Uzsoki v McArthur

[3] The former case had nothing to do with an application to strike out on the grounds referred to in r 171. It was concerned with an action on a fidelity bond claiming both an injunction and the amount of the bond as damages, and it was conceded on behalf of the plaintiff that at that time the plaintiff could not seek both remedies.[4] It was said that the defendant may have had an option to give the plaintiff the damages claimed or an injunction, or was entitled to put the plaintiff to his election, but the defendant did not do so until after an interim injunction had been sought and obtained. It was held that he had then lost any right to require an election, not because of delay as such, but because the plaintiff, by obtaining an injunction, had in effect elected equitable relief and abandoned the claim for damages.

[4] In the latter case, the matter complained of was a disconformity between the names of the plaintiffs on the writ and on the declaration, and the application to set aside the declaration was made only after the time for pleading had expired. It appears from the reasons that under the then applicable New South Wales rule the application was to be made within "a reasonable time" which meant within the time allowed to plead, so the application was out of time. By contrast, r 171(2) expressly provides that the application may be made at any stage of the proceedings, and the application here is not on the basis of some technical defect in the pleading, but on the ground that the plaintiff just has not pleaded a cause of action. In my respectful opinion, neither of these cases is authority for the proposition for which they were cited in Williams, and neither is relevant to this application.

[5] A situation could arise where there might be something akin to an estoppel preventing an application of this nature being made in circumstances where the plaintiff had been led to incur further expense in relation to the action by a representation that an application of this nature would not be made, but even then it is difficult to see how any unfairness of that kind could not be cured by an appropriate order for costs. Nothing of that nature was relied on in the present case. There is some authority which is a little more recent that an application of this nature may be refused after an action has been set down for trial and is close to a hearing: Cross v Howe (1892) 62 LJ Ch 342; Bruce v Smiths Newspapers Ltd [1931] VLR 303.[5] That is not the case here.

[6] The rule expressly provides that the application may be made at any stage in the proceeding, and in my opinion the fact that there has been some delay, even considerable delay, between the time when the pleading was delivered and the time when the application is made is not in itself a reason to dismiss the application. The real issue is whether any of the matters listed in r 171 is made out in respect of the pleading or part of it; if it is made out, plainly it is better for the pleading or part concerned to be struck out rather than to be allowed to proceed to trial. That proposition is perhaps most obvious in the case of a pleading which is an abuse of process of the court, but I think the same applies to one which does not disclose a reasonable cause of action.

[7] As McPherson J said in Brisbane Unit Development Corporation Pty Ltd v Deming No. 456 Pty Ltd [1983] 1 Qd R 16 at 17, apropos whether delay should prevent an application for summary judgment under O 18A of the then Supreme Court Rules from being made:

"It is difficult to understand why, in the absence of positive prejudice to the defendant arising from the delay, judgment should notwithstanding unexplained delay not be entered summarily in a case where it is clear that there is no defence to the action. To require in such circumstances that there should be a trial of a non-issue seems to involve simply adding further delay to proceedings which have already been unnecessarily delayed."

[8] If in fact a statement of claim does not disclose a reasonable cause of action, according to the standard established in the authorities, it is a waste of everyone's time to proceed to a trial on it. This is not just a matter of the parties' time and money; it involves a waste of judicial resources, and therefore there is a public interest in proceedings where the statement of claim does not disclose a reasonable cause of action being struck out without the time taken for a trial. In those circumstances, I do not consider that any amount of delay provides a good reason for not striking out a pleading which otherwise ought to be struck out under that rule. In my opinion, mere delay in making an application under r 171 is irrelevant. The application will not be dismissed on that ground.

