991 (WA) (HBC Act);
(b) on a proper construction of s 17 of the HBC Act, a dispute between parties to and concerning a home building work contract can only be initiated as a complaint to the Building Commissioner and cannot be commenced in the District Court; and
(c) because the District Court lacks jurisdiction to deal with the subject matter of the claim, the ASOC is an abuse of process and should be struck out pursuant to O 20 r 19(1)(d).
17
Mr Bidas does not dispute, and for these purposes therefore I accept, that the contract is a home building work contract.
18
Nevertheless, Mr Bidas argues that:
(a) the word ‘may’ in s 17 of the HBC Act does not restrict him to making a complaint in the manner contemplated by that provision, and so does not preclude him from commencing proceedings in this court;
(b) the present action is a personal action within the meaning of the District Court of Western Australia Act 1969 (WA) and the damages claimed are within the court’s jurisdictional limit of $750,000; and
(c) accordingly, the District Court has jurisdiction to deal with the action.
7 Nyoni v Patterson [2012] WASCA 171 [36].
8 McGavin v McGavin [2024] WASC 408 (McGavin) [10].
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Is this a pleadings point?
19
What amounts to an abuse of process for the purposes of striking out a pleading is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. The notion includes proceedings that are clearly doomed to fail, are plainly unsustainable, or are otherwise frivolous, vexatious or oppressive.9
20
Nevertheless, when the application is to strike out a pleading, the absence of a cause of action or the basis on which the action is doomed to fail is usually referable to the way in which the party has advanced its case. For example, a pleading might fail to disclose a cause of action because it does not contain facts sufficient to support an essential element of that action, or because it is so vague or prolix that no cause of action is discernible.
21
This is not such a case. Redink’s contention – that the action is an abuse of process and doomed to fail – is not made because of the way in which Mr Bidas advances his case, but because of an asserted legislative imperative. In other words, there is no way in which Mr Bidas could plead his case that would overcome the jurisdictional objection.10
22
In my view, such an objection is not properly characterised as an objection to a pleading, to be dealt with in a strike-out application (in which context leave to re-plead should at least be considered). It is, in essence, an application for summary judgment.
23
Indeed, when the issue was raised during the hearing, Redink’s counsel put little weight on this ground, indicating that ‘the defendant doesn’t hang its hat on [the] jurisdiction argument’.11
Is there a triable issue in relation to jurisdiction?
24
Even if:
(a) I were wrong in my view at [22]; and
(b) Redink pressed the jurisdictional objection as a ground of the application,
I would not allow the application on this ground.
9 Gates [26], [28] – [29] and the authorities cited therein.
10 I put this to Redink’s counsel, who agreed: ts 4 – ts 5.
11 ts 5.
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25
That is because an order striking out a statement of claim in its entirety, with no possibility for leave to re-plead, has the same effect as summary judgment and should, in my view, be approached in a similar manner.12 This is consistent with the view that a proceeding is not frivolous if there is a triable issue.13
26
Accordingly, I would not strike out the ASOC as an abuse of process on this ground unless the jurisdictional objection was so clearly made out that there was no real question to be tried.14
27
As Redink has noted, to the extent that this court has considered its jurisdiction to deal with disputes under the provisions of HBC Act and the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRAA), Troy DCJ concluded in Lewis v Garvey that:15
… I am not persuaded that s 17 in and of itself means that sole jurisdiction reposes in the Building Commissioner or the State Administrative Tribunal. To my mind, the only logical interpretation of s 54 and s 55 [of the BSCRAA] is that there are circumstances where courts, not defined in those sections, do have jurisdiction.
28
I accept Redink’s contention that the context in which the court was called upon to consider its jurisdiction in Lewis is distinguishable from the present matter. However, I do not understand that distinction to bear materially upon his Honour’s interpretation of the relevant statutory provisions.
29
I find that there is a question to be tried in relation to the court’s jurisdiction and, therefore, that the ASOC ought not be struck out on this ground.
Are the inadequacy objections made out?
Parties’ contentions
30
As to the inadequacy objections, Redink contends that:
(a) the ASOC asserts various breaches of contract against it (contract claim);
12 The exercise of powers to summarily terminate proceedings must always be attended with caution: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
13 Pigozzo v Mineral Resources Ltd [2022] FCA 1166 (Pigozzo) [25].
14 See Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24], in the context of an application for summary judgment.
15 Lewis v Garvey [2017] WADC 76 (Lewis) [97].
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(b) insofar as Mr Bidas advances a claim for breach of contract against Redink, the ASOC:
(i) is embarrassing, hopelessly vague, and general;
(ii) fails to inform the defendant of the case to be met at trial; and
(iii) is insufficient to enable any eventual trial to be conducted;
(c) this is because the ASOC does not properly plead the allegations of breach and damage, including by failing to:
(i) plead the means by which the defendant is alleged to have breached the contract; and
(ii) plead the facts which establish the causal link between the alleged breaches and alleged damage;
(d) further, par 6 of the ASOC amounts to an allegation of fraud against the defendant (fraud allegation) which, impermissibly, is not made ‘clearly, completely or with particularity’;16 and
(e) the fraud allegation:
(i) is a generalised allegation against the defendant; and
(ii) is scandalous or, alternatively, may prejudice, embarrass or delay the fair trial of the action.
