FEDERAL COURT OF AUSTRALIA

Cochrane v Bupa Aged Care Australia Pty Ltd [2025] FCA 1560

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s interlocutory application filed on 27 June 2025, as amended on 8 October 2025 (Application), be dismissed.

2.    The parties bear their own costs of the Application.

3.    Paragraph 2 above be stayed for five business days, in the first instance, and be further stayed pending determination of any dispute on costs if a party files submissions on costs pursuant to paragraph 4 of these orders.

4.    Any party wishing to contend for an alternate costs order to paragraph 2 above file and serve written submissions on costs within five business days, limited to three pages.

5.    Any responsive submissions to the submissions filed pursuant to paragraph 4 above be filed and served within five business days of the filing and service of submissions pursuant to paragraph 4 of these orders, limited to three pages.

6.    Unless any party wishes to make, or the Court wishes to receive, oral submissions on costs, any dispute on costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUTTON J:

INTRODUCTION

1    The Respondent, Bupa Aged Care Australia Pty Ltd (Bupa) is the owner and operator of a number of aged care homes around Australia. The proceeding is a class action claiming that Bupa understaffed the aged care homes. The class action alleges that this alleged understaffing was in breach of the contracts between Bupa and the residents of the aged care homes, and contravened statutory consumer guarantees. Bupa has brought an application seeking orders summarily dismissing the claim as a whole, or alternatively striking out the amended statement of claim.

PROCEDURAL BACKGROUND

2    This proceeding was commenced on 11 April 2025 by the Applicants as the executors of the deceased estate of Ms Joan Mudie, a former resident of an aged care facility operated by Bupa at Banora Point in New South Wales. The proceeding was brought by way of originating application, as a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act), accompanied by a statement on claim also dated 11 April 2025. The principal causes of action advanced by the Applicants are breach of contract and failure to comply with the consumer guarantees in ss 60 and/or 61 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth).

3    On 27 June 2025, Bupa made an application for the statement of claim to be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Rules). On 4 August 2025, Bupa’s application was partially heard and adjourned to 19 September 2025, allowing time for the Applicants to prepare an amended statement of claim (ASOC) and amended originating application (AOA), and for Bupa to notify the Applicants of its position in relation to any such amended documents.

4    The parties subsequently agreed consent orders for the filing of the Applicants’ AOA and ASOC, both of which were duly filed on 18 September 2025.

5    The consent orders also provided a timetable for any amended interlocutory application to summarily dismiss or, in the alternative, strike out any part of the AOA and ASOC, with any such application to be heard on 19 November 2025. Consistent with these orders, on 8 October 2025, Bupa amended its application to strike out the ASOC and, as foreshadowed in the orders, extended the relief sought in the application to include, in the alternative, orders that the Applicants’ claims be summarily dismissed pursuant to s 31A(2) of the FCA Act and r 26.01(1) of the Rules.

6    Bupa’s application to summarily dismiss the claim, or strike out the ASOC in its entirety, was heard on 19 November 2025. For the reasons set out below, I dismissed the application. While the ASOC presents an unusual case, I am not persuaded that the claim is fundamentally incoherent in the manner for which Bupa contended such that it has no reasonable prospect of success, fails to disclose a reasonable cause of action, or otherwise warrants summary dismissal or wholesale strike out. Putting to one side some matters of detail raised by Bupa, it was an asserted incoherence, said to be incapable of being remedied by pleading amendments, that underpinned Bupa’s application. Other than in respect of the consumer guarantee claims, I did not understand Bupa to press for particular parts of the ASOC to be struck out or summarily dismissed if its overarching case for summary dismissal or strike out was rejected.

7    A further preliminary matter to note is that the parties advanced their submissions without distinguishing between the relief sought by way of summary dismissal, as distinct from the application for orders striking out the ASOC. I likewise address the submissions made by the parties on the basis that those arguments were advanced with respect to both aspects of the present application.

8    On this matter, it is relevant to note that, in the context of the original interlocutory application, which was limited to a strike out application, the Applicants took the position that no regard could be had to the contracts between Bupa and the residents of the aged care homes. Bupa disputed this, relying on authorities to the effect that regard may be had to documents referred to in a pleading in a strike out application (Alpert v Commonwealth (Department of Defence) (No 2) [2024] FCA 447 at [16] (Snaden J), which referred to Wheelahan v City of Casey (No 12) [2013] VSC 316 at [25] (Dixon J), which in turn referred to Day v William Hill (Park Lane) Ltd [1949] 1 KB 632; Bupa also relied on Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [30] (Feutrill J)). Bupa having taken that position, the Applicants did not further dispute that regard could be had to the contracts in connection with the strike out application. This appears to have been carried forward to the argument on the amended interlocutory application, which did not separately address the summary dismissal and strike out aspects of the application on different bases.

THE PLEADED CLAIMS

9    The Group Members, as defined in the ASOC and AOA are (to paraphrase):

(a)    all persons who were resident in a residential care facility owned and operated by Bupa (Bupa Care Home) at any point between 1 July 2019 and 31 December 2022; and/or

(b)    all persons who were resident in a Bupa Care Home listed in Annexure A to the AOA at any time within the periods specified in that annexure (Annexure A names 58 Bupa Care Homes and specifies a date range in respect of each home, mostly 1 January 2023 to 31 March 2025);

(collectively defined as Resident Group Members); and

(c)    the legal personal representatives or beneficiaries of the estate of any Resident Group Member deceased person who was otherwise part of the group (defined as Deceased Estate Group Members).

10    To be clear, the claims advanced by and on behalf of Deceased Estate Group Members rely on the alleged contractual and statutory obligations owed by Bupa to the relevant Resident Group Member, and it is necessary not to be confused by reference to the deceased person as a “group member” having regard to the defined terms used by the Applicants.

11    The “Relevant Period” for the purposes of the claim is between 1 July 2019 and the date of the ASOC (ie 18 September 2025). As noted above, the Applicants’ case alleges that Bupa systematically understaffed the Bupa Care Homes and, in so doing, breached its contracts with the residents and contravened the statutory consumer guarantees given to the residents pursuant to ss 60 and 61 of the ACL.

Breach of contract claims

12    The starting point for the Applicants’ breach of contract claims is that Ms Mudie and each of the Resident Group Members was admitted to a Bupa Care Home pursuant to an agreement between the relevant resident and Bupa (Resident Agreements), and that, at all material times during the Relevant Period, it was a term of the Resident Agreements that Bupa would provide Residential Care Services (as defined) to the resident:

(a)    in accordance with the Aged Care Act 1997 (Cth) (Aged Care Act) (Aged Care Act Compliance Term);

(b)    in accordance with the Quality of Care Principles 2014 (Cth) (Quality of Care Principles) (Quality of Care Principles Compliance Term); and

(c)    in accordance with the Charter of Aged Care Rights contained in Schedule 1 of the User Rights Principles 2014 (Cth) (User Rights Principles) made under s 96-1 of the Aged Care Act (Charter) (Charter Compliance Term).