[9] The current statement of claim, stripped to its essentials, alleges that the defendant was at all material times, or held himself out to the plaintiff to be, a counsellor; that the defendant counselled the plaintiff in relation to various matters, that the defendant owed a duty to the plaintiff to take reasonable care in the provision of counselling to avoid psychological or psychiatric harm, and to only counsel the plaintiff in accordance with the standard of care and responsibility of a trained and competent counsellor; that the plaintiff accepted the counselling; that as a result of the counselling the plaintiff suffered psychological injury; that the provision of the counselling by the defendant was negligent, for various reasons; and that as a consequence of the negligence the plaintiff suffered injury, loss and damage. Various particulars were given.

[10] It was alleged in paragraph 7 that a duty of care arose because at the time when the counselling was given:

"(a) the defendant knew or ought to have known that the plaintiff would rely on the defendant to exercise due care and skill in providing the counselling;

(b) the plaintiff's reliance in this regard was reasonable in all the circumstances;

(c) the plaintiff reasonably expected that due care would be exercised in relation to the provision of counselling;

(d) the defendant could reasonably foresee that a failure to exercise due care and skill in providing the counselling would result in injury to the plaintiff."

Particulars were given of each of those allegations.

[11] The pleading is complicated by the presence of a further allegation that during the course of the massages the defendant engaged in inappropriate behaviour by telling the plaintiff he loved her like a sister, and massaging or manipulating the plaintiff in positions where her genitalia were exposed to the defendant. This was alleged to have been another cause of the plaintiff's psychological injury, and in paragraph 13 it was alleged that the plaintiff suffered injury, loss and damage as a consequence of the negligence "and sexual battery" of the defendant. Nevertheless, damages for battery (sexual or otherwise) were not sought in the claim for relief, which indicates that notwithstanding the wording of paragraph 13 this is not a claim for damages for battery, or trespass to the person, as it is nowadays more commonly described.[6]

[12] Although an expression of sororal affection could not amount to actionable battery, which is confined to actual touching,[7] an allegation that the defendant "massaged and manipulated" the plaintiff is certainly an allegation of touching, and in the circumstances may be taken to be (at least impliedly) an allegation of intentional touching, so as to be a sufficient pleading of a cause of action in battery: Battiato v Lagana [1992] 2 Qd R 234. Consent on the part of the plaintiff would be a defence, but this is a matter for the defendant to plead: Bain v Altoft [1967] Qd R 32.[8] It is therefore not a deficiency in the statement of claim that there is no allegation that the massaging and manipulating referred to in paragraph 6(b) was without consent.

[13] Nevertheless, in circumstances where there was no claim for damages for battery, an allegation that the plaintiff has suffered injury, loss and damage as a result of what was alleged to have been a battery was irrelevant and surplusage. Ultimately, senior counsel for the plaintiff did not seek to sustain the words "and sexual battery" in paragraph 13 of the statement of claim.

[14] However, the "inappropriate behaviour" was also relied on elsewhere in the pleading. In paragraph 7(d)(ii) it was alleged as a particular of the proposition that the defendant could reasonably foresee that a failure to exercise due care and skill in providing counselling would result in injury to the plaintiff, that the defendant counselled the plaintiff in circumstances where she was psychologically vulnerable due to the inappropriate behaviour. It was alleged in paragraph 12(b)(iv) that one of the reasons why the provision of the counselling to the plaintiff was negligent was that it was provided in circumstances where the defendant had engaged in the inappropriate behaviour which was either designed to or had the effect of rendering the plaintiff unable to extricate herself from the defendant's influence or not to follow the counselling. This allegation was repeated in paragraph 12(c), with the additional allegation that this exposed the plaintiff to a risk of psychological injury occurring once the plaintiff did in fact manage to extricate herself from the defendant's influence. It was further alleged in paragraph 12(g) that there was negligence in failing to inform the plaintiff that neither the massages nor the counselling required that she be exposed to that behaviour. The allegation in relation to behaviour is in this way related to the plaintiff's case of negligence, in respect of both the existence of a duty of care, and the breach of that duty.

