Assessing Evidence of Spoken Words

1. Introduction: The Inherent Challenges

Evidence of spoken words, particularly conversations or oral agreements alleged to have occurred years prior and not contemporaneously recorded, presents significant challenges for courts. The resolution of such disputes often depends entirely on the parties' credit and accuracy of recollection (Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 at [3]). As the Court of Appeal noted in Turner v Richards [2025] NSWCA 83 at [16], the judicial task involves a "conventional process of fact finding about a disputed conversation about which there was no contemporaneous record." This article outlines the principles guiding the assessment and weighing of such evidence, drawing upon key judicial pronouncements.

2. The Fallibility of Human Memory

A foundational principle is the recognition of the fallibility of human memory. This fallibility "increases with the passage of time, particularly where disputes or litigation intervene" (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [11], citing Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41] per Rares J; and Varma v Varma [2010] NSWSC 786 at [424]-[425] per Ward J. These authorities were also cited with approval in Turner v Richards [2025] NSWCA 83 at [58]).

Lord Pearce observed in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431 (a passage quoted in Turner v Richards [2025] NSWCA 83 at [65]):

"‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred."

This inherent frailty of memory necessitates a cautious approach, especially when significant time has elapsed and the witness has an interest in the outcome of the litigation. In Turner v Richards [2025] NSWCA 83 at [67], the court noted that the appellant's evidence was "given more than five years after the date of the alleged conversation in a context of ongoing hostility and litigation between the parties."

3. The Primacy of Contemporaneous Documents and Objective Facts

Given the unreliability of human recollection, contemporaneous documents and objective facts assume paramount importance. Objective evidence, "where available, is likely to be the most reliable basis for determining matters of credit that arise as to the affidavit evidence" (Turner v Richards [2025] NSWCA 83 at [59], citing Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1 at 57 and Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10]). Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431 (cited in Turner v Richards [2025] NSWCA 83 at [65]) emphasized that "contemporary documents are always of the utmost importance."

This principle was echoed by Legatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (quoted with approval in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [27]-[29], and cited in Turner v Richards [2025] NSWCA 83 at [60]):

“…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts."

Similarly, Atkin LJ's observation in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 Ll L Rep 140 at 152 (cited in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10]) remains highly relevant: "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour".

In Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674, Palmer J grappled with two contemporaneous but conflicting documents, Annexure "A" and Annexure "B". While His Honour found the documents themselves, taken in isolation, to be "equivocal" and "plausible if either version is accepted" (Macquarie Developments at [51]), his ultimate preference for the version supported by Annexure "A" was heavily influenced by his assessment of the credibility of the witnesses who testified as to their creation and content (Macquarie Developments at [78]-[83]). The existence (or absence) of contemporaneous notes can be critical, but their interpretation will still be subject to the overall assessment of evidence.

4. Credibility, Reliability, and Demeanour

A distinction must be drawn between the credibility of a witness (their honesty and truthfulness) and the reliability of their recollection. As Lord Pearce noted in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431, a witness may genuinely believe their account but still be mistaken. The court in Turner v Richards [2025] NSWCA 83 at [14] highlighted that the primary judge was "not persuaded that a conversation occurred in the terms asserted by KT" but "made no finding adverse to Ms Richards’ credit" or "KT’s credit." This underscores that a lack of persuasion does not equate to a positive finding of dishonesty.

The trial judge's assessment of reliability, having seen and heard witnesses (especially under cross-examination), carries significant weight (Turner v Richards [2025] NSWCA 83 at [64], [66], citing Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]). However, demeanour alone is often an insufficient guide. Legatt J in Gestmin (cited in Turner v Richards [2025] NSWCA 83 at [60]) stated that the value of oral testimony "lies largely... in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events."

5. Onus and Standard of Proof

The party alleging the spoken words or oral agreement bears the onus of proving their occurrence and terms on the balance of probabilities (Turner v Richards [2025] NSWCA 83 at [73]). Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] (cited in Turner v Richards [2025] NSWCA 83 at [59]) stated:

"Where a party seeks to rely upon spoken words as a foundation for a cause of action... the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence."

This "reasonable satisfaction" is not established independently of the nature and consequences of the facts to be proved. "The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court" (John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94], citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). This principle was also affirmed in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [12].

6. Identical or "Copied" Affidavit Evidence

Courts exercise extreme caution when faced with affidavits from different witnesses that contain identical or substantially similar wording regarding critical conversations. Palmer J in Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 at [90] (a passage quoted in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [18]) observed:

"Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason."

Such identical accounts "substantially devalue both witnesses' affidavit evidence where no explanation has been given of what occurred" (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [16], discussing Macquarie Developments at [61]-[65]). It is considered "unlikely that two deponents would have a precisely identical recollection, uninfluenced by the recollections of others, of shared experiences" (Ward J in Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 at [186], cited in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [18]). While a satisfactory explanation (such as solicitor error, as accepted in Macquarie Developments at [84]-[93] for the defendants' sons' affidavits) might mitigate the adverse inference, the absence of such an explanation for identical crucial testimony is highly problematic. Furthermore, if it is apparent that one witness had access to another's statement or transcript of evidence before giving their own, this can further undermine the independence and reliability of their account (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [19], referencing Kenneth's access to Helen's cross-examination transcript).

7. Specificity of Recollection and Inherent Probabilities

An asserted recollection that is "remarkably specific for a conversation which occurred five years ago and not recorded anywhere until the affidavit... was sworn" should be approached with significant caution (Turner v Richards [2025] NSWCA 83 at [78], from the Court of Appeal's rehearing analysis). This is particularly the case if the conversation is recalled "in the following terms," suggesting verbatim accuracy years later, as was the situation with KT's affidavit in Turner v Richards [2025] NSWSC 83 (see [12] regarding KT's affidavit, and [81] on the rehearing analysis).

The inherent probabilities of the alleged conversation are also critical. Courts will scrutinise whether the alleged statements align with the known facts, the parties' motivations, and ordinary human experience. For instance, in Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 at [67]-[69], the plaintiffs' delay in seeking repayment of a substantial deposit was considered inconsistent with their claim that the deposit was refundable. In Turner v Richards [2025] NSWCA 83 at [79] (rehearing analysis), an alleged conversation in January/February referring to "the new financial year" months later was deemed questionable. Furthermore, "the absence of any reference [to a significant alleged oral agreement] is a factor tending against acceptance" if such an agreement, had it been made, would logically have been mentioned in subsequent heated correspondence between the protagonists (Turner v Richards [2025] NSWCA 83 at [80]).

8. Failure to Call Material Witnesses

Where a party would be expected to call a witness who could provide material evidence on the disputed conversation, and fails to do so without satisfactory explanation, the court may draw an inference that the uncalled evidence would not have assisted that party's case (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [29], citing, inter alia, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]-[64]; and Australian Securities & Investments Commission v Adler [2002] NSWSC 171; (2002) 168 FLR 253 at [448]). The court may also more confidently draw inferences unfavourable to the party failing to call the witness if that witness could have cast light on the inferences to be drawn (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [29], citing Jones v Dunkel).

9. Conclusion

Assessing evidence of spoken words is a multifaceted exercise. It requires the court to consider the inherent fallibility of memory, the influence of litigation, the credibility and reliability of witnesses as tested by cross-examination and objective facts, the presence or absence of contemporaneous records, the inherent probabilities of the competing accounts, and the explanations (or lack thereof) for any anomalies in the evidence, such as identical affidavit testimony. The court must ultimately reach a state of "actual persuasion" based on the balance of probabilities, always bearing in mind the principles articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 when serious allegations are involved. A holistic view of all evidence, rather than isolated components, is essential. As stated in Tjiong v Chang [2025] NSWCA 25 at [41] (cited in Turner v Richards [2025] NSWCA 83 at [61]), in a case where there is disputed oral evidence, all the evidence must be considered together.

Jurisdiction to Make Administration Orders for Interstate Residents and Recognition of Interstate Orders

1. Introduction

This article examines the jurisdictional authority of the State Administrative Tribunal (SAT) to make administration orders for individuals residing outside Western Australia, and the legal effect of administration orders made by tribunals in other Australian states. The decision in JB [2025] WASAT 42 provides significant guidance on these issues, particularly in situations where a represented person has relocated interstate but maintains assets within Western Australia.

2. Facts of JB [2025] WASAT 42

In JB [2025] WASAT 42, the represented person (JB) had moved from Western Australia to South Australia but continued to have assets in Western Australia, specifically funds held by the Public Trustee in its common account. JB suffered from chronic paranoid schizophrenia and had previously been subject to administration orders in Western Australia. After relocating to South Australia, the South Australian Civil and Administrative Tribunal (SACAT) made orders appointing JB's daughter (CB) as her administrator, including powers over the Western Australian assets. The case before the SAT concerned a review of a decision to appoint the Public Trustee as JB's limited administrator in Western Australia, with JB's daughter seeking to be appointed instead, consistent with the SACAT orders.

3. Jurisdiction to Make Administration Orders for Non-Residents

3.1 Statutory Basis

The Guardianship and Administration Act 1990 (WA) (GA Act) explicitly provides for the SAT to make administration orders in respect of individuals who are not resident or domiciled in Western Australia.

Section 67(1) of the GA Act states that an order under s 64(1) may be made in respect of a person who is not resident or domiciled in Western Australia, but such an order is limited to the person's estate in Western Australia (JB [2025] WASAT 42 at [29]).

As explained in JB [2025] WASAT 42 at [29], there was no dispute that JB had an estate in Western Australia, being the amount held by the Public Trustee in its common account, which was physically located in Western Australia.

3.2 Limitations of Jurisdiction

The jurisdiction to make an administration order for a non-resident is strictly limited to the person's assets or estate within Western Australia. This territorial limitation reflects the principle that the SAT's powers cannot extend beyond the geographical boundaries of the state except where specifically provided for by statute.

As noted in SAL and JGL [2016] WASAT 63 and referenced in JB [2025] WASAT 42 at [31]-[32], the SAT's jurisdiction is confined to the person's Western Australian estate. This territorial limitation is an important constraint on the SAT's powers.

4. Recognition of Interstate Administration Orders

4.1 Statutory Recognition Mechanism

The GA Act includes provisions for the recognition of administration orders made in other Australian jurisdictions. Section 83D of the GA Act establishes a framework for the mutual recognition of interstate orders.

Section 83D(3) of the GA Act provides that an order made under the laws of another State has the same force and effect as an administration order made under the GA Act, where an interstate arrangement under s 83D(1) has been entered into between the relevant ministers in Western Australia and that other State for the recognition of such orders (JB [2025] WASAT 42 at [30]).

4.2 Requirement for Physical Presence

Importantly, s 83D(3) provides that the relevant order in force under the laws of the other State has force "while the person to whom it relates is in this State" (JB [2025] WASAT 42 at [31]). This means the represented person must be physically present in Western Australia for the interstate order to have effect under this provision.

As the Tribunal noted in JB [2025] WASAT 42 at [31], this requirement is consistent with the interstate arrangement being in respect of "adult persons who enter Western Australia."

