Lapsed Community Treatment Orders and Statutory Capacity: The Trial of Independent Management as a Least-Restrictive Pathway

An Analysis of R [2026] WASAT 43

1. Introduction

In R [2026] WASAT 43, Dr E Marillier, Senior Member of the Tribunal, conducted a periodic review under s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) of the orders in place for a represented person referred to as R. The decision is short, but it draws together two propositions of practical importance to legal practitioners in Western Australia.

First, the revocation or lapsing of a community treatment order (CTO) under the Mental Health Act 2014 (WA) (MH Act) does not, of itself, support a finding that the represented person has regained capacity for the purposes of the GA Act. The two statutory regimes apply different tests, and a result under one does not automatically transfer to the other.

Second, where the represented person has shown improvement but is not yet able to manage independently, the Tribunal can structure an administration order that includes a discretionary trial of independent management. That mechanism allows the administrator to hand over progressively greater control of income to the represented person, while preserving the administrator's ability to terminate the trial if the evidence so warrants.

Together, these propositions illustrate how the Tribunal applies the s 4 GA Act principles, in particular the least-restrictive principle, in a way that gives the represented person, in the words of the decision, “both a goal and hope” (at [24]).

This article is directed at legal practitioners advising represented persons, applicants and family members in guardianship and administration matters in Western Australia, and at counsel preparing or responding to applications for revocation following a change in mental health status.

2. Relevant Legal Framework

The GA Act establishes a separate decision-making jurisdiction for adults in Western Australia. Section 4 sets out the principles to be observed by the Tribunal: the best interests of the represented person are the primary concern; the represented person is presumed capable of looking after their own health and safety, of making reasonable judgments in matters relating to their person, of managing their own affairs and of making reasonable judgments in respect of matters relating to their estate, until the contrary is proved; an order may not be made where there is an alternative means of meeting the person's needs that is less restrictive of their freedom of decision and action; any order must be in the least-restrictive terms; and the views and wishes of the represented person must, so far as possible, be ascertained.

Section 43(1)(b) provides that, before appointing a guardian, the Tribunal must be satisfied that the represented person is incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight, care or control in the interests of their own health and safety or for the protection of others. Section 43(1)(c) requires that the represented person is in need of a guardian.

For administration, s 64(1)(a) requires the Tribunal to be satisfied that the represented person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or part of their estate. Section 64(1)(b) requires that they are in need of an administrator. Section 84 provides for the periodic review of guardianship and administration orders.

The MH Act operates separately. Its purpose is to provide a regime for the involuntary treatment of mental illness, with safeguards including independent oversight. A CTO is one form of involuntary treatment order made under the MH Act. Whether a person is subject to a CTO turns on questions including whether the person has a mental illness for which treatment is required and whether less-restrictive options exist; the test is anchored in clinical and treatment criteria specific to the MH Act.

The GA Act and the MH Act apply different tests, addressed to different statutory questions, with different evidentiary thresholds. A finding by clinicians or by the Mental Health Tribunal that involuntary treatment is no longer required is not the same as a finding by the Tribunal that the represented person is capable, for GA Act purposes, of looking after their health and safety or of managing their estate.

The MH Act also constrains what mental health services may disclose about an involuntary patient to a third party without consent. Where the third party is a formally appointed guardian, the appointment generally clears the path for treating clinicians to consult with the guardian. Where the third party is not formally appointed, communication is constrained except where there is a severe risk to the patient (at [17]).

Before R [2026] WASAT 43, it was already settled in practice that the lapsing of a CTO did not automatically result in revocation of guardianship or administration orders. The decision is significant because it expressly states that proposition, and demonstrates how the Tribunal accommodates clinical improvement through tailoring of the order rather than revocation.

3. The Facts of the Case

R is described in the reasons as “a proud aboriginal man” approaching his 60th birthday (at [1]).

R has a formal diagnosis of schizoaffective disorder dating back to September 2009 (at [9]). He has had 21 admissions to hospital since 2009 (at [18]). Relapses and hospitalisations have generally occurred at times when R has been off his regular medication or affected by substance use (at [18]).

In September 2020, the Public Trustee was appointed as plenary administrator of R's estate, and the Public Advocate was appointed as his limited guardian (at [2]). In 2022, R's brother, C, was appointed limited guardian for a number of functions, alongside the Public Advocate as limited guardian for services. In 2023, C was appointed limited guardian for all the necessary guardianship functions. The orders were not changed on a 2024 review.

Some two years before the hearing, R was allocated Department of Housing accommodation. C and R explained to the Tribunal that the allocation was the result of R's pre-existing position on the housing waiting list, not a consequence of C being the guardian (at [10]). All parties agreed that stable accommodation had been a very important part of R's improved health (at [23]).

R was discharged from hospital in early 2025 and was placed on a CTO at that time. The CTO had recently been revoked or had lapsed (at [11]). R was uncertain whether he was meant to continue receiving depot medication, and whether he was meant to receive follow-up through the community mental health service or through his general practitioner (at [11]).

R submitted to the Tribunal that the revocation of the CTO meant that the Tribunal should find that he had capacity, and revoke the appointment of the guardian and the administrator (at [11]).

Medical and case management evidence before the Tribunal included:

(a) 2020 evidence from psychiatrist Dr V indicating that R was unable to manage a budget or pay bills, was unable to organise Centrelink payments without assistance, was chronically homeless, and lacked capacity to make medical treatment, accommodation and services decisions (at [8]);

(b) a March 2026 report from psychiatrist Dr B confirming the diagnosis, considering the condition static, and adopting a similar view of capacity to that held by Dr V in 2020 (at [9]);

(c) a report from case manager A noting strained or fractured relationships within the family (including with C), impaired insight, poor impulse control and fluctuating mental state (at [13]); and

(d) an update email from A indicating that R was relatively stable while compliant with medication, but inconsistent in his attendance at the clinic; he would attend, but rarely at the time scheduled (at [14]).

R has no phone, which makes it difficult for him to receive reminders about appointments (at [15]). His next depot medication was due on 27 May 2026 (at [16]).

Concerning finances, R's estate is simple; he receives the disability support pension. The Public Trustee organises payment of rent, utilities, ambulance insurance and a $50 per fortnight repayment to the Fines Enforcement Registry (at [21]). R manages an allowance of about $260 per week, paid in three instalments (at [22]).

R told the Tribunal that, as a smoker, he found it difficult to budget his allowance for both food and cigarettes (at [22]). C suggested that, if R had Centrepay set up for rent and utilities, he would be able to budget for the other essentials (at [22]). R indicated that, if revocation was not the Tribunal's decision, he would like the opportunity for a trial of independent management (at [22]). Towards the end of the hearing, R said “a trial would be nice” (at [25]).

4. Analysis of the Tribunal's Reasoning

The statutory regimes apply different tests

The Senior Member's reasoning addresses head-on the proposition that R put forward, that the lapsing of the CTO ought to result in revocation. The Tribunal observed (at [11]):

I note that the tests for whether a mental health patient undergoes treatment as a voluntary or involuntary patient are different from the tests for whether or not a person needs a guardian or administrator.

That is a short but important statement. The MH Act addresses the conditions for involuntary treatment of mental illness; the GA Act addresses capacity to make decisions and the need for substituted decision-making. A person may lack capacity for GA Act purposes while no longer requiring involuntary treatment under the MH Act, and conversely.

The mental health communication framework as part of the s 4 analysis

The Senior Member also accepted the practical evidence of case manager A that, if C were not appointed guardian, the community mental health service would be much more restricted in what they could communicate to C, and that under the MH Act it would require a severe risk to R before they could communicate without his consent (at [17]).

This is significant because the consequence of refusing to appoint a guardian extends beyond decision-making for the represented person. It affects the information flow that allows family members to support the represented person in remaining engaged with treatment, including with depot medication now required only every six months (at [16]).

The Senior Member treated this consequence as part of the s 4 GA Act analysis: the appointment of a guardian was not only the least restrictive means of meeting R's needs in his own right, but also operated to support the family-mediated supports on which his stability depended.

Vulnerability and the limits of clinical recovery

The Senior Member accepted that R was doing better than he had at times in the past (at [19]), and accepted that R had managed informally in his Department of Housing accommodation for nearly two years (at [20]). The Senior Member nevertheless found that R remained vulnerable in critical respects: his lack of insight into the need for medication, his uncertainty as to whether he should continue treatment, his impaired ability to retain and recall appointments, the reliance on case management as an intermediary to keep him aligned with depot administration, and the long history of relapse linked to non-medication or substance use (at [16], [18], [19], [23]).

The Senior Member therefore declined to revoke either the guardianship or the administration order outright (at [25]). The s 4 presumption of capacity had not been displaced in R's favour; on the medical evidence it had been displaced against him, and that medical evidence had not changed.

Tailoring rather than revocation

The Senior Member accepted that the improvement in R's condition should be acknowledged. The Tribunal said (at [24]):

I am persuaded by C and R that the improvement in R's condition appropriately would be recognised by an order which provides both a goal and hope.

The decision shows two ways in which the orders were tailored.

First, the guardianship order was substituted with a much narrower set of functions. The 2023 order, which had conferred legal and accommodation functions, was revoked. The new order conferred only treatment decisions and the determination of services to which R was to have access (Order 7).

Second, the administration order was reissued with an authorisation for a trial of independent management of R's Centrelink income, after the administrator had paid expenses they considered essential. Order 4 uses the non-exhaustive formulation “including but not limited to ambulance insurance and Public Trustee fees”, preserving administrator discretion to designate further expenses as essential. The reasons at [26] indicate that the Senior Member contemplated rent, utilities, food, clothing and medication costs, together with the Fines Enforcement Registry repayments, resting with R during the trial. The administrator retained the discretion to terminate the trial if no longer satisfied that it was in R's best interests, including where R was struggling to budget for essentials or contacting the administrator often for funds (at [27]).

The role of the represented person's voice

A notable feature of the reasoning is the weight placed on R's own articulated wishes within the s 4 framework. The Tribunal expressly took R's words “a trial would be nice” as the foundation of the trial mechanism (at [25]). The Senior Member did not, however, allow R's view that the lapsing of the CTO equated to capacity to determine the outcome. The decision thus illustrates the discipline of s 4: the views and wishes of the represented person must be ascertained and given weight, but they remain one factor in a best-interests assessment, and not the determinant.

5. Assessing the Consequences

The decision has a number of practical consequences for represented persons, family members and practitioners.

For represented persons

A lapsed or revoked CTO is not a passport out of guardianship and administration. Practitioners advising represented persons should ensure that the represented person understands this distinction at the outset of any review application, so that expectations are realistic. The decision also illustrates that genuine clinical improvement and articulated personal wishes can be recognised through tailoring of the order, including by progressively widening the scope of what the represented person manages.

For family members and informal supports

Where a family member is providing significant informal support and where information flow from clinicians is critical to the represented person's stability, the formal appointment of that family member as guardian can be the least restrictive means of preserving that information flow. The MH Act's confidentiality regime is not suspended merely because a family member is in fact involved.

For administrators and the Public Trustee

The trial of independent management mechanism imposes a discretionary, evaluative role on the administrator. The administrator must not only continue to pay essentials but must also assess whether the trial remains in the represented person's best interests. The decision identifies, at [27], two of the warning signs to look for: important bills going unpaid, and frequent contact from the represented person seeking additional funds.

For listing and review work

The decision was made with a relatively short review period of approximately 12 months, reflecting the experimental nature of the trial. Practitioners can expect short review periods to accompany trial-of-independent-management orders, so that the experiment can be assessed before the next allocation.

Quantification

The decision involves no monetary award. The economic dimension of the decision is the redistribution of decision-making over R's $260 per week allowance, against the background of a simple estate consisting of disability support pension income.

6. Worked Example

Consider this hypothetical scenario.

S is a man in his early 50s with a diagnosis of bipolar affective disorder. He has been the subject of a guardianship order for three years and an administration order for four years. His sister has been appointed limited guardian. The Public Trustee has been appointed plenary administrator. S has been on a CTO for the last 12 months following hospitalisation for a manic episode. The CTO has just lapsed. S has obtained a private rental property and has been stable for six months. He attends a periodic review of the orders and seeks revocation.

Argument for revocation (S's view)

S would argue that the lapsing of the CTO reflects clinical recovery, that he has been compliant with all treatment, that he is housed and self-supporting, that his sister is involved as an informal support, and that he is now able to manage his Centrelink payments independently.

Argument against revocation (administrator and clinician view)

The administrator and the treating clinician would argue that the GA Act tests are different from the MH Act tests, that the s 64(1)(a) and s 43(1)(b) thresholds are addressed to capacity and need rather than involuntary treatment, and that the medical evidence does not support a finding that S has the capacity to manage his estate or that he no longer needs a guardian for medical treatment decisions. They would argue that the formal guardianship appointment is necessary to permit the treating clinician to consult with the sister about ongoing pharmacological maintenance.

The R [2026] WASAT 43 approach

Following the framework adopted in R, the Tribunal could:

(a) decline to revoke the orders, reasoning that the lapsing of the CTO does not establish GA Act capacity;

(b) tailor the guardianship order to a narrower set of functions, such as treatment and services, removing legal and accommodation functions where the evidence does not support continuing them;

(c) authorise a trial of independent management of S's Centrelink income, after payment by the administrator of essentials such as Public Trustee fees, ambulance insurance and rent, with the administrator retaining a discretion to terminate the trial; and

(d) set a relatively short review period within 12 months to allow the trial to be evaluated.

This approach gives weight to S's views while protecting his housing, medication compliance and stability against the well-recognised risks of relapse following CTO discharge.

7. Practitioner Guidance: A Step-by-Step Framework

The following steps may assist practitioners advising represented persons, applicants and family members in matters where a CTO has lapsed and revocation of GA Act orders is sought or anticipated.

Step 1: Identify the precise statutory orders in play

Before advising, identify the precise GA Act orders in place (date, type, scope, functions) and the precise MH Act orders or arrangements (CTO active, lapsed, revoked, voluntary engagement). Distinguish lapsing from revocation: both have the same legal effect for present purposes, but they tell different stories about clinical trajectory.

Step 2: Manage the represented person's expectations early

Explain at the outset that the lapsing of the CTO is not, of itself, a sufficient basis for revoking guardianship or administration. Cite R [2026] WASAT 43 at [11] for the proposition that the tests differ. Avoid setting up the represented person for disappointment by allowing them to believe that revocation is automatic.

Step 3: Assemble the medical and case management evidence afresh

Whatever evidence is on file, assemble updated medical evidence addressing the specific GA Act tests in s 64(1)(a) (estate capacity) and s 43(1)(b) (health and safety, person, oversight). Treating clinicians sometimes write to the GA Act tests; sometimes they do not. A practitioner's request that a treating psychiatrist specifically address the GA Act criteria can sharpen the evidence considerably. Where the evidence is mixed, that mixed picture must be presented honestly.

Step 4: Consider the MH Act information flow

Identify whether there are family members or informal supports whose role depends on receiving information from treating clinicians. If so, evaluate whether removing the guardian appointment would constrict that information flow under the MH Act. Where it would, that is a factor weighing in favour of retaining at least a limited guardianship appointment.

Step 5: Consider tailoring rather than revocation

Where the represented person's circumstances have improved but capacity has not been re-established, consider proposing tailored orders rather than revocation. The two tools illustrated by R [2026] WASAT 43 are: narrowing the guardianship functions to those genuinely required; and seeking authorisation for a trial of independent management of income under the administration order.

Step 6: Frame the trial of independent management precisely

If proposing a trial of independent management, identify which expenses will continue to be paid by the administrator (essentials), and which will pass to the represented person. Draft a proposed order that mirrors the structure used in R [2026] WASAT 43, including the administrator's express discretion to terminate the trial.

Step 7: Address the s 4 principles in submissions

Submissions should expressly address each s 4 principle: best interests, presumption of capacity, less-restrictive alternatives, least-restrictive terms, and the views and wishes of the represented person. The Tribunal's decision shows that all five strands are alive in the analysis.

Step 8: Seek a short review period

Where a trial mechanism is sought, propose a review period of 12 months or less so that the trial can be evaluated. R [2026] WASAT 43 sets a review before 24 April 2027, approximately 12 months from the hearing.

Step 9: Document the represented person's stated views verbatim where possible

The Senior Member treated R's words “a trial would be nice” as the foundation of the trial mechanism. Practitioners should record the represented person's wishes verbatim in their instructions and in their evidence, both to comply with s 4 and because the represented person's voice can shape the relief that the Tribunal considers.

Step 10: Plan for the next review

Whatever order is made, advise on the review period and on the kinds of evidence that will be relevant at that review. If a trial of independent management is in place, advise that the administrator will be looking at indicators such as bill payment and frequency of requests for additional funds (at [27]).

8. Evidence and Arguments Available to Each Side

For the represented person seeking revocation

The represented person seeking revocation should put forward:

(a) updated medical evidence specifically addressed to the s 64(1)(a) and s 43(1)(b) tests;

(b) evidence of stable accommodation, including any evidence of independent maintenance of tenancy;

(c) evidence of ongoing engagement with treatment, whether through depot medication, GP follow-up, or other community mental health support;

(d) evidence of practical money management (bank statements, evidence of payment of bills, evidence of budgeting for essentials);

(e) evidence of informal supports that can step into roles previously played by formal appointments;

(f) the represented person's own evidence as to their wishes and capacity, given orally where possible; and

(g) submissions on the s 4 principles, in particular the presumption of capacity, less-restrictive alternatives, and views and wishes.

For the party seeking continuation of the orders

A party seeking continuation, typically the Public Advocate, the Public Trustee, a family member or a treating clinician, should put forward:

(a) the most recent medical evidence on diagnosis, capacity and risk of relapse;

(b) case management evidence on engagement, attendance and insight;

(c) evidence of past hospitalisations, particularly any pattern linking relapse to non-medication or substance use (compare R at [18]);

(d) evidence of the support that the formal appointment has actually provided (compare R at [16] - the intermediary role);

(e) evidence of the MH Act's effect on information flow if the appointment is revoked (compare R at [17]);

(f) evidence of practical financial vulnerability (for example, difficulty budgeting allowance for food and essentials, in R's case for food and cigarettes at [22]); and

(g) submissions framing tailored alternatives, narrower guardianship functions and trial of independent management, as the least-restrictive way of recognising improvement.

9. Key Takeaways for Legal Practice

Takeaway 1: A lapsed or revoked CTO does not equate to GA Act capacity. The MH Act and the GA Act apply different tests. Practitioners should resist any argument framed around the simple equation “no CTO equals capacity”, and should manage the represented person's expectations on this point at the outset.

Takeaway 2: Each statutory regime should be assessed on its own evidence. Updated medical evidence written to the GA Act tests is far more useful than a discharge letter or a summary of the MH Act position. Where time permits, ask the treating psychiatrist to address the GA Act criteria specifically.

Takeaway 3: The s 4 principles operate cumulatively, not as a checklist. The decision shows the Senior Member moving between best interests, presumption of capacity, least restrictiveness, and views and wishes, in an integrated analysis. Submissions that engage each strand will land more squarely than submissions that focus on one in isolation.

Takeaway 4: Tailoring is a legitimate response to clinical improvement. Where the represented person is doing better but is not yet capable, narrowing the guardianship functions and authorising a trial of independent management can recognise the improvement without compromising the safety net.

Takeaway 5: The trial of independent management is a structured, conditional handover. It is not a soft revocation. The administrator retains discretion to terminate. Practitioners should draft the proposed order in clear terms, identifying which expenses are essential and remain with the administrator.

Takeaway 6: A guardian appointment can serve as an information-flow mechanism under the MH Act. The decision recognises that, in practice, the formal appointment of a family member as guardian removes the MH Act's confidentiality constraints in respect of that family member. Where a family member is doing critical informal support work, this is a legitimate consideration in the s 4 analysis.

Takeaway 7: The represented person's articulated wishes can shape the relief. The Tribunal's adoption of R's words “a trial would be nice” as the basis of the trial mechanism illustrates that careful recording of the represented person's wishes can directly affect the form of the order, even where the broader application for revocation is unsuccessful.

Takeaway 8: Short review periods accompany experimental orders. Where a trial mechanism is in place, expect a review within 12 months and prepare evidence accordingly. The administrator's experience of the trial will be central.

Takeaway 9: Stable accommodation is a foundation, not a finding of capacity. Stable housing is a recurrent theme in the decision (at [10], [20], [23]). Accommodation stability is a critical protective factor, but it does not, of itself, displace the medical evidence on capacity.

Takeaway 10: The decision models culturally aware decision-making. The Senior Member opens the reasoning by identifying R as “a proud aboriginal man” (at [1]). The decision does not turn on cultural factors specifically, but the framing reflects the Tribunal's awareness that the represented person's identity, family relationships and lived experience are part of the s 4 analysis.

10. Conclusion

R [2026] WASAT 43 is a short decision, but a useful one. It crystallises a proposition that practitioners encounter regularly but often informally: that the lapsing or revocation of a CTO under the Mental Health Act 2014 (WA) is not a finding of capacity under the Guardianship and Administration Act 1990 (WA). The two statutory regimes serve different functions, apply different tests, and produce different outcomes.

Equally useful is the practical mechanism the decision endorses: a trial of independent management, set within a continuing administration order, with the administrator retaining the discretion to terminate. That mechanism gives effect to the s 4 GA Act principles in a way that recognises clinical improvement, gives the represented person agency, and preserves the protections that the underlying medical evidence still requires. In Dr Marillier's words, it is an order that provides “both a goal and hope” (at [24]).

For practitioners, the decision is a reminder that orders under the GA Act are not binary. The Tribunal has the tools to tailor outcomes, and represented persons, and those who advise them, benefit from advocacy that engages the full range of those tools.

• All names used in this article are pseudonyms. The State Administrative Tribunal of Western Australia (Tribunal) expressly anonymised the reasons for party and witness confidentiality. No detail in this article is intended to identify, and no detail does identify, any party, witness or associated person.

Mediation Confidence and the Reach of Section 71: The Limits of Apologies, Undertakings and ‘Off the Record’ Side Conversations

An Analysis of Keogh v Bartlett [2026] WASC 166

1. Introduction

The Supreme Court of Western Australia’s decision in Keogh v Bartlett [2026] WASC 166 is a significant statement on the enforcement of mediation confidentiality. Cobby J convicted the first defendant, Mr Bartlett, and the corporate second defendant, FMR Investments Pty Ltd, of civil contempt for disclosing the content of a court-ordered mediation to two State prosecutors at the Office of the Director of Public Prosecutions, in contravention of s 71(1) of the Supreme Court Act 1935 (WA). Each defendant was fined $50,000 and ordered to pay the plaintiff’s costs on an indemnity basis.

For practitioners, the decision warrants attention beyond the immediate parties for three reasons. First, it confirms that s 71(1) captures everything said in the course of a court-ordered mediation, including the kind of ‘off the record’ private side conversation that some clients (and, perhaps, some practitioners) treat as outside the formal mediation. Second, it dispels any assumption that the trio of concession, apology and undertaking will automatically purge a contempt — Cobby J expressly declined to find that the defendants had purged their contempts and observed that the question of purging will depend upon all of the circumstances of the case. Third, the quantum of penalty marks a substantial departure from the $5,000 fine imposed by Seaward J in Kelly v Hilton [No 6] [2025] WASC 43 for analogous conduct, on the express ground that the fine must bite. Calibrating fines to the contemnor’s means is now a matter of principle, not exception.

The decision affects every civil litigator and every party who attends a court-ordered mediation in Western Australia.

2. Relevant Legal Framework

2.1 The statutory obligation

Section 71(1) of the Supreme Court Act 1935 (WA) provides that, subject to s 71(3), evidence of anything said or done, any communication (oral or in writing), or any admission made in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction is to be taken to be in confidence and is not admissible in any proceedings before any court, tribunal or body. Section 71(3) provides exceptions to that protection, including (relevantly here) the case where the parties to the mediation consent to the admission of the evidence: s 71(3)(a).

In C v M [2011] WASC 175 [65]–[70], K J Martin J held that s 71(1) creates an express statutory obligation of confidence separate from the without-prejudice privilege implicit in the section. Cobby J adopted his Honour’s reasoning at [8].

2.2 Mediation as a fundamental component of civil litigation

The importance of mediation to the civil justice system in Western Australia has long been emphasised by the Supreme Court and the Court of Appeal. In West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164, Owen JA referred to the ‘critical importance of mediation in the modern case management process’ at [3] and [6], and Buss JA described mediation as ‘an essential and important feature in the management of contemporary litigation’ at [118]. In C v M at [25], K J Martin J observed that less than three per cent of civil actions filed in the Supreme Court of Western Australia proceed to a resolution at trial, and that court-ordered mediation ‘render[s] an indispensable service to the quelling of civil disputes in this State’.

The protective force of s 71(1) is the corollary of mediation’s centrality. As Smith J explained in Blenkinsop v Herbert [2020] WASC 196 at [36], anything said or done in a mediation is strictly confidential, so that no participant should disclose any information disclosed during the mediation unless all parties agree or disclosure is required or authorised by law. Seaward J echoed this in Kelly v Hilton [No 6] at [71], observing that the disclosure of confidential information from such a conference has the potential to undermine the utility of mediation in the substantive matter and the administration of justice more broadly.

2.3 Contempt — civil or criminal

The distinction between civil and criminal contempt was addressed in Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [61]–[62]. The proceedings before Cobby J were conducted on the common basis that the conduct constituted civil contempt, brought to secure the defendants’ obligation as to confidentiality. His Honour expressly left open at [16] the question whether unauthorised disclosure of mediation material may also constitute criminal contempt, on the basis that the conduct interferes or tends to interfere with the course of justice — citing Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682, 688; Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449; and Gazal v Setiawan [2024] NSWSC 1008 [67]. The standard of proof for either species is proof beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534.

2.4 Penalty principles and the doctrine of purging

The penalty for contempt is in the discretion of the court (Resolute Ltd v Warnes [2001] WASCA 4 [5]) and must be effective; otherwise ‘serious damage to the fabric of the law may result’ (AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 115). In Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 at [46], Gething J catalogued the relevant sentencing factors: seriousness, culpability, motive, benefit, remorse, the timing and nature of any plea, personal circumstances, character, criminal record, prior contempts, compliance with other orders, personal and general deterrence, and denunciation.

The doctrine of purging contempt was reviewed by Seaward J in Kelly v Hilton [No 6] at [16]–[21]. Drawing on Wilson LJ’s formulation in CJ v Flintshire Borough Council, her Honour held that purging ordinarily means to atone for, eradicate, or cleanse the contempt of its previous ill-effect, but that this concept fits more comfortably with breaches of mandatory orders than prohibitory ones. The ‘better view’, her Honour accepted, is that all forms of contempt should be capable of being purged, with what suffices to depend on the particular circumstances. Steps ordinarily required include a genuine and unreserved apology, an offer of compensation, and an offer to pay indemnity costs — but, critically, no single step (or combination of them) automatically purges the contempt. The court retains a discretion to require additional steps or impose a penalty proportionate to the contempt.

3. The Facts of the Case

3.1 The criminal proceedings and acquittal

The plaintiff, Mr Patrick Rhyan Keogh, was a former employee of FMR Investments Pty Ltd, of which Mr Bartlett was a director. In March 2023 the plaintiff was tried on charges including stealing as a servant and property laundering relating to gold-bearing ore allegedly taken in the course of his employment (at [18]). His defence was that Mr Bartlett had given him permission to take the ore. Following a direction that the jury could not convict unless satisfied beyond reasonable doubt that Mr Bartlett’s evidence to the contrary was honest and reliable (at [19]), the plaintiff was acquitted on 28 March 2023 (at [20]).