[15] The defendant's submission focused on the fact that the only specific matter identified in the particulars given in paragraph 5 of the statement of claim of the counselling as to the plaintiff's relationships, personal life, and psychological health and development, was that on numerous occasions he proffered the advice that the plaintiff "needed" a relationship with a man. That is true, but this follows a statement that the counselling included but was not limited to counselling concerning the plaintiff's relationship with her previous partner, and in view of the word "included" what was relied on as counselling was not limited even to that, let alone to the proposition that the plaintiff needed a relationship with a man. Further, the allegations of breach of duty were not framed specifically on the basis that it was wrong or inappropriate to counsel the plaintiff that she needed a relationship with a man. They were on the contrary framed in much more general terms, which I will deal with shortly.

[16] The statement of claim alleged that between 1995 and 1999 the defendant was or held himself out to the plaintiff to be a counsellor: para 3. It was during this period that the plaintiff alleged that the defendant counselled her as to her relationships, personal life, and psychological health and development: para 5. The duty of care was alleged to arise on the basis set out earlier. It was alleged that there was a breach of that duty in various ways as set out in paragraph 12 of the statement of claim, including that the defendant was not trained, experienced or qualified to provide counselling; had not inquired into, considered, or assessed adequately, or at all, various things which presumably ought to have been assessed prior to the provision of such counselling; failed to warn the plaintiff that the adoption of the counselling might be detrimental to her; and engaged in the inappropriate behaviour as alleged earlier: para 12.

[17] Both parties sought support from the recent decision of the Court of Appeal in Pickering v McArthur [2005] QCA 294, which also involved the defendant. It was submitted by the defendant that the plaintiff in the present case did not go as far as the plaintiff in that matter, because in that matter the plaintiff had relied on a representation by the defendant that he was qualified to counsel the plaintiff about his personal life and his psychological health and development, and there was no such allegation in the present pleading. On the other hand, the plaintiff submitted that the duty of care owed was relevantly identical to that owed to the plaintiff in Pickering, and that the pleading picked up what had been said by the Court of Appeal in concluding that the pleading in that case pleaded a cause of action which ought not to be struck out.

[18] There was a comprehensive reassessment of the law in this area by the High Court in two matters heard together by the court, Tame v New South Wales and Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317. I adhere to what I said about that decision in Pickering v McArthur [2005] QDC 81. I concluded at [18] by quoting a passage from the judgment of Gaudron J in Tame at p 341: "The law has not yet developed to the point where it is possible to identify precisely the relationships that serve to identify persons who should be in another's contemplation as persons closely and directly affected by his or her acts or the features of those relationships." In these circumstances, it is very difficult to say that in the particular circumstances alleged the absence of such relationship is sufficiently clear for the purpose of the General Steel test. As in that case, in my opinion, in the light of the analysis in Tame, it cannot be concluded that the facts alleged in the pleading necessarily did not give rise to a duty to take reasonable care to avoid causing psychiatric harm to the plaintiff.

[19] In Pickering I went on to consider the allegations of breach, and the relevant authorities, and said at [34] that this is an area of the law where there is so little authoritative guidance that it is difficult to conclude of almost any case that it is not even arguable. It is very difficult to know just what the current limits are to the actionability of negligent advice in such circumstances, and therefore to say that the statement of claim currently pleaded necessarily lies outside of them. The same applies here.

[20] It is true that the present pleading did not allege that the defendant held himself out to the plaintiff as being qualified to counsel the plaintiff about her personal life and her psychological health and development. On the other hand, it did allege that the defendant was or held himself out to the plaintiff to be a counsellor, or both. If the defendant was a counsellor, then it was reasonable to expect that he would have any special skills ordinarily associated with counselling, and if he held himself out to be a counsellor, the same would apply. That the plaintiff was a person of emotional and psychological vulnerability (para 7(d)(i)) is similar to the allegation in Pickering that the defendant knew or ought to have known that the plaintiff was a person who was susceptible to psychiatric injury. Accordingly, it seems to me that there is no substantial difference between the allegations in the present case and the allegations in Pickering which were relied on by Keane JA (with whom the other members of the court agreed) as establishing that the defendant assumed responsibility to take reasonable care not to harm the plaintiff in giving him advice: [8].

