Court of Appeal (WA)|2008-03-04|Before: Pullin JA

WATCH TOWER BIBLE SOCIETY AND TRACT SOCIETY OF AUSTRALIA -v- SAHAS [2008] WASCA 51 (4 March 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WATCH TOWER BIBLE SOCIETY AND TRACT SOCIETY OF AUSTRALIA -v- SAHAS [2008] WASCA 51

BETWEEN : WATCH TOWER BIBLE SOCIETY AND TRACT SOCIETY OF AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : SAHAS -v- WATCH TOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA & ANOR [2007] WADC 74

Practice and procedure - General indorsement on writ of summons - Whether indorsement covers causes of action advanced in statement of claim - Claim for damages pursuant to Occupiers' Liability Act 1985 (WA) introduced by statement of claim after expiration of applicable limitation period - Whether Occupiers' Liability Act introduces an independent statutory cause of action distinct from liability at common law - Defendant's applications to dismiss or strike out action - Appeal from refusal of strike out order - Judicature Act system of fact pleading

1 PULLIN JA: This is an appeal against the interlocutory judgment of Eaton DCJ who dismissed an appeal against a registrar's decision. Leave to appeal was granted earlier. At the end of the hearing, the appeal was dismissed. These are my reasons for doing so.

2 The background and the reasons for the hearings before the registrar and Judge Eaton are as follows. The respondent alleges that she was injured in a fall at premises in Nollamara on 26 July 1999. The respondent alleges that the second appellant was the owner of the premises and that the first appellant conducted religious instruction at the premises. The respondent issued a writ in May 2003 with a general indorsement, which indorsement was amended a few days later. The amended indorsement read:

INDORSEMENT OF CLAIM

The Plaintiff's claim is for damages and loss resulting from injury she sustained in a fall on the 26th of July 1999 at the Jehovah's Witness Kingdom Hall, Nollamara corner Flinders and Quadea Street Nollamara at a meeting conducted by the First Defendant on premises owned by the Second Defendant which damages occurred as a result of the negligence of the Defendants and the Plaintiff also claims interest on damages pursuant to Section 32 of the Supreme Court Act 1935 as amended.

3 The respondent later filed a statement of claim on 29 November 2005. This was more than six years after the accident. In par 7 the respondent pleaded:

The accident was caused by the negligence and/or breach of duty of care under the Occupiers Liability Act 1985 on the part of the defendants its servants or agents who at all material times were the occupiers and/or the entities having control of the Premises.

4 The appellants say that this is a pleading of two causes of action; the first a common law action in the tort of negligence (which the appellants agree was mentioned in the indorsement on the writ) and the other a statutory cause of action under the Occupiers Liability Act 1985 (WA) (which the appellants submitted was not mentioned in the indorsement). The appellant then filed two chamber summonses. The first sought an order striking out the action 'on the basis that it is vexatious and/or an abuse of process' in that:

(a) the common law negligence action as pleaded therein does not exist in law by operation of the Occupiers Liability Act 1985;

(b) the Occupiers Liability Act action as pleaded therein is statute-barred by operation of the Limitation Act 1935 (WA);

5 The second chamber summons raised the same points but sought summary judgment under O 16. In essence the appellant argued that since the Occupiers Liability Act, a person injured could no longer bring a common law action for damages for breach of a duty of care owed by the occupier. The appellant submitted that there was only a statutory cause of action open, that the indorsement on the writ only referred to a (non-existent common law) cause of action and that insofar as the statement of claim pleaded a cause of action by reference to the Occupiers Liability Act, it infringed O 20 r 2. The appellants submitted that as the statement of claim only raised the statutory cause of action after the expiry of the limitation period that the action should be struck out.

6 Both applications were dismissed by Registrar Hewitt. When the appellant appealed, they filed a third chamber summons, returnable before Judge Eaton, seeking a trial of preliminary issues in relation to these points. This application was dismissed and the appellants no longer pursue an order for a trial of preliminary issues.

7 Judge Eaton dismissed the appeal against Registrar Hewitt's decision. Registrar Hewitt concluded that the language in the indorsement was sufficient to cover either a statutory cause of action or a common law action. Judge Eaton concluded that the cause of action pleaded in the statement of claim was mentioned in the writ but did so by preferring the line of cases indicating that there is still a common law cause of action.

The learned District Court Judge erred in law in failing to hold that the Respondent's common law negligence action as pleaded does not exist by operation of the Occupiers Liability Act 1985 ('OLA').
The learned District Court Judge erred in law in failing to hold that the Respondent's OLA cause of action, as pleaded, was statute-barred by operation of the Limitation Act 1935.

Common law action or statutory cause of action

9 There are two lines of authority in this State, one line to the effect that there is no longer a duty imposed by the common law on occupiers of premises. This appears from the reasons for decision of Anderson J (Malcolm CJ and Ipp J agreeing) in Tonich v Macaw Nominees Pty Ltd (Unreported, WASCA, Library No 940119, 11 March 1994) that the Occupiers Liability Act imposed on an occupier a duty of care to entrance and that the Act covers the field and that a concurrent duty is not owed at common law.