In JB [2025] WASAT 42 at [32], the Tribunal found that since JB had not entered Western Australia since the SACAT orders were made, s 83D(3) did not operate to give the SACAT orders the force of an order made under s 64 of the GA Act. The Tribunal referred to SAL and JGL [2016] WASAT 63 at [13], which had previously established this principle.

5. Constitutional Considerations

5.1 "Full Faith and Credit" Provisions

The Tribunal in JB [2025] WASAT 42 considered whether it was required to give "full faith and credit" to the SACAT orders pursuant to s 118 of the Commonwealth of Australia Constitution Act (Constitution) and s 185 of the Evidence Act 1995 (Cth) (JB [2025] WASAT 42 at [33]).

Section 118 of the Constitution requires that "Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

The application of these provisions turns on whether the interstate tribunal proceedings can be classified as "judicial proceedings" (JB [2025] WASAT 42 at [33]).

5.2 Nature of Guardianship and Administration Powers

In determining whether the "full faith and credit" provisions applied, the Tribunal in JB [2025] WASAT 42 at [34] referred to the decision in GS v MS [2019] WASC 255, where Quinlan CJ held that s 40, s 43 and s 64 of the GA Act do not confer judicial power on the Tribunal and that the nature of the powers to appoint guardians and administrators are properly regarded as essentially administrative powers.

The Tribunal in JB [2025] WASAT 42 at [34] noted that this authority is binding on the Tribunal. While it specifically concerned the GA Act and not the South Australian legislation, the Tribunal found that there was nothing in the Chief Justice's reasoning or the South Australian Act that would suggest a different conclusion should be reached in relation to the SACAT proceedings.

Consequently, the Tribunal concluded that neither s 118 of the Constitution nor s 185 of the Evidence Act 1995 (Cth) had any application in this case (JB [2025] WASAT 42 at [34]).

5.3 Alternative Analysis

The Tribunal in JB [2025] WASAT 42 provided an alternative analysis in case its primary conclusion regarding the administrative nature of the powers was incorrect. It observed at [35] that even if those provisions did apply, their effect would be that an order of another State's court is to be treated as having the same effect as that order would be afforded in the State where the order was made.

The Tribunal referred to Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 at [58], which established this principle (JB [2025] WASAT 42 at [35]).

5.4 Analogous Nature to Child Custody Orders

The Tribunal in JB [2025] WASAT 42 at [36] drew an analogy to child custody orders, referring to G v G (1986) 64 ALR 273; (1985) 10 Fam LR 718, where McLelland J held that the constitutional and statutory provisions required the Supreme Court of New South Wales to treat a Queensland Supreme Court order as "having the same degree of finality and conclusiveness (but not more) as that order would have in Queensland."

The Tribunal noted that administration orders in both South Australia and Western Australia can be revisited on application and are subject to mandatory periodic review (JB [2025] WASAT 42 at [35]).

Specifically, administration orders made by SACAT under the South Australian Act may be revisited under s 37(1)(b) and (d) of the Guardianship and Administration Act 1993 (SA), while orders made by the SAT may be reviewed under s 86(1)(a), s 86(1)(aa) and s 86(1)(b) of the GA Act (JB [2025] WASAT 42 at [35]).

6. Practical Application

6.1 Independent Assessment

The Tribunal in JB [2025] WASAT 42 at [37] concluded that there was no prohibition on it considering whether, on the evidence before it, an administrator for JB's Western Australian estate could or should be appointed, as s 67(1) of the GA Act expressly authorizes.

This affirms that the SAT retains the authority to make its own assessment and determination regarding the appointment of an administrator for Western Australian assets, even where another state's tribunal has made an order covering those same assets.

6.2 Evidentiary Value of Interstate Orders

While not binding, interstate orders may have evidentiary value in the SAT's determination. In JB [2025] WASAT 42 at [82], the Tribunal noted that CB had been appointed administrator of JB's estate by SACAT, and while the SACAT decision did not state its reasons for appointing CB or expressly state that CB was suitable for appointment, the Tribunal observed that the South Australian legislation required SACAT to be satisfied that CB was suitable to act as administrator.

The Tribunal considered that this appointment provided "some support for a finding that CB is a suitable person to be appointed, albeit limited in the absence of reasons" (JB [2025] WASAT 42 at [82]).

7. Procedural Considerations

7.1 Service Requirements

The GA Act contains specific provisions regarding service requirements for persons not resident or domiciled in Western Australia. Section 89(1)(b) of the GA Act provides that the Tribunal's executive officer must cause notice of a review to be given to the represented person (JB [2025] WASAT 42 at [16]).

However, under s 67(2) of the GA Act, the requirement for notice may be dispensed with if the represented person is not resident or domiciled in Western Australia (JB [2025] WASAT 42 at [16]).

In JB [2025] WASAT 42 at [18], the Tribunal dispensed with the requirement for notice of the application pursuant to s 67(2) of the GA Act, noting that it was not possible to be certain that all the requirements of s 89(2) and s 115(2) of the GA Act had been met, and there was no apparent disadvantage to JB given her objection to the order appointing the Public Trustee as administrator.

8. Conclusion

The decision in JB [2025] WASAT 42 provides important guidance on the jurisdictional authority of the SAT to make administration orders for non-residents and the effect of interstate orders. Key principles established include:

1. The SAT has jurisdiction to make administration orders for non-residents, but strictly limited to their Western Australian assets.

2. Interstate administration orders are recognized in Western Australia under s 83D of the GA Act, but only when the represented person is physically present in the state.

3. The powers to appoint guardians and administrators are administrative, not judicial, meaning the "full faith and credit" provisions of the Constitution and Evidence Act 1995 (Cth) do not apply.

4. Even if those provisions did apply, they would only require giving the interstate order the same effect it would have in its state of origin.

5. The SAT retains the authority to make its own determination regarding the appointment of an administrator for Western Australian assets, even where another state's tribunal has made an order covering those assets.

These principles balance respect for interstate administrative decisions with the need to ensure appropriate protection for vulnerable individuals with assets in Western Australia, regardless of where they reside.

Inactive Cases and Procedural Steps in Civil Proceedings

1. Introduction to Inactive Cases List

In the Supreme Court of Western Australia, the efficient management of the Court's caseload is facilitated by provisions governing inactive cases. Order 4A r 24 of the Rules of the Supreme Court 1971 (WA) establishes a mechanism whereby cases with no recent activity can be deemed inactive. Understanding what constitutes activity in a proceeding, in the form of procedural steps, is essential for practitioners to ensure their matters are not inadvertently placed on the Inactive Cases List.

2. Legislative Framework

Order 4A r 24 deems a case to be inactive where no party has taken a procedural step for 12 months. However, this rule also provides the case manager with discretion to order otherwise (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [54]). Once a case is deemed inactive under Order 4A r 21, it may be placed on the Inactive Cases List.

The provisions governing inactive cases operate alongside other procedural rules, including Order 3 r 7, which requires a party who has not taken a step in a proceeding for one year to give notice of intention to proceed before taking any step in the proceedings.

3. Procedural Steps - General Principles

The determination of what constitutes a "procedural step" is fundamental to the operation of both Order 3 r 7 and Order 4A r 24. In Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176, Smith AUJ comprehensively examined the relevant principles, drawing extensively from the Court of Appeal's decision in Crane v The State of Western Australia [2017] WASCA 31.

The Court of Appeal in Crane established that a procedural step has several defining characteristics:

1. It must have "the characteristic of carrying the cause or action forward" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Citicorp).

2. It must be "something in the nature of a formal step in the prosecution of an action" as distinguished from "acts done in the recesses of a solicitor's office" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55]).

3. It is "some step in the action required by the rules of procedure, but not necessarily carried out in accordance with those rules, to carry the action forward to a final judgment" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Argo Pty Ltd v Attorney-General (Tas) (No 3) [2004] TASSC 51; (2004) 13 Tas R 69).

4. It is characterized as "activity recognized by the Rules as an activity which positively advances the cause and its conduct towards ultimate judgment" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Burns v Korff [1982] 8 QL 201, 208).

In general terms, a procedural step is "something in the nature of a formal step which a party is required or permitted by the rules of court, or an order of the court, to take for the purpose of advancing the case towards final judgment" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55]).

4. Actions that Constitute a Procedural Step

The courts have established that certain actions will constitute a procedural step for the purposes of Order 3 r 7 and Order 4A r 24. These include:

1. Filing and service of a pleading or an amended pleading (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [58], referring to Crane v The State of Western Australia [2017] WASCA 31 at [28]-[29]).

2. Filing a minute of proposed orders, which can be construed as constituting an application to the court for the orders sought, as it is a formal step in the proceeding for the purpose of advancing the case (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [56]).

3. The provision of copies of discovered documents (as distinguished from mere inspection of such documents) (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Wright v Ansett Transport Industries Limited [1990] 1 Qd R 297).

It is important to note that the filing and service of an amended pleading will constitute a procedural step in a case even if another aspect of the case is subject to a stay order, provided the amended pleading does not relate to the stayed aspect of the case (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [61]).

5. Actions that Do Not Constitute a Procedural Step

The courts have also established many actions that will not constitute a procedural step for the purposes of Order 3 r 7 and Order 4A r 24. In Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], Smith AUJ, citing Crane v The State of Western Australia [2017] WASCA 31, provided an extensive list:

1. A letter requesting delivery of a statement of claim (Ives & Barker v Willans [1894] 2 Ch 478, 483-484).

2. An agreement to extend the time for delivering a defence, although an application to the court for such an extension would be a step (Brighton Marine Palace and Pier Ltd v Woodhouse [1893] 2 Ch 486, 488-489).

3. Making an application to set aside judgment (ANZ Banking Group Ltd).

4. The filing of affidavits in opposition to an application for the appointment of a receiver, in an action for the dissolution of a partnership (Zalinoff v Hammond [1898] 2 Ch 92).

5. A letter calling for compliance with an order for delivery of an affidavit of documents (Mundy).

6. The inspection of copies of discovered documents in the solicitor's office (Citicorp).

7. Delivery of a draft list of documents and unexecuted affidavit, accompanied by a letter confirming the provisional or interim basis of those documents (Raabe v Brisbane North Regional Health Authority [2000] QSC 257).

8. Interviewing a potential witness (Smiley v Watson [2001] QCA 269; [2002] 1 Qd R 560).

9. An order for the transfer of an action from one court to another (IH Dempster Nominees Pty Ltd v Chemgoods Pty Ltd [1993] 2 Qd R 377, 378).

10. Notice of a change of solicitors (Kaats v Caelers).

11. Notice of intention to proceed (Kaats v Caelers).

12. The taking out by a plaintiff of money paid into court, and payment into court for a cross-claim (Spincer v Watts (1889) LR 23 QBD 350).

In addition, the Court in Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55] clarified that work "done in the recesses of a solicitor's office, such as inspecting documents, preparing an affidavit of discovery or preparing proofs of witnesses, which, although necessary to bring the action to trial, cannot be fairly described as a 'proceeding' in the cause" does not constitute a procedural step.