31
For his part, Mr Bidas contends, in summary, that:
(a) the inadequacy objections are confusing and overly technical;
(b) the ASOC accords with the requirement in O 20 r 8(1) that:
[A] 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 or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
16 Defendant’s written submissions, par 32; citing Pigozzo [24].
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(c) the ASOC addresses all the background facts and issues and further detail would emerge from the evidence; and
(d) Redink knows the case against it and is already familiar with the evidence and other ‘obvious information’, which is ‘not required to be stated at this stage of the proceedings’;17
32
As to the fraud allegation, Mr Bidas:
(a) in his written submissions, essentially repeated and elaborated on the allegations of ‘forgery’ and ‘other false statements’; and
(b) in his oral submissions, explained that he considered the alleged conduct to be relevant to the issue of delay in the contract claim, and did not appreciate that such allegations were ‘a huge claim’ requiring an ‘exact description of the evidence’.18
What principles apply?
33
I begin by acknowledging that pleading can be difficult, and those difficulties can be acute for an unrepresented party. However, pleading rules serve the efficient and fair conduct of proceedings, and the need for a proper pleading cannot be ignored.19
34
The key consideration in a strike-out application is whether or not, in the context of contemporary case management,20 the fundamental objectives of a pleading are met.21
35
The basic requirement of any pleading is that it contain 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.22 A fact is material if it is relevant to establishing one or more elements of a cause of action.
17 Plaintiff’s written submissions, par 11.
18 ts 15.
19 See, for example: McGavin [19].
20 Which include: promoting the just determination of litigation; avoiding delays and disposing efficiently of the business of the court, and maximising the efficient use of available judicial and administrative resources; and ensuring proportionality between the subject matter and complexity of a dispute, and the procedure and costs of resolving it: O 1 r 4A and O 1 r 4B(1).
21 Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 (Vantage Holdings) [60].
22 O 20 r 8.
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36
The general function of pleadings is to provide a statement of a party’s case sufficiently clearly that an opposing party has a fair opportunity to meet it,23 by adequately identifying the issues to be tried and disclosing an arguable cause of action.24 That work must be done by the pleading itself. It is not a question of what the opposing party might subjectively know; it is a question of what case it has to answer.
37
Those overarching objectives inform the construction and application of O 20 r 19. There is considerable overlap between the grounds under that rule for striking out a pleading, and some are used interchangeably.25 In brief:
(a) in the context of an application such as the present, the terms ‘frivolous’, ‘vexatious’ and ‘abuse’ bear a technical legal meaning. They describe the character of a proceeding or a step in a proceeding, rather than the motives of a party;26
(b) a proceeding is frivolous or vexatious when it is not worthy of serious consideration, is lacking in substance or insupportable in law, discloses no cause of action or is groundless. The terms extend to actions that have no reasonable prospect of success, or which might be described as a sham. A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment;27 and
(c) pleadings may ‘prejudice, embarrass or delay the fair trial of an 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 of the party in question with reasonable particularity, or they raise a case in terms which are simply too general’.28
38
Principles of more particular relevance to each objection are addressed below.
23 Dare v Pulham (1982) 148 CLR 658, 664.
24 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (Barclay Mowlem) [7]. See also: McGavin.
25 Gates [25].
26 Gates [24], [32] and the authorities cited therein.
27 Gates, [30] – [31], [33] and the authorities cited therein.
28 Vantage Holdings [60]. See also English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55].
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Disposition – fraud allegation
39
Because the fraud allegation is confined to a single paragraph, it is convenient to deal with that plea first.
40
Mr Bidas alleges that Redink ‘engaged in making false statements and forging documents presented to the Building Commission’. Although this is not expressly an allegation of fraud, the assertion bears a similar quality.
41
It is well established that allegations of fraud, misrepresentation or other serious impropriety must be ‘clearly and completely pleaded and particularised’.29
42
Paragraph 6 of the ASOC is purely conclusory. No facts are pleaded to support the conclusions it contains, such as to put Redink in a position to know the case against it. The pleading is devoid, for example, of what statements Mr Bidas alleges Redink made, including the date and form of those statements, the facts upon which he asserts the statements were false, and (if alleged) the facts upon which he says Redink knew at the relevant time that they were false. Similar deficiencies arise in relation to the very serious allegation of forgery.