13    Additionally, the Applicants allege that by reason of the Aged Care Act Compliance Term, the Quality of Care Principles Compliance Term, or the Charter Compliance Term (or a combination of one or more of these terms), in providing services under the Resident Agreements, Bupa was obliged to provide “safe and high quality care and services” to each resident (Safe and Quality Care Requirement).

14    The Applicants further allege that in order to comply with the Safe and Quality Care Requirement, Bupa was obliged to:

(a)    maintain and roster “an adequate number of appropriately skilled Bupa Direct Care Staff” (“Bupa Direct Care Staff” being defined to include certain categories of staff employed to deliver services at the Bupa Care Homes) to deliver an “adequate number of direct care staff member minutes”, on average across each Bupa Care Home, to meet the minimum standard for “an acceptable level” of “safe care” and/or “safe and high quality care”, being a total direct care staffing equivalent to at least 215 minutes per resident on average across each Bupa Care Home (215 Average Minute Requirement); and

(b)    provide each resident with care and services “in a safe, effective and respectful manner”.

15    The portion of the 215 Average Minute Requirement to be provided by registered nurses (as distinct from other Bupa Direct Care Staff) varies as follows:

(a)    at least 30 of the minimum 215 minutes was to be provided by registered nurses in order to provide an acceptable level of “safe” care;

(b)    in order to provide an acceptable level of “safe and high quality” care:

(i)    where the total minutes of care was between 215 and 264 minutes, at least 44 minutes was to be provided by registered nurses; but

(ii)    where the total minutes of care was more than 264 minutes, at least 30 minutes was to be provided by registered nurses.

16    The Applicants also make an alternative claim that, from 12 September 2023, Bupa was contractually obliged to deliver, in each Bupa Care Home, at least the average number of direct care minutes for that home, calculated in accordance with the provisions of the Quality of Care Principles (Quality of Care Average Minute Requirement). From 12 September 2023, the Quality of Care Principles stipulated certain minimum average staffing levels for each Bupa Care Home. The average number of minutes was calculated using tables that specified the combined staff daily number of minutes, and the number of those minutes to be provided by registered nurses, depending on the needs-based classification of the residents in that home. The numbers in the relevant tables were varied part way through the Relevant Period, effective from 15 September 2024.

17    The Applicants claim that, during the Relevant Period, in breach of the terms and requirements of the Resident Agreements outlined above (or a combination of these terms and requirements):

(a)    Bupa did not maintain and roster an adequate number of Bupa Direct Care Staff at each Bupa Care Home to meet the 215 Average Minute Requirement;

(b)    further, or alternatively, from 12 September 2023, Bupa did not maintain and/or roster an adequate number of Bupa Direct Care Staff at each Bupa Care Home to meet the Quality of Care Average Minute Requirement; and

(c)    further, or alternatively, Bupa did not provide Ms Mudie and some Resident Group Members with care and services in a safe, effective and respectful manner.

18    The last of these claims is pleaded at an individual resident level, by reference to the care needs of the specific resident and the care in fact delivered to that resident. In respect of Ms Mudie, the ASOC particularises alleged deficiencies in relation to the care of Ms Mudie (for example in relation to how often she was showered, how often her clothes were changed and various other matters). Bupa’s claims of incoherence in the Applicants’ case did not attach to these personal claims (in fact Bupa proposed that, assuming it was successful in its application, those individual claims should be struck out before any summary dismissal orders were made, in order to preserve these individual claims).

19    However, and of central importance to Bupa’s application, the Applicants’ claim alleges that, in order to comply with its contractual obligations to each Resident Group Member, Bupa was obliged to staff the facility in which the member resided so as to meet the 215 Average Minute Requirement or, from 12 September 2023, the Quality of Care Average Minute Requirement. The Applicants allege that Bupa did not staff the homes at the required level, and so did not provide the minimum standard for an acceptable level of safe care, and/or the minimum standard for an acceptable level of safe and high quality care, putting Bupa in breach of its contracts with Ms Mudie and the Resident Group Members. As was confirmed during the course of submissions, that case is a “binary” case in the sense that the Applicants allege that, if the stipulated average minutes were not provided at any particular Bupa Care Home, Bupa necessarily breached its contract with each and every resident of the home at the time, irrespective of the care any individual received.

20    The Applicants allege that Ms Mudie and the Resident Group Members suffered loss or damage as a result of Bupa’s contractual breaches. The particulars contend that the loss of a particular resident could be calculated by reference to the resident’s pro rata share of the “missing minutes” (my term, not a pleaded term), being the average minutes of care that should have been, but were not, provided. The Applicants leave open proposing other methods of approaching loss. The particulars suggest that the “value” of the missing minutes can be assessed in different ways, including by reference to Bupa’s saved expenses.

Consumer guarantee claims

21    Having regard to the terms of the ACL and various factual matters, the Applicants contend that Bupa guaranteed to Ms Mudie and the Resident Group Members that: care services would be provided with “due care and skill” (s 60); care services would be “reasonably fit for the particular purpose” made known by the residents to Bupa (s 61); and care services “might reasonably be expected to achieve the desired result” made known to Bupa by the residents (s 61).

22    The Applicants contend that, in breach of these guarantees, Bupa failed to maintain and roster an adequate number of Bupa Direct Care Staff at the Bupa Care Homes and thereby failed to exercise due care and skill in providing services to Ms Mudie and the Resident Group Members, and failed to ensure that Ms Mudie and the Resident Group Members received quality personal and clinical care, with the consequence that the services were not reasonably fit for the particular purpose, and were also not of such a nature and quality as reasonably might be expected to achieve the desired result made known to Bupa by the residents.

23    In relation to the alleged breaches of the consumer guarantees, the Applicants claim that:

(a)    Ms Mudie and the Resident Group Members are entitled to recover:

(i)    the loss or damage suffered by them by reason of the breaches, pursuant to s 236 of the ACL;

(ii)    compensation for the reduction in the value of the services below the price paid or payable for the services, pursuant to s 267(3) of the ACL; and/or

(iii)    damages for loss suffered pursuant to s 267(4) of the ACL; and

(b)    the Deceased Estate Group Members are entitled to recover compensation or damages for loss suffered by the respective deceased Resident Group Members.