10 On the other hand, there is a line of authorities that the Occupiers Liability Act did not create a new statutory cause of action; that the act did no more than reform the common law by replacing the common law rules and regulating the standard of care owed by occupiers with a single standard of care. See for example Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139, particularly at 145 (Malcolm CJ). This was the line of authorities preferred by Judge Eaton.

11 The existence of the unresolved controversy was adverted to by Buss JA in his reasons for decision in Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209. Buss JA said in that case that it was not necessary to resolve the controversy but that it may be necessary in an appropriate case. The appellants contend that this is an appropriate case.

12 In my opinion this appeal does not have to be decided by considering whether there is still a common law cause of action or only a statutory cause of action under the Occupiers Liability Act. This is so because the general indorsement was sufficiently wide to encompass either cause of action.

13 To explain why this is so, it is necessary to begin by referring to the Rules of the Supreme Court 1971 (WA). Order 20 r 2(2) provides that a statement of claim must not 'contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned'.

14 Order 6 r 1(1) states that before a writ is issued, it must be indorsed 'with a concise statement of the nature of the claim made, and of the relief or remedy required in the action'. There are cases dealing with a similar provision in Victoria which required not only a statement as to the nature of the claim, but also as to 'the cause thereof'. There are a number of cases discussing the meaning of the latter words. In Buttigieg v VL Finance Pty Ltd [1986] VicRp 39; [1986] VR 392, 397, the Full Court said:

The word 'cause' is directed to the cause of action in the technical legal sense: see Ruzeu v Massey Ferguson Aust Ltd [1983] VicRp 69; [1983] 1 VR 733 at 737. The indorsement does not have to employ the precise legal nomenclature of a cause of action, such as 'detinue' or 'breach of contract', but it must be such as to give sufficient notice of what the cause of action is.

15 That is done by identifying the combination of facts which will give the plaintiff the right to sue for a remedy at law. See Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245.

16 As to O 6 r 1(1), McLure JA said in ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [11]:

The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of nature of the claim made and the relief or remedy required does not depend on a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.

17 Her Honour also noted that an indorsement in a writ has important limitation ramifications. In the ABB case, the indorsement did not provide sufficient information to identify the cause of action. Reference was made by McLure JA in the ABB case to Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VicRp 69; [1983] 1 VR 733 and Elsum v Jameson [1974] VicRp 65; [1974] VR 529, 542 - 543. Her Honour noted that both Victorian cases involved a claim for personal injuries where the date of the accident and the accrual of the cause of action coincided. That is the case here.

18 McLure JA's comment quoted above in ABB was a reflection of what was said in Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, by Barwick CJ and McTiernan J at 595, when speaking about the Victorian order. They said:

The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys the information generally and without particularity.

19 The word 'mentioned' in O 20 r(2) means 'to refer briefly to; refer to by name incidentally; name, specify or speak of ... a speaking of or mentioning; a reference direct or incidental': Macquarie Dictionary (Revised 3rd ed, 2001). That ordinary meaning of the word and the observations to similar effect in Renowden and ABB referred to above, means that it is necessary to determine what the indorsement in this case 'mentioned'; that is, what its words conveyed. What it stated expressly or impliedly was as follows:

(b) the damages claimed were for damage resulting from loss following a fall on 26 July 1999;

(c) the fall occurred at the premises in Nollamara, at a meeting conducted by the first appellant which premises were owned by the second appellant; and

(d) the fall occurred as a result of the negligence of the appellants.

20 The matter referred to in (a) conveys information about the relief sought and the facts referred to in (b) and (c) sufficiently identifies the cause of action, whether it be a common law cause of action or a statutory cause of action. Save for one point mentioned below, the appellants do not contend otherwise. However, the appellants' submission is that the words 'occurred as a result of negligence of the defendants' qualify the indorsement and that those words mean that the indorsement can only be read as referring to a common law cause of action and not to a statutory cause of action under the Occupiers Liability Act. The appellants' submission was supported, not by any authority, but merely by assertion that whenever reference is made to 'negligence' the reference must be to the common law tort of negligence. That submission must be rejected. The word 'negligence' is not a term of art. It is a word of ordinary meaning. Negligence in ordinary use means the failure to exercise that degree of care which, in the circumstances, the law requires for the protection of those interests of other persons which may be injuriously affected by the want of such care. See Macquarie Dictionary. See also Fleming J, The Law of Torts (9th ed, 1998) page 117.