3.2 The civil proceedings and the order to mediate

On 24 August 2023, FMR Investments commenced civil proceedings in CIV 1957 of 2023, arising out of the same conduct as the criminal trial (at [21]). On 18 January 2024 Musikanth J ordered the action to mediation; the mediation was held on 6 May 2024 before a registrar of the Supreme Court (at [22], [25]).

By March 2024, the State had charged the plaintiff with seven further counts of causing a detriment by fraud, alleging unauthorised payments via inflated subcontractor invoices, with trial listed for September 2024 (at [23]). On 1 April 2024 the plaintiff’s counsel informed the DPP that the defence would again rest on Mr Bartlett’s permission, and invited the prosecution’s discontinuance on public interest grounds (at [24]).

3.3 The ‘off the record’ side conversation

After an initial joint session before the registrar, the parties were placed in separate rooms for the balance of the mediation (at [27]). At some point a conversation occurred between the plaintiff and Mr Bartlett, in the absence of the registrar and the parties’ lawyers (at [27]). Mr Bartlett’s evidence was that he treated the conversation as ‘off the record’ and did not see it as part of the formal mediation (at [28]). On his own account, that conversation included the parties’ settlement proposals (at [29]).

3.4 The disclosure to the DPP

Mr Bartlett gave a statement to police in April or May 2024 about the second criminal charges, then met two State prosecutors, Mr Sertorio and Ms Crouch, at the DPP on 31 May 2024 (at [30]). Mr Sertorio prepared a near-contemporaneous file note of the meeting (at [32]).

The two men’s recollections of what was said at the meeting differed. Cobby J, applying the criminal standard of proof for both liability and penalty (Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 at [35]), declined to make findings adverse to the defendants where the accounts diverged but found beyond reasonable doubt that Mr Bartlett disclosed the content of his conversation with the plaintiff at the mediation, including the settlement amounts each side had proposed (at [39]); that he did so to convince the DPP to continue the prosecution, having been told there was only a 50/50 chance the trial would proceed (at [38], [41]); and that he told Mr Sertorio, in substance, that he assumed FMR Investments would sue the plaintiff in respect of the matters underlying the second set of charges (at [40]).

The DPP discontinued the prosecution on Mr Sertorio’s independent assessment of its prospects, notwithstanding Mr Bartlett’s attempt to convince the DPP otherwise (at [48], [53]).

3.5 The contempt motion and the defendants’ summons

On 26 July 2024, the plaintiff filed an originating motion for committal (at [1]). On 19 August 2024, the defendants filed a summons to be discharged of, or alternatively to limit the penalty for, their contempt (at [2]). Affidavits were filed by Mr Bartlett and by Mr Watson, the finance director of FMR Investments. Neither deponent was cross-examined (at [3]).

4. Analysis of the Court’s Reasoning

4.1 The scope of s 71(1)

Cobby J rejected the defendants’ submission that s 71(1) is not expressed in terms that state clearly to whom the obligation is owed, from whom things said or done at a mediation must be kept confidential, and who has standing to enforce a breach (at [9]). The text of s 71(3)(a)–(c) makes plain that the obligation is owed to the parties to the mediation, who alone have power to consent to admission, and that each such party has standing to enforce a breach (at [9]). Critically, his Honour also held at [10] that the obligation requires that the matters identified in s 71(1)–(2) not be disclosed to any person not a party to the mediation — including invitees who attend but are not parties or agents of parties.

That holding has direct bearing on the ‘off the record’ issue. There is no carve-out in s 71(1) for private side conversations between parties during a mediation. A party who treats such a conversation as outside the formal mediation does so at their peril; the obligation extends to anything said or done in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction.

4.2 Findings of contempt and corporate liability

Cobby J found beyond reasonable doubt, consistent with the defendants’ concession, that Mr Bartlett’s disclosure on 31 May 2024 contravened s 71(1) and that he made the disclosure with the intention of convincing the DPP to continue the prosecution (at [41]).

His Honour disposed of the corporate liability question on two bases (at [42]–[44]). First, as FMR Investments was the complainant in the criminal proceedings and the party to the civil proceedings, Mr Bartlett’s intention and conduct at the meeting was the conduct of FMR Investments. Second, even if that were not so, a corporation is liable for contempt where it authorised the conduct or failed to take proper steps to prevent it: Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531 at [63], [106]; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59 at [60]. Mr Watson’s affidavit acknowledged that FMR Investments ‘should have ensured that all attendees at the mediation, including [Mr Bartlett] understood … the confidentiality requirements’ (at [43]).

4.3 The purging argument

The defendants’ principal contention was that they had purged their contempt by conceding the contempt, apologising to the plaintiff and the court, giving an undertaking not to further publish the information, and offering to pay costs on an indemnity basis (at [45]–[46]). Cobby J rejected that contention on three grounds.

First, the absence of benefit was not attributable to anything the defendants had done. Mr Bartlett conceded that he attempted to convince the DPP to continue the prosecution; the only reason he failed was Mr Sertorio’s independent assessment of the prospects. There was, his Honour observed, ‘little more that Mr Bartlett could have done to achieve his admitted goal’ (at [53]). Where the failure to obtain a benefit is not due to any restraint or correction by the contemnor, submissions about the absence of benefit carry little weight (at [60]).

Second, the apology was significantly delayed. Mr Bartlett knew of the contempt allegation in mid-June 2024 while in Europe, where he had no demonstrated impediment to communication. He returned to Perth on 3 July 2024 and left on a fishing trip on 6 July 2024 (with continuing telephone and internet access) until 9 August 2024. His apology emerged only with the affidavits filed on 19 August 2024 (at [54]–[57]). The court accepted the apology as genuine but gave it ‘significantly less weight than it might otherwise have received, given his failure to address his contempt in a timely manner’ (at [58]).

Third, the public interest in safeguarding mediation confidentiality told against a finding of purging. Given the potential for damage to the administration of justice arising from disclosure of mediation content, a finding that the defendants had purged their contempts would not be in the interests of justice (at [61]).

4.4 Penalty and the calibration to means

His Honour held that an order for indemnity costs alone would not be a punishment proportionate to the contempt nor a sufficient general deterrent (at [62]–[63]). General deterrence was an important consideration, given the function of s 71(1) in the resolution of litigation without trial (at [64]).

Although neither defendant led evidence of their financial position (at [66]), Cobby J inferred that Mr Bartlett was a person of substantial means from his Applecross residence, his shared ultimate beneficial ownership of a unit trust owning the Gordon Sirdar Gold Mine and the Greenfields Mill, his Busselton house, his month-long European holiday, and his fishing boat with offshore telecommunications (at [67]). FMR Investments’ resources were apparent from its $100 million annual turnover and unrefined gold ore worth between $4 million and $8 million held at Mr Bartlett’s residence (at [68]). Counsel for the defendants made no case as to inability to pay (at [69]).

His Honour expressly compared the present case to Kelly v Hilton [No 6], where Seaward J had imposed a $5,000 fine for analogous disclosure of mediation content to police. The amount was held to be an inadequate response in the present case: ‘a fine of $5,000 would not be an effective punishment in the case of either defendant, being too small to be of consequence to them’ (at [76]). It is appropriate, his Honour held, to consider the means of the contemnor and the extent to which the fine will burden the contemnor in determining the amount of the fine: Peterson v Ceccon [2023] WASC 488 at [103]. The intended order for indemnity costs was a relevant factor in calibrating the fine: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; 196 ALR 350 at [53] (at [78]).

The result was a $50,000 fine on each defendant — a tenfold increase on Kelly v Hilton — and indemnity costs of both the originating motion and the defendants’ summons.

5. Assessing the Consequences: Quantification of Penalty

The aggregate financial consequence to the defendants is materially greater than the headline fines suggest. Adding the $100,000 in fines to the costs of the two applications on an indemnity basis yields a likely total exceeding $200,000, before accounting for the defendants’ own legal costs of resisting the originating motion and prosecuting the failed summons.

Three features of his Honour’s reasoning are worth isolating.

First, the court drew the inference of substantial means from indicia rather than financial statements. A defendant who declines to lead evidence of financial position cannot expect the court to assume modest circumstances; the inference from observable wealth (residences, holidays, business interests) operates against them. This is a deliberate evidentiary message: where means are at large, mute defendants will be assumed to have means.

Second, the comparison with Kelly v Hilton [No 6] is unusually direct. In Kelly v Hilton, Seaward J imposed $5,000 for analogous conduct (disclosure of mediation material to police), as a component of a $30,000 aggregate fine across 17 contempts. Cobby J held that figure could not represent a tariff for the present defendants because $5,000 ‘would not be an effective punishment’. The implication is that fines for s 71 contempts are not subject to a fixed quantum but must be set at a level that achieves general deterrence in the case at hand.

Third, the indemnity costs order operates both as a punitive component and as a factor in moderating the fine. His Honour expressly noted at [78] that the prospect of indemnity costs is a factor to be taken into account in imposing penalty, citing CFMEU v BHP at [53]. Practitioners should not assume that indemnity costs and fines are alternative remedies; they will commonly run together.

6. Worked Example

Consider a hypothetical applicant — a director of a privately owned construction company involved in a Supreme Court action against a former senior employee for breach of fiduciary duty. The action is referred to court-ordered mediation. During the mediation the parties spend several hours in separate rooms. The director steps out for coffee and runs into the former employee in the lobby. They speak for fifteen minutes, away from the mediator and the lawyers. The director discloses, in confidence, that the company is willing to settle for $80,000 to make the litigation go away.

Three weeks later, the director is interviewed by police about a separate matter — an allegation, made by the former employee, that the company underpaid superannuation. To pre-empt that allegation, the director tells the investigating officer: ‘Look, this is the same employee who was demanding $200,000 from us at mediation last month. We were prepared to pay $80,000 just to be rid of him.’

On the analysis in Keogh v Bartlett, the director’s disclosure to police almost certainly contravenes s 71(1). The lobby conversation is captured because it is a communication in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction; nothing in s 71(1) carves out informal exchanges that occur during the mediation but outside the mediation room. The disclosure to police of (i) the figure the company was prepared to pay and (ii) the figure the employee was demanding is disclosure to a person not a party to the mediation.

If the former employee learns of the disclosure (perhaps because the police mention it in a subsequent interview), an originating motion for committal is open. Were the matter to proceed, the director would face a finding of civil contempt (and possibly criminal contempt, on the question Cobby J left open at [16]); a substantial fine, calibrated to the director’s means — on Cobby J’s reasoning, more in the order of $30,000 to $50,000 than the $5,000 of Kelly v Hilton; an indemnity costs order on at least the originating motion; and vicarious exposure of the company.

A timely apology, undertaking, and offer of compensation might mitigate the penalty but, as Keogh v Bartlett makes clear, will not automatically purge the contempt. Where the disclosure was strategically motivated, submissions to the effect that ‘no harm was done’ will carry little weight where the absence of harm is fortuitous rather than contemnor-driven. The director’s position would be markedly different had he, on realising his error, immediately notified the former employee’s solicitors of the disclosure, apologised in writing the same day, provided police with a written correction confirming the disclosure was not to be relied upon, offered indemnity costs and a fixed sum of compensation, and caused the company to direct that all future mediation attendees be briefed on s 71. Even so, on the reasoning in Keogh v Bartlett, purging is not automatic. The court retains discretion.

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the principles stated by Cobby J at [9]–[78].

Step 1 — Brief every attendee on s 71 before the mediation.

A corporation acts through its officers; if the attending director or representative does not understand the scope of s 71, the corporation is exposed (at [43]). The brief should expressly address that side conversations during the mediation, including those between parties without lawyers present, are within s 71.

Step 2 — Treat any communication between arrival and departure as confidential.

Section 71(1) is not confined to formal sessions before the mediator. It captures anything said or done in the course of or for the purposes of an attempt to settle. Practitioners should advise clients that there is no concept of ‘off the record’ conversations during a mediation that escape s 71 (at [10], [27]–[29]).

Step 3 — If a contempt allegation is made, address it at once.

A delayed apology will be discounted (at [54]–[58]). Practitioners should not allow holidays or trips to derail the response. If the client is overseas or otherwise unavailable, contemporaneous evidence of the impediment should be assembled.

Step 4 — Concede contempt early if the conduct is plainly captured by s 71.

A late concession is given less weight than an early one. The defendants’ concession in Keogh v Bartlett came only after the file note was disclosed by the plaintiff’s solicitors (at [54]).

Step 5 — Offer purgative steps proactively, but do not rely on them.

Apology, undertaking, offer of compensation, and offer of indemnity costs are the conventional steps (per Kelly v Hilton [No 6] at [21]). The court may regard them as insufficient where the absence of benefit was fortuitous (at [60]).

Step 6 — Address the absence of benefit rigorously.

If the contemnor positively withdrew the disclosure or took steps to neutralise it, that should be shown by evidence. If the absence of benefit is solely attributable to a third party’s independent decision, the court will assign little weight to the submission (at [60]).

Step 7 — Lead financial evidence where it is favourable.

Where the contemnor is of modest means and the fine threatens disproportionate hardship, lead evidence to that effect: Peterson v Ceccon [2023] WASC 488 at [103]. Where the contemnor has substantial means, silence is not neutral — the court will infer means from observable indicia (at [66]–[68]).

Step 8 — Anticipate indemnity costs.

Indemnity costs are now standard for s 71 contempts: at [78], [80]. Quantify the likely order at the outset to inform the client.

Step 9 — For corporations: consider proactive policy steps.

The corporate liability discussion at [42]–[44] gives obvious mitigation arguments to corporations that have implemented attendance protocols, mediation briefings, and post-mediation debriefs. Drafting and adoption of such protocols is a sensible response to Keogh v Bartlett.

Step 10 — Remember the open question on criminal contempt.

Cobby J left open at [16] whether breach of s 71 may also be criminal contempt. Practitioners should not assume that an admitted s 71 breach will always be characterised as civil only.

8. Evidence and Arguments Available to Each Side

8.1 The applicant for committal

An applicant should focus on the objective fact of disclosure: section 71(1) is breached by disclosure simpliciter, with intent and benefit going to penalty rather than liability. Evidence of motive is critical — disclosure made to procure a forensic or commercial advantage attracts a higher penalty (at [51]–[53]). Evidence of the contemnor’s means is admissible from real estate, business interests, holidays and other lifestyle indicia: Keogh v Bartlett shows that such evidence will be acted on even in the absence of formal financial statements (at [67]). Communications between solicitors will often disclose when the contemnor first knew of the allegation and what steps were taken, providing evidence of any delay in apology (at [55]–[57]). Evidence (such as Mr Sertorio’s file note in the present case) that a third party’s independent decision was the only thing preventing the contemnor from achieving his or her aim is critical to demonstrating that the absence of benefit is fortuitous (at [48], [53]). Where the contemnor is of substantial means, applicants should argue that the Kelly v Hilton tariff is too low — exactly the argument adopted by Cobby J at [76].

8.2 The respondent (alleged contemnor)

A respondent should consider whether the disclosure was made in the honest (if mistaken) belief that the conversation fell outside s 71 — although Keogh v Bartlett shows that an ‘off the record’ subjective belief will not negate liability, it may go to culpability. Time-stamped evidence of prompt and proactive apology, withdrawal, and corrective steps should be assembled, ideally pre-dating the originating motion. Self-reporting to the opposing party is a powerful purgative step. Where the contemnor is a corporation in financial distress or an individual on modest means, financial evidence should be led: Peterson v Ceccon. Silence carries the risk identified in Keogh v Bartlett at [67]. For corporate respondents, evidence that mediation attendance protocols and confidentiality briefings have been instituted post-incident may mitigate (at [43]). An early and unconditional concession remains a mitigating factor under Perpetual Trustee v Pascoe Partners at [46], and an offer (or actual payment) of compensation for any actual prejudice caused is ordinarily relevant: Kelly v Hilton [No 6] at [21].

9. Key Takeaways for Legal Practice

1. Section 71(1) covers everything said in the mediation. There is no carve-out for ‘off the record’ side conversations between parties during a court-ordered mediation. Cobby J’s holding at [10] that confidentiality applies in respect of disclosure to any person not a party to the mediation leaves no room for an informal-conversation exception (at [27]–[29]).

2. Concession, apology and undertaking will not automatically purge a contempt. The court retains discretion to require additional steps or to impose a substantial penalty notwithstanding (at [60]; Kelly v Hilton [No 6] at [16]–[21]).

3. Delay in apologising materially weakens its weight. A contemnor who learns of an allegation and prioritises a holiday or fishing trip over corrective action will see the apology discounted (at [55]–[58]).

4. Fines are calibrated to the contemnor’s means. Kelly v Hilton’s $5,000 figure is not a tariff. Where the contemnor has substantial means, fines will be set at a level that secures effective punishment and general deterrence (at [76]–[77]).

5. Silence on financial position is dangerous. A respondent who declines to lead financial evidence will not be assumed to be of modest means; the court will infer wealth from observable indicia (at [66]–[68]).

6. Indemnity costs and fines run together. The two remedies are cumulative, with the indemnity costs order operating as a factor in the calibration of the fine, not in substitution for it (at [78]).

7. Corporations are liable through the conduct of their directors. A corporation that fails to brief an attending director on s 71 confidentiality is exposed to contempt liability vicariously and may also be liable for failure to take proper steps to prevent the contempt: Lade & Co Pty Ltd v Black (at [43]).

8. The motive to obtain a forensic advantage aggravates. Disclosure made to influence prosecutorial decision-making, or to gain leverage in associated civil proceedings, will be treated more seriously than inadvertent or accidental disclosure (at [51]–[52]).

9. The absence of benefit must be earned, not fortuitous. Submissions about lack of benefit carry weight only where the contemnor’s restraint produced that outcome. Where a third party’s independent decision is the sole reason no benefit accrued, the absence of benefit is irrelevant to penalty (at [60]).

10. The professional and systemic stakes are significant. Cobby J’s repeated emphasis on the public-interest function of mediation confidentiality at [11]–[14], [61] and [64] makes plain that the court will treat s 71 breaches as a structural threat to civil case management, not as private grievances between parties.

10. Conclusion

Keogh v Bartlett sharpens the message that mediation confidentiality is not a soft norm but a statutory obligation enforceable by substantial penalty. Three propositions are now firmly settled in Western Australia.

First, s 71(1) reaches every communication during the course of a court-ordered mediation, including private side conversations that the parties may have intended to treat as informal. The ‘off the record’ gambit is foreclosed.

Second, the conventional purgative trio of concession, apology and undertaking does not automatically cleanse the contempt. The court will assess the timing, motive, restraint and corrective steps in each case, and decline to find purging where to do so would not be in the interests of justice.

Third, fines for s 71 contempts must bite. Kelly v Hilton’s $5,000 figure was a function of that contemnor’s circumstances, not a tariff. The means-tested approach in Keogh v Bartlett — $50,000 each, plus indemnity costs — is now the benchmark for contemnors of substantial wealth.

For practitioners, the operational message is straightforward. Brief every attendee at every court-ordered mediation on the scope of s 71 before the mediation begins. Address allegations of breach the moment they are made. And do not rely on the apology-and-undertaking response alone to escape penalty.

Leave to Review Guardianship and Administration Orders Under Section 87(5): When “Trying Again” Is Not Enough

An Analysis of MC [2026] WASAT 45

1.  Introduction

In MC [2026] WASAT 45 Member Bunney refused leave under s 87(5) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the represented person’s daughter to bring a fresh review of guardianship and administration orders made by the Full Tribunal in March 2025. The decision is not novel in stating new law. Its value lies in the rigour with which Member Bunney applied the leave threshold articulated by the Full Tribunal in RK [2022] WASAT 112 to the recurrent factual pattern of a disappointed family member who, having unsuccessfully proposed themselves at the original hearing, returns within the review period seeking a second bite at the cherry.

For practitioners advising family members of represented persons, the decision crystallises four propositions that will defeat most such applications: re-litigating the prior factual findings is not a change of circumstances; dissatisfaction with day-to-day decisions of the Public Advocate or the Public Trustee is not a change of circumstances; changing one’s mind about wanting to be appointed is not a change of circumstances; and the very inability to cooperate that justified the prior orders may reappear at the leave hearing itself, providing direct evidence that the relevant circumstance has not changed.

The decision matters beyond MC and her family. It guides the advice that solicitors give to family members who are unhappy with appointments of the Public Advocate and the Public Trustee, and it informs the strategic choice between a fresh review application, a complaint through the appropriate complaints channel, or simply waiting for the next scheduled review.

2.  Relevant Legal Framework

The statutory primary concern

Section 4(2) of the GA Act provides that the primary concern of the Tribunal in making decisions under the Act is the best interests of the person for whom the application is made. Section 4(7) requires the Tribunal, as far as possible, to seek to ascertain the views and wishes of the person concerned, as expressed at the time or as gathered from the person’s previous actions. These two provisions frame every decision the Tribunal makes under the Act, including a decision on leave to review.

Right of review and the leave threshold

Section 86 of the GA Act creates a right of review for persons directly involved in the implementation of orders — the Public Advocate, the Public Trustee, the represented person, the guardian and the administrator. Any other person who seeks a review must first obtain leave of the Tribunal. Section 87(5) provides that the Tribunal may grant leave only if it is satisfied that, because of a change of circumstances or for any other reason, a review should be held.

The RK framework

In RK at [38]–[44] the Full Tribunal articulated three reasons for the leave requirement and established the test that has governed leave applications under s 87(5) since: first, Tribunal proceedings are disruptive and cause anxiety for the represented person, so orders should be reviewed only on good reason; second, the Tribunal sets a review period having considered all the available evidence, and orders should not be reviewed early without good reason; third, because the Tribunal’s process is inquisitorial and depends on parties drawing all relevant matters to its attention, the leave threshold reinforces the obligation to put the case at the original hearing.

On the change-of-circumstances limb, RK requires a comparison between the circumstances that existed at the time of the challenged decision and those that exist at the time of the application for leave. An applicant for leave who was a party at the prior hearing and relies on a change of circumstance will ordinarily need to identify some new evidence: (a) not previously drawn to the Tribunal’s attention; (b) which is relevant to the appointment of a guardian or administrator; and (c) which was not known by the applicant, or could not reasonably have been ascertained, prior to the prior hearing: see RK at [41].

On the “other reason” limb, the reason must be such as to warrant revisiting the issues already dealt with by the Tribunal. RK gives two illustrations: a person who should have been notified of the prior hearing was not notified, or new evidence or an issue suggests that the challenged decision was not, or is no longer, in the represented person’s best interests: see RK at [43].

The dissatisfaction principle

In K [2025] WASAT 67 the Tribunal confirmed that frustration with decisions made under existing orders, and an assertion that the prior orders were made on incorrect information, do not constitute a change of circumstances. That principle was applied in MC [2026] WASAT 45 at [26] and [28]. It coheres with RK at [35], where the Full Tribunal observed that it is not the Tribunal’s role to “review the merits of the myriad of daily decisions which may be made by a guardian or administrator in the exercise of their decision-making authority”.

3.  The Facts of the Case

MC and the original 2024 orders

MC is an 81-year-old woman with advanced dementia who, since November 2024, has lived in residential aged care due to her high care needs and complex medical issues: at [2]. She had previously lived with her daughter B, who was her carer: at [2].

In September 2024, while MC was an inpatient at Hospital A, the hospital applied to the Tribunal for guardianship and administration orders. The hospital’s concerns included B’s lack of cooperation and verbal aggression toward staff: at [3]. In October 2024 a single Member appointed the Public Trustee as MC’s plenary administrator and the Public Advocate as her limited guardian for accommodation, medical treatment and services: at [4].

The 2025 review and the contact function

B sought review of the 2024 Orders under s 17A of the GA Act, proposing herself for appointment: at [5]. The matter came before the Full Tribunal at a First Hearing in February 2025. The delegated guardian’s January 2025 report described continuing concerns about B’s behaviour at the nursing home, including an attempt to force MC into her car and remove her, and threats to staff that required police involvement: at [17]. The guardian sought an additional contact function to permit decisions about who MC would have contact with: at [17]. B terminated the call before the Tribunal could conclude: at [18].

At a Second Hearing on 26 March 2025 the Full Tribunal made the orders that became the subject of the present application (the 2025 Orders): at [19]–[20]. B, having earlier proposed herself, sought to withdraw her nomination as guardian and to be appointed jointly with the Public Trustee as administrator: at [19]–[20]. The Tribunal continued the appointments of the Public Advocate and the Public Trustee, expanded the guardian’s functions to include contact, and set a review date of 26 March 2030: at [5]. The Full Tribunal recorded that B was “unable to manage her emotions appropriately” and “fixated” on a misunderstood $500 annual gifting authority; B again terminated the call before the reasons concluded: at [21].

The 2026 leave application

In October 2025 B applied under s 86 of the GA Act to review the 2025 Orders: at [6]. The Tribunal directed that the question of leave would be determined at the hearing and, if granted, the review would proceed: at [6]. The hearing took place on 31 March 2026 before Member Bunney: at [7]. B, her brother M, their father J (MC’s former husband) and B’s son Z attended, along with the delegated guardian: at [7]. The grounds advanced by B and J as constituting a change of circumstances were that the 2025 Orders had been made on incorrect information, that the Public Trustee and Public Advocate were unprofessional and offensive, that mail addressed to B had been opened by the Public Trustee, and that B was suitable for appointment: at [23].

4.  Analysis of the Tribunal’s Reasoning

Aggrievement with the prior decision

Member Bunney rejected the contention that the 2025 Orders had been made on incorrect information as a basis for leave: at [24]–[26]. B was a party at the First and Second Hearings, and the evidence about her discharge of MC from Hospital A had been before the Tribunal. Re-arguing that evidence is precisely the form of complaint that RK excludes from the change-of-circumstances limb. The Member’s observation at [24] that B felt “censored” by the requirement to confine the discussion to events since March 2025 is illustrative of the misunderstanding that often drives second-bite applications.

Dissatisfaction with the office holders

The Member found that dissatisfaction with the decisions of the Public Trustee and the Public Advocate is not a change of circumstances: at [27]–[28]. Two propositions emerge. First, the Tribunal is not the forum for merits review of operational decisions made by the Public Advocate or the Public Trustee in the exercise of their statutory functions; complaints belong with the appropriate complaints channels. Second, the existence of dissatisfaction with the office holders is, in any event, the predictable consequence of the very orders the family member opposed; without more, dissatisfaction therefore tells the Tribunal nothing about whether the orders are, or remain, in the represented person’s best interests.

Re-nomination is not a change

Member Bunney rejected B’s proposal that she be appointed sole guardian and administrator as a change of circumstances: at [33]. The decisive features were two. First, the matter of B’s suitability had been squarely before the Tribunal in 2025 and had been determined adversely to her. Second, B had “merely changed her mind between the First and Second Hearings” in 2025: at [33]. A subsequent change of mind is not a change in the circumstances surrounding the represented person within the meaning of s 87(5).

Behaviour at the leave hearing as evidence of continuity

Perhaps the most useful aspect of the Member’s reasoning, from a practitioner’s perspective, is the use made of B’s behaviour at the leave hearing itself: at [30]–[32]. B accused the Member of victim-blaming, described questions as “disgusting”, alleged the Member was about to throw something at her, and accused the Member of threatening her: at [30]. J intervened repeatedly to ask B to stop speaking, lower her voice and stop interrupting: at [31]. Member Bunney concluded at [32] that there was no discernible difference between B’s behaviour at the leave hearing and her presentation in February and March 2025. The behaviour relied on by the Full Tribunal in 2025 was not a transient state; it remained current in 2026. The leave hearing therefore furnished direct, contemporaneous evidence that the relevant circumstance — B’s inability to cooperate — had not changed.

