JONES -v- GITSHAM [2026] WADC 73

[2026] WADC 73 Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : JONES -v- GITSHAM [2026] WADC 73 CORAM : GILLAN DCJ HEARD : 29 JULY 2026 DELIVERED : 18 AUGUST 2026 FILE NO/S : CIV 4529 of 2024 BETWEEN : CHARLOTTE JONES Plaintiff AND DANIELLE YVONNE GITSHAM First Defendant AND RAMSAY HEALTH CARE PTY LTD Second Defendant Catchwords: Pleadings - Claim in negligence - Claim in battery - Medical - Strike out - Turns on own facts Legislation: Nil -- 1 of 10 -- [2026] WADC 73 Page 2 Result: 1. Statement of claim dated 4 May 2026 is struck out 2. The question of leave to amend is adjourned sine die until after the determination of the plaintiffs's application dated 24 June 2026 Representation: Counsel: Plaintiff : In person First Defendant : Ms G McGrath Second Defendant : Mr C McCavana Solicitors: Plaintiff : Not applicable First Defendant : Panetta McGrath Lawyers Second Defendant : MinterEllison Case(s) referred to in decision(s): AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland- Newcastle [2026] HCA 2, (2026) 100 ALJR 170 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Commonwealth of Australia v Introvigne (1982) 150 CLR 258 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 St Paul's College Ltd v Allan [2026] NSWCA 22 -- 2 of 10 -- [2026] WADC 73 GILLAN DCJ Page 3 GILLAN DCJ: 1 The plaintiff filed a Statement of Claim dated 4 May 2026 (the SOC). 2 The second defendant by application dated 8 May 2026 and first defendant by application dated 11 May 2026 each applied to strike out the SOC on the grounds that it disclosed no reasonable cause of action, was scandalous, and may prejudice, embarrass or delay the fair trial of the action. Both applications were heard on 29 July 2026. 3 After considering the written submissions and hearing the oral submissions of the solicitors for the first defendant and the second defendant, the plaintiff indicated that she did not oppose orders being made striking out the SOC. I indicated that I was minded to make orders to that effect but wanted to provide brief written reasons for doing so. 4 The plaintiff is self-represented and has requested that the litigation be conducted in plain English and with the minimum of jargon or legal terms of art. These reasons are drafted with that in mind. General principles relating to pleadings and strike out applications 5 The purpose of pleadings is to define the issues between the parties to litigation. A statement of claim must: 1. Make a claim which is within the limits of indorsement of claim in the writ of summons; 2. Clearly and adequately outline the material facts and the legal basis for the claim (also called the cause of action) that the plaintiff intends to make against each defendant; and 3. Outline the remedy or relief which the plaintiff seeks against each defendant, so that each defendant will know the claim that defendant must respond to by way of defence. 6 The pleadings, which includes the statement of claim, any defence and any reply will, in turn, assist in determining: 1. The extent to which discovery of documents and other pre-trial processes are required; and 2. The relevance of and extent of evidence to be led at the trial. -- 3 of 10 -- [2026] WADC 73 GILLAN DCJ Page 4 7 The term 'material facts' is a term of art used in law to describe the facts which must be pleaded in a statement of claim, a defence or a reply. What is required for a statement of claim is that the plaintiff must set out, in summary form, the facts which are essential to the claim and the important particulars or details of those facts. 8 Another way of putting this is that the facts which make up the elements of a cause of action must be pleaded. 9 By way of example, and this is not an exhaustive list, in an action alleging a claim in negligence causing personal injury arising in the context of medical treatment, the material facts would usually include, in summary form, the facts about: 1. Where and when the event said to cause injury happened. 2. The purpose for which the plaintiff was present at that place. 3. The role that the defendant or defendants had in the medical treatment of the plaintiff. 4. The nature of any duty to take care owed by a defendant to a plaintiff. I will come back to this in pars 13 and 14 below. 5. The action or actions or omissions of a defendant or each of the defendants that led to the injury. 6. Why that action or those actions or omissions breached the duty owed by the defendant or defendants. I will also come back to this in pars 13 and 14 below. 7. The nature of any injury suffered by the plaintiff, the treatment required and any residual symptoms or disability. 8. If monetary damages are claimed, then the loss to the plaintiff that is said to flow from that injury. 9. The facts supporting any claim for aggravated or exemplary damages. 