21 A court considering a common law action decides whether a duty of care exists and what must be done if the defendant occupier is to discharge the duty of care. If, as the appellants contend, there is now only a statutory cause of action, then the court is informed by the statute as to the duty of care but, as in a common law action, the court must itself determine what the occupier must do so that it exercises 'such care as in all the circumstances of the case is reasonable to see that [the entrant] will not suffer injury or damage by reason of any such danger': see s 5(1) of the Act. Not to do what it is that the court decides the occupier was obliged to do, may be quite properly described as 'negligence'. Therefore, if, as the appellants contend, the only cause of action which exists is the statutory cause of action, then it may still be conveniently and aptly

described as an action for damages caused by the 'negligence' of the occupier. It is not in dispute that the words in the indorsement on the writ are wide enough to refer to a common cause of action.

22 It was also the appellants' submission that the respondent was obliged to state, in the indorsement on the writ, the 'fact' that the respondent was suing for damages under the Occupiers Liability Act. If a cause of action is created by the Act then that is not a fact. It is a matter of law and a matter of law does not have to be pleaded.

23 It may also be observed from the pleadings that there is an issue about which, if any, appellant was an occupier and that alone makes the case a wholly unsatisfactory one for judgment under O 16. The legal debate about the nature of the cause of action, if it is necessary to be decided, may be decided in the light of settled facts, at trial.

24 As a result, both grounds of appeal failed and the appeal was dismissed.

25 EM HEENAN AJA: By order dated 21 May 2007, Eaton DCJ dismissed an appeal by the present appellants from an order of Deputy Registrar Hewitt made on 31 January 2007 to dismiss the appellants' application for summary judgment, or to strike out the respondent's statement of claim in the action then pending in the District Court. The application for summary judgment was brought by the defendants in the action under RSC O 16 r 1 and, therefore, the restrictions on an appeal by an unsuccessful applicant under Supreme Court Act 1935 (WA) s 60(1)(b) do not apply. In addition, Eaton DCJ simultaneously dismissed an application by the appellants for the trial of a preliminary issue in the action. From those decisions, the appellants appeal to this court pursuant to leave granted by Pullin JA by order dated 27 June 2007.

26 The single point in issue before the Deputy Registrar and his Honour Judge Eaton and, again, on this appeal, is whether an amended general indorsement on the writ of summons in the action issued by the plaintiffs on 15 May 2003 is broad enough to accommodate one of the causes of action relied upon by the plaintiff in the statement of claim later filed and served on 29 November 2005. The plaintiff's action is for damages for personal injuries she claimed she suffered as a result of an accident on 26 July 1999 caused by negligence for which she alleges each of the defendants is liable. It is accepted that the applicable limitation period for any potential cause of action raised by the respondent in the proceedings is six years. The action was commenced well within that period but the

statement of claim was filed and delivered after the expiration of the period.

27 If, as the appellants submit, the statement of claim introduced a fresh cause of action, not comprehended by the indorsement on the writ of summons, this was done after the expiration of the six year period and should not be permitted in the light of the rule in Weldon v Neal (1887) 19 QBD 394 and, further, because, so the appellants contend, this new cause of action is not covered by RSC O 21 r 5.

28 The appellants' submissions in this respect are that the common law cause of action for negligence for injuries sustained in circumstances to which the Occupiers' Liability Act 1985 (WA) applies has been totally abrogated and removed, being replaced by a separate and distinct statutory cause of action under the 1985 Act. On this basis, so the appellants argue, the respondent never had a cause of action for damages for negligence at common law in the circumstances alleged by her indorsement of claim and, later, by her statement of claim, because the only available right of action was the substituted statutory cause of action. As that was not expressly relied upon in the indorsement of claim, so the submission goes, the proceedings as originally commenced failed to advance any cause of action for which the court could give a remedy. The only available cause of action was first raised, so the appellant submits, in the statement of claim, filed after the expiration of the limitation period. Not being accommodated by the statement of claim this offends the Weldon v Neal rule. Furthermore, so the appellants submit, there is no scope for leave to amend being granted under RSC O 21 r 5 because there was no original cause of action advanced which could be regarded as the basis for, or the same set of facts as 'the original cause of action'.

29 It therefore becomes apparent that the reasons submitted by the appellants for contending that there is no scope to permit amendment under O 21 r 5 are, in substance, no different from the appellants' submissions in relation to the alleged existence of only one statutory cause of action for the loss and damage of which the respondent complains.

30 At this stage of the action no facts have actually been proved and what follows is an account of the allegations of fact made by the respondent although, to an extent, some have been admitted by the defendants in the separate defences which they have filed.

31 As at 26 July 1999 the second appellant, Jehovah's Witnesses Congregations, was the registered proprietor of the land and premises known as Kingdom Hall of Jehovah's Witnesses at the intersection of Flinders and Quadea Streets, Nollamara. These premises were used from time to time for religious meetings and a form of religious instruction called 'Book Studies' conducted by the first appellant, Watch Tower Bible and Tract Society of Australia. The respondent had attended a session of book studies at the premises on the evening of 26 July 1999 and, on the completion of the session, visited the toilets located at the rear of the premises. While still there, a person presumably acting on behalf of the first and/or second appellant, switched off the electric lights to the entire premises. In attempting to leave the toilets in complete darkness, the respondent stumbled and fell suffering, among other injuries, a fracture of her right hip, and her right humerus, necessitating subsequent hospitalisation, medical treatment and causing her financial loss.