6. Distinguishing Features of a Procedural Step

From the cases, several distinguishing features emerge that separate actions that constitute procedural steps from those that do not:

1. Formality: A procedural step involves a formal step in the prosecution of an action, typically involving filing or service of a document with the court or other parties.

2. Advancement: The action must positively advance the cause towards judgment.

3. Recognition by Rules: The activity should be one recognized by the Rules as an activity that advances the proceedings.

4. Public Nature: Actions that are done privately in a solicitor's office without being communicated to the court or other parties generally do not constitute procedural steps.

7. Example from Vantage Holdings Group Pty Ltd v Donnelly [No 5]

The facts of Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 provide a useful illustration of the application of these principles. The case involved a complex corporate dispute with multiple plaintiffs and defendants. In November 2019, the Supreme Court made a stay order affecting the claims by the third plaintiff (Australian Reliance) against the fifth and sixth defendants (collectively "the Auditors"). The stay was to take effect if security was not provided by a certain date. Security was not provided on time, and the stay came into effect in April 2021. However, security was eventually furnished in February 2022, but the parties disagreed about whether this automatically lifted the stay. The matter went dormant for some time, and in April 2023, the Auditors sought to have the matter placed on the Inactive Cases List on the basis that no procedural step had been taken for more than 12 months. The court found that while the filing of a notice of intention to proceed did not constitute a procedural step, the previous filing of a minute of proposed orders in March 2022 could be construed as a procedural step, although by April 2023, 12 months had passed since that step. Ultimately, the court ordered that the case would not be taken as inactive, provided the plaintiffs filed an amended statement of claim by a certain date, which they subsequently did.

8. Importance of Taking Timely Procedural Steps

The decision in Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 highlights the importance of taking timely procedural steps in litigation. At paragraph [56], Smith AUJ noted that filing a minute of proposed orders could constitute a procedural step, but because 12 months had elapsed since that step, Order 4A r 24 was invoked. If a matter is placed on the Inactive Cases List and not removed, it may ultimately be dismissed.

Moreover, as noted at paragraph [120], even if a stay is discharged, parties who do not take prompt steps to progress proceedings may face applications to dismiss the action for want of prosecution. Smith AUJ specifically warned: "Australian Reliance (together with the other plaintiffs should be on notice) that if they do not take prompt steps to progress these proceedings to trial, that they will likely face an application to dismiss the action on grounds of want of prosecution which may be successful."

9. Practical Considerations

Practitioners should be mindful of several practical considerations to avoid having their matters placed on the Inactive Cases List:

1. Diarize Critical Dates: Ensure that relevant dates for taking procedural steps are diarized, particularly the one-year anniversary of the last procedural step.

2. Filing Formal Documents: Where a matter has been dormant, consider filing formal documents that will constitute procedural steps, such as amended pleadings or applications.

3. Conferral and Correspondence: Be aware that mere correspondence between parties or conferral will generally not constitute procedural steps.

4. Notice of Intention to Proceed: While filing a notice of intention to proceed under Order 3 r 7 does not itself constitute a procedural step, it may demonstrate to the court an intention to progress the matter actively, which could be relevant to the exercise of the case manager's discretion under Order 4A r 24.

5. Disputed Stays: Where there is a dispute about whether a stay order applies or has been lifted, seek clarification from the court promptly rather than allowing the dispute to continue unresolved (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [68]).

10. Conclusion

Understanding what constitutes a procedural step is essential for effective litigation management. The principles established in Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 and the cases it cites provide valuable guidance for practitioners seeking to ensure their matters remain active. By taking timely and appropriate procedural steps, practitioners can avoid the risk of having their matters placed on the Inactive Cases List and potentially dismissed.

The Grapevine Effect in Australian Defamation Law: An Evolving Doctrine and Jurisdictional Differences

Introduction

Defamation law in Australia has long grappled with the challenge of reputational harm spreading beyond the initial publication.

This phenomenon, known as the “grapevine effect”, refers to the way defamatory imputations can be repeated informally, reaching audiences far removed from the original publication.

Recent legal developments — including the introduction of a statutory serious harm threshold in most jurisdictions — have prompted courts to refine how they assess the grapevine effect in proving harm and awarding damages.

This article examines the grapevine effect’s legal significance, the accuracy of recent case law interpretations, and key jurisdictional differences as of May 2025, focusing on how the concept has evolved since its High Court articulation in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69, the impact of the serious harm requirement (absent in Western Australia), and the courts’ approach to evidence of digital dissemination on social media.

The Grapevine Effect: Concept and Significance

The grapevine effect captures the reality that, once a defamatory statement is released, its “real damage” cannot be precisely measured because the slander or libel may be relayed to others through rumour or gossip. Lord Atkin described this in Ley v Hamilton (1935): "It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh the compensation which will recompense a person for the pain of a false accusation." In defamation law, this insight justifies robust general damages. Even if a plaintiff cannot identify every person who encountered the slur, the law presumes some wider reputational harm as a natural consequence of the publication. This presumption historically allowed plaintiffs to recover general damages without strict proof of actual loss, on the premise that defamatory “poison” likely spread beyond the initial audience.

The grapevine effect also relates to the vindicatory function of defamation damages. Because it is often impossible for a plaintiff to know who later heard the slur, damages not only compensate for proven harm and personal distress, but also provide solace for unquantifiable future harm and serve to vindicate the plaintiff’s reputation. Courts have emphasised that an award of damages should be sufficient to convince a reasonable observer — even one who learns of the defamatory claim later “through the grapevine” — that the allegation was baseless.

High Court Endorsement in Palmer Bruyn & Parker v Parsons (2001)

The High Court of Australia in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 acknowledged the grapevine effect when discussing how damages are assessed in reputation-based torts. Although the case concerned injurious falsehood, the Court’s reasoning drew on defamation principles. Gummow J noted that the “grapevine effect” is a metaphor explaining the breadth of general damages in defamation because one cannot track how far the defamation spreads or what damage ensues. Referencing Ley v Hamilton, his Honour affirmed that general damages are “at large”, covering not only observable harm but also the immeasurable likelihood of further dissemination.

The Serious Harm Threshold and the End of Presumed Damage

In 2021, Australian defamation law entered a new era with the enactment of the Stage 1 Model Defamation Amendment Provisions 2020 in most jurisdictions. A centrepiece of these reforms was the introduction of a “serious harm” element (now s 10A of the Defamation Act 2005 (NSW) and equivalent provisions elsewhere). A plaintiff must now prove that a publication "has caused, or is likely to cause, serious harm" to their reputation. This reform abolishes the old common‑law presumption of damage. Courts look to the United Kingdom’s Lachaux v Independent Print Ltd [2019] UKSC 27 when interpreting the serious harm requirement and insist on concrete evidence of impact.

Grapevine Effect in the Era of Serious Harm: Recent Case Law

Limited Spread: Rader v Haines [2022] NSWCA 198

In Rader v Haines, defamatory allegations were emailed only to the plaintiff’s parents. Having regard to English case law, the New South Wales Court of Appeal held that the serious‑harm threshold was not met. There was no evidence of wider dissemination or any grapevine effect; the limited publication failed to cause serious reputational damage.

Ongoing Social Media Campaign: Martin v Najem [2022] NSWDC 479

By contrast, Martin v Najem concerned a series of defamatory Instagram posts published by a well‑known food blogger. The District Court found that the serious‑harm element was satisfied because the posts were public, widely shared, and repeated. The Court inferred a grapevine effect from the online reach and awarded substantial damages, including aggravated damages and injunctive relief.

Procedural Clarity: Newman v Whittington [2022] NSWSC 249

Newman v Whittington provides guidance on pleading serious harm. The plaintiff’s initial pleading was struck out for failing to articulate specific facts showing serious reputational impact. The decision underscores that plaintiffs must plead particulars such as audience size, republication, or community reaction to rely on the grapevine effect.

Queensland Example: Hockings v Lynch & Adams [2022] QDC 127

Hockings v Lynch & Adams demonstrates a fact‑specific approach to social‑media publication. The Court examined Facebook analytics and evidence of cross‑sharing between groups to determine the extent of the publication. Damages reflected the proven scope of dissemination, distinguishing between posts that went viral and those limited to a narrow audience.

Digital Dissemination: Evidence of Online Reach vs. Potential Reach

Modern defamation claims often involve social media and require proof of actual dissemination. Courts accept analytics data (views, shares, likes), witness evidence of republication, and the nature of the platform in inferring or rejecting a grapevine effect. A mere theoretical potential for worldwide reach is insufficient without supporting evidence of traction.

Jurisdictional Divergence: Western Australia’s Non‑Adoption of Reforms

Western Australia (and the Northern Territory) has not enacted the Stage 1 reforms. Consequently, the serious‑harm threshold does not apply in those jurisdictions, and the common‑law presumption of damage persists. This divergence creates potential forum‑shopping incentives, as illustrated by Bartlett v Roffey [2023] WASC 3. Courts may transfer proceedings to prevent strategic venue choices, but plaintiffs can still benefit from the absence of a serious‑harm threshold in WA.

Conclusion

The grapevine effect remains central to Australian defamation law, explaining why damages are not confined to provable loss. Its role has shifted in jurisdictions with a serious‑harm threshold, where plaintiffs must produce evidence of dissemination to meet the statutory test. In Western Australia, the presumption of damage endures, underscoring significant jurisdictional differences. Practitioners must consider these nuances when advising clients and devising litigation strategies in defamation matters.

Sources

·         Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 (208 CLR 388).

·         Ley v Hamilton (1935) 153 LT 384 (KB).

·         Defamation Act 2005 (NSW) s 10A; Defamation Act 2005 (WA) (unamended).

·         Newman v Whittington [2022] NSWSC 249.

·         Rader v Haines [2022] NSWCA 198.

·         Martin v Najem [2022] NSWDC 479.

·         Hockings v Lynch & Adams [2022] QDC 127.

·         Bartlett v Roffey [2023] WASC 3.

·         FJ v Siglin (No 2) [2024] WADC 13.

Grapevine Effect in Australian Defamation Law – Case Summaries

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69

In this High Court decision (which primarily concerned injurious falsehood), the “grapevine effect” was explicitly discussed as a concept in defamation law. Gummow J described the term “grapevine effect” as a metaphor used “to help explain the basis upon which general damages may be recovered in defamation actions”. His Honour quoted Lord Atkin’s famous statement in Ley v Hamilton that in defamation cases it is “impossible to track the scandal, to know what quarters the poison may reach”, emphasising that the real damage to reputation often cannot be precisely measured. In other words, defamatory remarks, once “driven underground,” may resurface and spread beyond the initial publication, which justifies awarding damages at large. This recognition underpins the law’s willingness to presume some level of damage to reputation even without direct evidence of harm in every quarter.

Importantly, Gummow J also cautioned that the grapevine effect is not a legal wild card but an inference drawn from the facts. He noted that the effect “may provide the means by which a Court may conclude that a given result was ‘natural and probable’. However, this will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published.” In short, a court can take likely republication into account when assessing defamation damages, but only if the evidence and context support a finding that further dissemination was the natural and probable consequence of the initial publication. The High Court’s remarks in Palmer Bruyn firmly entrenched the grapevine effect in Australian defamation jurisprudence as a real but fact-dependent phenomenon, rather than a presumption operating in a vacuum.