“Some other reason”

Member Bunney found no “other reason” within the meaning of RK at [43]: at [40]. J’s late inquiry, after the decision had been reserved, as to whether he could be nominated as guardian and administrator was deliberately not weighed in the balance: at [35]–[36]. The Member expressly preserved J’s position to bring his own application: at [36]. The careful procedural treatment of J’s eleventh-hour proposal is itself instructive: an application for leave is not the occasion for a freewheeling reconsideration of every alternative appointee.

MC’s views and wishes

Section 4(7) requires the Tribunal to seek to ascertain the represented person’s views and wishes. Because of MC’s advanced dementia and the advice of the clinical nurse manager that attendance would be too distressing, MC did not attend: at [38]. The Member found that MC’s specific views about leave could not be ascertained: at [39]. The s 4(7) inquiry is one of effort, not result; where the represented person’s cognition cannot support an expression of view, the obligation is discharged by recording that fact.

5.  Assessing the Consequences

The practical consequences of the decision can be grouped at three levels: for MC, for the family, and for the system.

Consequences for MC

The 2025 Orders remain in force until the scheduled review by 26 March 2030. The contact function added in 2025 remains operative, with the consequence that decisions about who MC has contact with, including the extent of contact with B, continue to be made by the Public Advocate. The decision insulates MC from a third Tribunal hearing within twelve months and from the disruption that the leave threshold is designed to prevent.

Consequences for the family

B has exhausted her present avenue and faces a further period until the next scheduled review. Three avenues remain open. First, J retains his ability to bring his own application for leave on his own grounds, although that application is in no better position than B’s if it depends on the same body of contested matters. Second, the family may make complaints about specific decisions of the Public Advocate or the Public Trustee through the appropriate complaints channels for those office holders. Third, fresh evidence — for example, a documented and sustained change in B’s capacity to cooperate, supported by independent observation — may, in time, satisfy s 87(5).

Consequences for the system

The decision is consistent with a body of recent SAT authority that draws a firm line between leave to review and merits review, and between change-of-circumstance applications and complaints about office-holder conduct. By doing so it preserves the integrity of the review period set at the original hearing, conserves Tribunal resources, and protects represented persons from repeated, distressing proceedings driven by family dynamics rather than by changes in their circumstances.

6.  Worked Example

Consider this hypothetical scenario, designed to test the principles in MC against a slightly different fact pattern.

F is an 84-year-old man with moderate vascular dementia. In June 2024 the Tribunal appointed the Public Advocate as F’s limited guardian for accommodation, the Public Trustee as plenary administrator, and set a review date in June 2029. F’s son S, who proposed himself unsuccessfully at the original hearing, applies under s 86 in March 2026 for review.

Two grounds are advanced. The first is that S is unhappy with the way the Public Trustee has invested F’s superannuation proceeds, which are tied up in conservative term deposits while inflation erodes their real value. The second is a recent independent neuropsychological assessment, commissioned and paid for by S, which records that F’s recent measured cognition has improved on a small number of domains since 2024, attributed to a change in F’s antihypertensive medication.

Applying the framework

The first ground is precluded by the dissatisfaction principle confirmed in MC at [27]–[28] and K [2025] WASAT 67. S’s complaint is about the merits of an investment decision made by the Public Trustee in the exercise of its statutory functions; the proper avenue is a complaint to the Public Trustee, not a fresh review.

The second ground is materially different. It is new evidence, generated after the prior hearing, that bears on a matter central to the order — F’s capacity. It could not have been put before the Tribunal in 2024 because the change in cognition followed a change in medication that had not occurred. Whether that evidence is sufficient to warrant leave will depend on its substance: the assessment must be from a qualified clinician, must be specific in its findings about decision-making capacity, and must withstand the obvious criticism that it is funded by a relative who has an interest in the outcome. If those hurdles are met, the application is at least arguable on the change-of-circumstances limb in RK at [41].

The contrast between the two grounds illustrates the dividing line. Ground one is dissatisfaction; ground two is fresh evidence about the represented person, not the office holders. Only the second engages s 87(5).

7.  Practitioner Guidance: A Step-by-Step Framework

The following sequence may be followed when a family member of a represented person seeks advice on whether to bring a fresh application under s 86 of the GA Act within the review period.

Step 1  Confirm whether leave is required

Identify whether the prospective applicant is a person directly involved in the implementation of the orders within the meaning of s 86. If the client is the represented person, the guardian, the administrator, the Public Advocate or the Public Trustee, no leave is required. Other family members, including adult children, parents and former spouses, must obtain leave: see MC at [10].

Step 2  Identify the basis for leave

Section 87(5) requires either a change of circumstances or some “other reason” that a review should be held. These are alternative limbs, not cumulative requirements: RK at [44]. Test each candidate ground against both limbs before settling on a primary submission.

Step 3  Apply the RK three-limb test for change of circumstances

If the client was a party at the prior hearing, ask: is there new evidence, relevant to appointment, that was not previously drawn to the Tribunal’s attention and which the client could not reasonably have ascertained at the time? RK at [41]. If any limb fails, the change-of-circumstances submission is unlikely to succeed.

Step 4  Consider the “other reason” limb

If the change-of-circumstances limb is unavailable, identify whether there is some other reason warranting revisitation — for example, a procedural failure such as want of notice, or new evidence suggesting the orders are no longer in the represented person’s best interests: RK at [43].

Step 5  Triage dissatisfaction-style complaints

Frame complaints about specific decisions of the Public Advocate or the Public Trustee for the appropriate complaints channel (the Office of the Public Advocate or Public Trustee complaints process, the Ombudsman of Western Australia or, in financial matters, the Trustee Companies Act mechanism), not for s 87(5). MC at [27]–[28] and RK at [35].

Step 6  Counsel on hearing conduct

If the application proceeds, counsel the client realistically on hearing conduct. Member Bunney’s use of B’s behaviour at the leave hearing as confirmation that the relevant circumstance had not changed (at [30]–[32]) is a clear warning that emotional dysregulation at the leave hearing can defeat the application even where the substantive grounds are weak.

Step 7  Consider alternative appointees

Where the client is unsuited to appointment but other family members are not, advise on the option of nominating an alternative appointee. The Member’s preservation of J’s position at [36] in MC indicates that alternative appointees are not required to be aggregated into the same application.

Step 8  Manage expectations on timing

Make clear that the Tribunal sets a review date for a reason and that, absent compelling material, parties should expect to wait for that date. The shortest realistic horizon for a meritorious fresh application is the time required to generate new, independent evidence of a change relevant to the orders.

8.  Evidence and Arguments Available to Each Side

For the applicant (family member seeking leave)

Independent evidence of a documented change in the represented person’s cognition, capacity, accommodation or care needs, post-dating the challenged decision and not reasonably available at the time of that decision, is the strongest material: RK at [41]. Evidence that the applicant was not given notice of the prior hearing, or that an issue central to the orders was not before the prior Tribunal, may engage the “other reason” limb: RK at [43]. Evidence of a sustained and independently-observed change in the applicant’s own capacity to cooperate — not mere assertion — may, depending on context, be relevant where the prior decision turned on the applicant’s suitability.

For the respondent (Public Advocate, Public Trustee or other party resisting leave)

The most efficient response is to demonstrate that the matters relied on were before the prior Tribunal, were within the applicant’s knowledge at the time, or could reasonably have been ascertained. The applicant’s own application materials, written submissions and the transcript of the prior hearing will often suffice. Conduct at the leave hearing itself may be deployed, as in MC, to show that the relevant circumstance has not changed. Where the applicant complains about specific decisions of office holders, identifying the proper complaints avenue redirects the complaint and confirms that the Tribunal is not the forum.

9.  Key Takeaways for Legal Practice

1.      Re-litigating prior factual findings is not a change of circumstances. An applicant who participated in the prior hearing cannot satisfy s 87(5) by asserting that the prior Tribunal got the facts wrong: MC at [26]; K [2025] WASAT 67 at [14].

2.      Dissatisfaction with the office holders is not a change of circumstances. The Tribunal does not review the merits of operational decisions of the Public Advocate or the Public Trustee; complaints belong with the appropriate complaints channel: MC at [27]–[28]; RK at [35].

3.      Changing one’s mind about appointment is not a change of circumstances. Withdrawing a nomination at the prior hearing and re-nominating later does not engage s 87(5): MC at [33].

4.      Conduct at the leave hearing is in evidence. If the applicant’s suitability turned in part on cooperation or emotional regulation, presentation at the leave hearing itself may furnish direct evidence on whether the relevant circumstance has changed: MC at [30]–[32].

5.      The leave threshold protects the represented person. Tribunal proceedings are disruptive; the leave requirement reflects a parliamentary judgment that orders should not be reopened on the application of a non-statutory party without good reason: RK at [38]–[40].

6.      Each potential applicant has their own position. A family member who was not a party at the prior hearing, or who relies on the “other reason” limb, is not aggregated with another family member’s application: MC at [36].

7.      Procedural discipline matters. A late proposal made after a decision is reserved is unlikely to be entertained: MC at [35]–[37]. Counsel should ensure all grounds are advanced before the close of evidence.

8.      Section 4(7) is an obligation of effort. Where the represented person’s cognition does not support the expression of a view, that fact should be recorded; it is not a barrier to a decision: MC at [38]–[39].

9.      The systemic message is to do the work the first time. Section 87(5) reinforces the obligation to put the entire case to the Tribunal at the original hearing. Practitioners advising family members at the original hearing should ensure that suitability evidence — including evidence of capacity to cooperate with office holders — is squarely in evidence the first time round.

10.  Conclusion

MC [2026] WASAT 45 does not announce new doctrine; it applies RK [2022] WASAT 112 with care to a recurrent fact pattern and, in doing so, illustrates the analytical discipline that s 87(5) demands. The leave threshold is not a formality. It is the gatekeeping mechanism that allows the Tribunal to set, and to honour, a review date by which the represented person and the office holders can plan, and which protects the represented person from the disruption of repeated, distressing proceedings.

The practical message for practitioners is this. Section 87(5) divides the post-orders landscape into three zones. The first is review on a change of circumstances or some other reason that warrants revisitation; the threshold is real and is most often met by independent evidence post-dating the challenged decision. The second is the complaints zone, which addresses the conduct of the Public Advocate and the Public Trustee in the discharge of their functions and lies outside the Tribunal. The third is the waiting zone, which the Tribunal, having heard all the evidence at the original hearing, has set deliberately and should be respected. Family members who treat all three zones as if they were the first will find, as B did, that the Tribunal does not.

• All names used in this article are pseudonyms assigned by the State Administrative Tribunal of Western Australia. The judgment was published under those pseudonyms in accordance with the Tribunal’s usual practice in guardianship and administration matters of using single letters and initials in lieu of party names. No detail in this article is intended to identify, or capable of identifying, any party, witness, or associated person.

Filing Defamation in the Federal Court: Why Single-State Publication Defeated Jurisdiction in Dakin v Bellizzi

An Analysis of Dakin v Bellizzi [2026] FCA 488

1. Introduction

In Dakin v Bellizzi [2026] FCA 488 (Dakin), Wigney J dismissed a defamation proceeding for want of jurisdiction and refused the applicant leave to amend his originating application to introduce a claim under the Australian Consumer Law (ACL), Schedule 2 to the Competition and Consumer Act 2010 (Cth). The decision arose from allegedly defamatory statements made at a private dinner in New South Wales attended by approximately 100 guests. The applicant had commenced proceedings in the Federal Court of Australia, but the Court’s jurisdiction to try a standalone defamation claim, arising under s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act), extends only to publications in the Australian Capital Territory or the Northern Territory. Because the alleged publications occurred exclusively in New South Wales, the Court had no jurisdiction.

When confronted with a jurisdictional challenge, the applicant sought to salvage the proceeding by amending the originating application to introduce an ACL claim which, if genuine, would have attracted federal jurisdiction and, with it, accrued jurisdiction over the defamation claim. Wigney J found the proposed ACL claim to be colourable — a device to fabricate jurisdiction — and dismissed the proceeding with indemnity costs.

2. Relevant Legal Framework

Federal Court jurisdiction over defamation

As Wigney J noted at [12], the Court’s jurisdiction to try a standalone defamation claim arises from s 9(3) of the Cross-vesting Act. That jurisdiction exists only where the defamatory statements or imputations were published in the ACT or NT: Rana v Google (2017) 254 FCR 1; [2017] FCAFC 156 at [40]; Raghubir v Nicolopoulos [2022] FCAFC 97 at [28].

In Dakin, the alleged defamatory statements were made exclusively in New South Wales. The applicant ultimately conceded that the Court lacked jurisdiction on this basis (at [11]–[12]).

Cross-vesting and transfer

The applicant initially sought transfer to the Supreme Court of New South Wales under s 5(4) of the Cross-vesting Act, but abandoned this position. Wigney J noted at [13] that the power to transfer is only available where the proceeding has “regularly invoked” the Court’s jurisdiction: Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011] FCA 1270 at [33]–[35]. A defamation claim filed in the Federal Court in respect of a publication that occurred exclusively in a state does not satisfy that requirement.

Colourable claims and accrued jurisdiction

A party may invoke the Federal Court’s jurisdiction by advancing a federal claim alongside a non-federal claim. If the federal claim is within jurisdiction, the Court may exercise what has historically been called “accrued jurisdiction” over the associated non-federal claim: cf Rizeq v Western Australia (2017) 262 CLR 1 at [55]. However, this avenue is not available if the federal claim is “colourable” — that is, advanced for the improper purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219.

The test for colourability was restated by the High Court in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at [35]: a claim is not colourable if it is “genuinely in controversy” or “genuinely raised” and is “not incapable on its face of legal argument.” A claim is not rendered colourable merely because it is weak, unless it is so untenable that it amounts to “legal nonsense” or is so obviously unarguable that it may be inferred the claim is not genuinely raised: Qantas Airways Ltd v Lustig (2015) 228 FCR 148 at [88]; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [88]; Scott v Steritech Pty Ltd [2025] FCAFC 110 at [48]; Tucker v McPhee (2022) 292 FCR 666 at [71]. There is otherwise no “threshold of arguability”: Steritech at [48] (at [17]).

Serious harm in defamation

Section 10A of the Defamation Act 2005 (NSW) requires a plaintiff to establish that the allegedly defamatory publication caused, or is likely to cause, serious harm to the plaintiff’s reputation. This threshold must be supported by pleaded material facts. Wigney J observed at [39] that heckling remarks at a private dinner are “the very sort of defamation cases that are meant to be excluded by the threshold requirement of serious harm.”

3. The Facts of the Case

The parties and the property transaction

Mr Harrold Dakin was the director and chief executive officer of two companies: ICC Development Group Pty Ltd and ICC Group Peakhurst Pty Ltd (ICC Peakhurst). In August 2022, ICC Peakhurst purchased two properties in Peakhurst, New South Wales, from Ms Sonia Fenton and entities associated with her for $10 million. ICC Peakhurst paid $2.5 million of the purchase price; the balance of $7.5 million was to be paid pursuant to a loan facility guaranteed by Mr Dakin (at [6]).

Ms Fenton had operated a function centre business at the Peakhurst properties. Mr Dakin and one of the ICC companies were to take over that business (at [7]).

The dinner and the alleged defamatory statements

In October 2024, a dinner was held at one of the Peakhurst properties to commemorate Ms Fenton’s departure from the business and to introduce Mr Dakin to the business’s stakeholders. Approximately 100 guests attended. At the time of the dinner, ICC Peakhurst had not repaid the $7.5 million balance of the purchase price (at [7]).

Mr Dakin gave a speech during the dinner. During the speech, Mrs Cheryl Bellizzi allegedly heckled him, calling out words to the effect that Mr Dakin owed Ms Fenton $7.5 million and was “a crook.” Mr Dakin alleged that the statements conveyed imputations including that he did not have a conscience, that he or entities he controlled owed money to Ms Fenton, that he had taken advantage of Ms Fenton in a business arrangement, and that he was a crook engaging in illegal or unlawful conduct (at [8]).

Approximately 45 minutes later, Mr and Mrs Bellizzi approached Mr Dakin’s table and allegedly made further statements to similar effect in the presence of Mr Dakin’s family and associates (at [9]).

Commencement of proceedings and the jurisdictional challenge

Mr Dakin commenced proceedings in the Federal Court on 13 October 2025 — effectively the last day of the one-year limitation period under s 14B of the Limitation Act 1969 (NSW) (at [26]). Within two weeks, the respondents’ solicitors wrote to Mr Dakin’s solicitors pointing out the jurisdictional deficiency. When no response was received, the respondents filed an interlocutory application on 14 November 2025 seeking dismissal for want of jurisdiction (at [27]–[28]).

The interlocutory application was listed for hearing on 26 March 2026. The respondents filed their submissions by the directed date of 5 March 2026. Mr Dakin did not comply with his deadline of 12 March 2026. It was not until 17 March 2026 — less than two weeks before the hearing — that Mr Dakin’s solicitors foreshadowed a proposed amended originating application adding ICC Peakhurst as applicant and introducing an ACL claim. The proposed amendments were served within days of the hearing (at [28]–[29]).

The proposed ACL claim

The proposed ACL claim alleged that Ms Fenton had represented to Mr Dakin at meetings in September and October 2024 that she would not pursue repayment of the $7.5 million debt and would discharge the security. It was alleged this was a “future representation” within s 4 of the ACL and that Ms Fenton did not have reasonable grounds for making it. Mr and Mrs Bellizzi were alleged to have aided, abetted, counselled or procured Ms Fenton’s contravention of s 18 of the ACL (at [19]–[23]).

4. Analysis of the Court’s Reasoning

The colourability finding

Wigney J was “satisfied that the proposed ACL claim by ICC Group Peakhurst is colourable” (at [25]). His Honour’s reasoning rested on two mutually reinforcing strands.

First, the chronology. The events underlying the proposed ACL claim occurred in September and October 2024. The defamation proceeding was commenced nearly a year later, on the last day of the limitation period. No reference to any ACL claim was made at that time. The proposed amendments emerged only after the respondents challenged jurisdiction and only days before the hearing of their dismissal application. The solicitor’s explanation — that it had only recently become apparent that the loss extended to ICC Peakhurst — was described as “scarcely a plausible or credible explanation” (at [30]–[32]).

Second, the pleading deficiencies. Wigney J identified three fundamental problems with the proposed ACL claim (at [33]–[36]):

(a) No reasonable grounds for the representation. The central allegation was that Ms Fenton’s promise not to pursue the debt was a “future representation” made without reasonable grounds. But the only particulars were that Ms Fenton subsequently took steps to recover the debt. As Wigney J observed, a promise which is not performed is not thereby rendered misleading: Fubilan Catering Services Ltd (Incorporated in PNG) v Compass Group (Australia) Pty Ltd [2008] FCAFC 53 at [91]. Nor is a representation about a future event made misleading simply because a contrary decision was later made: Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 81 FCR 475 at [521] (at [34]).

(b) No basis for accessorial liability. The claim required proof that Mr and Mrs Bellizzi encouraged or assisted Ms Fenton to make the representation and knew she lacked reasonable grounds. The proposed pleading made no such allegation. The particulars of involvement included that the Bellizzis knew about the property sale, made defamatory statements at the dinner, and intended to receive a rocking horse and Ms Fenton’s dogs (at [23], [35]).

(c) No intelligible case on loss. The loss alleged — decreased rental income and staff resignations — could not sensibly be said to flow from the alleged misleading representation or any reliance upon it (at [24], [36]).

Wigney J concluded that the claim’s defects were “such that it could fairly be said to amount to little more than legal nonsense” and that the manifest hopelessness of the pleading provided “further support for the powerful inference that is otherwise available from the chronology of events” (at [37]).

Alternative basis: summary dismissal

His Honour added that, even if the ACL claim were not colourable, he would have refused leave to amend because the claim would have been liable to summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) or to be struck out under r 16.21 of the Federal Court Rules 2011 (Cth) as frivolous, vexatious, or failing to disclose a reasonable cause of action (at [38]).

Serious harm

While it was unnecessary to reach a concluded view, Wigney J indicated that there was “considerable merit” in the respondents’ contention that the defamation pleading failed to plead the threshold element of serious harm under s 10A. His Honour observed that “comments made at a dinner, albeit heckling comments during a speech, are the very sort of defamation cases that are meant to be excluded by the threshold requirement” (at [39]).

5. Assessing the Consequences

The consequences for Mr Dakin were severe. His defamation claim was dismissed without ever being determined on the merits. He was ordered to pay the respondents’ costs on an indemnity basis.

Indemnity costs

Wigney J identified three bases supporting the indemnity costs order (at [41]–[42]). First, the application for leave to amend had no prospects of success. Second, the chronology revealed unreasonable conduct in the prosecution of the litigation. Third, the respondents’ solicitors had sent a Calderbank letter (Calderbank v Calderbank [1975] 3 All ER 333) offering to resolve the matter on the basis that the proceeding be dismissed with no order as to costs. Mr Dakin did not respond to that offer.

Lost cause of action

Because the defamation proceeding was commenced on what was effectively the last day of the limitation period under s 14B of the Limitation Act 1969 (NSW), dismissal for want of jurisdiction almost certainly extinguished Mr Dakin’s ability to bring fresh proceedings in the correct forum. While the judgment does not address this point, any new filing in the Supreme Court of New South Wales would face an immediate limitation defence.

6. Worked Example

Consider the following hypothetical. A Melbourne-based consultant, Ms Kapoor, discovers that a former business partner, Mr Webb, made defamatory statements about her at a private industry function in Melbourne attended by 60 people. The statements alleged that Ms Kapoor had engaged in fraudulent billing practices. Ms Kapoor instructs solicitors and wishes to commence proceedings in the Federal Court, believing that the Court’s case management practices will produce a quicker resolution.

Analysis from Ms Kapoor’s perspective

The first question is jurisdictional. The alleged defamatory statements were made exclusively in Victoria. They were not published in the ACT or NT. Applying the authorities cited in Dakin at [12], the Federal Court has no jurisdiction under s 9(3) of the Cross-vesting Act. Ms Kapoor’s solicitors must advise her that the correct forum is the Supreme Court of Victoria (or, depending on the quantum claimed, the County Court).

If Ms Kapoor’s solicitors were to suggest adding a federal claim — for example, that Mr Webb’s statements also constituted misleading or deceptive conduct under s 18 of the ACL in the course of “trade or commerce” — they would need to be satisfied that such a claim was genuinely raised and not colourable. Following Dakin, a court would scrutinise the timing of the proposed amendment and the quality of the pleading. If the ACL claim emerged only after a jurisdictional challenge, and if it suffered from pleading deficiencies similar to those identified in Dakin (no adequate factual foundation, no intelligible case on loss), the claim would be at serious risk of being found colourable.

Analysis from Mr Webb’s perspective

Mr Webb’s solicitors should, at the earliest opportunity, write to Ms Kapoor’s solicitors identifying the jurisdictional deficiency, just as the Bellizzis’ solicitors did in Dakin. If no satisfactory response is received, an interlocutory application for dismissal should be filed promptly. A Calderbank letter offering dismissal with no order as to costs creates an additional basis for indemnity costs if the applicant unreasonably persists.

If the applicant then attempts to introduce a federal claim, Mr Webb’s solicitors should oppose the amendment and argue colourability, pointing to the timing of the amendment and any deficiencies in the proposed pleading. The framework in Dakin at [25]–[37] provides a clear roadmap for such an argument.

7. Practitioner Guidance: A Step-by-Step Framework

Step 1: Identify where publication occurred. Before commencing any defamation proceeding, ascertain every jurisdiction in which the allegedly defamatory matter was published. If publication occurred exclusively in one state (and not in the ACT or NT), Dakin confirms that the Federal Court has no standalone jurisdiction under s 9(3) of the Cross-vesting Act (at [12]).

Step 2: Select the correct forum. Where publication occurred exclusively in a single state, the proceeding must be commenced in the courts of that state. If publication can be shown to have occurred in the ACT or NT (including online publication accessible in those territories), the Federal Court may have jurisdiction under s 9(3).

Step 3: Be mindful of limitation periods. Under s 14B of the Limitation Act 1969 (NSW) and equivalent provisions in other jurisdictions, the limitation period for defamation is one year from the date of publication. Filing in the wrong court does not stop time running. In Dakin, proceedings were commenced on what was effectively the last day of the limitation period (at [26]). Dismissal for want of jurisdiction almost certainly extinguished the cause of action entirely.

Step 4: Do not graft on federal claims to manufacture jurisdiction. If a jurisdictional deficiency is identified after proceedings have been commenced, the temptation to introduce a federal claim (such as an ACL claim) to attract accrued jurisdiction should be resisted unless the claim is genuinely raised and properly pleaded. Following Dakin, the Court will scrutinise both the timing of the proposed amendment and the quality of the pleading. A claim introduced only after a jurisdictional challenge, and which suffers from fundamental pleading deficiencies, will be treated as colourable (at [25]–[37]).

Step 5: If acting for the respondent, challenge jurisdiction early. Write to the applicant’s solicitors identifying the jurisdictional deficiency as soon as the proceeding is served. If no satisfactory response is received, file an interlocutory application for dismissal promptly. The earlier the challenge is raised, the stronger the inference of colourability if the applicant later attempts to introduce a federal claim (at [27]–[30]).

Step 6: Deploy a Calderbank letter. Before the hearing of a dismissal application, consider sending a Calderbank letter offering to resolve the matter on terms more favourable to the applicant than the likely outcome (for example, dismissal with no order as to costs). An unreasonable failure to accept such an offer provides an independent basis for indemnity costs (at [41]).

Step 7: Plead serious harm with specificity. The serious harm threshold under s 10A is an essential element that must be supported by pleaded material facts. Bare assertions of “serious damage, harm, distress and embarrassment” without supporting particulars are insufficient. Wigney J’s observations at [39] suggest that statements made at a private dinner to a limited audience may face particular difficulty in satisfying the threshold.

The Evidentiary Threshold for Reopening Before the State Administrative Tribunal

An Analysis of Satterley Property Group Pty Ltd and Western Australian Planning Commission [2026] WASAT 39

1.  Introduction

On 23 April 2026, the State Administrative Tribunal of Western Australia delivered its decision in Satterley Property Group Pty Ltd and Western Australian Planning Commission [2026] WASAT 39 (Satterley). The Tribunal, constituted by Judge H Jackson (Deputy President) and Mr R Povey (Member), refused an application by Satterley Property Group Pty Ltd to reopen its case after the hearing had concluded and the decision had been reserved.

The decision warrants close attention from practitioners who appear before the SAT and analogous tribunals across Australia. While the Tribunal’s power to permit a party to reopen its case was confirmed as “undoubted”, the decision articulates a substantive threshold that goes well beyond the mere identification of a new argument or legal mechanism. The core principle is that an application to reopen must demonstrate that the new material would actually assist the Tribunal to reach the correct and preferable decision — not merely that it raises an interesting theoretical possibility.

The significance of the decision lies in the Tribunal’s insistence upon a distinction between a promising idea and a properly developed proposal supported by evidence. Satterley’s application proposed to file supplementary submissions identifying a survey-strata subdivision as an alternative mechanism for enforcing vegetation management obligations, but without any supporting evidence. The Tribunal held that submissions alone, unaccompanied by evidence addressing the practical feasibility of the proposal, were insufficient to justify reopening a complex proceeding that had been heard over seventeen days.

The decision is of particular relevance to planning, environment and resources practitioners, but its principles apply wherever an applicant seeks to reopen before the SAT. It is also instructive for practitioners advising clients at the pre-hearing stage, as it reinforces the expectation that parties will present all of their evidence and submissions at the hearing.