Amendments to the claim following the hearing on 4 August 2025

24    As noted above, the ASOC was filed on 18 September 2025, following the hearing on 4 August 2025. The claims set out in the ASOC differ in a number of key ways from those set out in the Applicants’ original statement of claim. In particular, the claim was amended to:

(a)    separately plead the alleged breaches of contract and consumer guarantees and the associated loss and damage with respect to Ms Mudie, on the one hand, and the broader cohort of Resident Group Members, on the other;

(b)    separate out the claims based on the alleged inadequacy of home-wide staffing levels from the claims concerning specific qualitative aspects of the care of Ms Mudie and yet-to-be identified Resident Group Members;

(c)    separately define a category of “Deceased Estate Group Members”, whose claims rest on rights held in respect of the estates of deceased Resident Group Members;

(d)    redefine the class of Resident Group Members by reference to more specific time periods and Bupa Care Homes;

(e)    add further particulars regarding how it is that certain terms (including the Aged Care Act Compliance Term, the Quality of Care Principles Compliance Term and the Charter Compliance Term) are said to be incorporated into the Resident Agreements;

(f)    reframe the Safe and Quality Care Requirement (previously expressed as the “Safe and Quality Care Term”) and what this is alleged to have required of Bupa in terms of staffing;

(g)    allege a requirement to provide each resident with care and services “in a safe, effective and respectful manner”;

(h)    abandon the allegation of a requirement to provide each resident with “Prescribed Daily Direct Care Minutes”, calculated on an individual basis; and

(i)    further particularise the claims for loss or damage, including by reference to each resident’s “pro rata share” of the value of the missing minutes, and propose a number of ways in which these values could be ascertained.

25    As noted above, after these amendments were made, Bupa filed an amended interlocutory application dated 8 October 2025, seeking:

(a)    summary judgment dismissing the proceeding on the basis that the Applicants have no reasonable prospect of successfully prosecuting the proceeding, or no reasonable cause of action is disclosed, pursuant to s 31A(2) of the FCA Act and r 26.01(1) of the Rules;

(b)    alternatively, orders that the ASOC be struck out pursuant to r 16.21 of the Rules.

26    In support of its application, Bupa put on written submissions and relied on two affidavits of its solicitor, David Taylor, affirmed on 26 June 2025 and 10 November 2025.

27    The Applicants also put on written submissions and relied on an affidavit of their solicitor, Andrew Paull, affirmed on 24 October 2025.

APPLICABLE PRINCIPLES

Summary judgment

28    Section 31A(2) of the FCA Act relevantly provides that the Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

29    For the purposes of s 31A, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success (s 31A(3)).

30    Pursuant to r 26.01(1) of the Rules, a party may apply to the Court for summary judgment on the basis that (relevantly):

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding (r 26.01(1)(a)); or

(b)    the proceeding is frivolous or vexatious (r 26.01(1)(b)); or

(c)    no reasonable cause of action is disclosed (r 26.01(1)(c)).

31    As I observed in Scordo v Commonwealth Bank of Australia [2024] FCA 359 (Scordo), granting summary judgment is a serious matter as it brings to an end a litigant’s ability to pursue claims (or defences) to trial, but the Court should not shy away from exercising its powers in an appropriate case (at [53]).

32    The Court’s power under s 31A was considered by the High Court in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer). Both the Applicants and Bupa relied on the joint judgment of French CJ and Gummow J in Spencer, which makes the following relevant observations regarding the purpose, application and scope of the power:

(1)    The purpose of s 31A is to strengthen the Court’s powers to deal with unmeritorious matters by broadening the grounds on which it can summarily dispose of unsustainable cases (at [18]).

(2)    Section 31A will apply to: cases “in which the pleadings disclose no reasonable cause of action and their deficiency is incurable”; cases “in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”; and cases which are “frivolous or vexatious or an abuse of process” (at [22]). However, the application of s 31A is not, in terms, limited to those categories, and the section authorises summary disposition of proceedings on a variety of bases under its general rubric (at [22]).

(3)    Section 31A(2) requires a practical judgment by the Court as to whether the applicant has more than a “fanciful” prospect of success (at [25]). That may be a judgment of law or of fact, or of mixed law and fact (at [25]). Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue (at [25]). Where an application under s 31A requires consideration of apparently complex questions of fact, then it is relevant to consider what was said by Lord Hope of Craighead on summary disposition in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 (Three Rivers) at 260 [94]–[95] (at [21], [26]):

The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence … that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.

(4)    Even in circumstances where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter, as existing authority may be overruled, qualified or further explained (at [25]). Summary processes must not be used to stultify the development of the law (at [25]).

(5)    The s 31A power is to be distinguished from rules providing for the striking out of pleadings (at [23]). For example, where evidence discloses that a litigant has or may have a “reasonable cause of action” or “reasonable prospects of success”, yet their pleading does not disclose this, the Court may be empowered to strike out the pleading but not to give summary judgment under s 31A (at [23]).

33    As is clear from the above, and as I observed in Scordo (at [42]), the Court’s power to give judgment under s 31A does not involve “mere pleading points” but is concerned with substance.

34    In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 (Prior), McKerracher J set out the following principles in relation to s 31A (at [29]; cited with approval in Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCA 303 at [30] (Rofe J)):

(a)    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 per McKerracher J (at [3]), though this must now be read with Spencer (at [58]–[60]);

(b)    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: “Sam Hawk” v Reiter Petroleum Inc (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]), cited in Buurabalayji (at [3]);

(c)    an application for summary dismissal is likely to succeed where the applicant’s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [47]);

(d)    similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant’s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]–[15]): s 31A is amenable to resolving straightforward questions of law; SKFoods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e)    a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f)    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

35    While the final point in McKerracher J’s list was relied upon by Bupa, the Applicants disputed that the authorities established the existence of a “shifting onus” to the party resisting the application. The Applicants pointed to Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 (Cassimatis), in which Reeves J, in considering an argument that s 31A involves a two-stage test with notions of shifting onus, expressed the view that s 31A involves only “one unshifting persuasive onus” (at [66]), but ultimately found that it was unnecessary to decide the matter in that case (at [67]). The Applicants also relied on Frigger v Trenfield (No 2) [2019] FCA 2009, in which Jackson J echoed Reeves J’s doubt as to the existence of a two-stage test involving a shifting onus (at [12]). In the circumstances of this case, I do not consider that anything turns on the existence or otherwise of a “shifting onus”. Accordingly, it is not necessary to say anything further on this point.

Strike out

36    Pursuant to r 16.21(1) of the Rules, a party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

37    The following relevant principles governing strike out applications under r 16.21 were summarised by Wigney J in KTC v David [2022] FCAFC 60 (KTC v David):

(1)    The word “vexatious” in the context of r 16.21 is an “omnibus expression” that includes “material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court” (at [119]).

(2)    A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d), if it is “susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general” (at [120]). A pleading with these characteristics could also be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) (at [120]).

(3)    A “reasonable cause of action”, for the purposes of r 16.21(1)(e), is a cause of action that has “some chance of success having regard to the allegations pleaded” (at [123]).

(4)    If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the “residue would be confusing” (at [124]).

(5)    The power to strike out is discretionary and should be employed “sparingly and only in a clear case” (at [125]). Normally, it “should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency” (at [125]).