Newman v Whittington [2022] NSWSC 249

This was one of the first Australian cases to consider the newly introduced “serious harm” threshold in defamation, and Sackar J’s judgment provides a detailed treatment of the grapevine effect in the context of online defamation. His Honour reaffirmed the principle that defamatory communications often spread beyond their original audience, citing with approval the notion that “the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published” and that the “poison” of a libel may extend beyond its initial recipients. The judgment references the High Court’s explanation in Palmer Bruyn and Lord Atkin’s metaphor, making clear that damages must account for the risk that a defamation, once public, can circulate broadly over time. Sackar J noted that defamation damages should contemplate republication because a slander “driven underground [may] emerge from its lurking place at some future date”, encapsulating the grapevine effect’s enduring impact.

In applying these principles, Newman v Whittington illustrates how the grapevine effect can bolster a plaintiff’s case on both serious harm and damages. The defendant’s allegations (posted on Facebook and a blog) were highly serious – accusing the plaintiff of supporting paedophiles and other misconduct – and were made on public platforms. The Court found strong evidence that the defamatory claims had circulated widely, or at least that they were likely to spread, given the public nature of the posts and the incendiary content. Sackar J explicitly allowed for the grapevine effect in the damages assessment, accepting that “by the ordinary function of human nature, the dissemination of defamatory material” would extend beyond the first audience. Even if the precise extent of publication could not be proven, the Court inferred continued circulation and lasting reputational harm. As a result, the plaintiff was found to have suffered (and be likely to suffer) serious harm to her reputation, and the Court awarded substantial general and aggravated damages, taking into account the probable spread of the defamation through the community. In sum, Newman v Whittington confirms that Australian courts will factor in the grapevine effect – supported by evidence or common sense inference – when determining if a defamatory publication has caused “serious harm” and in quantifying damages for reputational injury.

Rader v Haines [2022] NSWCA 198

The New South Wales Court of Appeal in Rader v Haines directly grappled with the grapevine effect in evaluating whether the serious harm threshold was met. This case involved an email containing defamatory accusations sent by a couple to the plaintiff’s parents – a very limited initial publication. The plaintiff argued that the email had nonetheless gravely harmed his reputation. However, the Court (Brereton JA, with Macfarlan JA agreeing) held that the evidence did not establish serious reputational harm, largely because the defamatory material had not spread beyond the original recipients. His Honour noted there was “no evidence presented that [the email] caused reputational harm to the appellant within a broader audience or via the ‘grapevine effect’.” In other words, there was nothing to show that anyone other than the two parent recipients had heard or believed the allegations. The parents’ negative reaction to the email was temporary, and they reconciled with the appellant within weeks, which meant the impact on the plaintiff’s reputation was fleeting and contained.

Rader v Haines makes clear that the grapevine effect is not to be presumed in a vacuum and that the onus is on the plaintiff to prove broader dissemination if it is to be relied upon. Brereton JA outlined factors relevant to “serious harm,” explicitly including whether there is any evidence of a grapevine effect (i.e. the allegations spreading beyond the immediate recipients). In this case, the absence of such evidence was decisive. The Court refused to infer serious harm merely from the gravity of the allegations or the plaintiff’s own feelings; without proof that the defamatory email had percolated through the community or reached others who thought less of the plaintiff, the statutory threshold was not satisfied. Thus, Rader v Haines serves as a cautionary counterpoint – it underscores that while courts recognize the grapevine effect, a plaintiff cannot rely on it unless there is tangible or inferential evidence of republication or rumour. The grapevine effect must be proven or at least plausibly inferred from the circumstances, and if a defamation remains limited to a tiny audience (as here, one’s parents), broad damage to reputation will not be found.

Martin v Najem [2022] NSWDC 479

In Martin v Najem, the District Court (Gibson DCJ) applied the grapevine effect doctrine in a modern social media context. The plaintiff, a prominent food blogger, sued a rival influencer who had published videos on Instagram calling him, among other things, “a paedophile” and “a racist.” Given the plaintiff’s public profile and the nature of the platform, the Court was satisfied that the serious harm element (required under the amended Defamation Act) was met – indeed, this case was noted as the first time an Australian court upheld a plaintiff’s claim under the new serious harm test. A key reason was the extensive dissemination and impact of the defamatory videos. Gibson DCJ found that the extreme gravity of the imputations, the mode and reach of publication, and the ensuing effects on the plaintiff all pointed to significant reputational harm.

Notably, the Court took into account the grapevine effect in reaching that conclusion. Because the defamatory statements were made by a well-known blogger on a public social media account, it was inferred that the allegations would naturally spread beyond the immediate viewers. In fact, there was evidence of substantial publication – for example, the Instagram account had a large follower count and the posts generated considerable attention. Gibson DCJ cited Sackar J’s discussion in Newman v Whittington (paras [30]–[46]) on the typical spread of defamation via the grapevine, underscoring that social media accelerates and amplifies the phenomenon. She observed that the “grapevine effect” was of particular significance in the circumstances of this online feud. In practical terms, this meant the Court was willing to infer that many people in the foodie and social media community would hear of the accusations (even if they did not witness the original posts), compounding the harm to the plaintiff’s reputation. Ultimately, Martin v Najem resulted in a substantial damages award ($300,000 including aggravated damages). The case highlights that when defamatory content is shared on social networks, courts will readily acknowledge the grapevine effect – supported by evidence like follower numbers, reactions, and the plaintiff’s public standing – to find serious harm and to ensure the damages adequately compensate for the likely spread of the false allegations.

Hockings v Lynch & Adams [2022] QDC 127

This Queensland District Court case illustrates a nuanced application of the grapevine effect in the context of Facebook publications. The plaintiff, Ms Hockings, sued the defendants over a series of defamatory posts on social media (Facebook) that had targeted her. In assessing the extent of publication and the appropriate damages, the Court (Porter QC DCJ) was mindful of the grapevine effect and the need to gauge how far the defamatory statements had permeated beyond the original posts. The judgment explicitly noted that the expression “grapevine effect” has long been used to explain how general damages in defamation compensate for unobservable spread of a slur. Echoing the High Court and other authorities, the Court acknowledged that the real harm of defamation often lies in its covert and uncontrolled propagation: the “real damage cannot be ascertained and established” because once a defamatory statement is published, one cannot easily “determine the extent to which the poison may reach.” Accordingly, Hockings v Lynch & Adams reinforced that courts must ensure a damages award is sufficient to vindicate the plaintiff if and when the defamation later “emerges from its lurking place” via the grapevine. As the Court observed, damages should be enough to convince a hypothetical bystander who learns of the slur down the track of its baselessness. This is effectively the vindicatory aspect of defamation damages, tightly linked to the grapevine effect principle.

Crucially, the court did not assume the grapevine effect operated uniformly for every publication – it examined the evidence for each post. In some instances, the plaintiff was able to show that the defamatory posts circulated beyond the originally intended audience, given the size of certain Facebook groups and the overlap of membership between groups. For those occasions, the judge found that publication was broader than the defendants admitted, meaning the grapevine had indeed carried the defamation to additional people. However, in other instances, the posts were seen only by the defendants’ own friends or followers and did not escape into the wider community. In those scenarios, the grapevine effect was minimal or nil. This balanced approach demonstrates that the grapevine effect is a fact-specific inquiry: the Court will infer or allow for reputational spread only to the extent justified by the social networks and circumstances at play. Ultimately, Hockings v Lynch & Adams awarded damages calibrated to the proven reach of the posts – accounting for broader dissemination where evidenced (or reasonably probable) and not speculating beyond that. The case stands as an example of a court carefully dissecting how a defamatory message on Facebook can ripple through shared connections (or, sometimes, remain relatively contained), and tailoring its legal response to those findings.

Dabrowski v Greeuw [2014] WADC 175

Dabrowski v Greeuw is an early Australian example of Facebook defamation and shows the court’s consideration of the grapevine effect in a relatively small-scale publication. The defendant, Ms Greeuw, had posted on her public Facebook page that she had separated from the plaintiff after “18 years of suffering domestic violence and abuse” – a serious allegation of misconduct by the plaintiff (Mr. Dabrowski). The District Court of Western Australia (Bowden DCJ) found this post defamatory and rejected the defence of truth, ultimately awarding the plaintiff $12,500 in general damages. In reaching that modest sum, the Court carefully evaluated the scope of publication and potential republication of the defamatory claim.

Bowden DCJ expressly noted the grapevine effect, observing that a statement on social media can be spread or repeated beyond the initial viewers. He cited the New South Wales case Mickle v Farley (which involved defamatory Facebook and Twitter posts) for the proposition that the “grapevine effect” stemming from the use of Facebook must be considered when assessing damages. The judge acknowledged that the defamatory imputations could have been circulated further by friends-of-friends or gossip – in theory, the grapevine effect “could mean that the defamatory imputations were repeated.” However, the critical finding in this case was that the actual reach of the post was quite limited. The evidence showed only a handful of people had seen the Facebook post (the plaintiff’s brother and a few others, including one person who stumbled upon it while looking up the plaintiff’s profile). There was no proof of any broad republication or that the wider community had learned of the allegations. In fact, the people who saw the post were mostly those in the plaintiff’s and defendant’s circle (and one curious outsider), and there was no indication of the news spreading further through the “grapevine.” Bowden DCJ noted that no special or financial loss was proved and that the remarks were made to a limited audience.

In these circumstances, while the Court conceptually recognized the grapevine effect, it did not significantly inflate the damages on the basis of any hypothetical spread. The judge treated the grapevine effect as a factor that was “properly taken into account in assessing damages”, but ultimately he assessed the harm as relatively contained. The result was a moderate damages award reflecting the injury to the plaintiff’s reputation among those who actually saw the post, without any premium for widespread dissemination (since none was shown). Dabrowski v Greeuw thus underscores that a plaintiff should present evidence of extended publication if they wish to leverage the grapevine effect; absent that, courts will limit damages to the scale of publication that is proven, even on social media.

Wilson v Ferguson [2015] WASC 15

Although Wilson v Ferguson was not a defamation case (it was a breach of confidence case concerning the unlawful sharing of private images on Facebook), the Supreme Court of Western Australia’s discussion is instructive on the grapevine effect’s broader relevance. The plaintiff’s ex-boyfriend had posted intimate photographs of her online out of revenge, and the Court (Mitchell J) was asked to award an injunction and equitable compensation for the distress and harm caused. The plaintiff’s counsel drew an analogy to defamation, arguing that the grapevine effect concept should guide the Court in appreciating how far and fast the humiliation could spread in a workplace and social community.