2.  Relevant Legal Framework

2.1  The SAT Act and the Power to Reopen

The State Administrative Tribunal Act 2004 (WA) (SAT Act) does not expressly confer a power to allow a party to reopen its case. However, as the Tribunal noted at [17], previous iterations of the Tribunal have proceeded on the basis that such a power exists, citing Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2 and Adam and Di Giacomo [2017] WASAT 126.

The statutory basis for the power was identified in Legal Profession Complaints Committee and a Legal Practitioner [2013] WASAT 34, where the Tribunal described the power as “undoubted” and located its source in ss 32(5) and 34(1) of the SAT Act. Section 32(5) empowers the Tribunal to determine “the practice and procedure” to be applied, while s 34(1) permits the giving of “directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding”. The Tribunal in Satterley agreed with that analysis (at [18]).

The discretionary framework is informed by the Tribunal’s statutory objectives of fairness, expedition and informality in s 9 and the obligation of procedural fairness in s 32(1), which are consistent with the broad procedural power in s 34(1) (at [19]).

2.2  The Westgem Principles

The Tribunal endorsed the approach of the courts to applications to reopen a party’s case in judicial proceedings, following Re Confidential and Commissioner of Taxation [2013] AATA 382; 61 AAR 293 (at [132]), which held that such principles “provide a useful guide” because “broadly, they are founded in the notion of fairness or natural justice” (at [21]).

Central to the analysis was the decision of Tottle J in Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310 (Westgem). His Honour identified the overriding principle as whether “the justice of the case favours the grant of leave” (at [63]), and set out seven considerations relevant to an application to reopen where the decision has been reserved but not determined and the purpose is to overcome an error by a party’s lawyers (at [89]):

(a)   the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;

(b)   the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;

(c)   the significance of any proposed new evidence and submissions in the context of the trial;

(d)   the explanation for the evidence not having been led at the trial;

(e)   the likely prejudice to the opposing party if the application is allowed;

(f)    the potential detriment to the applying party if the application is refused; and

(g)   any delay by an applicant in seeking leave to reopen.

The Tribunal accepted these principles as applicable to the SAT, subject to the observation that they must be read in the context of the relevant provisions of the SAT Act (at [21]–[23]).

3.  The Facts of the Case

3.1  The Proposed Structure Plan and the Bushfire Issue

The proceeding concerned Satterley’s application for review of the WAPC’s refusal to approve a proposed Structure Plan for a site that could “reasonably be described as ‘extraordinary’” (at [45]). The site covered 534 hectares, proposed 1,001 lots to accommodate approximately 2,803 people, included two schools, and was anticipated to be staged over more than 15 years. Central to the refusal was whether the development could proceed in a manner such that the risk to people and property from bushfire was acceptable (at [2]).

Satterley’s proposed Structure Plan included a Bushfire Management Plan (BMP) that required certain vegetation to be managed and maintained in a “low threat state” (at [3]). Both the 2024 BMP and the updated 2025 BMP identified the need for a landscape management plan at subdivision stage that would detail responsibilities and provide “an appropriate means of enforcement for the ongoing management of vegetation across the site, especially APZs and low threat vegetation on private land and POS” (at [28]–[30]).

The WAPC had long considered this approach inadequate. Its Statement of Issues, Facts and Contentions contended that the critical assumption — that certain parts of the Structure Plan area would be modified to a low threat state and maintained in that state in perpetuity — was “unjustified and inappropriate” (at [31]).

3.2  The Hearing and the Enforceability Issue

The proceeding was heard over 17 days commencing in September 2025, with final closing submissions made on 11 December 2025 (at [5]). The enforceability of obligations to maintain vegetation in a low threat state was a live issue throughout. Satterley’s witness, Mr Rowe, proposed methods including restrictive covenants on title (at [32]). The WAPC’s witness, Mr Parker, considered that a landscape management plan should be prepared to support the proposed Structure Plan (at [33]). The issue was the subject of expert conferral and cross-examination (at [35]–[36]).

3.3  The Application to Reopen

On 27 February 2026, Satterley applied for leave to reopen its case to file supplementary submissions identifying an “alternate mechanism”: subdivision of private lots as a survey-strata scheme under the Strata Titles Act 1985 (WA), rather than by freehold subdivision (at [7]–[10]). The draft submissions relied on three benefits of the strata mechanism: first, that strata by-laws can impose positive obligations on owners; secondly, that enforcement occurs in the Tribunal rather than the Supreme Court; and thirdly, that enforcement can be initiated by the strata company or individual owners, not just individual lot owners (at [41]).

Mr McGlue, Satterley’s solicitor, deposed that the idea arose the day after closing submissions when he discussed the matter with a partner at his firm with expertise in strata matters (at [38]). The delay between 12 December 2025 and the 27 February 2026 application was explained by the need to consider the matter, discuss with counsel, take instructions, and the intervening Christmas period (at [39]).

Critically, Satterley’s position was that, if leave were granted, it would simply file the draft submissions without calling any evidence (at [13]–[14]).

4.  Analysis of the Tribunal’s Reasoning

4.1  The Primary Ground: Submissions Without Evidence Cannot Assist

The Tribunal’s primary reason for refusing leave was that the proposed supplementary submissions, standing alone, would be “insufficient to allow us to make the finding which, if leave were granted, Satterley says it would press upon us” — namely, that “a survey-strata subdivision approach would be appropriate in the circumstances” (at [43]). The Tribunal held that before it could reach such a conclusion, it would need evidence as to whether such an approach was “otherwise suitable in the circumstances of this case” (at [44]).

This reasoning establishes a clear principle: an application to reopen must do more than identify a new legal mechanism. The party must demonstrate that it can place before the Tribunal material sufficient to allow the Tribunal to act upon it. The Tribunal drew a firm distinction between a proposition that is legally possible (“there is nothing in the relevant planning regime — statutory and policy — that precludes it”: at [47]) and one that is practically feasible and evidentially supported.

4.2  The Extraordinary Nature of the Proposal

The Tribunal emphasised the extraordinary scale of both the Structure Plan and the proposed survey-strata mechanism. A survey-strata subdivision covering 534 hectares, 1,001 lots, two schools, and a development staged over 15 years was described as “equally extraordinary” (at [46]) and “appears to be unprecedented” (at [47]). This context heightened the evidentiary burden: the more novel and ambitious the proposal, the more the Tribunal required by way of evidence to satisfy itself that the approach was workable.

4.3  The WAPC’s Unanswered Questions

The Tribunal accepted that the questions raised by the WAPC in its written submissions “raise matters of a nature that should be properly considered” before the Tribunal could reach the conclusion Satterley urged (at [49]). Those questions included whether a single or multiple survey-strata schemes were proposed, how they would interact, whether it was practical over a 15-year staging period, what would be included (particularly roads and open space), how common property would be funded and insured, and whether the proposal was consistent with the Strata Titles Act and planning policy (at [48]).

The Tribunal observed that the survey-strata approach, while it might overcome difficulties with restrictive covenants, “may well raise other difficulties which, at present, remain unidentified or unexplored” (at [50]). Satterley’s proposed approach “does not acknowledge, let alone address, that possibility” (at [51]).

4.4  The Obligation to Put Forward a Considered Proposal

At [57], the Tribunal articulated the standard that applies: the applicant must “put forward a considered proposal, one that fleshes out and explains what is proposed and how it will work, against relevant planning policies”. Where matters are not agreed and are significant, this “will also require the calling of witnesses to express opinions which are explained and to answer questions posed by others”. This passage is likely to be cited frequently in future applications to reopen.

4.5  The Secondary Grounds

The Tribunal also considered the Westgem factors. It accepted Mr McGlue’s explanation of the delay but observed that it was “surprising” that alternative enforcement mechanisms had not received more thorough consideration given “the history of the matter and the significance of the issue” (at [63]). Satterley “was aware of the Issue for a long time, is not without resources, and has been legally represented throughout the proceeding” (at [64]).

The public interest in efficient litigation and finality both weighed against reopening (at [66]). As to prejudice, the Intervenor (Save Perth Hills) noted the “very considerable interest of its members in the prompt resolution of the matter” and that further evidence would cause delay “measured in months, not weeks” (at [68]).

5.  Assessing the Consequences

The practical consequences of the decision are significant for the parties and for future applicants.

For Satterley, the refusal means that the Tribunal will determine the proceeding on the evidence and submissions as they stood at the close of the hearing on 11 December 2025. The survey-strata mechanism will not be considered. If the Tribunal ultimately finds that the enforceability of vegetation management obligations is a critical deficiency in the proposed Structure Plan, Satterley will bear the consequences of not having raised the survey-strata alternative during the hearing.

The decision also illustrates the cost of a “wait and see” approach to evidence preparation. The 17-day hearing, involving multiple experts and extensive conferral, represented a substantial investment of time and resources by all parties. The Tribunal’s refusal to reopen underscores that such investment carries with it an expectation of finality. As the Tribunal observed, the other parties were “entitled to proceed on the basis that Satterley’s case will be as outlined in its SIFC and the witness statements of its experts, and that it will not be necessary to come back for a ‘second bite of the cherry’” (at [65]).

The temporal cost of reopening was also a factor. The Intervenor’s submission that further evidence would cause delay measured in months, not weeks, was accepted (at [68]). In complex planning proceedings where community interests are engaged, the delay occasioned by reopening is not merely a matter of inconvenience but engages the statutory objective of expedition.

6.  Worked Example

Consider a hypothetical applicant, Greenfield Developments Pty Ltd, which seeks review of the WAPC’s refusal to approve a structure plan for a 200-hectare residential development in a bushfire-prone area. The hearing is conducted over eight days and the decision is reserved. During the hearing, Greenfield’s case was that bushfire risk could be managed through a combination of building standards and landscaping obligations enforced by the local government under local planning policies.

Two weeks after closing submissions, Greenfield’s solicitor identifies a recent amendment to the relevant local planning scheme that introduces a Special Control Area with enforceable conditions directly relevant to vegetation management. Greenfield wishes to reopen to file submissions relying on the new provision.

Analysis from Greenfield’s perspective

Greenfield’s application would be strengthened, relative to Satterley’s, if it were to: (a) tender evidence from a planning witness explaining how the Special Control Area provisions would operate in practice on the specific site; (b) demonstrate that the new provisions address the specific enforceability concerns raised during the hearing; and (c) address any new issues that the mechanism might raise. Applying the principles in Satterley, Greenfield must put forward a “considered proposal” (at [57]) — not merely identify the new provision and submit that it solves the problem.

Analysis from the respondent’s perspective

The WAPC would be entitled to point to the Westgem factors: the public interest in finality, the expectation that Greenfield would present its full case at the hearing, and the delay that reopening would occasion. The WAPC could further argue that the Special Control Area amendment was publicly notified before the hearing and Greenfield’s failure to identify it reflects inadequate preparation, engaging the principle that parties are “entitled to proceed on the basis that [the applicant’s] case will be as outlined in its SIFC” (at [65]).

Likely outcome

If Greenfield proposes to call evidence and can demonstrate that the Special Control Area provision materially changes the analysis on a contested issue, the application has reasonable prospects. If, however, Greenfield merely proposes to file submissions without evidence — as Satterley did — the application is likely to fail. The distinction drawn in Satterley between a promising idea and a considered, evidence-supported proposal is the critical dividing line.

7.  Practitioner Guidance: A Step-by-Step Framework

Step 1.  Identify the new material and assess its significance.  Before applying to reopen, the practitioner must identify precisely what new evidence or submissions are proposed and assess their significance “in the context of the trial” (Westgem at [89](c)). The new material must be capable of making a material difference to the Tribunal’s determination. A new argument that merely repackages existing submissions in different form is unlikely to satisfy this threshold.

Step 2.  Prepare the evidence, not just the submissions.  The core lesson of Satterley is that identifying a new legal mechanism is not enough. The Tribunal required evidence as to whether the survey-strata approach was “otherwise suitable in the circumstances of this case” (at [44]). Practitioners must ensure that any application to reopen is accompanied by evidence that addresses the feasibility and practicality of the proposal, not merely its theoretical availability.

Step 3.  Anticipate and address objections.  The Tribunal found it significant that the WAPC’s questions were left unanswered by Satterley’s proposed submissions (at [49]–[51]). Practitioners should identify the questions that the new material will provoke and ensure that the evidence addresses them. A proposal that “does not acknowledge, let alone address” the difficulties it may create (at [51]) will not satisfy the threshold.

Step 4.  Provide a frank explanation for the omission.  The explanation for the evidence not having been led at the hearing is a relevant factor (Westgem at [89](d)). In Satterley, the Tribunal accepted Mr McGlue’s explanation but observed that it was “surprising” that alternatives had not been more thoroughly considered given the significance of the issue and the resources available to Satterley (at [63]–[64]). Practitioners should be candid in their explanation and avoid overstating the novelty of the omitted material.

Step 5.  Act promptly.  Delay weighs against the grant of leave (Westgem at [89](g)). While the Tribunal in Satterley did not treat the delay as determinative, it accepted that some criticism could be made (at [62]). Practitioners should apply to reopen as soon as reasonably practicable and document the reasons for any intervening delay.

Step 6.  Consider the impact on other parties.  The likely prejudice to opposing parties and interested parties is relevant (Westgem at [89](e)). In Satterley, the Intervenor’s submission that further evidence would cause delay “measured in months, not weeks” was accepted (at [68]). Practitioners should be prepared to explain how the reopening can be accommodated without disproportionate delay or prejudice.

Step 7.  Frame the application in terms of the correct and preferable decision.  The Tribunal’s overriding concern was whether granting leave would “assist us in seeking to reach the correct and preferable decision” (at [59]). Practitioners should frame the application in those terms, demonstrating that the new material is not merely helpful to the applicant but necessary for the Tribunal to discharge its statutory function.

8.  Evidence and Arguments Available to Each Side

8.1  For the Party Seeking to Reopen

The party seeking to reopen should consider the following evidence and arguments:

Expert evidence on feasibility.  The absence of expert evidence was fatal to Satterley’s application. A party seeking to reopen should tender expert evidence that addresses not only the theoretical availability of the new mechanism but its practical suitability in the specific circumstances. In a planning context, this might include town planning evidence, engineering evidence, legal evidence on the operation of the proposed mechanism, and financial evidence on its implementation costs.

Evidence addressing objections.  The new evidence should pre-emptively address the questions likely to be raised by opposing parties. In Satterley, the WAPC raised detailed questions about the operation of the survey-strata mechanism (at [48]) that Satterley’s submissions did not answer. A well-prepared application would address these questions in advance.

Submissions on procedural fairness.  The applicant can argue that the Tribunal’s statutory obligation of procedural fairness (s 32(1) SAT Act) and its obligation to reach the “correct and preferable decision” favour permitting the new material. The applicant should emphasise any change in circumstances or new information that was not reasonably available before the hearing closed.

8.2  For the Party Opposing Reopening

Finality and efficiency.  The responding party can invoke the public interest in the finality of litigation and the expectation that litigants will present their full case at the hearing (Westgem at [89](a)–(b)). Where the applicant is well-resourced and has been legally represented throughout, the argument carries particular force (at [64]).

Insufficiency of the proposed material.  Following Satterley, the responding party can argue that the proposed new material is insufficient to assist the Tribunal. If the applicant proposes submissions without evidence, the respondent can point to [43]–[44] of the decision and submit that the threshold has not been met.

Prejudice and delay.  The responding party should quantify the likely delay and its impact. In Satterley, the submission that delay would be “measured in months, not weeks” was effective (at [68]). If the new material would require the opposing party to call responsive evidence, the costs and disruption of doing so are relevant.

Second bite of the cherry.  Where the omitted material relates to an issue that was squarely in contest during the hearing, the respondent can argue that the applicant is seeking a “second bite of the cherry” (at [65]) and that the other parties were entitled to rely on the finality of the hearing as conducted.

9.  Key Takeaways for Legal Practice

1.  The power to reopen is confirmed but its exercise is restrained.  The Tribunal confirmed that it has power to allow a party to reopen, sourced in ss 32(5) and 34(1) of the SAT Act. However, the power is to be exercised in accordance with the statutory objectives of fairness, expedition, and the principles identified in Westgem (at [17]–[23]).

2.  Submissions without evidence will generally be insufficient.  The most significant principle in the decision is that an application to reopen supported only by submissions, without accompanying evidence, is unlikely to succeed where the new proposal raises factual questions about feasibility and suitability (at [43]–[44]).

3.  The applicant must put forward a “considered proposal”.  The new material must “flesh out and explain what is proposed and how it will work” against relevant policies and frameworks. A bare identification of a theoretical mechanism is not sufficient (at [57]).

4.  Novelty heightens the evidentiary burden.  Where the proposed new approach is unprecedented or extraordinary, the Tribunal will require correspondingly more rigorous evidence to satisfy itself that it is workable (at [45]–[47]).

5.  A new mechanism may solve one problem but create others.  The Tribunal cautioned that while a survey-strata approach might overcome the difficulties with restrictive covenants, it “may well raise other difficulties which, at present, remain unidentified or unexplored” (at [50]). Practitioners must address the full implications of any new proposal.

6.  Well-resourced, represented parties face a higher expectation.  The Tribunal’s observation that Satterley “was aware of the Issue for a long time, is not without resources, and has been legally represented throughout” (at [64]) suggests that the standard of preparation expected of well-funded litigants is higher. The failure to identify alternatives at the hearing stage is more difficult to excuse.

7.  The interests of third parties are relevant.  The Intervenor’s submission regarding the impact on its members and the likely delay was accepted (at [68]). Practitioners should be alert to the interests of intervenors, interested parties, and the broader community when assessing the prospects of an application to reopen.

8.  Pre-hearing preparation is the primary safeguard.  The decision reinforces the fundamental principle that thorough preparation before and during the hearing is the most effective protection against the need to reopen. The expectation that parties will present “all their evidence and submissions at the one hearing” (Westgem at [89](b)) is not merely a procedural preference but a principle grounded in fairness and the public interest.

9.  The SAT will apply court-derived principles, adapted to its statutory context.  The Tribunal’s adoption of the Westgem factors, subject to the SAT Act, confirms that practitioners can look to court authority for guidance on reopening applications, while recognising that the Tribunal’s statutory objectives may modulate their application (at [20]–[22]).

Proving Your Costs Were Incurred: The Evidentiary Threshold for Costs Applications in the State Administrative Tribunal

An Analysis of Kaur and The Owners of Code Strata Plan 58103 [2026] WASAT 40

1. Introduction

In Kaur and The Owners of Code Strata Plan 58103 [2026] WASAT 40 (Kaur), the State Administrative Tribunal dismissed a costs application by the successful respondent strata company. The decision, delivered on 15 April 2026 by Member Oldfield and Sessional Member Smith, turned on a deceptively simple point: the strata company had lodged a clear and well-expressed schedule of costs, but had failed to adduce any evidence that those costs were actually incurred.

The decision warrants attention from practitioners who appear before the Tribunal because it provides a sharp illustration of a principle that is sometimes overlooked in costs applications: that the onus lies on the party seeking costs not merely to quantify the costs claimed, but to prove, by way of evidence, that the costs were in fact incurred. Submissions, however detailed, do not constitute evidence. The decision also addresses the distinct question of whether an unrepresented party’s failure to challenge a costs claim can be treated as an implied admission – the Tribunal held that it cannot, at least where the unrepresented party does not demonstrate a sound understanding of the applicable legal principles.

This article analyses the decision in Kaur, situates it within the broader framework of costs jurisprudence in the Tribunal, and provides practical guidance for practitioners preparing costs applications. The contrasting treatment of costs in Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) (Ebtash) – one of the authorities cited in Kaur – is examined as an example of the evidentiary standard that a successful costs application must meet.

2. Relevant Legal Framework

The starting point for costs in the Tribunal is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides that each party is to bear their own costs unless otherwise specified. Section 87(2) confers a discretionary power on the Tribunal to order that one party pay all or a portion of another party’s costs.

The guiding principles applicable to costs applications, as summarised by the Tribunal in Kaur at [5], are well established. The onus is on the party seeking costs to satisfy the Tribunal that it is fair and reasonable to make an award of costs in all the circumstances. The rationale for a costs order is compensatory, not punitive: it exists to compensate or reimburse a party for costs incurred. The presumptions regarding costs which apply in court proceedings – including the general rule that costs follow the event – do not apply in Tribunal proceedings. Where there is a genuine dispute, parties should expect to bear their own costs unless the circumstances otherwise justify an order. A party’s failure to succeed does not, of itself, mean the party has acted contrary to the Tribunal’s statutory objectives.

These principles have been articulated and applied in numerous decisions, but the specific evidentiary requirement – that costs must be proved to have been incurred – was most clearly stated in Ebtash at [143]–[144]. In that decision, President Pritchard observed that the Tribunal must be satisfied that the costs claimed are reasonable and necessary, and that in respect of disbursements, the Tribunal “must know what disbursements have been incurred – a disbursement is unlikely to be allowed without an appropriate invoice being produced” (at [144]).

It is against this framework that Kaur must be understood. The principle that costs must be evidenced – not merely asserted – is not novel. What Kaur contributes is a practical demonstration of the consequences when that evidentiary step is omitted entirely.

3. The Facts of the Case

The substantive proceedings concerned an application by Dr Harjit Kaur under the Strata Titles Act 1985 (WA). The respondent was The Owners of Code Strata Plan 58103 (the Strata Company), which was legally represented by Taylor Smart. Dr Kaur was unrepresented throughout the proceedings (at [9]). The substantive decision was delivered orally on 19 February 2026 and was not published as at the date of these reasons (footnote 1). The Strata Company was entirely successful in defending Dr Kaur’s application (at [6]).

Following its success, the Strata Company applied for costs. The costs application was determined on the documents, without a hearing (at [3]). The material before the Tribunal comprised the Strata Company’s submissions lodged on 5 March 2026, Dr Kaur’s submissions lodged on 2 April 2026, and the Tribunal’s records of the proceedings (at [3]).

The Strata Company’s schedule of costs was described by the Tribunal as “clear and well expressed” (at [6]). However, the Strata Company lodged only submissions in support of its claim; it did not lodge any evidence – such as invoices, receipts, or an affidavit from its solicitors – supporting the schedule of costs (at [8]).

Dr Kaur did not explicitly agree that the costs had been incurred, nor did she specifically oppose the application on the basis that costs had not been proved. The Tribunal observed, however, that Dr Kaur’s submissions demonstrated she did not possess “a sound understanding of the applicable legal principles” (at [9]).

4. Analysis of the Tribunal’s Reasoning

The Tribunal’s reasoning proceeds in two steps, each of which merits analysis.

The evidentiary gap

The Tribunal first identified the fundamental deficiency in the Strata Company’s application: the absence of evidence. At [7], the Tribunal stated that “because costs are in the nature of compensation or reimbursement, it is necessary there be satisfactory evidence that the costs were in fact incurred.” The Tribunal cited Ebtash at [143]–[144] and Panegyres at [415] as authorities for this proposition.

This is the critical passage. The Tribunal drew a clear distinction between a schedule of costs (which quantifies the claim) and evidence of costs (which proves the claim). The Strata Company’s schedule, however clear, was a submission – an assertion of what was owed. Without supporting evidence – invoices, a solicitor’s affidavit, fee agreements, or trust account records – the Tribunal had no basis upon which to be satisfied that the costs were actually incurred.

At [8], the Tribunal put the point bluntly: “the strata company lodged only submissions, and submissions do not constitute evidence.”

The unrepresented party’s silence

The second limb of the reasoning addressed whether the Tribunal could treat Dr Kaur’s failure to challenge the quantum as an agreed fact. The Tribunal held that it could not, for two reasons. First, Dr Kaur did not explicitly agree (at [9]). Secondly, the Tribunal declined to treat her failure to oppose the application on the specific basis that costs had not been proved as an implied admission, because Dr Kaur was not legally represented and her submissions demonstrated a lack of understanding of the applicable legal principles (at [9]).

This reasoning reflects a broader principle of procedural fairness in Tribunal proceedings. The Tribunal was careful not to attribute forensic sophistication to an unrepresented litigant. It would be unfair to infer that Dr Kaur’s silence on a particular point constituted agreement, when her submissions as a whole revealed that she was not in a position to identify the evidentiary deficiency in the Strata Company’s application.

The combined effect of these two findings was decisive: the Tribunal had no evidence that the costs were incurred, and could not treat the absence of challenge as proof. The application was dismissed (at [10]–[11]).

5. Assessing the Consequences

The cost of the evidentiary omission

The practical consequence for the Strata Company was the loss of its entire costs claim. This is a stark outcome for a party that was entirely successful on the merits, and which had engaged solicitors to prepare what the Tribunal acknowledged was a clear and well-expressed schedule. The costs schedule presumably reflected fees that were in fact incurred – the Strata Company was represented by Taylor Smart throughout the proceedings. Yet the failure to take the elementary step of adducing evidence in support of the schedule was fatal.

The irony is that the evidentiary deficiency could have been remedied with relative ease. An affidavit from the solicitor with carriage of the matter, annexing copies of invoices rendered, would likely have been sufficient. The cost of preparing and filing such an affidavit would have been modest in comparison to the costs the Strata Company was seeking to recover.

Contrast with Ebtash

The contrast with the costs assessment in Ebtash is instructive. In that case, the Chiropractic Board of Australia sought costs of $233,899 (inclusive of disbursements and GST), ultimately recovering $178,500 (at [129], [201]–[202]). The Board supported its costs application with an affidavit from its solicitor, Ms M Naylor, dated 28 October 2020, annexing copies of all accounts rendered (at [129]). This enabled the Tribunal to undertake a detailed assessment of each item claimed, allowing or adjusting hours for each category of work. The evidentiary foundation was never in doubt; the only questions were reasonableness and necessity.

The juxtaposition is revealing. In Ebtash, evidence was adduced and costs were recovered. In Kaur, no evidence was adduced and costs were refused entirely. The merits of the underlying substantive proceeding and the quality of the costs schedule were irrelevant in the absence of proof that the costs were incurred.

6. Worked Example

Consider the following hypothetical scenario. ABC Pty Ltd successfully defends a building dispute application brought by a homeowner in the Tribunal. The dispute ran for two days and involved a jointly appointed expert. ABC’s solicitors incurred fees of $18,500 (exclusive of GST) and disbursements of $4,200, comprising the expert’s fee and filing costs.

Scenario A: The Kaur approach

ABC’s solicitors file written submissions in support of a costs application. The submissions set out the legal principles, describe the work undertaken, and attach a schedule of costs itemising the fees and disbursements claimed. No affidavit is filed. No invoices are annexed.

On the reasoning in Kaur, the Tribunal would likely dismiss the application. The schedule of costs, however detailed, constitutes submissions rather than evidence. The Tribunal cannot be satisfied that the costs were in fact incurred, and accordingly has no basis upon which to make an order.

Scenario B: The Ebtash approach

ABC’s solicitors file the same written submissions, but also file an affidavit from the solicitor with carriage of the matter. The affidavit deposes that ABC has been invoiced for the fees and disbursements particularised in the schedule, and annexes copies of each invoice. The affidavit also annexes copies of the expert’s invoice and receipt for the filing fee.

On this basis, the Tribunal has evidence that the costs were incurred. The inquiry shifts to whether the costs are reasonable and necessary – the familiar territory of costs assessment. The Tribunal may allow the full amount claimed or may reduce individual items, but the application will not fail for want of proof.