43
I find that the allegations in par 6 of the ASOC are unsupported by pleadings that state the case with reasonable particularity, and are too general. Accordingly, that paragraph is struck out on the ground that it fails to disclose a reasonable cause of action and is embarrassing30 within the meaning of O 20 r 19(1)(a) and O 20 r 19(1)(c).
Disposition – contract claim
44
For the reasons set out below, I find that the remaining paragraphs of the ASOC should be struck out under O 20 r 19(1)(a) and O 20 r 19(1)(c) because the ASOC, as a whole, does not disclose a cause of action for breach of contract, is ambiguous and confusing, and may prejudice, embarrass or delay the fair trial of the action.
29 Pigozzo [24]; Snelgrove v Great Southern Managers Australia Ltd (in liq) (Receiver and Manager Appointed) [2011] WASC 103 [51].
30 I use this term as a shortened expression of the composite phrase ‘may prejudice, embarrass or delay the fair trial of the action’ in O 20 r 19(1)(c).
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Rolled up and unsupported pleas
45
I commence by making some observations relevant to the ASOC as a whole.
46
First, each paragraph of the ASOC is in largely narrative form and comprises multiple ‘rolled-up’ allegations of fact. The pleadings do not therefore conform with the requirement in O 20 r 7(2) that each allegation be, so far as convenient, contained in a separate paragraph. The requirement in O 20 r 7(2) assists the defendant to understand and respond to each material fact. Rolled up pleas can obscure the case being advanced.
47
Second, the pleadings contain a number of conclusions or assertions that are unsupported, or inadequately supported, by facts that are reasonable or necessary to understand and respond to the allegation.
48
I illustrate these observations by reference to par 2, which reads:
At the beginning of December 2020, B1 Homes moved the contracted job to the Defendant, Redink Homes Pty Ltd, as both companies are part of the same building group. The WA HBCA Lump Sum Building Contract was signed by the parties on 21/12/2020. It was for the construction of the single story [sic] house of 226 sqm to ‘Lock and Loaded’ specification including of raised ceilings and double glass windows at [the Address]. It was well understood by both parties that signing the contract before the end of December 2020 entitles the Plaintiff to the Housing Grants being offered by both state an [sic] federal governments at that time.
49
That paragraph:
(a) pleads that Redink and B1 Homes are part of the same building group;
(b) asserts that, at the beginning of December 2020, B1 Homes ‘moved the contracted job’ to Redink but does not set out the factual basis for that assertion (for example, whether this was by variation to the ‘preliminary contract’ pleaded in par 1, or otherwise);
(c) pleads the execution by the parties of a WA HBCA Lump Sum Building Contract on 21 December 2020;
(d) pleads certain specifications for the home under the contract;
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(e) implicitly asserts that, upon executing the contract before the end of December 2020, Mr Bidas became entitled to ‘housing grants being offered by both the state an [sic] federal governments at the time’. However, it does not set out the particulars of, or factual basis for, any such entitlement. For example, there is no information about the qualifying conditions for or amount of each grant, or facts establishing that Mr Bidas would satisfy those conditions, and the extent to which he would be entitled to any amount under either or both of the grant schemes; and
(f) alleges that ‘it was well understood by both parties’ that signing the contract before the end of December 2020 would entitle Mr Bidas to the housing grants, but does not set out the factual basis for Redink’s alleged knowledge at the time of executing the contract.
50
Each of these matters should be distinctly pleaded.
51
Similar deficiencies arise in connection with pars 1 and 4 – 9 of the ASOC.
Allegations of breach
52
I now turn to consider more specifically the key paragraphs dealing with the alleged breaches of contract, being pars 3, 4, 8 and 9 of the ASOC.
53
As noted above, Redink objects that the ASOC as a whole does not plead all the material facts necessary to constitute a complete cause of action for breach of contract, and is ambiguous and embarrassing.
54
In a claim for breach of contract, the material facts which must be pleaded include:31
(1) the term of the contract alleged to have been breached;
(2) the nature of the breach alleged;
(3) the particular means by which the breach is alleged to have occurred;
31 Northern Territory of Australia v John Holland Pty Ltd (formerly known as John Holland Construction & Engineering Pty Ltd) [2008] NTSC 4 (John Holland) [12].
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(4) the details of any special or consequential damage claimed; and
(5) the facts which establish the necessary causal link between breach and damage.
55
As set out by Angel J in John Holland:32
If a plaintiff alleges that a defendant is in breach of a contractual obligation, the term imposing the obligation must be set out or described. The breach must be alleged and the allegation of breach must be such as to identify the means by which the breach is alleged to have occurred. It is impermissible simply to repeat the language of a statutory, regulatory or contractual provision which creates an obligation allegedly breached and then baldly assert a breach of that provision. It is not permissible to plead conclusions which are unsupported by pleaded material facts …
56
It appears that Mr Bidas alleges at least three breaches of the contract by Redink.
