PASTOR -v- AEGIS AGED CARE STAFF PTY LTD [No 2] [2023] WASCA 63 (20 April 2023)

1. The First and Second Respondents' 'Respondent Answer' filed on 20 February 2023 be dismissed for fraudulently fabricating ground 1(a) and ground 1(b): [r 43(2)(kb)(i) Rules].
2. The refiled First and Second Respondents' 'Respondent submissions' ground 1, in particular, respond to 'Appellant's submissions' ground 1: [r 43(2)(kb)(ii) Rules].
3. In accordance with [r 33(5) Rules]; the refiled First Respondent's 'Respondent['s] submissions' ground 1 concede the allegation in 'Appellant's submissions' ground 1, that the statutory period is extended since it has no limitation defence: [r 43(2)(j) Rules].
4. The application in an appeal filed on 7 March be determined on the papers: [r 19 Rules]; and
5. The costs of the application in an appeal be in the cause: [r 43(2)(1) Rules].
6. Ms Pastor relied on affidavits sworn 13 January 2023 and 7 March 2023 in support of the application. She also filed a further affidavit and amended submissions on 17 April 2023.
7. The appeal within which the amended application was brought is an appeal against orders of Lonsdale DCJ dismissing Ms Pastor's defamation claim against the respondents in the District Court. Lonsdale DCJ published written reasons: Pastor v Aegis Aged Care Staff Pty Ltd [No 3] (primary decision).[1] The primary decision concerned an appeal de novo from a decision of Principal Registrar Melville in Pastor v Aegis Aged Care Staff Pty Ltd [No 2],[2] pursuant to which the principal registrar also made orders dismissing Ms Pastor's action.
8. We dismissed Ms Pastor's amended application and said we would provide written reasons. These are our reasons.
9. The background and procedural history of the matter was recently canvassed in detail by this court in a judgment delivered in respect of recent interlocutory applications in this matter: Pastor v Aegis Aged Care Staff Pty Ltd.[3] It is sufficient, for present purposes, to observe that on 20 January 2023, we ordered that Ms Pastor have leave to file an amended appellant's case in terms of her amended appellant's case filed 16 January 2023. The amended appellant's case, for which leave was then given, contained five grounds, the first two of which read:

The learned trial Judge erred in fact and law on the grounds:

1. First, the learned judge erred in law by stating at paragraph 37 of Her decision of 6 September 2022 that 'the plaintiff has no basis to submit that the defendants have waived the limitation defence or are estopped from doing so' and at paragraph 35: '... that it was not the plaintiff's error in naming the wrong entity as the first defendant which has caused the plaintiff to fall foul of the limitation period. Rather, it was the failure of the plaintiff to have properly particularised the cause of action in the indorsement.'
2. Second, the learned judge erred in law by stating at paragraphs 26 37 and 38: 'the fact that the plaintiff did issue the writ within the limitation period is inconsistent with any notion of it being "not reasonable" for her to have commenced the actions now contained in the amended writ.'
3. On 30 January 2023, we ordered that grounds 3, 4 and 5 of the appellant's amended grounds of appeal and the submissions relating to them be struck out, thereby leaving the appeal constituted by grounds 1 and 2 in the terms noted above.
4. The first and second respondents' answers to the amended appellant's case were filed on 20 February 2023.
5. In each of the respondent's answers, ground 1 of the amended grounds of appeal is broken down into its separate components (the alleged error at [37] of the primary decision and the alleged error at [35] of the primary decision) and is designated, for the purposes of the respondents' submissions, 'ground 1(a)' and 'ground 1(b)', respectively.
6. By her amended application, Ms Pastor, in substance:
   1. took issue with the respondents addressing the separate components of ground 1 and designating the separate components 'ground 1(a)' and 'ground 1(b)', respectively; and
   2. contended that there was a finding at the earlier interlocutory hearing in relation to Pastor [No 1] that the first respondent had made a representation, the effect of which was that it had no limitation defence, and on the basis of which this court should now order that the limitation period be extended for three years.
7. Ms Pastor's amended application was misconceived. There is nothing misleading in the respondents addressing ground 1 by its component parts and designating the first component 'ground 1(a)' and the second component 'ground 1(b)'.
8. Further, this court made no finding that any misrepresentation had been made to Ms Pastor. Rather, the court observed, in Pastor [No 1], that 'the thrust of the argument' presented by Ms Pastor appeared to be along the lines that she had been induced, by misrepresentation, to believe that Management was the employer.[4] Even if such a finding had been made, the judgment was interlocutory and no issue estoppel in that regard would have been created. Insofar as Ms Pastor relied upon an exchange with counsel for the first respondent at the earlier interlocutory hearing in relation to Pastor [No 1],[5] questions and propositions put to counsel for consideration are not findings and can have no bearing on the proper disposition of the appeal.

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

[1] Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2022] WADC 82.

[2] Pastor v Aegis Aged Care Staff Pty Ltd [No 2] [2022] WADC 2.

[3] Pastor v Aegis Aged Care Staff Pty Ltd [2023] WASCA 13 (Pastor [No 1]).