Analysis

The difference between the two scenarios is not the quantum of the claim or the merits of the underlying proceeding, but the presence or absence of evidence. The additional cost of preparing the affidavit and assembling the annexures in Scenario B would be modest – perhaps one to two hours of solicitor time. The failure to take that step in Scenario A forfeits the entire claim.

7. Practitioner Guidance: A Step-by-Step Framework

The following steps are derived from the principles stated in Kaur and Ebtash, and are intended to assist practitioners preparing costs applications in the Tribunal.

1.      Step 1: Identify the evidentiary foundation before drafting submissions

Before preparing written submissions in support of a costs application, identify the evidence that will be relied upon to prove the costs were incurred. This is the threshold question: without evidence, the application will fail regardless of the strength of the underlying submissions (Kaur at [8], [10]).

2.      Step 2: Prepare a solicitor’s affidavit

File an affidavit from the solicitor with carriage of the matter. The affidavit should depose to the total fees invoiced, the total disbursements incurred, and the fact that these costs were incurred in connection with the proceedings. The affidavit serves as the evidentiary bridge between the schedule of costs and the Tribunal’s assessment. In Ebtash, the affidavit of Ms Naylor provided this foundation (at [129]).

3.      Step 3: Annex all relevant invoices and receipts

Annex copies of all invoices rendered by the solicitors and, where applicable, counsel. Annex receipts or invoices for disbursements. In Ebtash at [144], the Tribunal stated that “a disbursement is unlikely to be allowed without an appropriate invoice being produced.” This applies equally to professional fees: the invoice is the primary evidence that the cost was incurred.

4.      Step 4: Prepare a detailed schedule of costs

The schedule should itemise the work undertaken, the time spent, the applicable rate, and the total for each category. In Ebtash, the Tribunal assessed costs item by item (at [157]–[199]), which was only possible because the Board had provided a sufficiently detailed breakdown.

5.      Step 5: Address reasonableness and necessity in submissions

Written submissions should address why each category of work was reasonable and necessary. Anticipate likely objections – for example, whether the time claimed for a particular task is proportionate, or whether it was necessary to brief counsel. In Ebtash, the Tribunal assessed each item against these criteria and reduced or allowed hours accordingly.

6.      Step 6: Do not assume silence is consent

Do not rely on the opposing party’s failure to challenge the quantum as an implied admission, particularly where the opposing party is unrepresented. The Tribunal in Kaur at [9] expressly declined to draw that inference. Practitioners should proceed on the basis that the Tribunal will require proof, irrespective of whether the opposing party engages with the application.

7.      Step 7: Consider the applicable rate

Be aware of the rates allowed under the applicable Costs Determination. In Ebtash at [145], the Tribunal adopted a blended rate of $368.50 per hour for non-counsel legal work, having regard to the two scales applicable over the period and the seniority of the practitioners involved. Practitioners should justify any departure from the Determination rates.

8. Evidence and Arguments Available to Each Side

The party seeking costs

A party applying for costs should assemble the following evidence and arguments:

Evidence of costs incurred. An affidavit from the solicitor with carriage deposing to the fees invoiced and disbursements paid, annexing copies of all invoices and receipts. This is the minimum evidentiary requirement identified in Kaur at [7]–[8] and Ebtash at [143]–[144].

A detailed schedule of costs. The schedule should be organised by category of work (e.g., preparation, interlocutory attendances, hearing, submissions) with time, rates, and totals for each. The schedule in Ebtash was organised into 22 items, each assessed separately by the Tribunal.

Submissions on reasonableness and necessity. Address why the costs claimed were reasonable and necessary having regard to the nature and complexity of the proceedings. Refer to the applicable Costs Determination to demonstrate that the rates charged are within, or proximate to, the Determination rates.

Submissions on the conduct of the opposing party. If relevant, identify any conduct by the opposing party that impaired the Tribunal’s statutory objectives (Kaur at [5](e)). However, be mindful that a party’s failure to succeed does not, of itself, justify a costs order (Kaur at [5](f)).

The party resisting costs

Challenge the evidentiary basis. If the applicant has failed to adduce evidence that costs were incurred, submit that the application must fail for want of proof, relying on Kaur at [7]–[10].

Invoke the presumption against costs. Emphasise that s 87(1) of the SAT Act provides that each party is to bear their own costs. Costs orders in the Tribunal are the exception, not the rule, and the onus lies on the party seeking costs to justify a departure from the default position.

Challenge reasonableness and necessity. If evidence of costs has been adduced, challenge the reasonableness or necessity of specific items. In Ebtash, Dr Ebtash challenged numerous items and argued that the Board had conducted the proceedings in a way that incurred disproportionate costs (at [139], [192]). Although most items were allowed, the Tribunal did reduce some categories.

Submit that the dispute was genuine. Where the dispute was genuine and the losing party’s position was reasonably arguable, submit that the parties should bear their own costs in accordance with the Tribunal’s general approach (Kaur at [5](d)).

9. Key Takeaways for Legal Practice

1.      Submissions are not evidence. A schedule of costs, however detailed and well-expressed, is a submission. It does not prove that the costs were incurred. Practitioners must adduce separate evidence – typically an affidavit annexing invoices – to establish the evidentiary foundation for a costs application (Kaur at [8]).

2.      The onus is on the party seeking costs. The Tribunal will not make a costs order in the absence of a sufficient evidentiary basis. The onus does not shift to the opposing party to disprove the claim; rather, the applicant must affirmatively prove it (Kaur at [5](a), [7]).

3.      An unrepresented party’s silence does not constitute agreement. The Tribunal will not treat a self-represented litigant’s failure to challenge quantum as an implied admission, particularly where the litigant’s submissions reveal a limited understanding of the applicable principles (Kaur at [9]).

4.      The compensatory rationale demands proof. Because costs orders are compensatory rather than punitive, the Tribunal must be satisfied that the costs claimed were actually incurred. A party cannot be “compensated” for costs it has not proved it incurred (Kaur at [5](b), [7]).

5.      Disbursements require invoices. A disbursement is unlikely to be allowed without production of an appropriate invoice (Ebtash at [144]). This principle extends naturally to all categories of costs: the Tribunal needs documentary proof.

6.      The Ebtash costs assessment provides a model. Practitioners preparing costs applications should study the Tribunal’s item-by-item assessment in Ebtash at [157]–[199] as a model for the level of detail and evidentiary support that a successful costs application requires.

7.      Success on the merits is necessary but not sufficient. The Strata Company in Kaur was entirely successful in defending the application. Its schedule was clear. Yet its costs application was dismissed. Success on the merits creates the opportunity for a costs application; it does not discharge the evidentiary burden.

8.      The cost of proving costs is modest. The evidentiary deficiency in Kaur could have been remedied with an affidavit and annexed invoices – a task that would have required one to two hours of solicitor time. The cost of not doing so was the loss of the entire costs claim.

9.      Adopt a robust but evidence-based approach. The Tribunal takes a “robust and broad-brush approach” to costs assessment (Ebtash at [134]) and does not descend into an inquiry into small items. However, that approach presupposes that there is evidence to assess. The broad-brush cannot paint without paint.

10. Conclusion

Kaur is a brief decision, but its practical significance should not be underestimated. It stands as a clear reminder that costs applications in the Tribunal require evidence, not merely argument. The distinction between submissions and evidence is fundamental – and the consequences of overlooking it are absolute.

The decision also carries a broader systemic message. In a jurisdiction where costs do not follow the event and where each party is presumed to bear its own costs, the evidentiary burden on the party seeking costs is not a mere formality. It reflects the Tribunal’s principled approach to costs: that no order should be made unless the Tribunal is satisfied, on the evidence, that it is fair and reasonable to do so.

Practitioners appearing before the Tribunal should treat the evidentiary requirements for costs applications with the same rigour they bring to the substantive proceeding. An affidavit, a set of invoices, and a detailed schedule are the minimum requirements. Without them, even the most meritorious costs application may fail – as the Strata Company in Kaur discovered.

Affidavits, Implied Waiver and the Act of Reading: Subject-Matter Disclosure of Privileged Communications in Modern Civil Litigation

An Analysis of Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37

1. Introduction

The Full Federal Court’s decision in Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37 (Perram, Wheelahan and McElwaine JJ) addresses two questions of significant practical consequence for the conduct of civil litigation in the Federal Court of Australia and, by force of its general reasoning, in any superior court applying the common law of implied waiver of legal professional privilege. The judgment was delivered on 30 March 2026 on the dismissal of an appeal from Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043.

The first question is whether the doctrine of implied waiver at common law is confined to cases where a privilege holder expressly or impliedly makes an assertion about the content of a privileged communication, or whether it extends to cases where the privilege holder makes positive assertions about a subject-matter and, by so doing, lays open to scrutiny privileged communications on that subject-matter. The Court held that the unifying principle in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 is one of inconsistency informed by considerations of fairness, and that content-based waiver is an illustrative category of application of that principle, not the principle itself: at [65].

The second question concerns the timing of implied waiver in the context of affidavits filed before trial. The Court resolved what had previously been regarded as an unsettled area by holding that the filing of an affidavit is capable of effecting an implied waiver of privilege over antecedent privileged communications from the moment at which pre-trial production of documents is ordered, and that the waiver is not deferred until the affidavit is read at trial: at [110], [129]. In reaching that conclusion, the Court drew on the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) and the obligations of the parties under s 37N.

Underlying both questions is the distinct concept of what it means to “read” an affidavit for the purposes of s 47 of the Federal Court of Australia Act. The Court’s analysis at [103] draws the conventional distinction — familiar to advocates — between the swearing of an affidavit (which is not the giving of evidence), the filing of an affidavit (which is a procedural step), and the reading of an affidavit (which is the act by which the testimony is adduced). That distinction is not merely formal. After Mastercard, the moment at which an affidavit is read has diminished significance for the question of when implied waiver takes effect over antecedent documents, because a party that files an affidavit of evidence under case management orders, and on which discovery orders are framed, is subject to the inconsistency principle in Mann v Carnell from the point of production.

The decision will be of particular interest to practitioners acting in civil penalty proceedings, commercial and regulatory disputes, and any litigation in which the state of mind, purpose or intention of a party is in issue and where contemporaneous legal advice is likely to have been received. It will also be of interest to advocates concerned with the strategic use of affidavit evidence and with the occasion on which objection is to be taken to pre-trial production orders.

2. Relevant Legal Framework

(a) The inconsistency principle in Mann v Carnell

The governing authority remains Mann v Carnell, where Gleeson CJ, Gaudron, Gummow and Callinan JJ identified at [29] that what brings about waiver is “the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large”. That formulation remains the touchstone. The difficulty for practitioners has always been how to apply it — in particular, whether inconsistency requires a disclosure of the content of the communication, or whether something less may suffice.

(b) The content-of-communications line

A line of authority has emphasised the making of express or implied assertions about the content of privileged communications as the paradigm case of implied waiver. In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at [52], the Full Court (Kenny, Stone and Edmonds JJ) stated that “where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence”. That passage has been cited in Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [26] – [28], New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [58], and in the New South Wales Court of Appeal’s decisions in Council of Bar Association (NSW) v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 and GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [55], [57].

(c) The broader subject-matter line

A separate line of authority had recognised that the inconsistency principle may be engaged even where no assertion about the content of a privileged communication is made. In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 at [58], Allsop J (as his Honour then was) described waiver as arising where “the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny”. That formulation distinguishes content-based waiver from subject-matter waiver. The “state of mind” cases — pleas of reliance, undue influence and mistake — illustrate the second category: Commonwealth of Australia v Temwood Holdings Pty Ltd [2002] WASC 107 at [10]; Thomason v Municipality of Campbelltown (1939) 39 SR (NSW) 347. So too Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101, where disclosure of the “gist” or conclusion of legal advice was held to amount to waiver.

The most directly relevant authority prior to the Mastercard appeal was Grocon Group Holdings Pty Ltd v Infrastructure NSW (No 2) [2023] NSWSC 1144, where Ball J found implied waiver in circumstances where the in-house General Counsel of Grocon gave evidence of views he had formed on particular matters, yet privilege was claimed over the communications recording those views. His Honour held at [37] that it was “inconsistent for [the witness] both to express a view on a particular matter ... and to assert that communications recording his views on those matters remain confidential”, notwithstanding that the relevant communications may have consisted of legal advice. The tension between Grocon and the content-of-communications line underpinned the Mastercard appeal.

(d) Waiver and affidavits filed before trial

The status of affidavits filed before trial has been the subject of conflicting authority. The English cases following General Accident Fire and Life Assurance Corporation Ltd v Tanter (The Zephyr) [1984] 1 WLR 100 (Hobhouse J) and Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp (No 2) [1981] Com LR 138 (Mustill J) treated “deployment in court” as the critical act for waiver over associated documents. That formulation has itself been the subject of detailed criticism in England: see In re Konigsberg (a Bankrupt) [1989] 1 WLR 1257 at 1264; R v Secretary of State for Transport; Ex p Factortame Ltd (Discovery) (1997) 9 Admin LR 591 (Auld LJ); Vista Maritime Inc v Sesa Goa [1997] CLC 1600 (Mance J); Re Yurov [2022] EWHC 2112 (Ch) at [39].

In Australia, two sub-lines emerged. The first held that waiver of privilege in an affidavit itself — its own contents — occurs upon filing: Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88; (2008) 246 ALR 137 at [16] (Gordon J); affirmed in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547 at [37], [83], [95] and [103]; Stuart v Rabobank Australia Ltd [2017] FCA 284 at [15]. The second held that waiver of privilege over antecedent or “associated” documents did not arise until the affidavit was read at trial, often on the rationale that service under court order was compulsion of law: Sevic v Roarty (1998) 44 NSWLR 287 (Powell JA); Akins v Abigroup Ltd (1998) 43 NSWLR 539; Waugh Asset Management Pty Ltd v Lynch [2010] NSWSC 197 (McDougall J); Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994 (Sackar J); Anbu v Vulcanite Pty Limited [2015] FCA 283; (2015) 324 ALR 303; Archer Capital 4A Pty Ltd v Sage Group PLC (No 3) [2013] FCA 1160; (2013) 306 ALR 414. In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [22] – [24] the Full Court had already signalled doubt about Sevic and Akins.

(e) Proof by affidavit under s 47 of the Federal Court of Australia Act

Subsection 47(3) of the Federal Court of Australia Act 1976 (Cth) authorises proof by affidavit at the trial of a civil cause where a direction is made. An affidavit is “a written form of testimony that is sworn or affirmed before a person authorised to witness the affidavit”: Impiombato v BHP Group Ltd [2025] FCAFC 9; (2025) 308 FCR 250 at [139] (Lee J); Hua Wang Bank Berhad v Commissioner of Taxation (No 15) [2013] FCA 1124; (2013) 217 FCR 26 at [11] (Perram J). Proof is given by affidavit when the affidavit is read to the Court; usually the formal reading is dispensed with and affidavits are “taken as read”. The mere swearing is not the giving of evidence; affidavit evidence is given at trial when the affidavit is used in accordance with the practice of the Court.

(f) The overarching purpose and modern case management

Section 37M of the Federal Court of Australia Act identifies the overarching purpose of the civil practice and procedure provisions as the facilitation of the just resolution of disputes “according to law ... as quickly, inexpensively and efficiently as possible”. Section 37N obliges the parties (and their lawyers) to conduct the proceeding in a way consistent with that purpose. The Court’s Central Practice Note: National Court Framework and Case Management (CPN-1) records at [11.1] the entitlement of the parties to know, with sufficient notice and clarity, the evidence upon which the other parties intend to rely. These provisions form the backdrop against which the Court assessed Mastercard’s conduct in serving and maintaining the affidavits of Mr Koh and Mr Molu.

3. The Facts of the Case

(a) The proceeding

The Australian Competition and Consumer Commission (ACCC) contends in civil penalty proceedings that Mastercard Asia/Pacific Pte Ltd (Mastercard Singapore) and Mastercard Asia/Pacific (Australia) Pty Ltd (Mastercard Australia) contravened ss 45(1), 46(1) and 47(1) of the Competition and Consumer Act 2010 (Cth): at [1]. The proceeding is listed for an eight-week trial commencing on 13 April 2026.

(b) The ACCC’s case on purpose

The ACCC alleges that Mastercard, in 2017, developed a “credit leverage strategy” intended to discourage merchants from utilising the Eftpos payment network provided by Eftpos Payments Australia Ltd (EPAL): at [4]. The strategy involved signing merchants to strategic merchant agreements (SMAs) with Mastercard Singapore. The SMAs offered incentives, including lower interchange rates on credit card transactions, conditional on the merchant routing its dual-network debit card transactions through Mastercard. The ACCC’s case is that a substantial purpose of the strategy and the SMAs was to substantially lessen competition in the market for the supply of debit card acceptance services: at [4] – [5]. The purpose of the strategy is described by the primary judge as “perhaps the central issue in the case”.

(c) Mastercard’s defence

Mastercard denies any anti-competitive purpose and positively alleges that, in entering into any particular SMA, it sought ends that varied by merchant. These included furthering Mastercard’s retail strategy, meeting merchant expectations, competing with other payment schemes (including Visa, Eftpos and American Express), competing with Eftpos for dual-network debit card volume, and assisting Mastercard Singapore to balance interchange debit and credit rates: at [7]. Mastercard pleads that its conduct was “legitimate and pro-competitive”.

(d) The affidavits in issue

Mastercard served affidavits from two senior officers of Mastercard Singapore who were involved in the approval of the SMAs. Mr Richard Koh Wee Keong, Vice President, Finance, filed an affidavit on 25 August 2023. Mr Naushaza (Bobby) Molu, the former Chief Financial Officer, filed an affidavit on 8 September 2023.

The critical passages of Mr Koh’s affidavit included: at [24], the statement that offering lower interchange rates on credit “in order to prevent or discourage merchants from routing debit transactions through eftpos” “formed no part of my thinking and nobody ever suggested anything along those lines to me”; at [34], that at no stage did anyone from Mastercard Australia or Mastercard Singapore indicate such a strategy was being pursued or that it was the purpose in negotiating or approving SMAs; and at [35], that he understood that the purpose of the strategic agreements was to “increase the use of Mastercard cards”: summarised by the Full Court at [68].

Mr Molu’s affidavit similarly deposed, at [39], that the alleged strategy to prevent or foreclose Eftpos from competing for debit transactions “was not a strategy of Mastercard Australia or Mastercard Singapore”; that he did not recall any discussions to the effect that SMAs could hinder Eftpos’s ability to compete; and, at [43], that he “never tried to ‘lock out’ ... eftpos” and expected Eftpos to continue to compete. At [68] Mr Molu referred to “internal discussions” having resulted in a “position ... reached internally that these deals were acceptable”: summarised at [70].

(e) The privilege and discovery dispute

Mastercard made discovery of documents by list, organised by agreed categories. It claimed legal professional privilege over a subset: at [39]. The ACCC applied for an order that Mastercard produce for inspection all documents constituting or recording communications to which Mr Koh or Mr Molu was a party that recorded or referred to the strategy or purpose of Mastercard in offering, negotiating, approving or entering SMAs. The ACCC relied on implied waiver. After the primary judge’s orders, Mastercard identified 60 potentially relevant documents, which ultimately reduced to 10 discrete emails: at [39], [93].

(f) The decision of the primary judge

The primary judge (ACCC v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043) granted production orders in the terms ultimately set out at paragraph [91] of the Full Court’s reasons. His Honour found that the affidavits contained express or implied assertions about the contents of communications with other Mastercard officers, including in-house counsel, and that those assertions laid the communications open to scrutiny in a way that was inconsistent with the maintenance of the privilege: PJ [54], [74]. His Honour did not accept the full extent of the waiver contended for by the ACCC and narrowed the scope to communications on the “strategy or purpose” subject-matter: PJ [79] – [80]. The primary judge also rejected Mastercard’s submission that waiver could arise only upon the reading of the affidavits at trial, distinguishing his own earlier reasoning in Archer Capital as applicable to unsigned statements of intended evidence: PJ [78].

(g) The appeal

Leave to appeal was granted on 20 October 2025. Mastercard advanced three grounds: first, that the primary judge had misunderstood the applicable principle and required an assertion about the content of a privileged communication; second, that the primary judge had erred in finding any such assertion on the evidence; and third, that any waiver could not operate before the affidavits were read at trial. Each ground was rejected and the appeal was dismissed with costs: at [131].

4. Analysis of the Court’s Reasoning

(a) The inconsistency principle is unified

The critical proposition of law, stated by the Full Court at [65], is that there is “but one principle” identified in Mann v Carnell — the principle of inconsistency between the conduct of the privilege holder and the maintenance of the privilege. Decided cases are illustrative of the application of the principle, not exhaustive categories.

Mastercard had submitted that Rio Tinto at [52] stated the exclusive test: implied waiver required an express or implied assertion about the contents of the privileged communication. The Full Court at [47] analysed Rio Tinto and held that the Court there had gone no further than extracting a summary principle illustrative of the cases considered. Particular reliance was placed on the further statement in Rio Tinto at [61] that the governing principle “required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence”, which picks up Allsop J’s broader formulation in DSE at [58] encompassing conduct that “necessarily lays open the confidential communication to scrutiny”.

The Full Court also analysed Macquarie Bank Ltd v Arup Pty Ltd (distinguished at [49] – [52] as a state of mind case on pleaded representations), New South Wales v Betfair Pty Ltd (distinguished at [53] on its facts concerning the Office of Parliamentary Counsel), Council of Bar Association (NSW) v Archer (the relevant passage at [48] of that decision was explained at [54] – [55] as illustrative rather than exhaustive), and GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd (at [56] – [59], where Macfarlan JA at [57] of the Court of Appeal’s reasons had said that the content inquiry “assists” rather than dictates). None of those authorities supported the submission that an express or implied assertion about the content of a privileged communication is necessary to establish waiver.

Subject-matter waiver is confirmed at [65] – [66] as a legitimate species of the inconsistency principle. The Full Court endorsed Grocon, describing it as “illustrative of the application of the fact specific evaluative assessment that is necessary to reach a conclusion conformably with the inconsistency analysis required by Mann v Carnell”: at [65]. Where a privilege holder “puts in issue a subject-matter by making positive assertions whilst maintaining that communications on the subject-matter remain confidential”, the inconsistency principle is engaged: at [66].

(b) Application to Mr Koh’s affidavit

The Full Court’s reasoning at [75] – [80] analyses Mr Koh’s evidence in context. The Court rejected Mastercard’s submission that Mr Koh’s consultation with in-house counsel (including Mr Teong Lee Chuah) in the drafting of the Strategic Merchant Interchange Rates paper (SMR Paper) revealed only the fact of legal advice, not its content. At [76] the Court observed that the submission failed to address “the subject-matter inquiry”. The effect of Mr Koh’s evidence was that “at no time” was he aware of any strategy to use the SMAs to prevent or hinder competitive conduct by Eftpos, and “at no stage” did anyone from Mastercard indicate that that was their purpose. Those statements, read with the balance of Mr Koh’s affidavit, were implied assertions about the content of communications with all officers of Mastercard in the relevant period: at [78].

At [79] the Court illustrated the point by reference to an internal email of 10 April 2017, sent and copied by Mr Koh (with an internal lawyer copied in), in which Mr Koh had asked whether it was “acceptable to provide the SM1 rate in return for commercial commitments ... Is there any restriction?”. The reply was redacted on privilege grounds. The Court observed that “it is clearly unfair to withhold from scrutiny by the ACCC the response to Mr Koh’s question”: at [80].

(c) Application to Mr Molu’s affidavit

The Full Court at [86] – [89] analysed Mr Molu’s evidence similarly. His affidavit exhibited an email from Mr Peter Slater of 19 November 2019 that referred to an SMA as having “a legal stamp on it” and as having been “reviewed and approved by legal”. The affidavit also exhibited an email chain with Mr Chuah, much of which was redacted on privilege grounds. Mastercard’s submission that the references revealed only the fact of legal sign-off, not the content of any advice, was rejected at [89]: by positively asserting that no proposal or discussion involved preventing Eftpos from competing, Mr Molu made express or implied assertions about the purpose subject-matter and “laid the confidential communications open to scrutiny”.

(d) The scope of the orders

The Court addressed at [90] – [94] the submission that the orders made by the primary judge were too broad. After reviewing the form of the orders — which limited production to documents created between August 2017 and November 2020, recording communications to which Mr Koh or Mr Molu was a party, and that recorded or referred to the strategy or purpose of Mastercard Australia or Mastercard Singapore in offering, negotiating, approving or entering SMAs — the Court held at [93] that the waiver was “not confined to a subset of communications concerned with any anti-competitive purpose”. It extended to the purpose of the strategy and the SMAs as Mastercard pleaded in its defence. Once Mastercard’s review had been applied, the orders resolved to 10 discrete emails.

(e) The timing question

The Court’s treatment of Ground 3 at [95] – [130] deserves close reading. The Court distinguished two issues at [106]: first, whether the filing of an affidavit effects a waiver of privilege over its own contents (to which the answer is yes); and secondly, whether the filing of an affidavit is capable of effecting an implied waiver of privilege over other communications (to which the answer is also yes, and at a point earlier than the reading at trial).

As to the first issue, the Court at [107] agreed with the reasoning of Gordon J in Cadbury v Amcor at [16], supported by the Full Court’s decision in ACCC v Cadbury at [37], [83], [95] and [103]. The filing of an affidavit is inconsistent with the maintenance of confidentiality in its contents and amounts to waiver under Mann v Carnell. It is irrelevant that the affidavit was filed pursuant to a court order: the content was within the control of the party (ACCC v Cadbury at [43]). Mastercard abandoned a contrary submission in oral argument.

As to the second issue, the Court’s reasoning at [108] – [129] warrants particular attention. The Court framed the question at [110]: “whether, for the purposes of discovery and the pre-trial production of discovered documents, Mastercard waived privilege at the point when production was ordered”. The answer is affirmative, and the reasoning combines common law with statutory context.

The Court began with the nature of the trial process (at [103]): evidence-in-chief was by affidavit; the testimony was constituted by the contents of the affidavits upon being read; the mere swearing is not the giving of evidence, and the usual practice is to dispense with formal reading and take affidavits as read. By filing the affidavits in accordance with the Court’s procedural orders, Mastercard “evinced an intention to open up at trial the issues that are the subject of the affidavits”: at [110].

Several features distinguished this proceeding from the unsigned witness statements considered in Archer Capital and Anbu: the evidence-in-chief was by sworn affidavit; discovery orders were framed by reference to paragraphs of the affidavits and to “Relevant Mastercard Representatives”; and the discovery order was made after the filing: at [105]. At [109] the Court noted this was not a situation where the evidence-in-chief was “merely foreshadowed by a witness statement”, which was the material distinction drawn in Archer Capital.

The Court rejected the relevance of the New South Wales cases on which Mastercard relied. Sevic v Roarty (Powell JA at 301) was inconsistent with ACCC v Cadbury at [43]: at [126]. Akins v Abigroup Ltd had been doubted in Liberty Funding at [22] – [24], and that doubt was “now ... elevated by Cadbury v Amcor and ACCC v Cadbury”: at [126]. Waugh Asset Management at [13] – [19], grounded in the “compulsion of law” analysis, could not stand with ACCC v Cadbury: at [127]. Australian Institute of Fitness had turned on the application of Akins, about which Sackar J himself had expressed concern at [45] – [46] of that decision: at [128].

The Court also drew on English developments at [114] – [122]. The restrictive “deployed in evidence” rule of The Zephyr had been criticised in In re Konigsberg at 1264, the Divisional Court in Factortame (Auld LJ), Vista Maritime (Mance J), and Re Yurov (Deputy Insolvency and Companies Court Judge Parfitt). The 14th edition of Phipson on Evidence at [20-37] describes the distinction between “evidence which is merely disclosed and that which is deployed in evidence” as “not a real or satisfactory one”. The Court’s endorsement of this line is significant for the harmonisation of Australian and English authority.