38    There was no dispute as to the principles to be applied (although the Applicants relied on other authorities in support of their recitation of the applicable principles).

KEY ISSUES IN THE CONTRACT CASE

39    Bupa’s central contention was that the Applicants’ entire contractual case was hopelessly incoherent and flawed on three (related) bases.

40    First, it was said that there was simply no foothold in the terms of Bupa’s contracts with residents to support the contention that aspects of the legislative regime were incorporated into the contracts between Bupa and the residents.

41    Secondly, and relatedly, Bupa contended that the contracts and the legislative regime were concerned with the needs of, and care delivered to, residents on an individual basis.

42    Thirdly, and again relatedly, Bupa submitted that the Applicants’ case that a contractual obligation owed to an individual resident would be breached based on average staffing levels at a particular facility, irrespective of the needs of, and care provided to, the particular resident, is clearly untenable and absurd. Bupa contended that the notion of a contract for personal services incorporating facility-wide obligations is incoherent and absurd. As Bupa put it: “[e]ach contract is between Bupa and one resident, concerning that resident’s care — it is not a multilateral guarantee of how all other residents are cared for”.

43    Broadly, the Applicants’ response was threefold.

44    First, they contended that, for the purposes of determining Bupa’s summary dismissal and strike out application, there is a sufficient foothold in the contracts to incorporate the legislative regime in the way for which they contend and the ultimate merit of their case was properly a matter to be taken to trial.

45    Secondly, the Applicants contended that the legislative regime is not just concerned with individual care, but is also concerned with ensuring individual care through care home-wide staffing levels.

46    Thirdly, the Applicants suggested that Bupa mischaracterised their case, as Bupa’s submissions overlooked the Applicants’ proposition that when care homes are short-staffed, inevitably the care of all residents is diminished. On this basis, they suggested that Bupa’s hypothesis of a well-cared for resident in a short-staffed home (discussed further below) is an unrealistic straw man by which to assess their case.

47    Overlaying these arguments is a further, broader, proposition, namely that the Applicants’ case involves complex questions of fact and mixed fact and law which ought to be determined at trial. Those issues include the content to be given to a standard expressed in general language, viz “safe and high quality care”. While not denying that the matters Bupa raised are points for evidence and argument, the Applicants said that Bupa’s application falls well short of the high standard for summary dismissal of a proceeding, or the wholesale strike out of a statement of claim. The Applicants suggested that the content to be given to the standard of “safe and high quality care” is a contestable matter, much like the content of “due care and skill” terms, which will depend on expert evidence at trial.

48    In order to address these matters, it is necessary to work through the Applicants’ case as to why each Resident Agreement included terms requiring Bupa to comply with the Aged Care Act, the Quality of Care Principles, and the Charter. The next issue to address is the contention that there is a fundamental, and irremediable incoherence in the Applicants’ binary case based on average care minutes. Once these issues are resolved, most of the other matters agitated by Bupa fall away, at least to the extent that they were not agitated as warranting either summary dismissal or a wholesale strike out of the ASOC, absent success on the primary issues.

The Resident Agreements and incorporation of legislative regime requirements as contractual terms

49    Bupa’s contention here was that there is simply no foothold in the Resident Agreements for the pleaded inclusion of legislative requirements as contractual terms between Bupa and each Resident Group Member. Bupa supported this contention by reference to the terms of the contracts, and the focus, in the contracts and in the legislative regime, on the care needs of, and provision of care to, residents as individuals.

50    It is convenient to start with the legislative regime.

The legislative regime

51    The legislative regime builds out from the Aged Care Act. Several provisions of the Aged Care Act variously refer to the “needs of individuals”, the “personal care needs of the person” or the “care needs of care recipients”. Bupa highlighted these provisions.

52    The Aged Care Act sets out the “responsibilities” of approved providers of aged care. Those responsibilities include:

(a)    providing “such care and services as are specified in the Quality of Care Principles” (s 54-1(1)(a));

(b)    maintaining “an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met” (s 54-1(1)(b));

(c)    providing “care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles” (s 54-1(1)(c));

(d)    complying with the Aged Care Quality Standards (s 54-1(1)(d));

(e)    meeting other responsibilities specified in the Quality of Care Principles (s 54-1(1)(h));

(f)    not acting “in a way that is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles” (s 56-1(m)); and

(g)    meeting other responsibilities specified in the User Rights Principles (s 56-1(n)).

53    The Applicants plead amendments to the Aged Care Act made in April 2023, but it was not suggested that anything turns on those amendments.

54    As may be seen, Bupa’s statutory responsibilities under the Aged Care Act included providing care and services specified in the Quality of Care Principles. The Quality of Care Principles are made under s 96-1 of the Aged Care Act. Provisions of the Quality of Care Principles obliged approved providers to provide each care or service specified in Sch 1 to “any care recipient who needs it” and to do so in a way that complies with the Aged Care Quality Standards, specified in Sch 2. The Applicants highlighted s 18 of the Quality of Care Principles, which provides that the Aged Care Quality Standards “apply equally for the benefit of each care recipient”.

55    Schedule 1 of the Quality of Care Principles sets out a variety of care and services. They range from programs to encourage social activity, to assistance with personal care needs (eating, showering, dressing etc) and a number of other matters. The care and services to be provided include “[e]motional support to, and supervision of, care recipients”.

56    Prior to September 2023, the Quality of Care Principles did not prescribe any specific staffing requirements (recalling that the Aged Care Act still obliged approved providers to maintain an adequate number of appropriately skilled staff). However, from 12 September 2023, the Quality of Care Principles were amended. From that time, the Quality of Care Principles included provisions that set out prescribed daily care minutes on a “combined staff” basis, with a specified number of those minutes to be provided by registered nurses. The number of minutes varied based on the classification of the care recipient.

57    Importantly, the staffing obligations operated by reference to the combined minutes across a home and were calculated quarterly on the “calculation day”, which was the 15th day of the calendar month before the calendar month in which the quarter begins. By use of the “reference period” — which, for any given quarter, is the three months beginning on the day that is four months before the first day of the quarter — the formula in effect operated prospectively for the forthcoming quarter, based on data for a previous period. Bupa pointed to this aspect of the functioning of the staffing levels specified by the Quality of Care Principles from October 2023 in illustrating various scenarios that were said to expose the untenable character of the Applicants’ case.

58    Schedule 2 of the Quality of Care Principles sets out the Aged Care Quality Standards. As noted above, under the Aged Care Act (s 54-1(1)(d)), one of the responsibilities of providers is to comply with the Aged Care Quality Standards. The Applicants plead Standards 1, 2, 3, 4 and 7 of the Aged Care Quality Standards.