57
First, in par 3 of the ASOC, he alleges that, in breach of cl 2(a) and cl 2(b) of the contract, Redink failed to apply for building permission within 45 days from the date of the contract, or at all. As to that paragraph:
(a) while further particulars may be necessary, in my view, it broadly meets the first three requirements set out in [54];
(b) it puts Redink in a reasonable position to understand the nature of and basis for the allegation of breach made against it; but
(c) as identified further below, the pleading remains deficient in that the facts which establish the necessary causal link between the alleged breach and alleged damage are absent and so the cause of action cannot be made out.
58
Second, par 4 of the ASOC relevantly alleges that, at a meeting on 31 May 2021, Redink served Mr Bidas with a variation order for $16,000 thus:
(a) ‘demanding additional payment over the fixed price of the contract’; and
(b) breaching the contract for the second time.
32 John Holland [13], and the authorities cited therein.
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59
Paragraph 4 of the ASOC:
(a) rolls up, with the allegation of breach, a series of assertions about the circumstances and timing of the meeting in question;
(b) does not identify or set out the key term or terms of the contract on which Mr Bidas relies, and so amounts to a mere assertion of breach; and
(c) is therefore embarrassing.
60
Third, it appears from pars 8 and 9 of the ASOC that Mr Bidas alleges that:
(a) Redink terminated the contract by a notice of termination dated 3 November 2021;
(b) the reason identified for terminating the contract, being a failure to finalise pre-start documentation, was not a valid reason to termination under cl 16 of the contract; and
(c) such termination was in breach of cl 16 of the contract.
61
Those paragraphs:
(a) roll up, with the allegation of breach, a series of assertions about preceding circumstances (some of which are not clearly relevant to a cause of action for breach of contract);
(b) do not identify the relevant terms of the clause relied upon, and how or why the notice of termination constitutes a breach of that clause, and so amounts to a mere assertion of breach; and
(c) are therefore embarrassing.
62
Save that they go some way to giving context to the timing of other material facts, the relevance of pars 5, 6 and 7 of the ASOC to the cause of action is not clear. To the extent that those paragraphs contain facts that are not relevant to the cause of action, this offends the requirement in O 20 r 8 that a pleading ‘contain only … the material facts’ on which the claim relies. That rule reflects the propensity of extraneous material to obscure the case being advanced.
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63
Finally, Mr Bidas pleads that the alleged breaches of contract have caused him to suffer various losses which include ‘loss of the down-payment of $3,000’, a ‘lost opportunity’ quantified at ‘about $230,000’, and a lost entitlement to government grants quantified at $45,000.
64
The factual basis upon which those losses (and particularly the latter two) are said to arise, and the causal connection between those alleged losses and the asserted breaches, is largely absent. The plea is conclusory as to loss.
65
Read as a whole, the ASOC does not in my view meet the essential requirements for, or purposes of, a proper pleading. Accordingly, I find that Redink has demonstrated a proper basis for this court to strike out the ASOC under to O 20 r 19(1)(a) and O 20 r 19(1)(c).
Should Mr Bidas have leave to re-plead?
66
Notwithstanding the deficiencies outlined above, and without expressing any view as to the ultimate merits of the claim, I can discern from the ASOC a potentially arguable cause of action. That is, it is conceivable – particularly if Mr Bidas obtains legal advice and/or representation in this regard – that the pleading could be recast such as to disclose a viable cause of action and to put Redink in a position to understand and respond to the case against it.
67
In those circumstances, and noting my conclusion at [29], I consider it appropriate to exercise my discretion in favour of granting Mr Bidas leave to re-plead his case.
What orders should be made?
68
Mr Bidas will need sufficient time to file a (re-pleaded) statement of claim, including an opportunity to seek legal advice if that is anticipated. I will hear from the parties as to an appropriate timeframe.
69
Although the jurisdictional objection was not made out, Redink’s application is allowed on the grounds of the inadequacy objections, and those were the principal grounds advanced in the hearing. Costs ordinarily follow the event and, subject to hearing from the parties, I am inclined to follow that usual course in relation to the application.
70
I will hear submissions as to the precise terms of the orders that should be made.
[2025] WADC 21
PRINCIPAL REGISTRAR MCGIVERN
[2025] WADC 21 [HC] Page 18
ANNEXURE
[2025] WADC 21
PRINCIPAL REGISTRAR MCGIVERN
[2025] WADC 21 [HC] Page 19
[2025] WADC 21
PRINCIPAL REGISTRAR MCGIVERN
[2025] WADC 21 [HC] Page 20
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Associate
9 APRIL 2025