32 By writ issued 15 May 2003, the respondent commenced the present action against both appellants as defendants. The writ was indorsed in a summary way with the claim which she was advancing, but that indorsement was amended some five days later (within time) and the amended indorsement of claim was, and remains:

Indorsement of Claim

The plaintiff's claim is for damages and loss resulting from injury she sustained in a fall on 26 July 1999 at the Jehovah's Witness Kingdom Hall, Nollamara corner Flinders and Quadea Street, Nollamara at a meeting conducted by the first defendant on premises owned by the second defendant which damages occurred as a result of the negligence of the defendants and the plaintiff also claims interest on damages pursuant to s 32 of the Supreme Court Act 1935, as amended.

33 In the statement of claim, later delivered on 29 November 2005 (the long delay in the filing of the statement of claim being due to an agreement between all the parties by their respective solicitors to attempt to negotiate and resolve the claim without proceeding further with the litigation which, in the event, proved unsuccessful), set out in more detail, but in no material respect differently, the facts alleged to have led to and caused the respondent's injury. Then, by par 7 of the pleading, it is alleged:

The accident was caused by the negligence and/or breach of duty of care under the Occupiers' Liability Act 1985 on the part of the defendants, its servants or agents who at all material times were the occupiers and/or the entities having control of the Premises.

Particulars of the First Defendant's Negligence

(a) Switched off the main electric switch at the entry of the Premises at a time when it knew or should have known that the plaintiff was in the female toilet and that she would be left in total darkness as a result.

(b) Failed to specifically check whether any occupants were in the toilet before turning off the main switch.

(c) Failed to warn the plaintiff not to attend the toilet at a time when it knew or should have known that the main switch would be turned off at short notice.

Particulars of the Second Defendant's Negligence

The Second Defendant was negligent in that:

(i) It failed to give any or adequate notice or warning that the main switch if turned off would as a result cause the toilet lights also to be turned off.

(ii) Failed to display a written notice such as and similar to 'caution - ensure when dark that there are no occupants in the toilet area prior to turning off the main switch'.

(iii) Failed to install a communication system such as a telephone or intercom system to enable persons stranded in the toilet area in darkness to communicate with persons in the main hall.

And later, the pleading, in the prayer for relief, claimed damages from both defendants together with interest.

34 Obviously, the general indorsement of claim, as amended, on the writ did not expressly invoke or allege any right to damages pursuant to the Occupiers' Liability Act. This is the appellants' point.

35 Both in the District Court and again on the hearing of this appeal, the appellants have submitted that there is a clear difference between an action for damages for common law negligence and an action for damages for breach of statutory duty, at least where the latter involves an action for a breach of an Act which confers a cause of action which, otherwise, would not exist: Airlink Pty Ltd v Paterson [2005] HCA 39; (2005) 223 CLR 283 [133], [146] (Callinan J); O'Grady v Botany Wool (Australia) (1964) 64 SR (NSW) and Armytage v Commissioner of Government Transport [1972] 1 NSWLR 331, 335. In my respectful view, so much of the appellants' submissions should be accepted as being correct. Whether, however, this is the effect of the Occupiers' Liability Act is another matter.

36 However, in support of their submission that the Occupiers' Liability Act introduces a new and exclusive cause of action for persons suffering injuries arising from the occupation of premises, the appellants rely on certain dicta of Anderson J, sitting in the Full Court in Tonich v Macaw Nominees Pty Ltd (Unreported, WASCA, Library No 940119, 11 March 1994), which include the passage:

The Occupiers' Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute. Insofar as ... the statement of claim seeks to plead a separate cause of action based on common law principles, or seeks to invoke those principles in aid of the action based upon the statute, it is misconceived and discloses no cause of action.

37 An earlier decision of the Full Court: Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 suggests a different view of the legislation, although Westralian Caterers Pty Ltd cannot be regarded as determinative of the position. A later decision of Murray J in Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204 seems to treat the effect of the Occupiers' Liability Act as being supplementary to the common law, but defining the standard of care applicable. Despite submissions to the contrary by the appellant, I do not regard the subsequent treatment of the legislation by Murray J in Bartlett v Jones (Unreported, WASCA; Library No 990073; 22 February 1999), nor the subsequent decision of the High Court in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, as finally resolving the issue. Such dicta as there are in Jones v Bartlett seem to assume the parallel existence of an action for negligence at law and a statutory cause of action under the 1985 Act: Gleeson CJ at [52]; Gaudron J at [84]; McHugh J at [98] - [99]; Gummow and Hayne JJ at [136] and [166]; Kirby J at [227]. There was passing mention of the issue by Murray J in Coatz v Westcourt Ltd [2003] WASCA 49. It was again addressed by the Full Court in Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 and in Howells v Murray River North Pty Ltd [2004] WASCA 276 but, in my view, without attempting to resolve the supposed controversy. More recently, in Geroheev Pty Ltd v Wheare [2004] WASCA 206 and in Town of Mosman Park v Tait [2005] WASCA 124, the controversy was noted by McLure JA but her Honour proceeded in each case on the assumption that concurrent duties of care existed in the absence of submissions by the parties to the contrary. Even more recently, in Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209, the issue was addressed more extensively by Buss JA at [17] - [30]. However, his Honour did not consider it necessary to attempt to resolve the supposed controversy in that litigation, saying:

It is unnecessary, in consequence of the manner in which the litigation was conducted at trial and before this Court, to determine, in this appeal, the proper relationship between the Act and the common law of negligence. It is an issue which will, no doubt, require consideration and resolution in an appropriate case [30].

When discussing the standard of care to be applied in Homestyle Pty Ltd v Perrozzi, in circumstances where it was acknowledged that the Occupiers' Liability Act did apply, Buss JA spoke of the standard of care in language used in the leading authorities dealing with negligence at common law, namely: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; and Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341. Martin CJ and Roberts-Smith JA each agreed with the reasons for decision given by Buss JA in Homestyle Pty Ltd v Perrozzi.

38 After identifying these issues and reviewing an extensive range of authorities dealing with the supposed controversy, including but not limited to those just cited, Eaton DCJ concluded:

I do not accept the contention in the defendants' application for summary judgment to the effect that the plaintiff's negligence action does not exist in law by operation of the Occupiers' Liability Act 1985. It follows from the foregoing that the indorsement of claim contained in the amended writ filed 20 May 2003 encompasses a claim in negligence in circumstances where the content of the duty of care owed by the defendants to the plaintiff, if one is ultimately held to exist, will be governed by the provisions of the Occupiers' Liability Act 1985. I do not agree that the plaintiff's claim against either defendant is statute-barred by operation of the Limitation Act 1935 or that the plaintiff's action is, as alleged, wholly untenable [27].

Later at [29], when dealing with the application to order a separate trial of a preliminary issue, Eaton DCJ observed that this should generally only be done when the outcome would put an end to the action, or where there was a clear line of demarcation between the issues and the determination of one issue in isolation from the others would be likely to save inconvenience and expense. In his Honour's view, the trial of the proposed preliminary issue desired by the appellants would not serve to put an end to the action, nor be likely to lead to a settlement or save inconvenience or expense.

39 In my view, his Honour was undoubtedly correct in the exercise of his discretion in this respect because, in the light of the submissions advanced by the present appellants, it seems plain that a preliminary issue on this ground, if ordered, would inevitably generate a further appeal and that while that was pending the action would languish, whereas if the action were to follow its usual course it could be determined on the merits and all parties would preserve rights of appeal which, if exercised, could also accommodate any other incidental controversies which might arise from the determination of the action.

40 These same considerations which led Eaton DCJ to refuse the application for a trial of the proposed preliminary issue are also germane to a consideration of the manner in which the present appeal should be determined.

41 For reasons set out in more detail in following passages, the eventual determination of whether there has been any breach of a statutory duty of care and/or a common law duty of care by either of the appellants in the present case, may depend to a significant degree upon the nature of the evidence emerging at the trial. This makes it undesirable to attempt to resolve the overall fate of this litigation on abstract legal points, in circumstances where the full significance of the facts sought to be relied upon could only be assessed in the context of the evidence led and accepted at a trial. Furthermore, the controversy identified by the appellants in their counsel's submissions involves questions of major legal significance and importance, the determination of which will have application far beyond the present case and which would require consideration of the application of the common law liability in negligence and the effect of the Occupiers' Liability Act in a wide variety of circumstances which may be difficult to envisage from the limited perspective of the facts available on this appeal. Therefore, unless it is essential that the controversy be resolved, I consider that it is preferable that the resolution of that controversy be left for another day, as was the view taken in Homestyle Pty Ltd v Perrozzi. Significantly, I am satisfied that this appeal can be resolved on narrower grounds which can be identified and determined quite readily and which provide both an adequate and a sure basis for determining the rights of these contending parties.

42 For these reasons, therefore, I shall assume without deciding that the Occupiers' Liability Act replaces and removes an action for damages at common law arising from injury incurred on premises arising from negligence or other breach of duty by an occupier. I hasten to add, however, that I make that assumption with the qualification that if it is ever necessary to decide the point, this hypothesis should not be regarded as a starting point nor any indication of my view on the issue because, if anything, I am at present inclined to the view that the 1985 legislation does no more than operate in a complementary way with the doctrines of common law, except to the extent that it specifically identifies the standard of care which applies in circumstances identified by the Act.

43 Nevertheless, on the approach I propose to follow, the question becomes whether or not the amended indorsement of claim advanced by the respondent is adequate to support the statutory cause of action which the appellants submit is the only avenue of address available. In the light of the respondent's position it is, however, also convenient, simultaneously, to consider whether or not the general indorsement also supports a concurrent cause of action in negligence as the respondent maintains.