Mitchell J referred to defamation authorities on the grapevine effect but ultimately to make a cautionary point about evidence. He noted that in defamation cases, courts may take into account the potential republication of a defamatory statement when assessing general damages. Indeed, counsel cited Palmer Bruyn & Parker v Parsons [2001] HCA 69 at [88]–[89] in this regard. However, His Honour clarified that those cases dealt with how a court assesses damages given likely dissemination, and did not override the normal rules of proof. In the context of Wilson v Ferguson, this meant that while the Court was aware that gossip about the leaked photos could circulate (the modern “grapevine”), one still needed proper evidence to prove that such conversations and further publications had in fact occurred. The plaintiff sought to admit hearsay evidence that people at her workplace were talking about the images. Mitchell J refused to allow hearsay under the guise of the grapevine effect, holding that defamation law’s recognition of likely circulation does not make otherwise inadmissible evidence acceptable.

In the end, the Court did infer from admissible evidence that the defendant’s Facebook post was widely discussed among colleagues (the mine-site “Cloudbreak” employees). That inference was based on direct testimony, not just speculation. Mitchell J’s judgment therefore resonates with a key lesson: the grapevine effect can be a double-edged sword. It reminds courts of the real possibility of widespread harm, but it is not a license to dispense with proof. Even outside defamation, the notion that scandal spreads informed the Court’s approach to crafting relief – the judge granted an injunction and awarded ~$48,000 in equitable compensation, effectively acknowledging that the reputational and emotional harm was magnified by the broad dissemination of the private images. However, he grounded his findings in solid evidence of circulation rather than mere assumption. Wilson v Ferguson thus demonstrates the judiciary’s general acceptance of the grapevine effect’s logic (information online tends to diffuse quickly, causing extensive harm), coupled with a insistence on evidence-based reasoning when applying that logic to the facts at hand.

Each of these cases, in its own way, sheds light on how Australian courts handle the grapevine effect. From High Court endorsement of the concept in principle (Palmer Bruyn), to meticulous trial court applications in social media contexts (Newman, Martin, Hockings, Dabrowski), to a cautious evidentiary approach when the concept is invoked (Rader, Wilson), the consistent theme is that while the law recognizes people gossip and defamation can spread like wildfire, the extent of such spread must be proven or reasonably inferred from the circumstances. Courts will neither ignore the grapevine effect when justice requires it, nor will they assume it in the absence of any indicia. This calibrated approach ensures that damages and outcomes in defamation (and analogous actions) remain firmly anchored in the reality of each case.

The Capacity to Make Specific Medical Treatment Decisions

Introduction

The law concerning capacity to make medical treatment decisions operates under the general presumption of capacity enshrined in section 4(3) of the Guardianship and Administration Act 1990 (WA) (GA Act). This article examines the nuanced approach that must be taken when assessing capacity for specific medical treatment decisions, as distinct from the broader declarations of incapacity that may be made under the GA Act.

The Legislative Framework for Medical Treatment Decisions

Part 9B of the GA Act

Part 9B of the GA Act establishes a legislative framework for medical treatment decisions when an individual lacks capacity. This framework is critical to understanding how the law deals with specific medical decisions as distinct from broader capacity determinations.

Section 110P of the GA Act requires "full legal capacity" for a person to make an advance health directive. This represents the highest threshold for capacity under the Act, reflecting the serious and enduring nature of such directives.

For individuals who lack capacity to make treatment decisions, section 110ZD establishes a hierarchy of decision-making authority that operates outside the guardianship system. This hierarchy is as follows:

1. The patient's spouse or de facto partner who is living with the patient (section 110ZD(3)(a))

2. The patient's nearest relative who maintains a close personal relationship with the patient (section 110ZD(3)(b))

3. The primary provider of care and support who is not remunerated for providing that care and support (section 110ZD(3)(c))

4. Any other person who maintains a close personal relationship with the patient (section 110ZD(3)(d))

As noted in NJ [2025] WASAT 35 at [91], the term 'nearest relative' is defined in section 3 of the GA Act and establishes that the eldest child will be preferred if multiple children could be considered the nearest relative.

The person responsible framework in section 110ZD represents a less restrictive alternative to guardianship, allowing treatment decisions to be made without formal Tribunal intervention where appropriate. In NJ [2025] WASAT 35 at [94], the Tribunal observed that this mechanism was effective for certain medical decisions, noting that "NJ does not require a guardian to make decisions about medical treatment not covered by the AHD as KL has the authority conferred by s 110ZD."

Limitations on Medical Decision-Making Authority

Importantly, the GA Act contains specific provisions that limit decision-making authority in relation to certain medical procedures. Section 110ZJ expressly prohibits sterilization procedures unless authorized by the Tribunal under Division 3 of Part 5 of the Act. Section 3B of the GA Act specifically excludes voluntary assisted dying decisions from the scope of treatment decisions that can be made under an advance health directive or by a guardian.

These provisions highlight the legislature’s intent to ensure that particularly significant medical decisions remain subject to special procedures and safeguards, reflecting the principle articulated in Re T (Adult: Refusal of Treatment) [1993] Fam 95 that "the more serious the decision, the greater the capacity required."

The Presumption of Capacity

The starting point for any consideration of capacity is the statutory presumption that all adults possess capacity. As noted in NJ [2025] WASAT 35 at [18]:

"The starting point for the Tribunal is that every person is presumed to be capable of making their own decisions about their estate and their person. The presumption of capacity is enshrined in the GA Act as follows: (3) Every person shall be presumed to be capable of — (a) looking after [their] own health and safety; (b) making reasonable judgments in respect of matters relating to [their] person; (c) managing [their] own affairs; and (d) making reasonable judgments in respect of matters relating to [their] estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal."

This statutory presumption reflects the common law position that "there is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted" (Hunter and New England Area Health Service v A [2009] NSWSC 761 at [23], cited in NJ [2025] WASAT 35 at [47]).

Evidentiary Standards for Capacity Determinations

The Tribunal applies a heightened standard of proof when making determinations about capacity, reflecting the serious consequences of such findings. In NJ [2025] WASAT 35 at [19], the Tribunal articulated this standard:

"The presumption of capacity is a fundamental principle in the GA Act and can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the person in respect of whom the proceeding is brought is a person for whom a guardianship or an administration order can be made."

This approach reflects the principles established in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires a higher degree of persuasion for findings that are serious in nature or have significant consequences for the individual. The Tribunal in NJ explicitly referenced Briginshaw in conjunction with previous Tribunal decisions in LP [2020] WASAT 25 and GC and PC [2014] WASAT 10.

The evidentiary burden for displacing the presumption of capacity has practical implications for how the Tribunal assesses evidence. As noted in NJ [2025] WASAT 35 at [20]:

"Considering the seriousness of the consequences for a proposed represented person that flow from a finding by the Tribunal of incapacity, or the consequences of the Tribunal failing to identify an incapable person in need of protection, the Tribunal must make findings of fact about capacity by reference to evidence which may be from a wide variety of sources, including the evidence of medical and allied health professionals and also lay evidence."

This approach means that the Tribunal will:

1. Require clear and cogent evidence of incapacity, not merely a balance of probabilities

2. Consider evidence from multiple sources, not just medical opinions

3. Be particularly careful when the finding will result in a loss of decision-making autonomy

4. Consider both the risk of incorrectly finding incapacity and the risk of failing to identify incapacity when it exists

The application of this evidentiary standard was demonstrated in NJ [2025] WASAT 35 when the Tribunal carefully weighed conflicting medical opinions from Dr. H and Dr. W regarding NJ's capacity to make different types of decisions. Rather than simply accepting one opinion over another, the Tribunal engaged in a detailed analysis of NJ's specific capabilities, ultimately concluding that she lacked capacity for some decisions but not necessarily for others.

Capacity as Decision-Specific Rather Than Global

A fundamental principle in assessing capacity is that capacity is decision-specific rather than global. As noted in NJ [2025] WASAT 35 at [55], when discussing the Full Tribunal's decision in C [2024] WASAT 50:

"In Guthrie v Spence [at 175], Campbell JA stated: 'It is well-accepted that there is no single test for capacity to perform legally valid acts and that the task-specific nature of these tests for capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task.'"

This position is further reinforced by the observation in Hunter and New England Area Health Service v A [2009] NSWSC 761 at [24] (cited in NJ [2025] WASAT 35 at [55]):

"In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision and the capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one's fortune is not."

The Test for Capacity to Make Medical Treatment Decisions

The test for capacity to make medical decisions at common law has been articulated in several key decisions. In NJ [2025] WASAT 35 at [55], the Tribunal cited the Full Tribunal's summary in C [2024] WASAT 50, which restated the test from Re MB (as summarized in Hunter and New England Area Health Service v A):

"As Butler-Sloss LJ said in Re MB, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person: (1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or (2) is unable to use and weigh the information as part of the process of making the decision."

Similarly, in Re T (Adult: Refusal of Treatment) [1993] Fam 95 at [295] (cited in NJ [2025] WASAT 35 at [55]), Thorpe J observed that:

"the question to be decided is whether it has been established that the patient's capacity is so reduced that he does not sufficiently understand the nature, purpose and effect of the proper treatment."

Thorpe J further identified that a person needs to be able to "comprehend and retain treatment information, they need to believe that information, and they need to be able to weigh it in the balance to make a choice" (NJ [2025] WASAT 35 at [55]).

The Full Tribunal in C [2024] WASAT 50 developed a structured approach to determining capacity for specific medical decisions, summarized in NJ [2025] WASAT 35 at [55]:

"Drawing on that common law approach, we consider that in order for the Tribunal to determine whether or not [a person] is able to make reasonable judgments in respect of whether or not [a specific medical procedure] should be performed on her, it is necessary to consider: (a) What cognitive ability – that is, reasoning process – a person is required to be able to undertake in order to make a reasonable judgment of that kind; (b) What is the evidence as to [the person's] capacity in that respect; and (c) Is that evidence sufficient to displace the presumption of capacity under the GA Act to make such decisions as this one."

Notably, the Full Tribunal emphasized that sophisticated medical knowledge is not required to demonstrate capacity to make medical decisions (NJ [2025] WASAT 35 at [55]):

"At the outset, we should say that we do not consider that a person needs to be able to demonstrate a level of sophisticated medical knowledge in order to be able to make a reasonable judgment in respect of a decision such as whether to have [a medical procedure]. We think it is sufficient if they are capable of understanding the main elements of the procedure, and its risks and consequences, rather than the technical or exact details of the treatment or its effect."

Distinguished from Global Declarations of Incapacity

A critical distinction exists between capacity to make specific medical decisions and the broader declarations of incapacity that may be made under the GA Act. In NJ [2025] WASAT 35 at [50], the Tribunal noted:

"To have capacity to make this specific type of medical treatment decision, which is to choose medical assistance to end one's life, is clearly very different to a person being 'unable to make reasonable judgments in respect of matters relating to his or her person', which is the global declaration required to enliven an enduring power of guardianship. This broad mandatory declaration does not allow the Tribunal to address the specifics of a particular decision that the person is incapable of making."

This distinction is important because global declarations of incapacity can sometimes inappropriately prevent a person from making specific medical decisions they are capable of making. As evidenced in NJ [2025] WASAT 35, a declaration that a person is "unable to make reasonable judgments in respect of matters relating to his or her person" under section 110L of the GA Act prevented NJ from being assessed for voluntary assisted dying, even though such an assessment includes its own capacity evaluation.