The statutory overlay reinforced the conclusion. At [110] the Court observed that the obligation on the parties under s 37N to conduct the proceeding consistently with the overarching purpose in s 37M “informs the evaluation of conduct that is alleged to be inconsistent with the maintenance of privilege in the relevant documents”. At [129] the Court concluded:

It would be antithetical to the proper case management framework of this Court to apply a principle that has the result that a party is not held to the consequences of the filing of its affidavits of evidence until the moment that they are read at trial. Such a course would have the consequence that the ACCC will not have knowledge of the contents of the relevant documents until it suits Mastercard tactically to call the witness and might be liable to lead to a disruption of the trial.

On the discretionary question whether Mastercard should be given the opportunity to consider which parts of the affidavits it would read — a question of practice and procedure governed by In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323 — Mastercard did not establish House v The King error: at [130].

(f) What it means to “read” an affidavit

The Court’s analysis at [103] proceeds on a clear conceptual distinction, drawn from Wigmore on Evidence (1972, 4th ed, Chadbourn Revision) at §1331 and from Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 at [37] (Brereton J), between the affidavit as a written form of testimony and the moment of adducing that testimony. The swearing is not the giving of evidence. The filing is a procedural step. The reading — in the Federal Court, now almost always by the practice of taking the affidavit as read — is the act that transforms the writing into evidence-in-chief.

After Mastercard, that traditional sequence retains its importance for the admissibility and testimonial character of the affidavit. For the purposes of s 47 of the Federal Court of Australia Act, proof is still given by reading. But for the question of when an implied waiver of privilege takes effect over antecedent documents, the Court has decoupled the inquiry from the act of reading. A party who files an affidavit under procedural orders, and who continues to rely on that affidavit in circumstances where discovery is ordered by reference to it, cannot defer the consequences of the filing to some later tactical moment. The waiver attaches, in those circumstances, at the time production is ordered: at [129].

5. Practical Consequences

The decision does not involve quantification in the damages sense but has systemic and tactical consequences for parties to civil litigation that deserve articulation.

(a) Reorientation of pre-trial conduct

The decision compels parties to treat the filing of affidavits of evidence as a significant formal step with immediate consequences for privilege. Practitioners who have been in the habit of filing affidavits shortly before trial, with a view to deciding at trial whether particular passages will be read, must recognise that that strategy will not defer the consequences of the filing if discovery orders are framed by reference to those affidavits: at [105], [110].

(b) Breadth of any waiver

The scope of any waiver will turn on the subject-matter put in issue. In Mastercard itself, the orders narrowed from broad categories to ten discrete emails, which demonstrates that a focused and well-drafted production order will not necessarily produce a flood of documents: at [93]. Nonetheless, the waiver extended to communications addressing the strategy or purpose in offering, negotiating, approving or entering the SMAs, which is the full purpose case pleaded by Mastercard in defence. Where the purpose case is pleaded broadly, the waiver is correspondingly broad.

(c) Strategic implications for regulators and applicants

A regulator or applicant may now apply for production orders framed by reference to affidavits filed by the respondent before the respondent reads those affidavits at trial. The application should be made at a stage when the affidavits have been filed in compliance with case management orders and when the subject-matter pleaded by the respondent is clear. The timing advances the point at which the applicant has sight of contemporaneous documents relevant to the respondent’s positive case.

(d) Strategic implications for the privilege holder

A respondent pleading a positive case on purpose or state of mind — and intending to rely on affidavits to make out that case — must undertake a forensic audit of its privilege claims before the affidavits are filed. The question is whether the affidavits, read in the context of the pleadings, will amount to positive assertions about a subject-matter, with the consequence that contemporaneous privileged communications on that subject-matter will be open to scrutiny.

(e) Case management and proportionality

The Court’s reliance on ss 37M and 37N to inform the inconsistency assessment will be noted in other Australian jurisdictions where similar overarching-purpose provisions apply, including the Civil Procedure Act 2010 (Vic), the Civil Procedure Act 2005 (NSW), and the equivalent provisions in the Rules of the Supreme Court of Western Australia. The Federal Court framework will, in consequence, shape waiver practice more broadly.

6. Worked Example

Consider a hypothetical defamation proceeding in the Federal Court of Australia. Polaris Media Pty Ltd publishes an online investigative article alleging that Mr Quinn, a prominent property developer, bribed a local councillor to secure favourable planning outcomes. Mr Quinn commences proceedings pleading imputations that he is corrupt and that he has paid public officials for favourable decisions.

Polaris pleads, in its defence, (i) substantial truth under s 25 of the Defamation Act 2005 (WA); (ii) statutory qualified privilege under s 30; and (iii) denies that the publication was actuated by malice, in answer to the defeasance pleaded in reply.

To sustain the s 30 defence, Polaris must establish that its conduct in publishing the matter was reasonable in the circumstances. It files an affidavit of Ms Reynolds, the editor who approved the article. Ms Reynolds deposes that (i) she caused extensive pre-publication inquiries to be made, including review of confidential source documents and a draft chronology; (ii) at the time of publication she genuinely believed, on reasonable grounds, that the allegations against Mr Quinn were substantially true and that their publication was in the public interest; (iii) she bore no ill-will toward Mr Quinn and was motivated only by a proper journalistic purpose; and (iv) the article was reviewed and “signed off” by Polaris’s in-house legal team before publication.

The affidavit is filed and served in accordance with the Court’s programming orders. Mr Quinn then applies under the Court’s discovery regime for production of pre-publication communications between Ms Reynolds, the editorial staff and Polaris’s in-house counsel bearing on the reasonableness of the publication and the strength of the allegations.

(a) Analysis for Mr Quinn (applicant)

The application engages Mastercard subject-matter waiver in three respects. First, Ms Reynolds’s positive assertion at (ii) of her affidavit that she held a belief, on reasonable grounds, that the allegations were substantially true is analogous to the positive “purpose” assertions of Mr Koh and Mr Molu in Mastercard at [78] and [89]: it carries an implied assertion about the content of the communications that informed that belief, including pre-publication legal and editorial advice. Secondly, her assertion at (iii) that she held no malice against Mr Quinn places her state of mind squarely in issue, consistently with the inconsistency analysis at [75] – [80]. Thirdly, the express reference at (iv) to pre-publication legal “sign-off” must be read with the rest of the affidavit: although the fact of advice does not of itself waive content, the combination of the sign-off statement with the positive reasonableness and belief case is capable of amounting to an implied assertion about what that advice said, by analogy with the 10 April 2017 email discussed at [79] of Mastercard.

(b) Analysis for Polaris (privilege holder)

Polaris’s task is to confine the scope of any waiver. It may submit that statement (iv) does no more than assert the fact that legal review occurred and imports no statement about the content of the advice: Mastercard at [44]; DSE at [58]. It may seek to narrow the subject-matter to the particular imputations pleaded — corruption and bribery — rather than the wider topic of reasonableness over the whole investigation. It may also press for preservation of privilege over advice directed to litigation risk, as distinct from editorial advice on the strength of the allegations. Under Mastercard, however, the scope of the waiver is likely to extend to the “reasonableness and basis of publication” subject-matter as pleaded in defence, not merely the narrower subset concerned with the specific imputations: at [93].

(c) Timing

Polaris’s anticipated submission — that it be permitted to elect, closer to trial, which passages of Ms Reynolds’s affidavit it will in fact read, having regard to the shape of cross-examination — is unlikely to succeed if the discovery application has been framed by reference to the affidavit and Polaris has offered no undertaking to abandon the relevant passages. On the Mastercard analysis at [129] – [130], waiver crystallises at the point at which production is ordered on the basis of the filed affidavits, not at the later moment of reading at trial. That result is reinforced in the defamation context by the case-management imperative to resolve disputes over sensitive communications between media organisations and their legal advisers at an early stage: ss 37M and 37N; Mastercard at [110].

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the Full Court’s reasoning and the principles in Mann v Carnell as applied in Mastercard.

Step 1: Audit the pleadings for positive purpose or state-of-mind cases.

Where a party pleads, in answer to an allegation of purpose or state of mind, a positive case that it had a different (lawful) purpose, the pleading itself is the starting point for the waiver analysis. The Court’s analysis at [93] makes clear that the subject-matter of any waiver will ordinarily extend to the full purpose case pleaded in defence.

Step 2: Identify the universe of contemporaneous legal-advice communications.

Before drafting affidavits, identify legal-advice communications from the relevant period that bear on the pleaded subject-matter. These are the communications at risk. The Mastercard discovery exercise ultimately reduced to ten emails, but the assessment must be performed against the full universe in the first instance.

Step 3: Draft affidavits with the subject-matter inquiry in mind.

Blanket denials of the kind “no-one ever told me X” or “I was not aware of any strategy” are particularly exposed to subject-matter waiver. The passages in Mr Koh’s and Mr Molu’s affidavits that drove the Full Court’s conclusion at [78] and [89] were precisely of this character.

Step 4: Distinguish the fact of advice from its content.

References to the fact that advice was obtained or that a document received “legal sign-off” will not of themselves amount to waiver of content: at [44], [88]. But the fact of advice cannot rescue evidence that, read in context, amounts to an implied assertion about the subject-matter: at [78].

Step 5: Consider the timing of affidavit filing relative to discovery orders.

Where the timetable permits, consider whether it is tactically preferable to finalise discovery (including the ambit of privilege claims) before filing affidavits of evidence. Once the affidavits are filed, the Court’s discovery orders may be framed by reference to them (as occurred at [105] of the Full Court’s reasons), and waiver attaches at the point of production.

Step 6: Assess the prospects of a partial reading or undertaking.

The Court at [130] applied In re the Will of F B Gilbert to the discretionary question whether Mastercard should be given an opportunity to withdraw passages of its affidavits. A party intending to preserve the possibility of reading only part of an affidavit must take that step early, and must give an undertaking if one is called for, or the opportunity will be lost.

Step 7: Anticipate that production orders will be framed by reference to the affidavits.

Under modern case management, the Court may direct discovery by categories cross-referenced to paragraphs of affidavits and to defined witnesses. Practitioners should be alive to this when opposing or consenting to case management orders and when proposing categories of discovery.

Step 8: Consider whether to narrow the pleaded purpose case.

A positive purpose case pleaded broadly will create the broadest waiver. If a respondent does not require the breadth of a pleaded positive purpose to resist the applicant’s case, there may be strategic value in narrowing the defence so as to reduce the scope of any subject-matter waiver: Mastercard at [93].

Step 9: Use ss 37M and 37N offensively as well as defensively.

An applicant seeking production orders may properly point to s 37N as supporting a timely resolution of waiver questions. A respondent who delays disclosure until trial risks contravention of s 37N. The Court’s analysis at [110] treats s 37N as part of the context against which inconsistency is assessed.

Step 10: Treat swearing, filing and reading as three distinct acts with different legal consequences.

The swearing is testimony in writing. The filing is a procedural step. The reading is the adduction of the testimony at trial. For admissibility and the testimonial character of the affidavit, the reading remains decisive: at [103]. For waiver over associated documents, the critical act under Mastercard is the filing (or, more precisely, the point at which production is ordered on the basis of the filed affidavits): at [110], [129].

8. Evidence and Arguments Available to Each Side

(a) Arguments available to the applicant or regulator

An applicant seeking to rely on Mastercard will likely deploy the following. First, the proposition at [65] that the inconsistency principle in Mann v Carnell is “but one principle”, with content-based waiver as an application rather than an exhaustive test. Secondly, the detailed analysis at [47] – [60] addressing each of the Full Federal Court and New South Wales Court of Appeal decisions on which a privilege holder is likely to rely, demonstrating that each is illustrative rather than exhaustive. Thirdly, the endorsement of Grocon at [65] – [66] as a paradigm case of subject-matter waiver, particularly where a senior officer (including an in-house General Counsel) gives evidence of views he or she has formed on topics about which privileged communications exist.

Fourthly, the analysis at [103] of the nature of affidavit testimony, and at [110] of the significance of filing in advance of discovery, together with the statutory overlay of ss 37M and 37N. Fifthly, the statement at [129] that it would be “antithetical to the proper case management framework” to defer waiver consequences until the affidavit is read at trial. Sixthly, the practical observation at [93] that a properly framed production order will not necessarily produce a flood of documents — in Mastercard itself, the orders ultimately resolved to ten discrete emails.

(b) Arguments available to the privilege holder

A privilege holder defending against a waiver application retains a number of arguments. First, the Full Court accepted at [44] that “mere reference to the fact of legal advice is unlikely to amount to disclosure of its content”. Careful drafting of affidavits to stay on the correct side of that line remains important.

Secondly, at [46] the Court accepted that “joining issue on the pleading is unlikely of itself sufficient” to waive privilege: DSE at [122]. A respondent who joins issue but does not plead a positive purpose or state of mind is less exposed.

Thirdly, where the applicant has framed its production application by reference to broad categories of documents, the respondent may still contest the scope: at [93] the Full Court emphasised that the scope of the waiver must be limited to the subject-matter asserted, and at [92] that the orders must reflect the extent of the implied waiver.

Fourthly, a respondent may submit that the evidence, properly construed, does not go beyond the fact of advice or the fact of consultation and does not open the subject-matter to scrutiny. Mastercard does not dispense with that analysis; it confirms that it is a fact-sensitive inquiry: at [43], [65].

Fifthly, at [130] the Court acknowledged the discretionary question. An early undertaking not to read offending passages, coupled with a timely application to withdraw them, may preserve the privilege in some cases, though the discretion will be informed by ss 37M and 37N.

Sixthly, where the affidavit is filed under genuine compulsion of law — and not merely pursuant to the Court’s case management orders — a respondent may argue that the compulsion-of-law line retains some residual application at common law. The Court’s analysis at [107] squarely rejects the proposition in the Federal Court context for affidavits filed in compliance with case management orders: the content is within the party’s control. Outside that context — for example, the production of an expert report for a different purpose — the analysis may differ, but the starting point is now clear.

9. Key Takeaways for Legal Practice

1. The inconsistency principle in Mann v Carnell is a single principle, fact-sensitive and evaluative. There are not two tests (content-based and subject-matter) but one, of which each is a species: at [65].

2. Content-based assertions remain the paradigm case of implied waiver, but they are not necessary. The principle extends to positive assertions about a subject-matter that lay open privileged communications on that subject-matter to scrutiny: at [66].

3. Grocon is endorsed. The decision of Ball J in Grocon Group Holdings Pty Ltd v Infrastructure NSW (No 2) [2023] NSWSC 1144 — in which evidence from an in-house General Counsel of views he had formed on particular matters was held to waive privilege over communications recording those views — has now been approved at Full Federal Court level: at [65] – [66].

4. Filing an affidavit waives privilege in its contents. This is confirmed by the line running through Cadbury v Amcor (Gordon J) and ACCC v Cadbury (Full Court) at [37], [83], [95] and [103]. The compulsion-of-law argument is no longer available for affidavits filed in compliance with Court case-management orders: Mastercard at [107].

5. Filing an affidavit is capable of effecting an implied waiver over antecedent documents at the moment of the production order, not only at the reading at trial. This resolves the long-standing tension between the Archer Capital / Anbu line and authorities such as Konigsberg and Factortame: Mastercard at [110], [129].

6. The Sevic and Akins line of New South Wales authority will not be followed in the Federal Court to the extent that it defers waiver over antecedent documents to the reading of the affidavit at trial: Mastercard at [126] – [128].

7. “Reading” an affidavit has a precise meaning. The testimony is constituted by the writing; proof is given when the affidavit is read (usually the formal reading is dispensed with and the affidavit is taken as read). For admissibility purposes, reading remains decisive. For implied waiver over associated documents, the filing is decisive: at [103], [110].

8. Sections 37M and 37N of the Federal Court of Australia Act inform the inconsistency assessment. Modern case management imposes an obligation on the parties to conduct a proceeding quickly, inexpensively and efficiently; that obligation is relevant to whether conduct is inconsistent with the maintenance of privilege: at [110], [129].

9. Discretionary relief from the consequences of waiver is narrow. A party seeking an opportunity to withdraw offending passages must act early and, where necessary, by undertaking. The discretion is reviewable only for House v The King error: at [130].

10. Affidavit drafting is a forensic exercise with privilege consequences. A broad denial such as “nobody ever suggested ...” or “at no stage did anyone within [the company] indicate to me ...” is a positive assertion about the contents of communications with the company’s personnel; where those personnel include in-house counsel, it is a short step to subject-matter waiver of privileged communications on the topic: at [78], [89].

11. The professional significance extends beyond competition law. Any proceeding in which a party pleads a positive purpose or state of mind — employment, misleading conduct, oppression, construction disputes, fiduciary litigation — is affected. The reasoning is expressly linked to the unified principle in Mann v Carnell and to the overarching purpose in the Federal Court of Australia Act, both of which operate at the level of general civil practice.

10. Conclusion

The Full Court’s decision in Mastercard v ACCC is important on the law of implied waiver and, equally, on the practice of civil litigation in the Federal Court. On the law, the decision confirms that there is a single inconsistency principle, of which content-based waiver is an application. Subject-matter waiver, where the privilege holder puts a topic in issue by positive assertion, is well within the principle.

On practice, the decision resolves the long-running tension about the timing of implied waiver in the context of affidavits filed in advance of trial. The Court has held that the filing of an affidavit, together with the making of discovery orders by reference to that affidavit, is the operative moment for waiver over antecedent privileged communications, informed by the statutory overarching purpose and the parties’ obligations under s 37N of the Federal Court of Australia Act. The “deployed in evidence” rubric of The Zephyr and Nea Karteria, and the Australian cases that followed it, are no longer reliable.

For practitioners, the central message is a practical one. The filing of an affidavit is no longer a neutral procedural step. It is an act with immediate legal consequences for privilege where the affidavit is deployed in support of a positive case on a subject-matter over which privileged communications exist. Affidavit drafting is now as much a forensic exercise about privilege as it is about evidence.

Proving the Reasonable Costs of Rate Recovery: The Evidentiary Burden on Local Governments under s 6.56 of the Local Government Act 1995 (WA)

An Analysis of Sowden v City of Stirling [2026] WADC 31

1. Introduction

The decision of Curwood DCJ in Sowden v City of Stirling [2026] WADC 31, delivered on 14 April 2026, is a significant appellate statement on the evidentiary requirements that a local government must satisfy to recover its legal costs from a ratepayer under s 6.56(1) of the Local Government Act 1995 (WA) (LGA). The appeal was brought by an unrepresented ratepayer, Dr Miles Sowden, against an award of $53,344 in legal costs made by the Perth Magistrates Court in proceedings in which the underlying debt in dispute was $1,899.68 in unpaid rates for the 2023/2024 financial year.

The decision is important for three audiences. First, it directs local governments — and the law practices that act for them in rate recovery work — to a rigorous, itemised evidentiary standard that must be met before costs on the scale awarded by the trial magistrate can be recovered. Second, it equips ratepayers and their advisers with a clear framework for challenging what they contend are excessive legal costs. Third, for civil litigators generally, the judgment is a useful restatement of first principles governing the assessment of reasonable costs, including proportionality, the indemnity rule, and the evidential dependency on itemised billing information.

The jurisdiction is Western Australia. The areas of practice affected are local government law, civil debt recovery in the Magistrates Court, and costs assessment. The decision warrants attention beyond the immediate parties because s 6.56 recoveries — and the cognate levy recovery under s 36Z(2) of the Fire and Emergency Services Act 1998 (WA) (FESA) — are run in substantial numbers each year by every local government in the State. The judgment exposes, and then cures, a systemic evidentiary shortcut that has until now been widely tolerated: the practice of using scale maxima or privileged tax invoices as proxies for proof of reasonable costs.

2. Relevant Legal Framework

2.1 The statutory right of recovery

Section 6.56(1) of the LGA provides that where a rate or service charge remains unpaid after it becomes due and payable, the local government may recover it, as well as the costs of proceedings, in a court of competent jurisdiction. A near-identical provision applies to Emergency Services Levy recoveries under s 36Z(2) of the FESA. Curwood DCJ uses the collective term "rates" to cover all three charges (at [9]–[10]).

The text of s 6.56(1) does not expressly qualify "the costs of proceedings" by a reasonableness requirement. That qualification was supplied by the Court of Appeal in Parker v City of Rockingham [2021] WASCA 120, where the Court construed the provision as permitting a local government to recover its legal costs only to the extent that it proves them to have been reasonably incurred and reasonable in amount (at [108]). Parker also confirms that the legal burden of proving reasonableness rests on the local government; there is no evidential onus on the ratepayer defendant to demonstrate unreasonableness (at [123]).

2.2 First principles of costs recovery

Curwood DCJ situates s 6.56(1) within the broader common law of costs. The starting position, derived from Cachia v Hanes (1994) 179 CLR 403, is that a costs award is a partial indemnity only — a compromise between no provision for costs and full recompense (at 415). In Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 the Court of Appeal of New South Wales confirmed that the purpose of a costs award is not to compensate the successful party in full, but only to enable the recovery of costs strictly necessary, proper or reasonable for the disposal of the litigation (at [36]).

Three further principles inform the concept of reasonableness. The "sensible solicitor" test in W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, 534–535 — cited with approval in City of Belmont v Saldanha [No 2] [2018] WASC 278 (Vaughan J) — asks whether the item was proper in the sense of what "a sensible solicitor sitting in his chair ... considers reasonable in the interests of his lay client". Gallagher v CSR Ltd (Unreported, WASC, Library No 940165, 31 March 1994) (Ipp J) introduces proportionality: the costs claimed must bear a reasonable relationship to the value of the subject matter. And the general party/party learning, summarised at [14] by reference to Zuckerman's Australian Civil Procedure (2nd ed, 2024) at pars 28.105–28.106, is that any doubt or uncertainty is resolved in favour of the paying party.

2.3 The state of the law before Sowden

Before Sowden, Parker had established the reasonableness requirement and the onus on the local government. What was left under-developed was the operational question: what, as a matter of evidence, must the local government actually lead at trial? Practice across the State had developed inconsistently. Some recoveries were run on the back of scale bills drafted by reference to the Magistrates Court Civil Scale; others on tendered tax invoices from which confidentiality or privilege prevented itemisation; others on generic witness evidence from a council officer who had no personal knowledge of the work performed. Sowden now supplies the missing operational content.

3. The Facts of the Case

3.1 The underlying debt

Dr Sowden was the sole registered proprietor of a residential property in Scarborough from 24 August 2022 (at [24], [30.2]). On 20 July 2023 the City of Stirling issued an annual rates notice for the 2023/2024 financial year in the sum of $1,899.68 (at [24], [30.4]). The rates were not paid. After internal escalation to the City's contracted debt collectors, ARMA, and a letter of demand dated 5 December 2023, the City's position was disputed by Dr Sowden, who asserted an entitlement to credit for historical payments (at [30.5]–[30.6]).

3.2 The Oakbridge phase

On 27 March 2024 the City engaged Oakbridge (lawyers), who commenced the City's general procedure claim on 7 May 2024 (at [30.8]–[30.9]). Oakbridge's total charges through to 10 March 2025 came to $2,992.41 exclusive of GST (at [30.13], [37]). As his Honour observed at [51], the Oakbridge evidence identified each specific task, the date it was performed, and the amount charged for it. Curwood DCJ accepted the entirety of the Oakbridge costs as reasonably incurred and reasonable in amount (at fn 16).

3.3 The MinterEllison phase

On 13 March 2025 the City replaced Oakbridge with MinterEllison (at [30.15]). MinterEllison provided an estimate of $32,000 to $38,000 plus GST for work including a without-prejudice settlement offer, briefing counsel, preparing and reviewing witness statements, preparing and reviewing submissions, and preparing for and attending the hearing (at [30.15]).

On 11 April 2025 — more than seven weeks before the trial — Dr Sowden paid the outstanding rates of $1,899.68 (at [2], [26]). On the same day MinterEllison wrote confirming the City would no longer seek penalty interest, and offering to settle for $3,218.40, being Oakbridge's charges through to 10 March 2025. Dr Sowden refused that offer (at [30.18]). From that point, the only issue remaining in the proceedings was the quantum of the City's reasonable costs (at [2]).

3.4 The trial evidence

At trial on 4 June 2025, the City's sole witness was Ms Chloe Fletcher, its Service Lead Rates and Receivables (at [30]). Her witness statement described the rates history and listed Oakbridge's itemised charges, but she had no personal knowledge of the work performed by MinterEllison or counsel after March 2025 (at [56(d)]).

Four MinterEllison tax invoices totalling $53,694.60 (exclusive of GST) were tendered as Exhibits 2 to 5 (at [31]). Because the City had not waived legal professional privilege in those invoices, they contained no itemisation of the work performed (at [32]). Two of the MinterEllison invoices contained ad-hoc "discounts" ($6,000 and $1,500) unexplained in evidence. The City supplemented the invoices with two scale-based schedules: an Annexure A to its submissions totalling $38,296 (work to 15 May 2025) and an MFI tendered at the hearing totalling $15,048 (work from 16 to 30 May 2025) (at [34]–[36]).

3.5 The magistrate's decision

The trial magistrate entered judgment for the City in the aggregate sum of $53,344, being the sum of the two schedules (at [3], [45]). Her Honour found that the City's engagement of two law firms was proper, that the excess over scale on two items was justified, and concluded that "the costs claimed were both reasonably incurred and reasonable in amount, as per Parker v City of Rockingham" (at [42]). Her Honour expressly rejected Dr Sowden's proportionality objection, noting that Dr Sowden "does not accept any responsibility for the costs of trial preparation increasing from 11 April as a result of his various emails, correspondence and his application to court" (at [43.1]).

4. Analysis of the Court's Reasoning

4.1 The two errors identified

Curwood DCJ identified two errors in the magistrate's approach. The first was that the award permitted recovery of costs for legal services which, in part, were unrelated to the recovery proceedings (at [6], [55.5]). His Honour pointed in particular to item 2 of the MFI schedule, which included $7,015 for "advising client including reading and relaying brief advice to client on defendant's complaints to complaints bodies and the Department of Local Government" — work which, on its face, was not costs of the rate recovery proceedings (at [38], [55.5]).

The second and broader error was the absence of any evidentiary foundation for assessing reasonableness. His Honour noted at [7] that the trial record contained no evidence of: (a) the hourly rates charged; (b) the practitioners who performed the work; (c) the nature of the composite tasks beyond general descriptions; or (d) whether any consideration had been given to duplication. In circumstances where the only issue at trial was the quantification of the City's costs, those omissions were fatal.

4.2 The assessment methodology — the seven factors

At [23], Curwood DCJ set out a non-exhaustive list of seven factors relevant to the assessment of reasonable costs under s 6.56. They are:

(a) the complexity of the factual and legal issues raised in the recovery proceedings;

(b) the work reasonably required by reference to those issues;

(c) the seniority and expertise of the practitioners engaged, including whether their fees were reasonable by reference to benchmark rates in any applicable scale determination;

(d) the number of hours reasonably required for the work that had to be carried out;

(e) duplication between practitioners where multiple practitioners performed tasks;

(f) proportionality — whether the costs bear a reasonable relationship to the value of the matter in dispute, read with the statutory purpose of s 6.56; and

(g) comparison of the amount charged with any applicable scale of costs.

Factor (c) imports the Zuckerman principle (par 28.135) that the reasonableness of engaging a particular practitioner is a function of the complexity and importance of the issues. The more complex the dispute, the more reasonable it is to engage a senior practitioner. The corollary — unspoken but essential — is that where the dispute is narrow and limited, engaging senior practitioners at top-of-market rates may itself be an error that renders the costs unreasonable in amount.