44 Here one starts with the rules of court which provide that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to the cause of action so mentioned - RSC O 20 r 2(2). As to the obligation of a plaintiff when framing a general indorsement of claim on a writ, it is provided by RSC O 6 r 1(1):

1(1) Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and the relief or remedy required in the action.

This provision is notable in that, unlike in some other jurisdictions (for example Victoria), it does not expressly require the plaintiff to the indorsement to 'contain a statement sufficient to give notice of the nature of the claim and the cause thereof and of the relief and remedy required in the action' - RSC (Vic) O 31 r 1.

45 When addressing the requirements of the corresponding Victorian rule in Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, Barwick CJ and McTiernan J observed that while the Victorian rule was not in identical terms to its prototype in the English rules, of which it may be said that the Western Australian rule is still an example, they found no need to found anything in their reasons upon the difference in the rules, and then said (595):

The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, e.g. on some occasions identification of the instrument upon which a claim is founded.

46 These observations of Barwick CJ and McTiernan J in Renowden v McMullin occur where their Honours were dissenting over the ultimate result. However, the reasons for the majority (Kitto, Menzies and Owen JJ) are not in any way inconsistent with, or at variance with, the explanation of the role of a general indorsement, so explained. The principal reasons for the majority were given by Owen J with whom Kitto and Menzies JJ agreed. The conclusion of Owen J (at 609) did not follow from any inadequacy or failure of the general indorsement of claim on the writ when issued to encompass the cause of action which was sought to be introduced by the amendment attempted after the expiration of the limitation period. Rather, the ratio decidendi of the case must be regarded as being that, if a cause of action which may be accommodated by a general indorsement of claim is not included in a statement of claim subsequently delivered, it is to be treated as being waived or abandoned and may not be subsequently reintroduced in a later version of the statement of claim by amendment after the expiration of any applicable limitation period. Accordingly, Owen J observed at 609 - 610:

[T]he plaintiff was to be regarded as having dropped his claim for breach of contract by omitting it from his statement of claim. ... to allow him to re-introduce it by amendment at a time when it would have been statute barred, had [the plaintiff] then begun an action to enforce it, would not be a proper exercise of ... discretion.

47 Many learned commentaries are available on the meaning and application of RSC O 6 r 1 and its equivalent rules in other jurisdictions. In the Supreme Court Practice (The White Book) at 6/2/2, there is the observation that such an indorsement is not required to be a précis of the proposed statement of claim, but that it must give sufficient information to enable the recipient to identify the occasion when the breach of contract or other wrong relied upon is alleged to have occurred. There are certain specific instances in which the indorsement must specifically state the remedy desired, such as when an account is sought (O 6 r 6) or, where the action is for libel, particulars must be given to allow identification of the publications (O 6 r 2).

48 A review of the history of the English rule can be found in Elsum v Jameson [1974] VicRp 65; [1974] VR 529, 530 - 541. Cases in Victoria dealing with that State's different rule have held that the obligation to state the 'cause' is not directed to the physical acts out of which the claim arises, but to a cause of action in the technical and legal sense: Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VicRp 69; [1983] 1 VR 733, 737 and Shell Co of Australia Ltd v Esso Australia Ltd [1987] VicRp 28; [1987] VR 317, 343. The appellants in the present action rely on these authorities, together with Dowling v Watson [2000] TASSC 165, in support of their submission that the indorsement must necessarily identify the cause of action being advanced. However, upon close examination, these authorities do not, in my view, support the submission advanced by the appellants. In Ruzeu v Massey-Ferguson (Aust) Ltd a general indorsement read:

The plaintiff's claim is for damages for injuries he received to his back in an accident which occurred in or about 2nd December 1975 whilst he was in the course of his employment with the defendant. The accident occurred as a result of the negligence of the defendant its servants or agents and the plaintiff claims damages.

This was held, on a successful appeal by the plaintiff, to be an adequate indorsement and was restored after the writ had been set aside on appeal to a single judge. Nevertheless, the indorsement was held not to be broad enough to comprehend a cause of action which first arose on 22 January 1976. The passage evidently relied upon by the appellants in the judgment of Young CJ (at 737) goes no further than establishing that a recognisable cause of action must be apparent from the terms of the indorsement, for it certainly does not support any contention that a 'label', such as 'breach of contract', 'breach of statutory duty', 'conversion' or 'debt' is an indispensable component of such an indorsement.

49 The process of recognising the cause of action from the facts alleged, rather than from any label which may be attributed to them, is also implicit in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465, 471, where the need to identify the cause of action for the purpose of determining which of several different limitation periods might apply was addressed. There the process of recognition was acknowledged to depend on the facts being alleged by the claimant rather than upon any description or label asserted.