Advance Health Directives and Capacity Requirements

The capacity required to execute an advance health directive under the GA Act is defined as "full legal capacity" (section 110P), which is not specifically defined in the Act. However, as noted in NJ [2025] WASAT 35 at [67], the Western Australian Department of Health provides guidance that "full legal capacity" in this context means the person:

"• understands any information or advice given to you to help make decisions in your Advance Health Directive • understands the likely effect(s) of the decisions you make in your Advance Health Directive on your future treatment and care • are able to weigh up the possible pros and cons of your decisions about your future treatment and care • are able to communicate your decisions about your future treatment and health care in some way."

The Tribunal in NJ [2025] WASAT 35 at [68] observed that these requirements closely parallel the decision-making capacity requirements for voluntary assisted dying under section 6(2) of the Voluntary Assisted Dying Act 2019 (WA).

Balancing Protection with Autonomy

The Tribunal's approach in cases like C [2024] WASAT 50 (described in NJ [2025] WASAT 35 at [51]-[55]) demonstrates the careful balance required between protecting vulnerable individuals and respecting personal autonomy in medical decision-making. In that case, despite having a guardian appointed with authority to make medical treatment decisions, Ms AB was found capable of making a reasonable judgment about whether to have an abortion.

Similarly, in NJ [2025] WASAT 35, the Tribunal revoked a declaration of incapacity to make reasonable judgments in respect of matters relating to the person, which allowed NJ to be assessed for capacity to make decisions about voluntary assisted dying. This approach recognized that capacity is decision-specific and that a person may retain capacity to make certain medical decisions even if they require assistance with other aspects of their personal affairs.

Worked Example: Assessing Capacity for a Specific Medical Decision

Case Study: Mrs. Wilson

Mrs. Wilson is a 72-year-old woman diagnosed with early-stage dementia. She resides in an aged care facility and has a limited guardian appointed by the Tribunal who makes decisions about her accommodation and services, but not for medical treatment decisions. The Tribunal previously made a declaration that she was "unable to make reasonable judgments in respect of matters relating to where she should live and what services she should access." Mrs. Wilson requires surgery for cataracts that will significantly improve her vision. The surgeon has requested an assessment of Mrs. Wilson's capacity to consent to this procedure.

Application of Principles

Step 1: Consider the presumption of capacity

The absence of a limited guardian appointed specifically for medical treatment decisions is significant in this case because section 4(3) of the GA Act establishes a presumption of capacity that applies to specific decisions not covered by existing guardianship orders. The limited nature of the guardian's authority and the specificity of the earlier declaration of incapacity (relating only to accommodation and services) means that the presumption of capacity remains intact for medical decisions like the proposed cataract surgery (consistent with the approach in NJ [2025] WASAT 35 at [50]).

Step 2: Assess capacity specifically for the cataract surgery decision

Following the approach in C [2024] WASAT 50 (as cited in NJ [2025] WASAT 35 at [55]), the assessment considers:

(a) What cognitive ability Mrs. Wilson requires to make this specific decision; (b) The evidence of Mrs. Wilson's capacity in respect of this decision; and (c) Whether that evidence displaces the presumption of capacity.

During the assessment, Mrs. Wilson demonstrates that she:

• Can explain that the surgery will "fix her cloudy eyes" and help her see better

• Understands the procedure involves removing her natural lens and replacing it with an artificial one

• Comprehends that there are risks of infection and bleeding, though cannot recall all the technical details

• Recognizes that without surgery her vision will continue to deteriorate

• Expresses a consistent preference for having the surgery to improve her quality of life

• Can communicate her decision and reasoning clearly

Step 3: Apply the legal test for capacity

Applying the test articulated in Re MB (cited in NJ [2025] WASAT 35 at [55]), Mrs. Wilson:

• Can comprehend and retain the material information about the cataract surgery

• Can use and weigh that information in the decision-making process

• Can communicate her decision

Step 4: Determine if Mrs. Wilson has capacity for this specific decision

The assessment concludes that Mrs. Wilson has capacity to make this specific medical decision regarding cataract surgery, despite having previously been declared unable to make reasonable judgments about accommodation and services. Consistent with NJ [2025] WASAT 35 at [50], her capacity for this specific medical decision is distinguished from her difficulties with decisions about where she should live and what services she should access. This demonstrates the decision-specific nature of capacity assessments and reflects the Tribunal's approach of avoiding overly broad declarations of incapacity that might unnecessarily restrict autonomy in areas where capacity remains intact.

Checklist for Assessing Capacity for Specific Medical Decisions

Preliminary Considerations

☐ Review existing orders and declarations regarding capacity (guardianship orders, administration orders, declarations under s.110L)
☐ Identify the specific medical decision requiring assessment
☐ Consider the complexity and gravity of the decision (following Lord Donaldson's principle in Re T (Adult: Refusal of Treatment) [1993] Fam 95)
☐ Begin with the presumption of capacity regardless of any existing orders

Assessment Process

☐ Provide information about the medical decision in clear, simple language
☐ Assess the person's ability to understand the information provided
☐ Determine if the person can retain the information long enough to make a decision
☐ Evaluate whether the person can weigh the benefits and risks
☐ Confirm the person can communicate their decision
☐ Consider whether any impairment or disturbance of mental functioning affects:
☐ Comprehension of information material to the decision
☐ Retention of that information
☐ Use or weighing of that information in the decision process
☐ Communication of the decision

Documentation Requirements

☐ Record the specific medical decision being assessed
☐ Document the information provided to the person
☐ Note the questions asked and responses given
☐ Detail observations of the person's understanding and reasoning
☐ Specify the date, time, and environment of the assessment
☐ Document any fluctuations in capacity observed
☐ Record the conclusion regarding capacity for this specific decision
☐ Provide reasoning that references the applicable legal tests

Next Steps

If the person HAS capacity for the specific medical decision: ☐ Respect their decision even if it contradicts a guardian's view
☐ Document the finding of capacity
☐ Proceed according to the person's decision
☐ Consider whether a review of existing guardianship orders is warranted

If the person LACKS capacity for the specific medical decision: ☐ Determine the appropriate substitute decision-maker:
☐ Enduring Guardian pursuant to an Enduring Power of Guardianship (if applicable and specifies appropriate functions)
☐ Person responsible under s.110ZD of the GA Act
☐ Consider whether a guardianship application is required
☐ Document the finding of incapacity and the basis for this conclusion
☐ Ensure the substitute decision-maker has sufficient information to make the decision

This checklist reflects the principles established in NJ [2025] WASAT 35 and the cases cited therein, particularly the emphasis on decision-specific capacity assessments rather than global determinations of capacity.

Conclusion

The assessment of capacity to make specific medical treatment decisions requires a nuanced, decision-specific approach rather than global determinations of capacity. As demonstrated in NJ [2025] WASAT 35, the Tribunal must carefully consider whether a person has the cognitive ability to understand, retain, and weigh information relevant to a particular medical decision, rather than applying broader findings about capacity to all types of decisions. This approach ensures that individuals retain autonomy over medical decisions they are capable of making, even if they require assistance with other aspects of their personal or financial affairs.

The Tribunal's approach in these cases reflects the fundamental principle articulated by Lord Donaldson in Re T (Adult: Refusal of Treatment) [1993] Fam 95 (cited in NJ [2025] WASAT 35 at [42]): "the more serious the decision, the greater the capacity required." This principle guides the assessment of capacity for specific medical decisions, ensuring that the standard of capacity required is proportionate to the gravity of the decision at hand.

Growth in Guardianship Applications in Western Australia (2016-2024)

Growth in Application Volume

Since 2016-17, Western Australia has experienced a significant increase in Guardianship and Administration (GA) applications processed by the State Administrative Tribunal (SAT). Starting from a base of 3,879 applications in 2016-17, the volume has grown to over 6,000 annually by 2023-24.

Growth Pattern (2016-2024)

Using 2016-17 as our starting point, application numbers show the following trend:

• 2016-17: 3,879 applications (base year)

• 2017-18: 3,864 applications (-0.4% from base year)

• 2018-19: 3,938 applications (+1.5% from base year)

• 2019-20: 4,903 applications (+26.4% from base year)

• 2020-21: 5,061 applications (+30.5% from base year)

• 2021-22: 5,602 applications (+44.4% from base year)

• 2022-23: 5,624 applications (+45.0% from base year)

• 2023-24: 6,061 applications (+56.3% from base year)

This represents an overall increase of 56.3% in GA applications since 2016-17.

Factors Contributing to Growth

Several factors have contributed to the increased volume of GA applications:

Demographic Changes

Western Australia's 65-plus population has grown by approximately 3% annually over the past decade, increasing the number of people who may require substitute decision-makers.

NDIS and Regulatory Changes

Post-2021 changes to disability support systems have required formal consent for many decisions affecting people with disability. These regulatory changes have increased the need for guardianship applications.

Mandatory Review Requirements

Section 84 of the Guardianship and Administration Act requires reviews of existing orders every five years. As the number of active orders increases, so does the volume of mandatory reviews.

Recent Growth Factors

The 7.8% increase in 2023-24 was primarily due to new appointment applications (2,860) and Tribunal-initiated reviews (1,806).

Operational Impact

GA matters now constitute approximately 99% of the Human Rights stream and about 83% of all SAT applications. Despite this volume, SAT has maintained efficiency, finalizing 80% of GA matters within nine weeks during 2023-24, which exceeds its ten-week target.

Future Outlook

Based on current trends:

• Demographic projections suggest continued growth of 3-5% annually

• Proposed reforms to the Guardianship and Administration Act may alter application types but are unlikely to reduce overall volume

• SAT's implementation of digital filing and regional video hearings should help maintain processing efficiency as numbers continue to increase

The data indicates that GA applications in Western Australia will likely continue their upward trajectory in the coming years, reflecting ongoing demographic and policy changes.

The Defence of Contextual Truth in Defamation Law (Western Australia)

1. Introduction and Overview

The defence of contextual truth represents a significant component of Australia's defamation law framework. This defence acknowledges the complex reality that defamatory publications often contain multiple imputations of varying veracity. It provides defendants with a means to defeat defamation actions even where some statements are false, provided the publication's overall truth outweighs any false elements it contains.

The contextual truth defence operates on the principle that a plaintiff's reputation should not receive legal protection against false imputations when other substantially true imputations in the same publication have already damaged that reputation to such an extent that the false imputations cause no incremental harm. Unlike partial justification (which merely mitigates damages), contextual truth constitutes a complete defence if successfully established.

This chapter examines the statutory basis, elements, procedural requirements, and practical application of the contextual truth defence with particular focus on its operation in Western Australia, where significant jurisdictional differences exist compared to other Australian states and territories.

2. Statutory Framework in Western Australia

2.1 Section 26 of the Defamation Act 2005 (WA)

In Western Australia, the contextual truth defence is enshrined in section 26 of the Defamation Act 2005 (WA), which provides:

26 Defence of contextual truth

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

This provision formed part of the uniform defamation legislation adopted across Australian jurisdictions in 2005, which sought to harmonize defamation law throughout the country. However, it is important to note that Western Australia has not adopted the 2020-2021 uniform defamation law amendments (Stage 1 reforms) that have been implemented in other jurisdictions such as New South Wales, Victoria, Queensland, South Australia, Tasmania, and the Australian Capital Territory.