59    In oral submissions, the Applicants draw particular attention to Standard 3 which refers to “safe and effective” personal care and clinical care, and Standard 4, which concerns services and support for daily living, and required approved providers to: provide “safe and effective” services and support for daily living that optimise the consumer’s independence, health, well-being and quality of life; and ensure that each consumer gets “safe and effective” services and supports for daily living that meet the consumer’s needs, goals and preferences.

60    The Applicants also highlighted Standard 7, which includes obligations concerning the adequacy of the workforce, and its arrangement. This standard required providers to ensure the organisation has a workforce that is sufficient, and is skilled and qualified to provide safe, respectful and quality care and services; and ensure the workforce is planned to enable, and the number and mix of members of the workforce deployed enables, the delivery and management of safe and quality care and services. These workforce-related obligations are attached to the following “[c]onsumer outcome”: “I get quality care and services when I need them from people who are knowledgeable, capable and caring”.

61    The next aspect of the legislative regime raised in the ASOC is the User Rights Principles and the Charter. The User Rights Principles are made under s 96-1 of the Aged Care Act and specify that the “rights and responsibilities” of care recipients that are referred to in s 56-1 of the Aged Care Act include the rights mentioned in the Charter. In oral submissions, the Applicants specifically highlighted ss 9 and 9A of the User Rights Principles, which are in the following terms:

9     Rights of care recipients provided with residential care

For the purposes of paragraph 56-1(m) of the Act, the rights of a care recipient who is being provided with, or is to be provided with, residential care include the rights mentioned in the “Charter of Aged Care Rights” set out in Schedule 1.

Note:     An approved provider must not act in a way which is inconsistent with any rights and responsibilities of care recipients specified in these principles—see paragraph 56-1(m) of the Act.

9A     Responsibility not to act inconsistently with legal and consumer rights of care recipients

For the purposes of paragraph 56-1(m) of the Act, an approved provider of residential care must not act in a way which is inconsistent with the legal and consumer rights of a care recipient.

62    Picking up on s 9 of the User Rights Principles specifying that the rights of care recipients include the rights mentioned in the Charter, the Applicants next highlighted that the Charter, which is Sch 1 to the User Rights Principles, provides that each care recipient has the right to, among other things, “safe and high quality care and services”, to be treated with dignity and respect, and to live without abuse and neglect.

The Resident Agreements and links to the legislative regime

63    According to the Applicants’ case, Resident Group Members contracted on standard term contracts. The Applicants distinguish between two different types of standard form contract used by Bupa. The first, which was said to have been used by Bupa in contracting with residents entering the Bupa Care Homes “until about 2023”, was referred to as the Pre-2023 Resident Agreement. The second, which was said to have been used by Bupa in contracting with residents “[f]rom about 2023” was referred to as the 2023 Resident Agreement. Ms Mudie contracted on the Pre-2023 Resident Agreement.

64    Other than as noted below, the differences between the two forms of contract are not material to the issues arising in the application. The Applicants principally advanced their submissions by reference to Ms Mudie’s Pre-2023 Resident Agreement. The Applicants pointed out that this Resident Agreement contains numerous references to the legislative regime, which were structured to move with any changes to the legislation. Those references include the following:

(1)    The Recitals state that “[w]e offer residential care to care recipients in accordance with the Aged Care Act”, noting that the term “Aged Care Act” is defined to include the Aged Care Act itself, and its “associated Principles”.

(2)    Interpretative provisions specify that a reference to a document includes amendments or supplements to that document, or replacements to it. Clause 42.3 is even more explicit, and provides that the agreement “will be deemed to have been varied to accord with any amendments to the Aged Care Act from time to time; for example, the rights and obligations of residents and approved providers”.

(3)    Clause 2.1 provides expressly for the “care and services” to be provided, in terms that refer to the Quality of Care Principles, which are in force by reason of the Aged Care Act itself:

The care and services provided to you will include the care and services specified in Annexure D and the Quality of Care Principles that you are assessed as requiring. …

(4)    Clause 28 incorporates the “rights and responsibilities” the resident has “at law including under the Charter of Residents’ Rights and Responsibilities set out in the Aged Care Act and detailed in Annexure C” (noting that the version of the Charter set out at Annexure C is an old version, contractually updated by reference to the provisions referred to). The Charter specifies, among the “Care recipient’s rights” specified in cl 2, that the resident has the right to “safe and high quality care and services”.

65    The Applicants submitted that the incorporation of rights and responsibilities “at law” explicitly included the rights and responsibilities set out in the Charter, but also stressed that the expression “at law” was wide enough to include rights and responsibilities under the Aged Care Act itself, and the instruments made under it.

66    In the 2023 Resident Agreement, the Applicants pointed in particular to:

(1)    Clause 2.1(b), which requires Bupa to provide the resident with “Accommodation Services and Care Services”. The definition of “Care Services” refers to the services “as prescribed under” the Aged Care Act and the Quality of Care Principles “from time to time”.

(2)    Clause 5.1, which provides, amongst other things, that “[w]e will observe and act in accordance with the User Rights Information and the Charter of Aged Care Rights as set out in Schedule 10 of this agreement”, where the User Rights Information includes certain information under the User Rights Principles. Schedule 10 sets out the Charter, including the statement “I have the right to: … safe and high quality care and services”, presented in a form anticipating signature of both the consumer and the provider.

(3)    The terms of the Guarantee and Indemnity, being Sch 12 to the contract, which states that the guarantor enters into the agreement with the provider (ie Bupa) “in consideration of the Provider entering into an agreement with the Consumer to provide the Consumer with residential care services and accommodation in the Care Facility in accordance with the Provider’s obligations under the Aged Care Act 1997 (Cth)…” (emphasis added).

Consideration

67    As will be recalled from the applicable principles summarised at paragraphs 28–35 above, the Court’s power to give summary judgment is concerned with substance, not mere pleading points. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue (Spencer at [25] (French CJ and Gummow J)). The Court should be particularly cautious about giving summary judgment where a matter involves questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing (Prior at [29] (McKerracher J) citing Cassimatis at [49] (Reeves J)). The Court’s role, in hearing an application for summary judgment, is not to conduct a “mini-trial on the documents” (as Lord Hope of Craighead put it in Three Rivers at 260, cited in Spencer at [21]). Rather, the power is designed to deal with cases that are not fit for trial at all.

68    Similarly, the power to strike out a pleading is to be used “sparingly and only in a clear case”, generally only where “no reasonable amendment could cure the alleged defect or deficiency” (KTC v David at [125] (Wigney J)).

69    Having regard to the foregoing, I am not satisfied that the Applicants’ case is incoherent and fatally flawed as Bupa contended. There is enough pleaded, and supported by the Resident Agreements and components of the legislative regime, that the Applicants’ case on the existence of the pleaded contractual terms should be allowed to progress to trial.