50 While the term 'cause of action' in the Victorian rule must be of a cause technically known to the law and not a cause or feature, such as might occur to a layman, Elsum v Jameson, it is nevertheless sufficient if this is recognisable from the facts alleged or advanced in the indorsement because the requirement of the rule does no more than necessitate a statement sufficient to give notice of the nature of the claim and the cause thereof: per Nathan J in Shell Co of Australia Ltd v Esso Australia Ltd, 343. Again, in Dowling v Watson, the adequacy of the challenged indorsement of claim was upheld where the cause of action was recognisable from the matters contained in the indorsement, although no label had been given to the cause of action except by reference to a claim for damages arising from negligence of the defendant. This latter case was resolved by an application of the principles already examined in Ruzeu v Massey-Ferguson (Aust) Ltd.

51 More emphatically, in Buttigieg v VL Finance Pty Ltd [1986] VicRp 39; [1986] VR 392, Murphy, Fullagar and Nathan JJ held sufficient an indorsement on a writ which gave a narrative account of facts giving rise to a debt by one defendant to the plaintiff and guaranteed by the remaining defendants, to accommodate a money claim by the plaintiff against each defendant. At 397, in a joint judgment and after referring to the case of Ruzeu, their Honours said:

The endorsement does not have to employ the precise legal nomenclature of a cause of action, such as 'detinue' or 'breach of contract', but it must be such as to give sufficient notice of what the cause of action is. In the present case we think the endorsement makes it clear enough that the cause of action against the first defendant is breach of a contract to pay money ...

... [and] also makes clear enough what is the cause of action relied upon against the defendants other than the first defendant - it is again breach of contract, being a breach of a 'guarantee in writing'.

These authorities make it plain that the question of whether or not sufficient notice of the nature of the claim is given by the indorsement is a matter of substance and not of form. For further detailed examples, see Williams: Civil Procedure Victoria, 1 5.04.10; 1 5.04.15 and 1 5.04.20.

52 To illustrate these points, by an example, I consider that an indorsement of claim which merely said:

The plaintiff visited the hotel at (x address) conducted by the defendant on 31 December 2007 and due to the dangerous condition of the main staircase left unlighted by the defendant fell and suffered injury and loss for which he claims damages

would be a good and sufficient indorsement which would allow a statement of claim to be delivered and the action to be prosecuted for negligence at common law and for breach of an occupier's statutory duty notwithstanding that it does not include the words or phrases: 'negligence'; 'occupier's duty' or 'breach of statutory duty'.

53 Returning to the indorsement, as amended, on this writ of summons, it is apparent that the plaintiff seeks to advance a claim for damages and consequential loss for personal injuries suffered in a fall on certain premises at a specified date. The indorsement does not attempt to distinguish between a claim for damages at common law or under some statute and is therefore wide enough to encompass both. The indorsement asserts that the fall and consequent damage and loss occurred as a result of the negligence of both defendants which is plainly sufficient to assert a claim for damages for negligence at common law - assuming, as I am assuming at this point, that such a claim exists. However, in my view, it is also equally capable of advancing any other cause of action for damages where negligence - or lack of care - is the gist of the action, such as for example, breach of statutory duty - see, generally, Fleming: The Law of Torts (9th ed, 1998) 138.

54 In some cases there may be a distinct and unique statutory cause of action such as, for example, a claim for damages pursuant to s 82 of the Trade Practices Act 1974 (Cth), which has no counterpart at common law. In other instances there may be either a claim for common law damages where the standard of care is to be found largely, if not exclusively, within the terms of some statute, as is the case on one view of the provisions of the Occupiers' Liability Act or, where a field of liability once recognised by the common law has been replaced entirely by an exclusive statutory liability, the content of which itself is to be found in the applicable legislation - the contrasting view of the Occupiers' Liability Act for which the present appellants contend.

55 Nevertheless, in many instances, where the claim for damages is consequent upon an injury, due to the alleged negligence of the defendant on some specified occasion, that will be sufficient to inform the defendant of the nature of the claim made, and of the relief or remedy sought in the action and, if it be necessary, of the cause of the claim. This is because of the long-established principle that, subject to certain exceptions which do not apply in the present case, the existence and sufficiency of the claim advanced by a plaintiff will depend upon the facts which the plaintiff alleges and not the plaintiff's contentions as to whether or not those facts entitle him or her to any, or any specific, remedy at law or otherwise. After all, it is for the court to decide whether, on facts alleged or proved, a plaintiff is entitled to any, and if so what relief - Supreme Court Act 1935, s 24(7).

56 This is the principle enshrined in the rules of pleading. A corollary of the obligation that a pleading must contain, and contain only, a statement in summary form of material facts upon which the party relies (RSC O 20 r 8(1)), is that matters of law, or inferences of law, should not generally be pleaded. As stated in Jacob J & Goldrein I, Pleadings, Principles and Practice (1990) 51:

Thus if the material facts are alleged it is not necessary to plead the legal result. If for convenience this is pleaded, the party is not bound by, or limited to, the legal result he has alleged. He may rely on any legal consequence which may properly flow from the material facts pleaded: Re Vandervell's Trusts (No 2); White v Vandervell Trustees Ltd [1974] Ch 269. In Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4; [1956] 1 WLR 936 at 941 Denning LJ said:

'I have always understood in modern times that it is sufficient for a pleader to plead the material facts. He need not plead the legal consequences which flow from them. Even although he has stated the legal consequences inaccurately or incompletely, that does not shut him out from arguing points of law which arise on the facts pleaded.'