2.2 Distinction from Other Jurisdictions

The 2020 amendments, which Western Australia has not adopted, introduced a significant modification to the contextual truth defence through section 26(2), which explicitly states:

The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.

This amendment was designed to address limitations in the original formulation of the defence that had been identified through judicial interpretation. The absence of this provision in Western Australia's legislation means that the contextual truth defence operates more restrictively in this jurisdiction compared to those that have adopted the 2020 amendments.

In practical terms, this means defendants in Western Australia cannot "plead back" the plaintiff's own imputations as contextual imputations, creating significant strategic and procedural differences in how the defence operates.

3. Elements of the Defence

To successfully invoke the defence of contextual truth in Western Australia, a defendant must establish two key elements:

3.1 Substantially True Contextual Imputations

The first element requires the defendant to prove that the publication carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations that are substantially true.

Key aspects of this element include:

• Separate imputations: The contextual imputations must be separate from those complained of by the plaintiff. Under the unamended WA provision, these must be "other imputations" beyond those the plaintiff has pleaded.

• Substantial truth: The defendant must prove that these contextual imputations are substantially true on the balance of probabilities. Courts recognize that absolute truth may be difficult to establish; minor inaccuracies will not defeat the defence if the "sting" or substantial meaning of the imputation is true.

3.2 No Further Harm to Reputation

The second element requires the defendant to demonstrate that the defamatory imputations complained of do not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.

Key aspects of this element include:

• Comparative assessment: This involves a qualitative assessment of the reputational impact of the imputations complained of against the backdrop of the contextual imputations.

• Zero incremental harm: The test is whether, given the truth of the contextual imputations, the false imputations complained of cause any additional damage to the plaintiff's reputation. If the contextual imputations are of such gravity that the false imputations do not materially worsen the plaintiff's reputation, the defence will succeed.

• Balancing exercise: The tribunal of fact (judge or jury) must weigh the gravity of the true imputations against the gravity of the false ones to determine if the latter add anything to the reputational harm.

4. Judicial Interpretation and Key Case Law

The interpretation and application of the contextual truth defence have evolved through judicial consideration in several significant cases. While many of these cases were decided in other jurisdictions, they provide valuable guidance for Western Australian courts in applying the defence.

4.1 The Whole Publication Approach

In Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161, Gillard AJA established a fundamental principle regarding the contextual truth defence:

"The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting."

This principle was reinforced in Besser v Kermode [2011] NSWCA 174, where the court held:

"A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings."

These cases emphasize that the defence must address the entirety of the defamatory matter being complained of, not just portions of it. The contextual truth defence operates at the level of the publication as a whole, not each imputation in isolation. The aim is to defeat the claim entirely, rather than to excuse or justify individual statements.

4.2 The "In Addition To" Requirement

The most significant limitation of the original s 26 (which still applies in WA) was clarified in Besser v Kermode [2011] NSWCA 174. The NSW Court of Appeal confirmed that s 26 (as unamended) "did not permit a defendant to plead back a plaintiff's imputations" as the contextual truths. The court strictly interpreted the phrase "in addition to the imputations of which the plaintiff complains" to mean the defence is only available if the defendant has some extra imputation apart from those the plaintiff has pleaded.

Subsequently, cases such as Mizikovsky v Queensland Television Ltd (QCA 2013) similarly noted that plaintiffs could neutralize contextual truth by adopting the defendant's contextual imputations into their claim, effectively disarming the defence before trial.

4.3 Separate and Distinct Imputations

For the contextual truth defence to succeed, the contextual imputations must be sufficiently separate and distinct from the imputations complained of by the plaintiff. The test applied to determine whether a particular imputation is sufficiently separate and distinct is whether it is "substantially separate" and "self-contained" as opposed to being "merely one ingredient of a component whole which, when taken as a whole, conveys an imputation which is not conveyed by a part or parts of the publication taken separately."

This requirement ensures that defendants cannot simply reformulate the plaintiff's imputations to establish the defence. The contextual imputations must present a separate narrative substantiated by evidence.

4.4 Successful Applications of the Defence

Under the original s 26, successful invocations of contextual truth were relatively rare, except in cases where plaintiffs neglected to plead certain meanings. For instance, in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369, the defence of contextual truth succeeded against the sole remaining imputation in issue – effectively because the proven truth of other allegations in the broadcast neutralised the sting of that last imputation.

By contrast, in Holt v TCN Channel Nine (2012/2014), the defence was run but ultimately failed – the jury evidently found that the false imputations (such as that the plaintiff wanted his wife to die) did add something to the harm beyond the proved truths. Nevertheless, as noted, Holt received only nominal damages, demonstrating how proven truths can significantly mitigate damages even when contextual truth fails as a complete defence.

5. Procedural Requirements and Pleading Strategy

5.1 Pleading the Defence

A defendant wishing to invoke contextual truth in WA must plead it as a distinct defence in the defence pleading, typically in the alternative to a justification defence. The requirements for pleading and particularization are set out in the Rules of the Supreme Court 1971 (WA), which broadly align with the uniform civil procedure rules in other jurisdictions.

The pleading should include:

1. Identification of contextual imputations: The defence must clearly set out the particular imputation(s) said to be conveyed by the matter that are not among those the plaintiff alleges. These should be pleaded with the same degree of precision as any defamatory imputation.

2. Particulars of substantial truth: The defendant must plead and provide particulars of facts or evidence that will be relied on to prove the substantial truth of each contextual imputation.

3. No further harm assertion: The pleading should assert that, by reason of the substantial truth of these contextual imputations, the plaintiff's reputation was not further harmed by the defamatory imputations complained of.

4. Distinctiveness from plaintiff's imputations: In Western Australia, contextual imputations must be clearly differentiated from the plaintiff's pleaded imputations, given the requirement that they be "in addition to" those complained of.

Failure to comply with these pleading requirements may result in the defence being struck out.

5.2 Plaintiff's Strategic Responses

Under Western Australia's procedures, a plaintiff may respond to a contextual truth plea in several ways:

1. Reply: A plaintiff might file a Reply if there is some affirmative answer, though usually truth is a matter for the defendant alone.

2. Strike-out applications: More commonly, plaintiffs will attack the contextual truth plea via interlocutory applications, seeking to strike out a contextual imputation on the basis that it is not capable of arising or is insufficiently distinct from the pleaded imputations.

3. "Pleading back" or appropriation: A strategic option for plaintiffs in WA is to seek to amend their Statement of Claim to add any defamatory meaning the defendant labels as a contextual imputation, effectively absorbing it into the plaintiff's case and nullifying the "additional" context. In Besser v Kermode, Justice Simpson (at trial) noted the potential for injustice if a plaintiff appropriates a true imputation purely to strip the defendant of a contextual truth defence. However, the Court of Appeal confirmed that under the 2005 wording, the defence strictly requires the imputations to be "in addition" to those complained of. Therefore, if a plaintiff does adopt the would-be contextual imputations into the claim (with leave of the court), the defendant cannot rely on them as context in WA's current framework. Courts may be cautious about allowing late amendments that appear calculated solely to undermine a defence; the timing and overall justice of the case will be considered.

5.3 Jury Considerations

At trial, the contextual truth defence is determined by the jury (if there is a jury) or by the judge in a bench trial. In Western Australia, either party may elect for a jury trial in defamation, although in practice many cases (especially in the WA Supreme Court) proceed without a jury.

If tried by jury, the issues are usually divided as follows:

1. Truth of the contextual imputations: The jury will be asked to decide whether each contextual imputation pleaded by the defendant is substantially true on the balance of probabilities. If the jury finds none of the contextual imputations true, the defence fails immediately.

2. "No further harm" question: If at least one contextual imputation is found true, the jury must assess whether the additional harm caused by the remaining false imputation(s) is negligible or non-existent. This requires them to weigh the gravity of the true imputations against the gravity of the false ones.

The trial judge must craft jury questions or directions to reflect this two-stage process. For example:

1. Are one or more of the following contextual imputations substantially true? If so, identify which ones.

2. If one or more contextual imputations are true, do the defamatory imputations complained of cause any further harm to the plaintiff's reputation because of the substantial truth of the contextual imputations?

It is the defendant's burden to persuade the jury (or judge) on both points.

6. Comparison: 2005 Contextual Truth vs 2021 Amendments

6.1 Key Differences in the Amended Provision

The 2020 Amendment Act (Stage 1 reforms) introduced a revised s 26 (enacted in NSW, Victoria, Queensland, South Australia, etc., from 1 July 2021). Western Australia has not yet adopted these amendments and continues with the original text, but it is important for WA judges and practitioners to understand the differences.

The most significant change in the amended provision is the addition of subsection (2), which states: "The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains."

This amendment explicitly enables defendants to "plead back" the plaintiff's own imputations as contextual imputations, addressing the limitation identified in Besser v Kermode. The requirement for contextual imputations to be "in addition to" the plaintiff's imputations was effectively removed.

6.2 Practical Impact of the Differences

The practical effect of this difference is substantial:

1. Under the 2005/WA law: Defendants cannot use the plaintiff's pleaded imputations as contextual imputations because they are not "in addition to" the plaintiff's pleaded imputations. This allows plaintiffs to strategically "box in" defendants by pleading a broad array of imputations, including any that are substantially true, leaving no surplus truths for the defendant to deploy.

2. Under the 2021 amended law: Defendants can expressly plead that any of the plaintiff's imputations that are substantially true constitute contextual imputations, and argue that in light of those truths, the remaining false imputations cause no further reputational harm.

Illustration of difference: Consider a case where a plaintiff alleges two defamatory imputations from a publication: (1) that he committed fraud (which is true), and (2) that he committed perjury (which is false).

• Under the 2005/WA law, the defendant cannot use imputation (1) as a contextual imputation because it is not "in addition" to the plaintiff's pleaded imputations – it is one of them. The defendant would be forced to run a defence of justification on (1) (succeeding on that part) and separately defend (2) (failing on that). The plaintiff would win on the perjury allegation, albeit with some damage mitigation due to the fraud being proven true.

• Under the 2021 amended law, the defendant could expressly plead that imputation (1) (fraud) is substantially true and constitutes a contextual imputation, and that in light of that truth, imputation (2) (perjury) causes no further reputational harm. If the tribunal of fact agrees, the defendant would succeed in a complete defence.

6.3 Implications for Western Australian Practitioners

For Western Australian lawyers and litigants, the key comparative point is that authorities from other jurisdictions after 1 July 2021 must be read with caution. For example, if a NSW decision in 2022 holds that a defendant was entitled to plead back a plaintiff's imputation, that reasoning is based on the amended provision, not the WA law.

Conversely, older decisions like Besser v Kermode and Mizikovsky remain highly persuasive in WA because they interpret the same statutory language that WA still uses. Unless and until WA updates its defamation statute, a WA court would likely follow the Besser principle that a contextual imputation must be an "additional" one not sued on by the plaintiff.