70    The Resident Agreements contain a sufficient basis for the Applicants’ contentions regarding incorporation of aspects of the statutory regime to give rise to a reasonable argument, fit for trial. As set out above, they include explicit incorporation of the Charter, but also use wording that admits of arguments that a wider set of rights and responsibilities were incorporated. Whether that is ultimately the case, and what is thereby incorporated, are matters properly to be determined at trial.

71    While arriving at the full ambit of the terms as pleaded appears to require a journey of construction and tracking through the links between different components of the legislative regime, it is also to be noted that the Applicants plead a case of implied terms (in the alternative to their express terms case). I am not, at this juncture, able to conclude that the implied terms case is so flawed or incoherent that it ought not be taken to trial.

72    The material to which the Court was taken also exposes a sufficient basis to support, as fit to be taken to trial, the Applicants’ contentions that the legislative regime is not concerned only with the care of individual residents, but extends to matters concerning an aged care provider’s workforce and does so in a manner that links the care of residents to the adequacy and character of the workforce.

73    The legislative regime also admits of arguments that, upon its proper analysis, the regime does not conceive of the care of residents in the kind of narrow sense for which Bupa contended. By that I mean that Bupa appears to conceive of the care of residents in terms that focus, primarily, if not exclusively, on completing “tasks” of care (assistance with feeding, showering etc) whereas the legislative regime may be argued to take a wider view, including not only the social dimensions of a resident’s experience in a care home, but also the manner in which care services are delivered.

74    These more qualitative aspects may be argued to support the Applicants’ contentions that the legislative regime is concerned with more than the completion of specific care tasks, and that staffing levels bear on these matters.

75    In short, I am not persuaded that the Applicants’ case on contractual terms and breach is incoherent or so obviously fatally flawed by reference to the nature of the legislative regime, or the links to the legislative regime in the Resident Agreements such that it has no reasonable prospect of success, fails to disclose a reasonable cause of action, is embarrassing, or otherwise meets the threshold for summary dismissal or strike out.

Contracts for personal services based on average care minutes across a Bupa Care Home

76    As noted above, Bupa’s third central contention was that the Applicants’ case is untenable and absurd as it posits contractual obligations in a personal services contract being owed to individual residents that concern the staffing levels of the care home as a whole. Bupa suggested that the absurdity of such a contract could be illustrated by considering a circumstance in which an individual resident whose care was “impeccable” would have a claim for breach of contract if the staffing mix for their Bupa Care Home as a whole fell below the pleaded average minute requirements.

77    I do not accept that the Applicants’ case is incomprehensible, or that it is necessarily flawed to an extent that would warrant summary dismissal (or strike out), on this basis. As a matter of contract law, I do not see any reason why a person could not enter into a contract for the provision of services to him or her and stipulate, as part of the agreement, and whether by reference to legislative provisions or otherwise, that the service provider will make available certain services to a group of which the contracting person is a part.

78    Such a contractual structure may make sense where it would be difficult or impossible to measure the service provision to each individual contracting person. For example, in a hypothetical aged care context, it may be difficult to sensibly contract on the basis that the service provider will spend a stipulated number of minutes caring for the specific resident. The service provider may consider it impractical, or unduly burdensome, to contract on a basis that would require its care staff to carry stopwatches and record each minute spent with a specific resident, to say nothing of how time spent attending to residents in groups would be accounted for. Such a contract may more sensibly be structured on the basis that staffing levels will be established at the care home level, with the contracting resident proceeding on the basis that, if contracted care home-wide staffing levels are met, he or she will likely receive sufficient personal care. There is also no inherent tension or contradiction in the proposition that such a contract may also include contractual terms, as the Applicants allege (eg ASOC [26(b)]), that are concerned with the care of the resident and which do not involve any home-wide staffing element.

79    It follows that, without saying anything more about the merits of the Applicants’ case, it is not incoherent, unreasonable or unintelligible as a matter of contract law for the Applicants to contend that the Resident Group Members contracted on the basis of the pleaded terms, and that the content to be given to the pleaded terms may be said to require provision of a care home-wide workforce providing a certain average number of minutes of care even though each Resident Agreement is a contract between the individual resident and Bupa, concerning that resident’s occupancy and care.

80    There are a number of other reasons why I am not persuaded of Bupa’s arguments to the requisite level. As already noted, Bupa’s concept of the services to be provided to individual residents appears to be focused on, if not limited to, specific care tasks being performed. It is this narrow focus that feeds into the contention that it is absurd to suggest Bupa could have breached its contract with a hypothetical resident whose care was “impeccable” just because care home-wide staffing levels were not met.

81    This narrow focus overlooks that it is at least reasonably arguable that the legislative regime is not concerned only with the physical needs of residents, but is also concerned with the emotional and social well-being of residents, and the manner in which care services are provided. Viewed in this light, it is not obviously incoherent for the Applicants’ case to admit of the prospect that there could be breach of a Resident Agreement where the relevant Bupa Care Home is not staffed to the pleaded level, even if specific care tasks — showering, assistance with dressing, making and attending medical appointments etc — are undertaken. It will be an issue for trial whether staffing levels affect the care provided in the manner for which the Applicants contend. But, as I have said, the claim is not so obviously incoherent or untenable that it should not be permitted to progress to trial. The question of what, if any, loss or damage the hypothetical well-cared for resident will have suffered if care home-wide staffing levels were not met, is a separate issue.

The “Safe and Quality Care Requirement”

82    Although not agitated by Bupa as one of its primary complaints of incoherence, Bupa’s submissions contended that the pleading of the “Safe and Quality Care Requirement” in ASOC [25] is confusing. It was said to be confusing on the basis that this “requirement” is not stated to be a term of the Resident Agreements, but is then said to be something, compliance with which required the staffing levels set out in ASOC [26(a)] and is also then positioned, along with the pleaded “terms” as something that was “breached” (ASOC [39] and [39A]).

83    I do not accept that the Applicants’ manner of pleading is incoherent, or causes embarrassment, by reason of these matters. The Applicants plead certain terms of the contracts and then contend (at ASOC [25]) that, as a consequence of those contractual terms, Bupa was obliged to provide “safe and high quality care and services” to each resident.

84    Given the terms of the Pre-2023 Resident Agreement and 2023 Resident Agreement in evidence refer to the Charter and the Charter’s express stipulation of the resident’s entitlement to safe and high quality care and services, it remains somewhat unclear why the pleaders did not go directly to that destination, without bringing in the Aged Care Act Compliance Term and the Quality of Care Principles Compliance Term, but that is not the focus of Bupa’s complaint. Rather, Bupa expressed confusion regarding the nature of the “requirement” and the further plea that compliance with the “requirement” required staffing at the pleaded levels.

85    I also do not accept that it is incoherent, or causes real embarrassment, for the Applicants to plead the nature and content of the requirement as they have. It is clear enough that the Applicants contend that Bupa was required to provide safe and high quality care to the Resident Group Members, and that in order to do that, Bupa needed to staff the Bupa Care Homes at the pleaded levels.