[21] The defendant's point seems to be essentially that although it was alleged that the defendant was or held himself out to be a counsellor, and that he had during the massages counselled the plaintiff, he had not expressly held himself out at that time or represent that in providing that counselling he was exercising the care and skill ordinarily to be expected of a counsellor who had been called upon to counsel, rather than to massage. It seems to me, however, that whether a duty of care arises in such circumstances really depends upon whether the advice is conveyed in circumstances where expressly or impliedly the defendant is holding himself out as exercising the care and skill ordinarily to be expected of a counsellor. That was pleaded in effect in paragraph 7; whether it was so is something that can only be determined by a consideration of all of the circumstances under which any counselling occurred, as revealed at a trial.

[22] The fact that the plaintiff pleads that the defendant counselled the plaintiff implies clearly enough that the plaintiff's case is that what was occurring was counselling, rather than casual advice being given in the course of a massage in circumstances where it would not have been reasonable for the plaintiff to expect that any particular care or skill was being exercised in relation to the provision of that advice. Further, it was expressly alleged in paragraph (7)(c) of the pleading that the plaintiff reasonably expected that due care would be exercised in relation to the provision of the counselling, which is an express allegation that the circumstances were such that it was reasonable for the plaintiff to expect that the defendant, although at the time engaged in providing massage, was exercising the care and skill ordinarily to be expected of a counsellor in providing counselling. In this respect, this pleading is similar to that in Pickering, where it was said that "the real thrust of the [plaintiff's] case is that the [defendant] stepped outside the role of 'massage therapist' and purported to act as a relationship counsellor" [12].

"In my opinion, if it be the fact that the respondent was persuaded by the applicant's claims of competence in the field of relationship counselling to act in reliance upon his advice, and such reliance was reasonable, then, if that advice was given without the reasonable care that might be expected of a person holding themselves out as being qualified to give that advice, the respondent may have a good claim for damages for negligence if he suffered psychiatric harm as a result of acting upon the applicant's advice."

[24] In my opinion, the pleading in the present case is not relevantly distinguishable from the pleading in Pickering, and the comments of the Court of Appeal are applicable to the present case. In those circumstances, it is not appropriate to strike out the plaintiff's pleading on the ground that it does not disclose a reasonable cause of action. Accordingly, I will strike out the words "and sexual battery" from paragraph 13 of the further further amended statement of claim filed 18 May 2005, but the application is otherwise dismissed, and the defendant must pay the plaintiff's costs of the application.

[1] Filed 18 May 2005; the claim was filed 9 April 2001, and amended statements of claim were filed on 29 September 2003 and 18 December 2003.

[2] General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125.

[3] A former loose-leaf edition, the extract is from p 1332 (dated March 1984).

[4] On the basis that relief at law and in equity for breach of such a bond could not both be obtained, and therefore could not then both be claimed at the same time: National Provincial Bank of England v Marshall (1888) 40 Ch D 112 at 116. This procedural difficulty is obsolete, and these days claims for equitable relief and damages, in the alternative, may be maintained up to judgment: Spry "Equitable Remedies" (6th ed. 2001) p 649-653.

[5] In this case, where the application was to strike out a particular paragraph on the ground that it was embarrassing and oppressive, Lowe J said there was power to strike out at any stage of the proceeding, but as the defendant had been able to plead to the paragraph, it would not be struck out as embarrassing.

[6] Perhaps there was concern that there might be a defence under the Limitation of Actions Act 1974 s 11 to such a claim; because damage is not an element of that cause of action, the limitation period may start to run for trespass before it has started to run for negligence: Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465.

[7] That means physical touching, and does not extend to the expression of touching sentiments.

[8] See also: Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 311 per McHugh J.