4.3 The privilege problem

His Honour offered a pragmatic path through the tension between legal professional privilege and the evidentiary burden. At [22] he identified three acceptable approaches. First, the local government may tender itemised invoices from its law practice. Second, where confidentiality or privilege prevents itemisation, it may tender a schedule outlining the work performed, the practitioner or paralegal who completed each discrete task, the time taken, and the hourly rate charged. Third, if the engagement was on a fixed-fee basis, that basis must be identified and proved.

What will not suffice is what the City put forward in Sowden: unitemised privileged invoices supplemented by a scale bill. A scale bill is a calculation construct, not primary evidence of time actually spent; it cannot bear the evidentiary weight that the City sought to place on it. As Curwood DCJ observed at [50], "in the absence of supporting evidence or analysis of how time was expended, whether by reference to hourly rates or some other methodology, it is difficult to be satisfied that the amount claimed was reasonable in amount".

4.4 The role of the Magistrates Court scale

The City had argued before the magistrate that the scale was not a cap, but that the scale maxima (allowing 50 hours at a senior practitioner rate on item 13) were reflective of reasonable amounts for the work in fact performed by MinterEllison between March and May 2025. Curwood DCJ held that to be "misplaced", and to the extent the magistrate accepted the submission, an error arose (at [52]). The scale is one comparator and one input into the assessment (factor (g) at [23]); it cannot substitute for evidence of the work actually undertaken.

5. Assessing the Consequences

The immediate consequence for the parties is a new trial before a different magistrate (at [58]). The City will have to elect: either waive privilege over the MinterEllison and counsel invoices, or prepare a non-privileged schedule of work conforming to [22]. Either course will require a level of preparation and disclosure that substantially exceeds what was done first time around.

The wider consequence is a shift in the economics of rate recovery litigation. The arithmetic is worth stating plainly. The underlying debt was $1,899.68. Oakbridge's costs to 10 March 2025 were $2,992.41. MinterEllison and counsel charged a further $53,694.60 between March and May 2025. Adding Oakbridge, total legal costs were $56,687.01 against a claim of $1,899.68 — a ratio of approximately 30:1. Against that background, the proportionality factor at [23(f)] cannot be dismissed as a mere "sense-check"; it assumes real analytical weight.

Two quantification points follow. The first is that costs will, in most ordinary rate recovery matters, be assessed by reference to time actually spent at reasonable hourly rates, with an overlay of proportionality. His Honour's emphasis on itemised time at [15]–[19] effectively recasts the s 6.56 assessment as a quasi-taxation exercise — informal in procedure but rigorous in content. The second is that unexplained discounts on tax invoices (as occurred here: $6,000 and $1,500) will not assist the local government. A discount is not evidence of reasonableness; it is merely evidence of billing practice. The court cannot tell, without underlying timesheet data, whether the discounted sum remains excessive.

6. Worked Example

Consider the following hypothetical. The Shire of Mondura issues a 2025/2026 rates notice to a ratepayer, Ms Tran, for $2,450. After a letter of demand and a refusal to pay, the Shire's solicitors commence a general procedure claim in the Magistrates Court. Ms Tran files a defence disputing her liability on the basis that she says the property is in her late father's estate. The claim is defended. On the morning of trial Ms Tran pays the rates. The only issue at trial is the quantification of the Shire's costs, which its solicitors claim at $18,500 — being 37 hours at a blended partner/associate rate of $500.

Applying the Sowden framework

Complexity (factor (a)). The only legal issue was the statutory charging effect of s 6.44 LGA and the status of the property in the estate. Modest complexity.

Work reasonably required (factor (b)). A short pleading, a short witness statement from the rates officer, correspondence, and short submissions. The hours reasonably required would ordinarily be in the order of 10–15, not 37.

Seniority (factor (c)). It is not reasonable for a partner to conduct the bulk of the work. On the Zuckerman principle adopted at [15], a junior solicitor of 2–4 years PAE is the appropriate level of resourcing.

Hours (factor (d)) and duplication (factor (e)). The Shire's schedule should demonstrate, for each task, who performed it and for how long. Where two practitioners attended the same conference, duplication must be justified.

Proportionality (factor (f)). Costs of $18,500 against a debt of $2,450 is a ratio of roughly 7.5:1. While s 6.56 recoveries frequently carry unusual ratios because of the ratepayer's conduct, the ratio invites close scrutiny.

Scale comparison (factor (g)). The Magistrates Court scale, as guidance, would yield substantially less than $18,500 for a matter of this character.

A magistrate applying Sowden would likely reduce the allowance materially — perhaps to the order of $8,000 to $10,000 — unless the Shire adduced itemised evidence of work done and applicable rates, and unless it could demonstrate on a fine-grained basis that the more senior resourcing was justified on complexity or time-critical grounds.

7. Practitioner Guidance: A Step-by-Step Framework

Step 1: Identify the recovery proceedings narrowly

Before costs are drawn, identify the work that is properly referable to the recovery proceedings, and quarantine work that is not. In Sowden, the inclusion of work on the ratepayer's complaints to complaint bodies and the Department of Local Government was fatal (at [55.5]). Regulatory complaints, media responses, and parallel political matters are not within s 6.56(1).

Step 2: Resource proportionately at the outset

Match the seniority of the team to the complexity of the matter, applying Zuckerman at par 28.135 as adopted at [15]. A simple debt recovery matter should be run by a junior solicitor with limited partner oversight. Over-resourcing at the outset is almost impossible to rectify at the assessment stage.

Step 3: Keep contemporaneous itemised time records

From the first attendance, ensure every time entry identifies the fee earner, the date, the task performed, and the units of time recorded. These records are the baseline contemplated by his Honour at [19]: "The information of what work was performed by whom and at what rate is a critical baseline".

Step 4: Decide early on the privilege position

Decide at the outset whether, in the event of a contested costs claim, the client will waive privilege over invoices. If not, plan to adduce a schedule in the form contemplated in Sowden at [22]: practitioner, task, time, hourly rate. Leaving this decision to the eve of trial invites the Sowden outcome.

Step 5: Prepare the evidence in an admissible form

The deponent of the City's evidence in Sowden had no direct knowledge of the legal work. The better practice is for evidence of the legal work to be given by an appropriate person — the instructing solicitor or a costs consultant — who can speak to the tasks performed, the fee earners, and the rates.

Step 6: Address each of the seven factors in submissions

Written submissions should work through the factors at [23] one by one. Complexity; work required; seniority; hours; duplication; proportionality; scale comparison. A submission that does not address each of these is vulnerable on appeal.

Step 7: Address proportionality squarely

Proportionality will often be the sharpest point against a substantial costs claim in a low-value debt recovery. The local government should confront it, not avoid it. Where the ratio is high, identify the specific conduct of the ratepayer that drove the costs up — voluminous applications, late documents, late adjournment applications — and tie the incremental costs to that conduct. This is effectively the approach the magistrate attempted in Sowden, but without the evidentiary base required to sustain it.

8. Evidence and Arguments Available to Each Side

8.1 For the local government

The local government should marshal the following categories of evidence:

(a) Itemised time records from each law practice retained, broken down by fee earner, date and task, with unit times and rates. Where privilege is maintained over the invoices themselves, a schedule in the form contemplated at [22] should be prepared.

(b) Rate reasonableness evidence — confirmation of the hourly rates, comparison with Legal Costs Committee scale determinations, and, where appropriate, expert costs evidence.

(c) Causal evidence — correspondence, applications, filings, and transcripts that demonstrate the ratepayer's conduct drove the incurrence of specific cost items. His Honour acknowledged at [43.1] that a ratepayer's conduct may be relevant, provided the link is proved.

(d) Scale comparison — a bill drawn by reference to the Magistrates Court Civil Scale as a cross-check, not as a substitute for primary evidence.

8.2 For the ratepayer

A ratepayer resisting a claim for costs under s 6.56 has the following points to deploy:

(a) Onus. Rely on Parker at [123] and Sowden at [12] — the local government carries the legal burden; there is no evidential onus on the ratepayer.

(b) Absence of itemisation. Where invoices are tendered without itemisation, object on the basis that the evidence does not permit an assessment of reasonableness (Sowden at [50]).

(c) Duplication. Cross-examine on overlap between fee earners, and between composite tasks such as "response to applications" and "preparing response documents" (Sowden at [37]).

(d) Extraneous work. Identify any items that relate to matters outside the recovery proceedings — regulatory complaints, media, political responses — and press for their exclusion (Sowden at [38], [55.5]).

(e) Proportionality. Rely on Gallagher v CSR Ltd and the ratio of costs to debt. The more extreme the ratio, the more detailed the justification required.

(f) Over-resourcing. Where partners or Senior Counsel have been deployed on straightforward issues, invoke factor (c) at [23] and Zuckerman par 28.135 to argue that the engagement was not reasonable.

(g) Doubt resolved in favour of paying party. Relying on [14], any doubt about the reasonableness or necessity of a claimed cost is resolved in the paying party's favour.

9. Key Takeaways for Legal Practice

1. Section 6.56(1) now has a detailed evidentiary content. The combination of Parker and Sowden means that a local government cannot prove its reasonable costs by tendering unitemised tax invoices and a scale bill. Primary evidence of work performed, by whom, for how long, and at what rate, is now required.

2. Privilege is not a shield against the evidentiary burden. If privilege is maintained over invoices, the local government must substitute a non-privileged schedule giving the same itemisation (at [22]).

3. The scale is guidance, not proof. Reliance on the Magistrates Court Civil Scale as a substitute for evidence of time actually spent was rejected at [50]–[52].

4. Discounts on invoices carry no evidentiary weight. The $6,000 and $1,500 "discounts" on the MinterEllison invoices were not treated by Curwood DCJ as a cure-all. A discounted invoice without time records does not enable the court to test whether the discounted figure is itself reasonable.

5. Extraneous work must be quarantined. Charges for advice on regulatory complaints, media, or parallel political matters are not costs of the recovery proceedings and cannot be recovered under s 6.56 (at [55.5]).

6. Proportionality has teeth. A ratio of roughly 30:1 between legal costs and the underlying debt — as here — invites intense scrutiny. The local government must tie any unusual ratio to specific conduct of the ratepayer, with evidence.

7. The evidence should be given by someone who knows. A rates officer cannot usefully prove the work of external lawyers. The deponent should be the instructing solicitor or a costs consultant.

8. Over-resourcing is a live objection. A modest debt recovery is not generally a matter that justifies instruction of a tier-1 firm leading a senior counsel. The Zuckerman principle adopted at [15] cuts both ways: less complex matters should be resourced less seniorly.

9. Section 36Z(2) FESA is now read the same way. Curwood DCJ's treatment of the LGA provision applies equally to levy recoveries under the near-identical FESA provision (see fn 2).

10. Systemic implications. Rate recoveries are a volume practice for local governments. The decision will require many councils to revisit their standing instructions, their retainers with external lawyers, and their costs-evidence templates. The cost of non-compliance is not merely a reduced award — it is a new trial and an appellate costs order on top.

10. Conclusion

Sowden v City of Stirling closes a significant gap in the law of rate recovery costs in Western Australia. Parker told local governments that the costs they recover under s 6.56 must be reasonable. Sowden now tells them — and their lawyers — exactly what must be proved, and how. Itemised time. Named practitioners. Identifiable rates. No duplication. No extraneous matter. And, always, proportionality.

For ratepayer defendants, the decision provides a structured set of objections and a clear allocation of onus. For local governments and the firms that act for them, it is a practical prompt to reform files, retainers, and evidence kits. And for the civil litigator, the judgment is a useful restatement of first principles — Cachia, Zepinic, Gilbey, Gallagher — pulled together into a workable, seven-factor framework that will have application well beyond the confines of the LGA.

The core practical message is straightforward. In this area of practice, costs will no longer be awarded on the basis of scale bills and unitemised invoices. Proof of reasonableness requires evidence, and evidence requires discipline at the outset of every matter.

Registering Foreign Judgments in Western Australia: Procedure, Interest, and the Costs Trap

An Analysis of Re Packer; Ex Parte Packer [2026] WASC 133

1. Introduction

Re Packer; Ex Parte Packer [2026] WASC 133 is a decision of Master Russell of the Supreme Court of Western Australia, delivered on 14 April 2026. The matter concerned an ex parte application to register an order of the High Court of Justice of England and Wales – specifically, an order made in the Business and Property Courts in Bristol (Property, Trusts and Probate List (ChD)) – pursuant to s 6 of the Foreign Judgments Act 1991 (Cth).

The judgment is not remarkable for any novel legal principle. Master Russell expressly adopts and applies the framework recently synthesised by Gething J in Hardner v Incor Holdings Ltd [2025] WASC 76, and the case "turns on its own facts". Its significance lies in the practical guidance it affords commercial, insolvency and debt-recovery practitioners advising clients holding a foreign judgment against a judgment debtor resident in Western Australia.

Three points of practical consequence are crisply illustrated. First, the statutory framework in the Act prevails over inconsistent provisions in O 44A of the Rules of the Supreme Court 1971 (WA) – most obviously, on the methodology for currency conversion. Secondly, foreign-law statutory interest (here, 8% per annum under s 17 of the Judgments Act 1838 (UK) and the Judgment Debts (Rate of Interest) Order SI 1993/564 (UK)) is recoverable on registration and accretes to the judgment sum as registered. Thirdly, and most importantly, the apparently broad entitlement in s 6(15)(a) of the Act to "reasonable costs of and incidental to registration" is not a back-door to indemnity costs. A claim that is, on its face, not reasonable – here, costs of $16,964.56 on a judgment of $33,131.67 – will be refused summary fixation and remitted to taxation.

The decision is of immediate utility to practitioners advising clients who hold a judgment of any superior court of a country listed in the Schedule to the Foreign Judgments Regulations 1992 (Cth), and who seek to enforce that judgment against a debtor resident or holding assets in Western Australia.

2. Relevant Legal Framework

The statutory gateway: section 6 of the Act

Part 2 of the Foreign Judgments Act 1991 (Cth) establishes a statutory regime for the registration of specified foreign judgments as judgments of Australian superior courts. Section 6(1) provides that a judgment creditor under a judgment to which Part 2 applies may apply to an Australian superior court at any time within six years after the date of the foreign judgment, or, where there have been appeal proceedings, the date of the last judgment in those proceedings.

Section 6(3) is in mandatory terms: subject to the Act and to proof of the matters prescribed by the applicable Rules of Court, the court "is to order the judgment to be registered". There is no residual discretion; if the prescribed matters are proved, registration follows.

The Act is extended to nominated courts by the Foreign Judgments Regulations 1992 (Cth), reg 3 and reg 4 and the Schedule. The United Kingdom appears at Item 27 of the Schedule, which lists the High Court of Justice of England and Wales as a superior court for the purposes of the Act.

The procedural framework: Order 44A RSC

Order 44A of the Rules of the Supreme Court 1971 (WA) prescribes the procedure for registration. An application may be made ex parte (r 3(1)). The affidavit in support must address each of the matters in r 4, including entitlement to enforce, non-compliance, continuing foreign enforceability, and the absence of any s 7 ground for set-aside (r 4(1)(b)). Interest accrued under the law of the country of the original court up to the time of registration must be specified (r 4(1)(c)). The affidavit must also state the full name, title and usual or last known address of each of the judgment creditor and the judgment debtor (r 4(3)). Notice of registration must be served personally on the judgment debtor (r 8), unless the Court otherwise orders.

Inconsistency: the Act prevails

Order 44A r 4(2) purports to require the affidavit, where the judgment sum is expressed in a currency other than Australian dollars, to state the Australian dollar equivalent calculated at the rate of exchange prevailing at the date of the judgment. Section 6(11)(b) of the Act provides that, in the absence of an application to register in the foreign currency, the judgment is to be registered as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day before the day on which the application for registration is made – the "conversion day". Section 6(11A) requires the conversion rate to be the average of the rates from three authorised foreign exchange dealers selected by the judgment creditor.

As Gething J observed in Hardner at [13]–[14], referring to Loh v Soh [2013] WASC 244 at [12] (Master Sanderson), the Act prevails over the RSC in respect of any inconsistency.

Foreign-law interest

Section 15(b) of the Act provides that, where an amount of money is payable under the judgment, a judgment registered under the Act is to be registered for any interest which, by the law of the country of the original court, becomes due under the judgment up to the time of registration. For English judgments, s 17 of the Judgments Act 1838 (UK), read with the Judgment Debts (Rate of Interest) Order SI 1993/564 (UK), fixes the rate at 8% per annum simple until the debt is satisfied.

Costs

Section 6(15)(a) of the Act provides that a judgment registered under s 6 is to be registered "for any reasonable costs of and incidental to registration", including the cost of obtaining a certified copy of the judgment and evidence of the exchange rate on the conversion day. The word "reasonable" does substantial work, as Packer demonstrates.

The state of the law before Packer

Prior to Packer, the framework had been the subject of clear recent exposition in Hardner v Incor Holdings Ltd [2025] WASC 76, and earlier in Loh v Soh [2013] WASC 244. Packer does not depart from those authorities; it applies them. Its practical value lies in the Master's treatment of the costs of registration, on which the earlier authorities do not speak as directly.

3. The Facts of the Case

The judgment creditor, Debra Ellen Packer, and the judgment debtor, Lynn Ann Packer, share a surname; Master Russell, for convenience, refers to them by their first names (at [3]). The judgment debtor resides in Western Australia (at [2]).

On 17 April 2025, Deputy High Court Judge Hugh Sims KC, sitting in the High Court of Justice of England and Wales, Business and Property Courts in Bristol, Property, Trusts and Probate List (ChD), made an order in Claim No PT-2023-BRS-000109 (in which Debra was the claimant and Lynn was the defendant) requiring Lynn to pay to Debra £16,000, representing 50% of Debra's costs of those proceedings, within 14 days of the order (at [4]–[5]). Payment was due by 15 May 2025. No appeal was taken (at [14]). The judgment remained unsatisfied (at [29]).

On 20 February 2026, Debra filed an ex parte originating motion for registration of the Foreign Judgment in the Supreme Court of Western Australia (at [1]). The application was supported by her own affidavit sworn on 19 February 2026 and two affidavits of her Australian solicitor, Ms Lisa Anne Hando (sworn on 10 April 2026 and 13 April 2026) (at [9]). The application first came before Master Russell on 12 March 2026, when directions were made for further materials, and was adjourned to 14 April 2026 (at [6]).

Debra sought registration in Australian dollars. The conversion day was accordingly 17 February 2026, being the second business day before filing (at [34]). Ms Hando obtained rates from three authorised foreign exchange dealers and deposed to a prevailing rate of GBP 1 = AUD 1.9189 (at [34]).

Interest was claimed at 8% per annum under s 17 of the Judgments Act 1838 (UK) and the Judgment Debts (Rate of Interest) Order SI 1993/564 (UK) from 17 April 2025 to 13 April 2026 (361 days), amounting to £1,265.97 (at [32]–[33]).

Debra also sought her costs of the application and of registration, fixed in the amount of $16,964.56 – an amount supported by the invoices rendered by her English and Australian solicitors, and in excess of 50% of the registered judgment sum (at [41]).

4. Analysis of the Court's Reasoning

Registration is mandatory

Master Russell restated that s 6(3), "which is in mandatory terms", compels registration where the judgment creditor proves the matters prescribed in RSC O 44A (at [18]). The Master's enquiry is not a merits review; for the purposes of determining the application, the Court does not go behind the judgment or order sought to be registered, consistently with Hardner at [6] (at [16]).

The Act overrides inconsistent Rules

At [20]–[21], the Master addressed the inconsistency between r 4(2) and s 6(11)(b) of the Act. Applying Hardner at [13]–[14] (which in turn referred to Loh v Soh [2013] WASC 244 at [12]), the Act prevails over the RSC in respect of any inconsistency. The practical consequence is that the conversion of the foreign currency sum to Australian dollars is performed by reference to the conversion day prescribed by the Act – the second business day before filing – and not by reference to the date of the foreign judgment.

Foreign-law interest is recoverable on registration

The Master accepted that s 17 of the Judgments Act 1838 (UK), read with SI 1993/564 (UK), provides for interest at 8% per annum on judgment debts in England and Wales until satisfied, and that the interest accrued on the Foreign Judgment from 17 April 2025 to 13 April 2026 (361 days) calculated at 8% simple on £16,000 amounted to £1,265.97 (at [32]–[33]). The acceptance illustrates the operation of s 15(b) of the Act: interest accruing under the law of the country of the original court, up to the time of registration, becomes part of the registered sum.

Currency conversion mechanics

At [23], the Master reiterated that s 6(11A) of the Act requires the rate of exchange prevailing on the conversion day to be the average of the rates from three authorised foreign exchange dealers selected by the judgment creditor. Applying the rate (GBP 1 = AUD 1.9189), the AUD equivalents were: principal £16,000 = $30,702.40; interest £1,265.97 = $2,429.27; total $33,131.67 (at [35]–[36]).

Costs – the crux of the decision

At [39]–[42], the Master dealt with Debra's application for costs. Although it was accepted that Debra was entitled to her reasonable costs of and incidental to registration under s 6(15)(a) of the Act, three difficulties attended the application to fix those costs summarily.

First, the material before the Court did not permit an assessment and fixation on the papers (at [42]). Secondly, the amount claimed "effectively seeks costs on an indemnity basis" and was not, on its face, reasonable (at [42]). Thirdly – and by clear implication – the quantum claimed was disproportionate: $16,964.56 of costs on a $33,131.67 registered judgment represented more than 50% of the principal, and the Master expressly flagged this at [41].

The Master accordingly declined to fix the costs, and ordered that they be taxed, if not agreed, and added to the Foreign Judgment as registered (at [42]; Annexure A, order 6). The reasoning places the burden squarely on the judgment creditor to present costs evidence proportionate to the application and capable of summary assessment. Where that burden is not met, the statutory entitlement crystallises only after taxation.

5. Assessing the Consequences

The registered judgment sum

The registered sum comprised three components: the principal in English pounds converted to Australian dollars; the foreign-law interest accrued to the time of registration, converted likewise; and the costs of registration (to be taxed, if not agreed).

On the figures accepted by the Court, principal was £16,000 (= $30,702.40 at the statutory conversion day rate of GBP 1 = AUD 1.9189). Interest on the principal at 8% per annum simple for 361 days was £1,265.97 (= $2,429.27). The total registered sum was $33,131.67 (at [35]–[36]).

Consequences for the judgment creditor of the costs order

The principal consequence of the taxation order is delay. The creditor is now required either to reach agreement on costs (which commonly requires a discount), or to prepare a bill and submit to taxation. The former option depends on the debtor's willingness to engage; the latter is a separate, formal process that takes further weeks or months and attracts its own costs. Until agreement or taxation, no monetary sum for costs forms part of the registered judgment, and execution (even after the set-aside period) cannot proceed in respect of costs.

Taxation on the ordinary (party-party) basis, applying the Legal Costs Determinations, will almost certainly yield less than the full invoiced amount. The recoverable gap between solicitor-client costs and party-party costs is often material. The $16,964.56 claimed was, in effect, a claim for indemnity recovery; the taxed figure, if matters proceed to taxation, is likely to be significantly lower.

Consequences for the judgment debtor

The taxation order creates a window for the debtor to negotiate. A reasonable offer of agreed costs, promptly made, is likely to produce a better outcome for both sides than taxation. Where the debtor does not engage, the taxed amount will ultimately be added to the registered judgment and enforced.

Systemic consequences

The decision signals that even statutory entitlements expressed in broad terms ("reasonable costs") are policed. An applicant who approaches s 6(15)(a) as though it delivers indemnity recovery will be disabused. Practitioners would be well advised to front-load the costs material in the supporting affidavit – with a short-form statement of work, fee earner rates, time spent and disbursements – and to seek a fixed sum that can be defended as proportionate on the papers.

6. Worked Example

Consider the following hypothetical. Acme Holdings Ltd, an English company, obtained a judgment on 1 March 2025 in the High Court of Justice of England and Wales, Commercial Court, against Beta Pty Ltd, a Western Australian company, for £250,000 in damages and £45,000 of detailed-assessed costs. No appeal has been taken. On 1 March 2026, Acme instructs Australian solicitors to register the judgment in the Supreme Court of Western Australia. The originating motion is filed on 15 March 2026.

The judgment creditor's perspective

Acme's solicitors must obtain from London a certified copy of the sealed judgment to satisfy r 4(1)(a). They must prove, on information and belief, entitlement to enforce, non-compliance, continuing enforceability in England, and the absence of any s 7 ground – all in the affidavit under r 4(1)(b). They must calculate foreign-law interest: on the principal of £250,000 at 8% per annum simple from 1 March 2025 to the date of the supporting affidavit. If the affidavit is sworn on 13 March 2026 (378 days), interest is £250,000 × 8% × 378/365 = £20,712.33.

Currency conversion is performed at the statutory conversion day – 11 March 2026 (the second business day before 15 March 2026). Acme obtains rate quotes from three authorised foreign exchange dealers for 11 March 2026 and takes the arithmetic mean, exhibiting the evidence in Ms Solicitor's affidavit.

Acme's solicitors prepare a focused costs statement, not a dump of invoices. The statement identifies the work done (certification and authentication of the foreign judgment, drafting of the affidavits, attendance at the first return, preparation of the short-form order), the fee earner rates, the disbursements (including the FX dealer quotes), and a reasoned proposition that the claim is proportionate to an uncontested ex parte registration. A round figure – say, $4,500 – is sought as a fixed sum, readily defensible on the papers.

The judgment debtor's perspective

On service of the notice of registration under r 8, Beta has a limited window (21 days in Packer; the period must be stated in the order: s 6(4)) to apply to set aside under s 7. Beta's solicitors must promptly identify whether any s 7 ground is available (for instance, absence of jurisdiction in the foreign court under s 7(2)(a)(iv); fraud under s 7(2)(a)(vi); public policy under s 7(2)(a)(xi)). If none, the focus shifts to costs: an early and well-pitched offer is likely to be more cost-effective than taxation.

Where solvency is doubtful, Beta should take advice on any restructuring options and the interplay with the 21-day set-aside window and the moratorium on execution until its expiry (Annexure A, orders 4 and 5).

7. Practitioner Guidance: A Step-by-Step Framework

The following framework distils Packer into sequential steps for a Western Australian practitioner acting for a judgment creditor seeking registration of a foreign judgment.

Step 1 – Confirm the foreign court is within the Schedule

Refer to the Schedule to the Foreign Judgments Regulations 1992 (Cth). The United Kingdom is at Item 27 (see Packer at [12]); other Commonwealth and non-Commonwealth countries are listed but many are not. If the court is not listed, the Act does not apply and the creditor must commence fresh proceedings on the foreign judgment, with attendant complications.

Step 2 – Verify limitation

Application must be made within six years of the date of the foreign judgment or of the last judgment in any appeal proceedings (s 6(1); Packer at [13]).

Step 3 – Obtain a certified sealed copy of the foreign judgment

Order 44A r 4(1)(a) requires a certified copy issued by the original court and authenticated by its seal. Arrange this through agents in the foreign jurisdiction and budget for lead time.

Step 4 – Establish foreign-law interest by admissible evidence

Identify the governing statute and rate. For English judgments, s 17 of the Judgments Act 1838 (UK) and SI 1993/564 (UK) provide for 8% per annum simple (Packer at [32]). Calculate accrued interest to the date of the affidavit with precision to the day. Packer demonstrates the method: 361 days × 8% × £16,000 ÷ 365 = £1,265.97 (at [33]).