10. If one defendant is said to be liable for the actions of another, then the facts relating to the relationship between the defendants which gives rise to that liability. By way of example: -- 4 of 10 -- [2026] WADC 73 GILLAN DCJ Page 5 (a) It may be alleged that one defendant employed the other defendant and is vicariously liable for the employee's actions or omissions within the scope of that employee's employment; and/or (b) It may be alleged that one defendant has a non-delegable duty to see that care is taken in the provision of medical services to the plaintiff and that defendant failed to take certain necessarily appropriate steps to ensure that care was taken by medical staff or others who may not be employees.1 10 In a statement of claim alleging negligence in a medical setting it is insufficient to say that a defendant owed a duty to exercise reasonable care, skill and judgment. 11 The basis of why such a duty is owed and the scope of the duty must be set out in the statement of claim because the scope of the duty may be different depending on whether a defendant is a medical practitioner making medical decisions and providing medical care or a hospital whose duty rests on a different basis. 12 It is also necessary to plead how that duty was breached by each defendant. 13 The pleading of a duty to exercise care and its breach was recently discussed by the New South Wales Court of Appeal in St Paul's College Ltd v Allan.2 14 Where the case involves the provision of medical treatment in a hospital setting it may be said there is an established category of duty to exercise care. With respect to an established category of duty,3 the New South Wales Court of Appeal said it will usually be sufficient for a plaintiff to: 1. Simply identify facts showing that the plaintiff and each defendant fell within the established category involving a duty 1 See for example, Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 561 - 562 (59); Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 270, 275; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 601 - 604; AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, (2026) 100 ALJR 170 [15] - [17]. 2 St Paul's College Ltd v Allan [2026] NSWCA 22 [39] - [49]. 3 In the case of St Paul's College Ltd v Allan the duty to take case arose in the context of liability of a school to students but the principles are applicable to other relationships. -- 5 of 10 -- [2026] WADC 73 GILLAN DCJ Page 6 to take reasonable care for instance by a doctor to their patient or by a hospital to a patient; 2. Identify the specific risk or risks of harm which was foreseen by or was reasonably foreseeable by each defendant, that the risk was not insignificant and what precautions against that risk of harm should have been taken; and 3. Plead a breach by saying how each defendant failed to take reasonable care in providing treatment or omitting to provide treatment or did not take reasonable precautions against the risk of harm in question. This is fact specific.4 15 In an action for battery in the context of medical treatment, the material facts would usually include, in summary form, allegations about: 1. Where and when the event happened. 2. The purpose for which the plaintiff was present at that place. 3. The role that the defendant had in the medical treatment of the plaintiff. 4. The physical act or acts of the defendant said to constitute the battery. 5. The balance of authority in Australia would seem to support the position that the plaintiff does not have to plead a lack of consent to the battery.5 6. The injury suffered by the plaintiff, the treatment required and any residual symptoms or disability. 7. If monetary damages are claimed, then the loss to the plaintiff that is said to flow from that injury. 8. The facts supporting any claim for aggravated or exemplary damages. 4 St Paul's College Ltd v Allan [46]. 5 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218, 310 - 311. -- 6 of 10 -- [2026] WADC 73 GILLAN DCJ Page 7 9. If one defendant is said to be liable for the actions of another, then the facts relating to the relationship between the defendants which gives rise to that liability. By way of example: (a) It may be alleged that one defendant employed the other defendant and is vicariously liable for the employee's actions or omissions within the scope of that employee's employment; and/or (b) It may be alleged that one defendant has a non-delegable duty to see that care is taken in the provision of medical services to the plaintiff and that defendant failed to take certain necessarily appropriate steps to ensure that care was taken by medical staff or others who may not be employees.6 16 Material facts are not the same thing as the evidence to prove that fact. 17 Certain matters must be pleaded, including, any facts that might take the other party by surprise. Any alleging fraud or impropriety as well as a claim for exemplary and aggravated damages as I have already referred to above.7 18 Where a pleading does not meet certain basic requirements, the other parties can apply to strike out that pleading. Some of the basis for striking out a pleading have been described in the cases as being because the pleading: 1. Does not disclose a reasonable cause of action. In such a case the facts alleged may not disclose a cause of action at all or the facts that are pleaded do not adequately set out all of the facts necessary to establish a cause of action; 2. May prejudice, embarrass or may delay the fair trial of the action. The terms 'prejudice' and 'embarrass' are terms of art used in law to describe a pleading which obscures rather than makes clear the case that the defendant has to meet because the pleading is unclear or incomplete; or 6 See for example, Albrighton v Royal Prince Alfred Hospital, 561 - 562 (59); Commonwealth of Australia v Introvigne, 270, 275; Ellis v Wallsend District Hospital, 601 - 604; AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [15] - [17]. 