57 The distinction between the modern judicature fact system of pleading and the previous common law system which required the pleader to assert his or her cause of action in conventional form, rather than the facts relied upon to establish it, is fully described by Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 473. The learned Chief Justice observed:

Indeed, as I have remarked earlier, in judicature pleading, fact pleading as it was introduced in the judicature system, there is no necessity to assert or identify a legal category of action or suit which the facts asserted may illustrate, involve or demonstrate and on which the particular relief claimed is based or to which it is relevant. It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts. Nor will the nomination of particular remedies by a party necessarily indicate the extent of the matter before the Court: nor will the issues raised by the pleadings necessarily mark out the parameters of the matter. The identification of the matter is very much a question of substance and not of form. The facts alleged by either or any of the parties and their consequences will in the last resort be the determinant of what is relevantly the matter (474).

These observations of Barwick CJ have since been repeated and approved again at the highest level: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, 572 [64] (Gaudron, McHugh, Gummow and Hayne JJ) where their Honours proceeded to observe:

The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff's case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial. Questions of reliance or knowledge of risk are two obvious examples of the kinds of question in which the evidence given at trial may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care (578).

58 In Scott v Davis (2000) 204 CLR 333, Gummow J again emphasised this point (at 422, [266]), where, after reference to the observations of Barwick CJ already mentioned, his Honour referred to the system of 'fact pleading' in which there is no necessity to identify a legal category of action which the facts asserted may illustrate.

59 Plainly, these observations are directed to the content and significance of pleadings. Equally plainly, a general indorsement on a writ of summons is not a pleading and must comply with the particular requirements of RSC O 6 r 1, but the content of that obligation and the approach of the court in determining whether the obligation has been adequately performed should be consistent with the rules and obligations relating to pleadings as, in my respectful view, the Victorian authorities referred to in [48] and [51] above, illustrate and accept.

60 As earlier explained, this is not the occasion to resolve finally the controversy about whether or not the Occupiers' Liability Act creates an exclusive statutory liability which excludes the general law of negligence, although I certainly incline to the view that it does not have that effect, notwithstanding that, to a significant extent, it supplies the content of the standard of care owed by the occupier. By doing so, the statute in this State largely resolved uncertainties which had arisen in this area of law which had been addressed by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 and, not surprisingly, anticipated the result eventually achieved by the High Court for the common law in Australian Safeway Stores Pty Ltd v Zaluzna. By doing so the statute largely resolved and displaced a degree of uncertainty which had developed in this area of the law during those intervening years.

61 Nevertheless, if contrary to this inclination, I am to adopt, as a working hypothesis, the view advanced by the appellants that a separate and exclusive statutory cause of action had been established by the Occupiers' Liability Act, that still would not mean that the amended indorsement of claim in this present action failed to disclose or to advance such a putative cause of action. The indorsement alleges that the plaintiff's injury was caused by the negligence of the defendants at premises where the first defendant was conducting a meeting which, by implication the plaintiff attended, and which premises were then owned by the second defendant. By necessary implication this indorsement contains an allegation that the premises were then occupied by the first defendant, although the allegation of ownership against the second defendant would not necessarily be regarded as an assertion of occupation because it has long been accepted that where premises are owned by one person and occupied by another it will, with some exceptions, be the occupier and not the owner who will be liable: Jones v Bartlett and Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. Nevertheless, the Occupiers' Liability Act, by s 2 extends the definition of 'occupier of premises' to any person 'occupying or having control of land or other premises', so that the allegation of ownership in this indorsement of claim should be regarded as implying an allegation of control in this setting.

62 The result is that the amended indorsement of claim should, in my view, be regarded as accommodating claims and allegations sufficient to invoke a claim for liability under the Occupiers' Liability Act even if, which I expressly do not decide, that is a liability which is entirely independent of any liability for damages at common law. Equally, it advances a claim for damages for personal injuries and consequential loss caused by the negligence of the defendants at common law which, in my view, at the very least, remains an arguable cause of action.

63 With respect, I consider that Eaton DCJ was correct in dismissing the appeal from the decision of Registrar Hewitt and in declining to order the trial of a special preliminary question of law. It follows that the present appeal should be dismissed.

WATCH TOWER BIBLE SOCIETY AND TRACT SOCIETY OF AUSTRALIA -v- SAHAS [2008] WASCA 51 (4 March 2008)

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WATCH TOWER BIBLE SOCIETY AND TRACT SOCIETY OF AUSTRALIA -v- SAHAS [2008] WASCA 51 (4 March 2008)

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