Step 5 – Fix the conversion day and obtain three dealer rates

The conversion day is the second business day before filing (s 6(11)(b); Packer at [34]). Engage three authorised foreign exchange dealers and obtain their rates for the conversion day. Take the arithmetic mean (s 6(11A); Packer at [23]). Exhibit the quotes in the supporting affidavit. Do not rely on O 44A r 4(2), which is inconsistent with the Act: see Packer at [20]–[21].

Step 6 – Draft the affidavit to address each element of O 44A r 4

The affidavit must address entitlement to enforce, non-compliance, continuing enforceability abroad, and the absence of any s 7 ground (r 4(1)(b)(i)–(iv)); interest due under the foreign law up to registration (r 4(1)(c)); and the full name, title and usual or last known address of each of the parties (r 4(3)). Exhibit the certified sealed foreign judgment (r 4(1)(a)).

Step 7 – Prepare the costs evidence properly

Do not dump invoices. Prepare a short-form costs statement that identifies time spent, fee earner rates and disbursements, and makes a reasoned proposition that the claim is proportionate to the task of registration. Seek orders fixing costs in a specific, modest sum. A claim that, on its face, is not reasonable – or one that invites summary assessment on an indemnity basis – will be refused: Packer at [41]–[42].

Step 8 – File ex parte and attend the first return

The application may be made ex parte (O 44A r 3(1); Packer at [15]). Expect directions on any deficiencies at the first call – Master Russell adjourned Packer from 12 March to 14 April 2026 for further materials (at [6]).

Step 9 – Serve the notice of registration personally

Upon the order being made, prepare and serve notice of registration personally, unless the Court otherwise orders (O 44A r 8; Packer at [25]).

Step 10 – Do not execute until the set-aside period expires

The order must state the period within which an application to set aside may be made (s 6(4); Packer at [26]). In Packer, that period was 21 days from service (Annexure A, order 4). Execution does not issue until the period has expired or any set-aside application is disposed of (Annexure A, order 5).

8. Evidence and Arguments Available to Each Side

For the judgment creditor

The creditor's evidence should include: a certified sealed copy of the foreign judgment (O 44A r 4(1)(a)); an affidavit addressing each element of r 4(1)(b)(i)–(iv) with particulars of non-compliance; evidence of foreign-law enforceability (typically an affidavit from a foreign solicitor, or, where the text of the foreign statute is unambiguous, an affidavit of the Australian solicitor relying on the statute); foreign-law interest evidence (the statute, any subordinate instrument, and any judicial gloss); three FX dealer quotes for the conversion day, exhibited in the solicitor's affidavit; and a focused costs statement proportionate to the application.

The creditor's central submission is that s 6(3) is mandatory and registration follows as of course upon proof of the prescribed matters (Packer at [18]). Secondary submissions address the inconsistency between s 6(11)(b) and O 44A r 4(2) – the Act prevails (Packer at [21]) – and the recoverability of foreign-law interest under s 15(b).

For the judgment debtor

On service of the notice of registration, the debtor's first enquiry is whether any s 7 ground is available. Section 7 grounds include: registration in contravention of the Act; want of jurisdiction in the foreign court; judgment obtained by fraud; public policy; and related matters. Each is narrow and fact-specific.

Where no s 7 ground is available, the debtor's focus is on minimising the additional cost burden. An early and well-pitched offer of agreed costs, fixed in a modest sum, is likely to produce a better outcome than taxation – for both sides. The debtor should avoid inadvertently strengthening the creditor's position by forcing a taxation when a negotiated outcome is available.

Where the foreign judgment has been paid in part, the affidavit material must be scrutinised to ensure that the unsatisfied amount is correctly stated (r 4(1)(b)(ii)). Overstatement is a basis for challenge.

9. Key Takeaways for Legal Practice

The following propositions distil the practical message of the decision.

1. Registration is mandatory upon proof of the prescribed matters. Section 6(3) of the Foreign Judgments Act 1991 (Cth) is in mandatory terms. Planning should proceed on the basis that the application will succeed if, but only if, the evidence is complete: Packer at [18].

2. The Act overrides inconsistent Rules. Where O 44A of the RSC is inconsistent with the Act, the Act prevails: Packer at [21]; Hardner v Incor Holdings Ltd [2025] WASC 76 at [13]–[14]; Loh v Soh [2013] WASC 244 at [12]. The point is not theoretical; it determines the date on which currency is converted.

3. Foreign-law interest is recoverable on registration. Interest that accrues under the law of the country of the original court, up to the time of registration, may be added to the registered sum (s 15(b); Packer at [31]–[33]). For English judgments, that is 8% per annum simple under s 17 of the Judgments Act 1838 (UK) and SI 1993/564 (UK).

4. Three-dealer averaging is mandatory for currency conversion. Section 6(11A) requires an average of rates from three authorised foreign exchange dealers on the conversion day. A single rate obtained from the internet is not sufficient evidence: Packer at [23].

5. Reasonable costs of registration are recoverable – but not on an indemnity basis. Section 6(15)(a) entitles the creditor to reasonable costs of and incidental to registration, but a claim that is, on its face, not reasonable – still less one that amounts to indemnity costs – will be refused summary fixation: Packer at [42].

6. Proportionality is a practical constraint on the quantum of costs claimed. A claim of $16,964.56 on a $33,131.67 judgment – more than 50% of the principal – was expressly flagged as outside the range of the reasonable: Packer at [41]. Practitioners should calibrate accordingly.

7. A taxation order is the default where the costs evidence is insufficient. Where the material does not permit summary assessment, the Court will order costs to be taxed, if not agreed, and added to the registered judgment: Packer at [42]. That defers recovery and attracts further costs. Front-load the evidence to avoid this outcome.

8. The Court will not go behind the foreign judgment. Registration is not a vehicle for collateral attack on the merits. The debtor's remedies lie in the foreign court and, within narrow limits, under s 7 of the Act: Packer at [16]; Hardner at [6].

9. Statutory entitlement is not statutory indemnity. More broadly, Packer is a reminder that where a statute uses the word "reasonable", the Court polices both the quantum claimed and the evidence supporting it. The systemic message is that practitioners must not treat costs entitlements in statutory schemes as a short cut around proportionality and reasonableness.

10. Conclusion

Re Packer; Ex Parte Packer is a short and orthodox judgment. Its value lies in its neat illustration, on a single set of facts, of the full procedural architecture for registering a foreign judgment in Western Australia – from the statutory gateway in s 6 of the Foreign Judgments Act 1991 (Cth), through the mechanics of currency conversion under s 6(11)(b) and s 6(11A), the calculation of foreign-law interest under s 15(b), and the procedural framework in O 44A of the RSC, to the sometimes under-appreciated question of what costs can in fact be recovered under s 6(15)(a).

The practical message of the decision is twofold. The registration pathway is efficient and, upon proof of the prescribed matters, mandatory: creditors should expect registration to follow where the evidence is complete. But the statutory entitlement to costs is not an entitlement to indemnity recovery. A claim that is, on its face, not reasonable – or which is not supported by evidence sufficient for summary assessment – will be sent to taxation, with consequent delay and further expense.

For practitioners, the lesson is to prepare the application as a complete package: certified sealed judgment; properly proved foreign-law interest; proper three-dealer currency conversion; and a focused, proportionate costs statement. Where each element is attended to, registration produces a domestic judgment within weeks and with predictable cost recovery. Where any element is neglected, the registered sum will still be obtained, but the overall commercial result will suffer.

Certificates, Candour and the Right to Amend: The Interaction of rr 43(3A) and 48A DCR

An Analysis of Marinelli v Statewide Industrial Maintenance Pty Ltd [2026] WADC 32

1. Introduction

Most District Court personal injury practitioners will have encountered a late application to amend a defence, and most will have formed a rough sense of when such an application is likely to succeed. The decision of Cormann DCJ in Marinelli v Statewide Industrial Maintenance Pty Ltd [2026] WADC 32 is significant because, beyond resolving the application at hand, it provides careful guidance on a procedural question that arises every time a party certifies a pleading under r 43(3A) of the District Court Rules 2005 (WA) (DCR): when, and on what evidence, can a later amendment be made?

The decision is of particular importance for practitioners in workplace injury and commercial litigation in the District Court of Western Australia. Three points emerge that will recur in daily practice. First, the leave requirement in r 48A is triggered by any party's certificate, not just the certifying party's. Secondly, affidavit evidence in support of a r 48A(3) application that does no more than recite that amendments are on counsel's advice is, in her Honour's words, “hardly… satisfactory”. Thirdly, a party that candidly declines to certify – and contemporaneously articulates its reasons – preserves real flexibility to amend, notwithstanding the r 48A leave gateway.

The decision also contains practical guidance on the inadequacy of pleadings consisting of bare denials and non-admissions close to trial, the insufficiency of contributory negligence particulars that are not underpinned by material facts, and the distinction between the sufficiency of a plea for pleading purposes and the admissibility or adequacy of the evidence that will be adduced to prove it at trial.

2. Relevant Legal Framework

The application was governed by three rules of the District Court Rules 2005 (WA): rr 43(3A), 48(3) and 48A.

Rule 43(3A) was introduced as part of case management reforms aimed at forcing parties – through their counsel – to identify, before trial listing, whether the pleadings adequately define the issues in dispute. Counsel must certify either that the pleadings adequately define all issues of fact and law the party contends will need to be determined at trial, or that they do not, in which case counsel must state what is proposed.

Rule 48A then engages. Once ‘any party’ has filed a certificate, the pleadings cannot be amended without leave: r 48A(2). An application for leave must be supported by an affidavit that sets out the facts that have arisen since the time for amending without leave expired, and the facts that ground the argument that amendment is now necessary: r 48A(3).

Overlaying that procedural framework is the High Court's decision in Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 which, as summarised at [111], makes case management – and the objectives of efficiency, proportionality and finality – an integral part of the exercise of the discretion to allow amendment. Aon was applied in WA in Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 at [52], which distilled the relevant considerations for this jurisdiction.

More recently, Mann v Bankwest – A Division of Commonwealth Bank of Australia [2020] WASCA 35 at [80] held that an application to amend is not to be assessed in a vacuum: the individual circumstances of the case, including its procedural history, must be considered. Reliance Capital Pty Ltd v Caratti [No 6] [2024] WASC 21 at [3] is to the same effect.

Before Marinelli, practitioners had Aon, Mann and Hightime for the general discretionary framework, but less authority on the specific interaction between the r 43(3A) certificate and the r 48A amendment gateway – in particular, on the position of a party that has positively declined to certify. Marinelli fills that gap.

3. The Facts of the Case

The underlying claim

The underlying proceeding is a workplace injury claim. Mr Bodie Marinelli, a mechanical fitter employed by Statewide Industrial Maintenance Pty Ltd, alleges he was injured on 14 October 2021 at a site in Munster while manoeuvring a drum with a co-worker (at [6], [22]). Mr Marinelli alleges that the drum weighed 1.5 tonnes, that his co-worker released a chain block prematurely, and that the drum swung into his left leg, pinning it against a beam on the second floor (at [22]).

Procedural history

The procedural history is the heart of the case. The writ was filed on 19 September 2023, a Re-Amended Statement of Claim on 15 February 2024, and Particulars of Damage on 10 October 2024 (at [6]–[7]).

Pursuant to orders of 10 April 2025, Mr Marinelli filed his r 43(3A) certificate on 14 May 2025. His counsel certified the pleadings. The defendant filed its certificate one day late, on 15 May 2025. Importantly, it did not certify the pleadings; instead, its counsel noted that he had reviewed the pleadings and was ‘not satisfied that they adequately defined all the issues of fact or law that the defendant contends will need to be determined at trial’, and that the defendant proposed to file an amended defence within 28 days of the listing conference (at [9]).

At a listing conference on 19 May 2025, the Court ordered the defendant to file any application to amend by 3 June 2025 (at [10]). The defendant did not do so. Instead, it served a Minute of Amended Defence on 9 June 2025 and a properly marked-up version on 16 June 2025. The application itself was not filed until 24 July 2025 – the same day on which Mr Marinelli's solicitors indicated the amendments were opposed (at [11]–[12], [40(b)]).

At a further conference on 22 September 2025 the trial was set down for a 10-day hearing commencing 10 August 2026 (at [3], [14]). The application was dismissed by the Registrar on 1 December 2025 (at [4]) and reheard by Cormann DCJ on 31 March 2026 (at [5]).

The substantive amendments

The substantive amendments were extensive. They included taking certain matters out of issue by admission; pleading that the drum weighed 400 kg rather than 1.5 tonnes (at [48]); pleading that Mr Marinelli's proposed lifting method would compromise the structural integrity of the site (at [55]); pleading an alternative account of how the accident occurred, including that Mr Marinelli's leg was ‘compressed’ between the drum shaft and the beam (at [26], [66]); pleading contributory negligence based on Mr Marinelli placing himself in the ‘line of fire’ and using ‘excessive force’ (at [27], [73]); pleading recovery from physical injury by October 2022 based on video surveillance (at [27], [75]); and pleading pre-existing psychological co-morbidities (at [27], [78]).

4. Analysis of the Court's Reasoning

The trigger for r 48A leave

Her Honour's starting point was to correct the defendant's mistaken view that leave to amend was required only from 22 September 2025, rather than from 14 May 2025. The defendant had proceeded on the basis that, because its own counsel had not certified the pleadings, leave was not required (at [18]).

That position was, in her Honour's words, ‘not correct as a matter of law’ (at [19]). The defendant conceded the point at the outset of the hearing. The correct position is that leave is required from the moment any party – identified in r 48A(2) as ‘any party’ – files a r 43(3A) certificate in which the pleadings are certified. That clarification means the moving party cannot avoid the r 48A gateway by declining to certify its own pleadings. The plaintiff's certificate triggered the need for leave regardless of what the defendant did.

The r 48A(3) affidavit: quality, not merely quantity

Cormann DCJ was notably critical of the defendant's affidavit material. Three affidavits were filed. The first attached email exchanges with the plaintiff's solicitors (at [32]). The second asserted only that the pleaded facts accorded with the defendant's instructions or were based on medical reports, and that the amendments were on the advice of counsel (at [33]). The third set out procedural history and repeated that the amendments were made on counsel's advice and in accordance with instructions (at [34]).

Her Honour observed (at [38]):

While perhaps not unusual, facts in an affidavit for the purposes of r 48(3)(A) indicating that the proposed amendments arise from counsel's advice and/or in accordance with a party's instructions hardly seems satisfactory. That is especially the case in circumstances where a party has certified its pleading, and then later applies to amend.

That observation is a clear signal to the profession. An affidavit that does no more than say ‘these amendments are on counsel's advice’ will not ordinarily discharge the r 48A(3) burden. Something more – properly particularised facts that have arisen, or that ground the necessity of amendment – is expected.

The distinction that saved the application

What saved the defendant's application, notwithstanding the deficiency in its affidavit evidence, was the distinction between a party that had certified and later sought to amend, and a party that had from the outset declined to certify (at [39]). The defendant fell into the latter category. Its counsel had, on 15 May 2025, positively identified that the pleadings were inadequate and signalled that amendment was required. The plaintiff was on notice of the need for amendment well before trial was listed.

Her Honour identified five reasons why the evidentiary deficiency was not disqualifying (at [40]): first, the defendant had refrained from certifying and had immediately flagged the need to amend; secondly, the delay between 13 May 2025 and 24 July 2025 was not substantial in the circumstances; thirdly, the defendant was entitled to put an alternative factual case based on lay evidence to be adduced at trial; fourthly, without amendment, the defendant would be deprived of the opportunity to present its case; and fifthly, the existing defence of bare denials and non-admissions would itself be unsatisfactory four months out from trial.

Pleading adequacy versus evidentiary sufficiency

A recurrent thread in her Honour's analysis was the distinction between the adequacy of a plea for pleading purposes and the admissibility or adequacy of the evidence that will be adduced to prove it at trial. On the disputed weight of the drum (at [50]–[52]), the proposed plea of structural compromise (at [56]–[57]), the alternative account of the accident (at [68]), and the pleas of physical recovery and pre-existing co-morbidities (at [76]–[77], [80]), her Honour repeatedly emphasised that the question before her was whether the plea on its face provided a sufficiently clear statement of the defendant's case such that the plaintiff had a fair opportunity to meet it.

That approach is consistent with orthodox pleading principles but is a useful reminder that on a r 48A application, the Court will not inquire into the prospects of success of the factual case that the amendment foreshadows.

The refused contributory negligence amendment

The one proposed amendment that was refused was the plea of contributory negligence (at [74]). The particulars were that Mr Marinelli had placed himself in the ‘line of fire’ and had used ‘excessive force’. Her Honour held that those particulars were not supported by any alleged material fact in the Pleading or in the further and better particulars, and that the earlier allegation in the further and better particulars that Mr Marinelli had ‘failed to follow instructions’ was itself not supported by any material fact. Leave was accordingly refused. Particulars, her Honour's reasoning makes plain, are not a substitute for material facts.

5. Assessing the Consequences

The practical consequences of the decision flow in several directions.

For the parties, the order made was that the application was ‘successful in part’. All proposed amendments were allowed save for the contributory negligence plea (at [17] and passim; see the orders outline at [81]). Although costs were left for further argument (at [81]), the defendant's failure to comply with the timetable set on 19 May 2025 and its delay in filing the application are matters that would conventionally bear adversely on a costs order. Her Honour described the defendant's conduct in lagging amendments and waiting ‘to set out a case until the point at which pleadings are being ordered by the court to be certified’ as ‘obviously completely unsatisfactory’ and ‘unacceptable non-compliance with court orders’ (at [41]).

For the litigation timetable, the trial dates were preserved (at [3], [47]). Cormann DCJ expressly noted that commencement was still more than four months away, that the amendments had been on the table since June 2025, and that there was no evidence to suggest the amendments would occasion adjournment.

For the wider profession, the decision invites a reappraisal of two habits. The first is the reflexive use of ‘standard form’ affidavits that recite only that amendments are on the advice of counsel and in accordance with instructions. After Marinelli, such affidavits will not be sufficient in the usual case – particularly if the moving party itself certified the pleadings. The second is the practice of pleading bare denials and non-admissions as a holding position and dealing with the ‘real’ defence closer to trial. Marinelli characterises that practice as unsatisfactory, and at [41] draws a direct connection between that practice and the interlocutory disputes it generates.

6. Worked Example

Assume a commercial dispute in the District Court. The plaintiff sues for $600,000 damages for breach of a supply contract. The defendant's current defence is pleaded in the form of bare denials and non-admissions. Trial has not yet been listed. Both parties are ordered to file r 43(3A) certificates by 1 June 2027.

Scenario A – defendant certifies, then seeks to amend

The defendant's counsel certifies on 1 June 2027 that the pleadings adequately define the issues. On 1 August 2027, after proofing a key witness, the defendant identifies a new positive defence – that the plaintiff repudiated the contract by a conversation on 10 March 2025 that has only now been recalled. The defendant applies under r 48A to amend. The r 48A(3) affidavit must set out the facts that have arisen since 1 June 2027 and the facts that ground the argument that the amendment is necessary. After Marinelli, an affidavit that says only ‘the amendment is made on the advice of counsel and in accordance with the defendant's instructions’ is almost certainly insufficient. The defendant should depose to the content of the witness's recollection, when it was first raised, the steps taken to investigate it, and why it could not have been identified earlier.

Scenario B – defendant declines to certify

The defendant's counsel files a certificate on 1 June 2027 stating that the pleadings do not adequately define the issues. The certificate identifies, in substance, the areas in which amendment is proposed. The defendant then works on a minute of amended defence and serves it within 28 days. On Marinelli, the defendant is in a significantly stronger position. The opposing party has been on notice of the intended amendment from the outset. The evidentiary burden under r 48A(3) is, as Marinelli indicates, not so exacting in those circumstances – though the affidavit still needs to do more than recite counsel's advice.

What the prudent practitioner does

The lesson from Marinelli is that candour is the practitioner's friend. Where there is any real doubt about the adequacy of a pleading, counsel should decline to certify, identify the deficiency, and set a timeline for amendment. That preserves the moving party's evidentiary position under r 48A(3). Conversely, certifying pleadings that are known to be inadequate – even informally – is likely to put the moving party in the position her Honour described as ‘hardly… satisfactory’.

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the principles stated in Marinelli.

Step 1 – Before certifying, test the pleadings critically against the intended case at trial

Counsel should approach the r 43(3A) certificate as a genuine forensic exercise, not a procedural formality. Cormann DCJ described the defendant's position on the certificate as ‘immediate, or at least early, recognition and identification’ that the defence needed to be amended (at [40(a)]), and treated that as a factor in the defendant's favour.

Step 2 – If the pleadings are inadequate, decline to certify and state why

A positive statement that counsel is not satisfied that the pleadings adequately define all issues of fact or law, with a proposed timeline for amendment, preserves maximum flexibility to amend later. It also puts the opposing party on notice and reduces the prospect of a Hightime-style prejudice argument (at [40(a)], [40(c)], [45]).

Step 3 – If the pleadings are certified and amendment later becomes necessary, prepare an affidavit that does more than recite counsel's advice

The affidavit must set out the facts that have arisen and the facts that ground the necessity of amendment: r 48A(3). After Marinelli (at [38]), generic recitations are not enough. Particular attention should be paid to when each new factual matter was first known, the steps taken to investigate it, and why it could not be pleaded earlier.

Step 4 – File promptly once it is clear that amendment is opposed

In Marinelli, the defendant was not penalised for delay between 13 May 2025 and 24 July 2025, but her Honour expressly drew attention to the fact that the application was filed on the very day the plaintiff signalled opposition (at [40(b)]). Inaction after opposition is signalled is far more likely to attract criticism than a period of communication while the parties attempt to narrow the amendments.

Step 5 – Ensure every pleaded particular is underpinned by a material fact

The failure of the contributory negligence amendment (at [74]) turned on the absence of material facts supporting the particulars. Draft particulars by first identifying the material fact to be pleaded, and only then articulating the particular that explains how that fact gives rise to the alleged breach.

Step 6 – Keep the distinction between pleading adequacy and evidentiary sufficiency in mind

On a leave application, the Court's concern is with the sufficiency of the plea on its face, not the prospects of the underlying evidence. Marinelli repeatedly demonstrates that evidentiary objections – such as concerns about the admissibility of opinion evidence on structural integrity (at [56]) – are generally not grounds to refuse amendment.

Step 7 – Avoid a defence of bare denials and non-admissions close to trial

Her Honour characterised such a defence as unsatisfactory four months out from trial (at [40(e)]). A defence that does not disclose the affirmative case will ordinarily invite amendment and interlocutory dispute.

Step 8 – Where amendments narrow the issues, seek consent

Cormann DCJ observed (at [42]) that a genuine narrowing of issues reflected in a proposed amended pleading ‘in the norm’ should be achieved by consent and should not require costly interlocutory applications. The opposing practitioner who reflexively resists narrowing amendments should expect judicial disapproval.

8. Evidence and Arguments Available to Each Side

Arguments for the moving (amending) party

The party seeking leave can deploy the material facts supporting the amendment, identified with precision, together with a chronology that ties them to events or disclosures post-dating the certificate (or the last unopposed amendment). It can point to evidence that the proposed amendments narrow rather than expand the issues in contention, which was identified as a factor favouring leave (at [45], [68]). It can rely on evidence that the opposing party has been on notice of the proposed amendments for a substantial period and has had a fair opportunity to consider them (at [40(d)], [46]). It can adduce evidence directed to the trial dates – in particular, evidence that the amendments can be accommodated without adjournment (at [47]). If the moving party declined to certify, it should point expressly to the certificate that identified the inadequacy of the pleadings at the earliest opportunity (at [40(a)]).

Arguments for the opposing party

The party resisting leave can demand strict compliance with r 48A(3): the ‘facts that have arisen’ and the ‘facts that ground necessity’ must be particularised (at [29], [38]). It can adduce evidence of specific, non-compensable prejudice – preferably tied to witnesses no longer available, or to steps that cannot now be undertaken because of delay. It can contend that the amendment raises genuinely new issues requiring fresh investigation or witnesses (noting that argument failed on the facts in Marinelli: at [45], [46]). Where the proposed particulars are not underpinned by material facts, it can mount a focused submission on that deficiency – which succeeded in Marinelli on the contributory negligence plea (at [74]). It can address the trial dates and the likelihood that amendment will require adjournment, noting that mere assertion will not suffice (at [47]). Even if leave is granted, it can pursue the costs thrown away by the amendment.

9. Key Takeaways for Legal Practice

1.      The leave gateway in r 48A opens when any party files a certificate. A party cannot avoid the leave requirement by declining to certify its own pleadings. The plaintiff's certification on 14 May 2025 triggered the leave requirement for the defendant from that date (at [19]).

2.      Candour in declining to certify is rewarded. A party that positively identifies in its certificate that the pleadings do not adequately define the issues, and proposes a timeline for amendment, is in a materially stronger position than one that certifies and later seeks to resile (at [39], [40(a)]).

3.      A r 48A(3) affidavit that says only that amendments are on counsel's advice is ‘hardly satisfactory’. Marinelli at [38] warns against the habit of filing generic affidavits. The facts that have arisen, and the facts that ground the necessity of amendment, must be particularised.

4.      Bare denials and non-admissions are not a sustainable defence close to trial. Her Honour was critical of such pleadings and treated their inadequacy as a factor favouring leave to amend to a more particularised defence (at [40(e)]).

5.      The question on a r 48A application is pleading adequacy, not evidentiary sufficiency. Objections to admissibility – for example, opinion evidence as to structural integrity – are generally not a basis to refuse amendment. The Court looks at the plea on its face for a sufficiently clear statement of the case (at [52], [56]–[57], [68], [76]–[77], [80]).

6.      Particulars must be underpinned by pleaded material facts. The contributory negligence amendment failed precisely because its particulars – ‘line of fire’ and ‘excessive force’ – were not supported by any pleaded material fact (at [74]).

7.      Timeliness is measured contextually. The delay between 13 May 2025 and 24 July 2025 was held not to be unacceptable, in circumstances where the defendant had signalled the need to amend, provided a marked-up draft, and engaged with the plaintiff on the proposed amendments (at [40(b)]).

8.      Prejudice must be concrete. General assertions that the amendments require ‘grappling with substantive new issues’ will not suffice where the issues have always been in contention and the trial is still months away (at [46]).

9.      Compliance with court orders is not optional. Her Honour's observation at [41] that ‘compliance is not optional’ is a reminder that the court's indulgence is finite and that repeated non-compliance will ultimately tell against a party, even if it does not defeat an individual application.

10.  Narrowing amendments should be by consent. The observation at [42] that narrowing amendments ordinarily should not require interlocutory applications is a clear signal that reflexive opposition to sensible amendments will attract judicial criticism and, potentially, adverse costs.

10. Conclusion

Marinelli is a short but practically rich decision. Its primary contribution is the careful articulation of how rr 43(3A) and 48A DCR interact – a point of procedure that, while apparently technical, affects the daily conduct of District Court civil litigation in Western Australia.

The decision confirms that the r 48A gateway is triggered by any party's certificate; that affidavit evidence in support of an amendment application requires particularised facts rather than a recitation of counsel's advice; and that candour in declining to certify is rewarded while untimely certification followed by later recantation is not.

For practitioners, the core practical message is this: the certificate of counsel is a substantive forensic document, not a formality. Treating it accordingly – declining to certify where pleadings are inadequate, and supporting any later amendment with a properly particularised affidavit – is now plainly necessary. The days of filing generic r 48A(3) affidavits reciting counsel's advice are, on the strength of Cormann DCJ's reasoning in Marinelli, effectively over.