7 Rules of the Supreme Court 1971 (WA) (RSC) O 20 r 19. Here the endorsement of claim does not extend to a claim based in fraud, but, allegations of impropriety may arise in the context of aggravated or exemplary damages. -- 7 of 10 -- [2026] WADC 73 GILLAN DCJ Page 8 3. Is scandalous, frivolous or vexatious. Those terms all have different meanings. Relevant to this application, a scandalous pleading makes allegations of wrongdoing that are gratuitous in the sense that they are not legally necessary and which involve impropriety. Why it is necessary to strike out the SOC 19 The defendants have raised a number of defects in the SOC. Some, but not all, of those defects have convinced me that the SOC should be struck out in its entirety. I do not intend to address all of them. 20 The matters that I do accept support the SOC being struck out are: 1. The claims in the SOC include both a claim in negligence and in battery arising out of events either during or after the birth of the plaintiff's child. 2. The claim in negligence does not plead the necessary facts, the basis of the duty of care and the breach adequately. The SOC does not properly plead the duty to take care, the breach of the duty or distinguish between the claims against each defendant. 3. Battery is an intentional wrong. The factual basis of that cause of action differs from negligence and must be specifically pleaded. 4. Further, the indorsement of claim does not include a claim in battery and so that claim is liable to be struck out unless the indorsement of claim is amended to include battery. 5. The SOC pleads a number of apparently separate incidents where harm or injury is said to have been caused, referred to as the 'unauthorised manoeuvre', the 'manual intervention' and possibly an occasion where the plaintiff was resuscitated, but, it is not clearly pleaded whether those actions occurred at the same time or at different times, whether they were before, during or following the delivery of the child or which incident or incidents are said to give rise to liability in negligence or battery or both. 6. Further, whether there is a separate cause of action arising out of the prescription of antibiotics on 15 October 2022 (par 13) -- 8 of 10 -- [2026] WADC 73 GILLAN DCJ Page 9 and a surgical procedure on 22 October 2021 (pars 10(b) - 10(f)) is unclear. 7. The SOC confuses the facts of the incidents where the 'unauthorised manoeuvre', the 'manual intervention' and the resuscitation are said to have occurred. 8. The SOC confuses evidence with material fact, in particular, in pars 1(j) and 3(a) by referring to an affidavit, and in pars 10(a), 12, 13, 16 and 17. 9. In respect to various allegations of altering the records and allegations regarding procedural misconduct and attempted spoliation, the SOC: (a) uses expressions including but not limited to 'Immutable Clinical Truth', 'narrative corrections', 'retrospective fabrication and digital scrubbing', 'systemic clinical deception' and 'the semantic trick' which are not terms of art and which tend to obscure the issues; (b) does not say why the alteration of the records or those other actions are relevant to the plaintiff's claim; and (c) if the allegations are intended to support the plaintiff's claim for aggravated or exemplary damages following on from the allegations relating to the 'unauthorised manoeuvre' and the 'manual intervention' that should be clearly pleaded. 10. The SOC pleads a lack of consent in anticipation of a potential defence to battery in pars 9(a) - 9(c) but pleas in anticipation in a SOC tend to obscure the issues. The proper course is to plead a lack of consent in a reply if a defence of consent is pleaded in the defences filed by the defendants. 11. The SOC confuses pleas of fact with an application for production of documents in par 4. 21 Given the extent of the difficulties with the SOC it is appropriate to strike it out in its entirety. 22 That does not mean that the plaintiff should not be given leave to file a substituted statement of claim in due course. Given that she has -- 9 of 10 -- [2026] WADC 73 GILLAN DCJ Page 10 filed an application to amend the indorsement of claim which is currently listed to come before a registrar in August, the question of leave should be left until after that application is resolved. 23 The orders I will make are that: 1. The statement of claim dated 4 May 2026 is struck out. 2. The question of leave to amend be adjourned sine die until after determination of the plaintiff's application dated 24 June 2026. 24 I will hear the parties as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. IB Associate to His Honour Judge Gillan 18 AUGUST 2026 -- 10 of 10 --