86    As regards the matter of breach, I accept that there is some merit in Bupa’s complaint that the ASOC pleads breach of the “Safe and Quality Care Requirement” alongside contractual terms, and as though that requirement was itself a contractual term, in ASOC [39] and [39A]. However, as the application for summary dismissal or strike out was run at the level of a wholesale attack on the Applicants case, and not on the basis that specific words in specific paragraphs of the ASOC should be struck out, it is not necessary to take this matter further. As will be seen from what I have said above, I do not consider that any of the matters raised by Bupa in relation to the Safe and Quality Care Requirement rise to a level that would warrant summary dismissal or a wholesale strike out, as was sought.

Calculation of average minute-based staffing requirements

87    Bupa raised a number of other points regarding the Applicants’ case based on home-wide staffing levels.

88    One of the matters Bupa raised was that there are some uncertainties and complications concerning how the average minutes would be calculated both pursuant to the 215 Average Minute Requirement, and the Quality of Care Average Minute Requirement. While the hypotheticals raised by Bupa do expose that the minute-based staffing requirements may not map neatly to periods in which a particular Resident Group Member was a resident of a Bupa Care Home (eg by being imposed having regard to the resident mix in a past period) and otherwise give rise to some questions about how the requirements are to be calculated given varying resident mixes, I do not consider that any matters of that kind show that the Applicants’ case is incoherent such that it should be struck out or summarily dismissed.

89    To the extent that questions arise as to how staffing requirements will be calculated (particularly under the 215 Average Minute Requirement) and whether the 215 Average Minute Requirement would vary with the case mix at a particular Bupa Care Home, as is the position in many proceedings, these are matters of detail that will need to be fleshed out, whether by further particulars, or expert evidence. In other words, these are matters capable of being addressed through case management.

90    Bupa also raised an issue arising from the fact that the Applicants plead the case based on the legislated staffing mix requirements “further, or alternatively”. Putting that case on the basis that it is “further” to the 215 Average Minute Requirements was said to be embarrassing or incoherent as it shows the Applicants are pleading that Bupa was required to comply with two inconsistent sets of staffing requirements at the same time. In the course of submissions, counsel for the Applicants clarified that the legislated staffing requirements case is put in the alternative, from 12 September 2023, should the Applicants fail to make out their case on the 215 Average Minute Requirement throughout the pleaded period. That having been clarified, an amendment may be made in due course, but the point does not expose any deep-rooted issue in the Applicants’ case.

Miscellaneous other complaints

91    Bupa raised other issues including concerning the relevance of pleas about the legislated care minutes per individual by care class classification, the Royal Commission into Aged Care Quality and Safety, and Bupa’s approach to staff rostering and reduction of costs.

92    At ASOC [14]–[15], the Applicants set out the requirements of the Quality of Care Principles from 12 September 2023 in relation to the number of minutes required per day per resident in different care classifications. Bupa suggested that these pleas were redundant given that the Applicants’ revised pleading addresses care minutes across the care home, not the number of minutes literally spent on each resident. While the Applicants’ chosen defined term — “Individual Prescribed Daily Direct Care Minutes” — may not have been ideal, Bupa’s complaint overlooks that the function of these pleas is to plead the integers that go into the calculation of the average home-wide staffing requirements upon which the Applicants rely.

93    The pleas concerning the Royal Commission are of doubtful relevance, but that is not of great significance in the present application given that Bupa’s application makes a wholesale attack on the ASOC (rather than contending for specific paragraphs to be struck out).

94    It is also doubtful whether all of the matters raised in the ASOC concerning internal rostering and staffing matters are really material facts given that, in the final analysis, it is likely that actual staffing levels will be proved (or not) by reference to staffing records. Nevertheless, these matters are raised by the Applicants as founding inferences as part of their breach case. I also note that I raised with counsel for the Applicants that the Court would be concerned were pleas regarding internal Bupa management matters that pre-date the Relevant Period by some years to feature in the pleading so as to justify a broad-ranging discovery application. In response to this, the Court was assured that any discovery application would be directed to the issues in the proceeding, as distinct from matters featuring in the pleading.

95    Bupa also took issue with the Applicants’ claims concerning an alleged failure to provide Ms Mudie and some Resident Group Members with care and services in a “safe, effective and respectful manner” (ASOC [26(b)], [39(c)] and [39A(c)]), as distinct from the claims advanced by reference to care home-wide staffing levels. In this regard, it was said that these matters are not capable of resolution within a representative proceeding and, other than in the case of the Applicants’ personal claim on behalf of Ms Mudie’s estate, are wholly unparticularised and speculative. Bupa submitted that it may be appropriate for the Court to strike out these claims before dismissing the proceeding generally, to preserve the possibility of any individual claims being made in respect of a specific Resident Group Member’s care in this regard.

96    While the expression “safe, effective and respectful manner” is not particularised at large, the relevant content of that expression is satisfactorily detailed in relation to Ms Mudie by the particulars of breach. Those particulars detail the ways in which the care Ms Mudie received is said to fall below that standard.

97    As concerns the other Resident Group Members, as is clear from the pleading, which group members advance such individualised claims remains to be seen. There is nothing unusual in a class action involving issues that are not common, and the legislative regime is well-adapted to handling individual aspects arising in group proceedings. The fact that detail regarding these individual claims is yet to be provided, and the fact that there may well need to be further, individualised processes, or even a later declassing, in no way supports a summary dismissal of the individual claims at this juncture.

98    A further matter raised by Bupa concerns an asserted inconsistency between the Group Members being defined in a way that uses 31 March 2025 as the end date — in the component of the group definition that refers to when the person was a resident of a Bupa Care Home listed in Annexure A to the AOA — and the use of a different end date (25 September 2025, being the date of the ASOC) as the end date of the “Relevant Period”.

99    I do not consider that the use of these two different dates gives rise to any difficulty of the kind raised by Bupa. A group can be defined by reference to a particular characteristic — here being resident in a Bupa Care Home between certain dates — while claims are advanced on behalf of members of that group, which extend beyond the cut-off date for membership of the group.

Loss or damage case in contract

100    Bupa submitted that the Applicants’ framing of the loss and damage case on the “pro rata” basis referred to at paragraph 20 above provides a “further basis on which to summarily dismiss the contractual claims”. I take this to be a submission that, even if the contentions concerning the case on the existence, content and breach of the pleaded contractual terms is not regarded as warranting summary dismissal or a wholesale strike out, Bupa raises the flaws in the loss or damage case as an independent basis upon which the entire claim in contract should be dismissed.

101    The first matter raised by Bupa on the loss or damage case is that, on the Applicants’ case, there would be loss and damage even if a resident received appropriate care. This reflects the narrow view of what “care” consists of, which I have already addressed above (see paragraphs 73, 80 and 81).

102    The Applicants also responded to this point by submitting that Bupa overlooks the case law concerning “skimped performance”, including the American case of City of New Orleans v Firemen’s Charitable Association 9 So 486 (La 1891). While the parties engaged in some debate about that, and other cases, as well as the principles concerning damages, the debate only served to reinforce that these are matters for trial.

103    The second matter raised by Bupa was that the meaning of “pro rata” is unclear. In its written submissions, Bupa asked “does it mean an equal share of the overall differential in the value of services, or a proportionate share according to needs, care recipient classification, duration of stay, or some other (and if so what) criteria?”. This is a matter which can be fleshed out by further particulars and, potentially, expert evidence. It does not support a summary dismissal of the contract case.

104    The third matter raised concerns an asserted inconsistency between the contractual case and the statutory regime, which the Applicants say addresses staffing requirements on a care home-wide basis, and the suggestion that a resident’s loss or damage somehow relates to a specific “share” of the overall care minutes. In their submissions, the Applicants explained that they particularise a non-exhaustive list of methods by which the difference in value between the care required and that provided may be ascertained, and the “pro rata” language merely sets out a basis upon which loss may be shared by residents proportionately, based on the duration of their stay and the resident’s classification level.

105    While the Applicants’ loss or damage case is far from straightforward, I am not satisfied that the matters raised by Bupa reveal incoherence or inconsistency of a kind that warrants summary dismissal (or a wholesale strike out) of the entire contract case. The same goes for Bupa’s fourth complaint, which points to the Applicants having raised the saved costs to Bupa of skimped performance as a basis for assessing loss or damage. The Applicants dispute that their case applies disgorgement principles or an account of profits. They say the focus is not on the money Bupa saved, but on the value of the promise that was not delivered. This is not a debate apt for summary determination.

106    A further point raised by Bupa is that aged care services are substantially funded by the Commonwealth such that it is unclear how loss could be said to be sustained wholly by residents. To the extent that this point raises an issue about over-compensation, that can be thrashed out at trial. Further, if it be thought necessary, the Commonwealth could be joined to the proceeding. Bupa has not, so far, suggested the Commonwealth ought to be joined.

107    Lastly, Bupa contended that the Applicants’ case impermissibly seeks loss or damage for disappointment and distress, which is not recoverable for breach of contract. The Applicants contend that Bupa’s position ignores well-established High Court authority concerning such damages where an important object of a contract is to provide peace of mind, relaxation or freedom from distress, eg Baltic Shipping Co v Dillon (1993) 176 CLR 344 (Baltic Shipping) and Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31. Like other points raised regarding the loss or damage case, the proper characterisation of the Resident Agreements, and the extent to which the principles referred to in the Baltic Shipping line of cases are relevant, is a matter for trial and does not warrant summary dismissal of the contract case.

THE CONSUMER GUARANTEE CASE

108    Bupa contended that the consumer guarantee claims are “illogical and so obviously untenable that they cannot succeed”. That submission was made on the basis that, whereas the statutory guarantees are of a qualitative nature and are directed, in this context, to the personal care of the Resident Group Members, the alleged breaches of the guarantees are quantitative and arise from a failure to roster adequate staff across the relevant Bupa Care Home. On that basis, Bupa submitted that the consumer guarantee claims are liable to be summarily dismissed.

109    Bupa’s argument assumes a fundamental and unbridgeable chasm between commitments characterised in terms of “quality personal and clinical care” and quantitative measures (specifically staffing) across a care home. However, for the reasons set out at paragraphs 73, 80 and 81 above in connection with the contract claims, Bupa’s arguments overlook the prospect of individual care being affected by staffing levels even if specific care “tasks” are completed.

110    I am not satisfied that the consumer guarantee claims ought to be summarily dismissed, or struck out, on the basis for which Bupa contended.

111    There is a further issue concerning whether the consumer guarantee claims are available to Deceased Estate Group Members, being the personal legal representatives or beneficiaries of the estates of Resident Group Members who have died. Bupa’s position was that these claims are untenable on the basis that s 267 of the ACL refers to actions by “a consumer” (s 267(1)), and permits “the consumer” to recover damages for any loss or damage (s 267(4)), whereas the estate of a deceased consumer cannot be regarded as “the consumer”. In support of this proposition, Bupa relied on Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 (Pritchard) in which Branson J held (Spender and Olney JJ agreeing) that the estate of a deceased person could not be a “person” who suffered loss or damage for the purposes of s 82 of the Trade Practices Act 1974 (Cth).

112    In response, the Applicants advanced serious criticisms of the reasoning in Pritchard, and pointed to authority bearing on the issue of the application of statutory provisions concerning the survival of subsisting causes of action to such statutory claims, which authority was not considered in Pritchard. The Applicants also relied on the decision of the majority of the Supreme Court of Western Australia Court of Appeal in Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd (2021) 58 WAR 503; [2021] WASC 205 (Chappell) (Buss P and Mitchell JA) which made observations confining and distinguishing Pritchard, in addition to the dissenting judge in that case (Pritchard JA) taking the view that Pritchard was “plainly wrong”. The Applicants intend to submit that Pritchard is to be distinguished on the facts of the present case.

113    I am not satisfied that the consumer guarantee claims should be summarily dismissed or struck out insofar as they are advanced in respect of Deceased Estate Group Members. For the reasons advanced by the Applicants, the extent to which the statutory compensation provisions may be invoked by this group will involve legal argument on Pritchard and Chappell amongst other cases, and is properly a matter for trial. As French CJ and Gummow J observed in Spencer, caution is required even where the position under existing authority is clear (see paragraph 32(4) above). All the more so where authority is unsettled.

114    In its submissions on the consumer guarantee claims, Bupa repeated its contentions regarding issues in the loss or damage case in contract, including the point about Commonwealth funding, adding that these issues have “particular implications” for the consumer guarantee claims where loss or damage is the “gist” of a claim under ss 236 and 267(4) of the ACL. For reasons already addressed, I do not consider that the matters raised by Bupa about loss or damage warrant summary dismissal or striking out the consumer guarantee claims. As to a further point Bupa made, about particulars to the reduction-in-value claims being inadequate, that is clearly a matter that can, if necessary, be addressed through the provision of further particulars.

DISPOSITION

115    It follows from the foregoing that Bupa’s application will be dismissed.

116    As to the question of costs, I will order that the parties bear their own costs. In my view, that is the appropriate outcome on costs given that: Bupa’s initial strike out application pointed out respects in which the Applicants’ case was most confusing, and confused; the revisions made by the Applicants to their claim following the hearing of the initial strike out application, as it was originally formulated, were significant; but I have rejected Bupa’s amended application to strike out, or summarily dismiss, the ASOC. I will, however, stay this order for five business days and provide that it will be further stayed if either side files and serves a written submission contending for an alternate costs order.

Associate:

Dated:    10 December 2025