The strategic dynamics in WA therefore differ significantly from other jurisdictions:

• Plaintiffs can still attempt to preempt contextual truth by broad pleading

• Defendants must be diligent in scanning the publication for any defamatory imputations the plaintiff did not plead

• The scope of contextual truth is narrower in WA than in jurisdictions that have adopted the amendments

7. Worked Examples

7.1 Example 1: The More Serious Imputation

Consider a publication that carries two defamatory imputations about a plaintiff:

1. That the plaintiff has body odor (false)

2. That the plaintiff is a sexual predator (true)

If the plaintiff sues for defamation based only on the first imputation (body odor), the defendant may invoke the contextual truth defence by:

• Identifying the second imputation (sexual predator) as a contextual imputation

• Proving that this contextual imputation is substantially true

• Demonstrating that the imputation about body odor does not further harm the plaintiff's reputation given the truth of the imputation that they are a sexual predator

In this example, the defence would likely succeed because being a sexual predator is objectively more damaging to one's reputation than having body odor. The false imputation does not cause any meaningful additional harm to the plaintiff's reputation in light of the true contextual imputation.

7.2 Example 2: Multiple Imputations in a Business Context

Consider a newspaper article about a Perth businessman that contains the following imputations:

1. That the businessman evaded taxes (false)

2. That the businessman engaged in price-fixing arrangements with competitors (true)

3. That the businessman verbally abused employees (false)

4. That the businessman knowingly sold defective products to consumers (true)

If the businessman sues for defamation based on imputations 1 and 3, the newspaper might invoke the contextual truth defence by:

• Identifying imputations 2 and 4 as contextual imputations

• Proving that these contextual imputations are substantially true

• Demonstrating that the false imputations about tax evasion and verbal abuse do not further harm the businessman's reputation given the truth of the imputations about price-fixing and selling defective products

This defence would only succeed if the newspaper could prove that imputations 2 and 4 are substantially true and that they are of such gravity that imputations 1 and 3 cause no further harm to the businessman's reputation.

7.3 Example 3: Strategic Pleading Considerations

A TV program broadcasts a story about a local official containing these imputations:

1. The official embezzled city funds (true)

2. The official cheated at golf in a charity tournament (false)

Scenario A - Plaintiff omits the embezzlement allegation: If the official sues only on imputation 2 (cheating at golf), the defendant can plead the embezzlement (imputation 1) as a contextual imputation. If proven true, the defendant would likely succeed by arguing that being known as a golf cheat adds nothing to the reputation of someone already proven to be corrupt.

Scenario B - Plaintiff pleads both imputations: If the official includes both imputations in his claim, the defendant in WA cannot use imputation 1 (embezzlement) as a "contextual imputation" because it would not be "in addition to the imputations of which the plaintiff complains." The defendant would need to rely on:

• A direct truth defence (justification) for the embezzlement allegation

• Some other defence for the golf cheating allegation, or accept liability for it

This illustrates how a plaintiff's pleading choices can strategically constrain a defendant under WA law.

8. Practical Considerations for Western Australian Practitioners

8.1 Advising Plaintiffs

When advising potential plaintiffs in defamation actions in Western Australia, practitioners should consider:

1. Strategic pleading: Consider pleading all potential defamatory imputations conveyed by the publication, including those that might be substantially true, to limit the defendant's ability to rely on contextual truth.

2. Anticipating contextual imputations: Review the publication carefully to identify any potential contextual imputations the defendant might rely upon, and consider whether to include these in the original pleading.

3. Responding to contextual truth pleas: Be prepared to challenge the distinctiveness of any contextual imputations pleaded by the defendant, arguing they are not sufficiently separate from the pleaded imputations.

4. Amendment strategy: Consider the timing and strategic value of seeking to amend pleadings to incorporate contextual imputations, while recognizing that courts may view late tactical amendments with skepticism.

8.2 Advising Defendants

When advising defendants considering a contextual truth defence in Western Australia, practitioners should:

1. Jurisdictional awareness: Recognize that Western Australia has not adopted the 2020 uniform law amendments, making the contextual truth defence more restrictive than in other jurisdictions.

2. Thorough publication analysis: Carefully analyze the publication to identify potential contextual imputations not pleaded by the plaintiff that could form the basis of the defence.

3. Evidence assessment: Realistically assess the strength of evidence available to establish the substantial truth of contextual imputations, recognizing the potentially higher evidentiary threshold for serious allegations.

4. Comparative harm analysis: Evaluate whether the defamatory imputations complained of would cause any additional harm to the plaintiff's reputation in light of the contextual imputations, considering factors such as the gravity and subject matter of the imputations.

5. Alternative defences: Consider whether other defences, such as justification (truth) or qualified privilege, may be more appropriate or should be pleaded in the alternative.

6. Strategic pleading: Ensure that contextual imputations are clearly identified and distinguished from the imputations complained of by the plaintiff, with comprehensive particulars provided.

8.3 Interplay with Other Defences

Contextual truth often appears alongside a plea of justification (truth) for the same publication. The defendant will typically attempt justification (s 25) on as many of the plaintiff's imputations as possible, and reserve contextual truth (s 26) for the scenario where one or more imputations cannot be justified.

It is acceptable and common practice to plead both defences—they are not mutually exclusive. From a trial management perspective:

1. The evidence led to establish truth will often serve both defences.

2. If the defendant proves all the plaintiff's imputations true, justification succeeds and contextual truth need not be considered.

3. If the defendant proves only some imputations true, justification fails as a complete defence, but contextual truth may still succeed if the proven truths outweigh the false remainder.

Judges should direct juries carefully on the difference: justification requires every defamatory imputation to be true (a high bar), whereas contextual truth requires at least one contextual imputation to be true and effectively no incremental harm from the plaintiff's imputations.

9. Judicial Considerations

For judges managing defamation proceedings in WA, the contextual truth defence raises particular case management and instructional issues:

9.1 Pleadings Scrutiny

1. At the pleadings stage, scrutinize the formulations of imputations on both sides. A defendant's pleading of contextual truth should be examined for viability: ensure each contextual imputation is properly pleaded and particularized.

2. If a plaintiff seeks to amend pleadings late to absorb a contextual imputation, weigh the prejudice and timing. Courts have a discretion to disallow amendments that would unfairly deprive a defendant of a substantive defence at a very late stage, especially if the contextual truth plea was properly notified earlier.

9.2 Jury Management

1. If a jury trial is on foot, recall that the jury will determine both elements of contextual truth (both truth and "no additional harm"). The judge's role is to explain the concept in summing up and to frame questions that capture the statutory test.

2. When directing a jury on the "no further harm" concept, it may help to instruct jurors to consider the position of the plaintiff's reputation if the true imputations stood alone, and then ask whether adding the false imputation(s) would really make people think any worse of the plaintiff.

3. Clearly instruct that the burden is on the defendant—if the jury is uncertain whether there is additional harm, that uncertainty means the defence has not been proven.

9.3 Multiple Publications or Plaintiffs

1. In cases involving multiple defamatory publications or multiple plaintiffs, the defence must be assessed separately for each publication (since each is a separate cause of action).

2. The defence applies to each plaintiff separately—one plaintiff's reputation might not be saved by truths about another plaintiff.

9.4 Verdict and Judgment Considerations

1. If the trial is by judge alone (which is common given the complexity of issues like contextual truth), the judge must explicitly address the two limbs of s 26 in the reasons for decision, making clear findings on truth of contextual imputations and on the extent of reputational harm.

2. If contextual truth succeeds, it results in a complete defence (judgment for the defendant). If it fails but some imputations are proven true, those truths may still be relevant to mitigation of damages.

10. Conclusion

The defence of contextual truth provides an important mechanism for defendants in defamation actions to avoid liability where the overall truth of a publication outweighs any false statements it contains. In Western Australia, however, its application remains more restrictive than in jurisdictions that have adopted the 2020 uniform law amendments.

The defence reflects a policy decision that truth should prevail over falsity when assessing the sting of a publication as a whole. However, the technical requirements—particularly the need for contextual imputations to be "in addition to" those complained of by the plaintiff—can create significant hurdles for defendants.

Western Australian practitioners must use this defence with precision, crafting pleadings to fit the statutory requirements and marshalling strong evidence for any truth asserted. Judges must guide its use at trial, ensuring that juries (if empanelled) grasp the nuanced task required.

Unless and until WA enacts the uniform amendments, contextual truth in WA operates under the 2005 parameters—a reminder that, in defamation law, context can be everything, but only if you're allowed to plead it.

The Ethics of Time‑Based Billing: When Does “Padding” Become Professional Misconduct?

Few topics generate as much angst among clients—and as many disciplinary files for lawyers—as time‑based billing.

Lawyers practising under the Legal Profession Uniform Law (“LPUL”) face real regulatory peril if they cross the line from honest mistake to dishonest inflation.

This post unpacks how that line is drawn, the cases that illustrate it, and the practical safeguards every firm should adopt.

1. The Legal Baseline: “Fair and Reasonable” Fees

Since 1 July 2022 WA practitioners have operated under the LPUL. Section 172 is blunt: a law practice must not charge more than fair and reasonable legal costs. The law then ups the stakes—section 207 declares that charging above that mark is capable of amounting to unsatisfactory professional conduct or outright professional misconduct.

The Solicitors’ Conduct Rules reinforce the point. They require honesty, competence and proper supervision. Dishonesty in billing is therefore not just a costs problem; it is an ethical failure that can end a career.

2. What Counts as “Over‑Recording”?

• Padding – entering more time than the task consumed (e.g. billing an hour for a five‑minute email).

• Double‑billing – charging two clients for the same period of work.

• Phantom billing – charging for work that never took place.

• Over‑servicing – performing unnecessary work to justify more hours.

Each method inflates the fee. Whether a Tribunal calls it negligence or misconduct depends on why it happened and how bad the excess is.

3. Negligence v Dishonesty

Honest Mistake = Possible Unsatisfactory Conduct

A careless duplicate entry or poor supervision can still attract a reprimand, a fine or compulsory training. In Council of LSNSW v Kernaghan (No 2) [2022] NSWCATOD 64 the solicitor’s disclosure failures and some inflated attendances were labelled unsatisfactory professional conduct—but because there was no dishonesty the tribunal stopped at a reprimand and ethics training.

Deliberate Inflation = Professional Misconduct

Where intent is proved, tribunals show little mercy. In Legal Services Commissioner v Williams [2022] VCAT 806 the practitioner fabricated timesheets and misappropriated trust money. Result: professional misconduct, a nine‑year ban and payment of the regulator’s costs. Closer to home, LPCC v O’Halloran [2013] WASAT 105 saw a six‑month suspension for systematic padding across personal‑injury files.

4. How Much Is “Gross”?

Even without direct proof of intent, a fee can be so high that dishonesty is inferred. Courts ask whether the costs bear a rational relationship to the work and its importance. In Shalhoub v Johnson [2023] NSWDC 555 the District Court endorsed that proportionality test: a huge bill for a modest task is self‑evidently unreasonable.

How big is “huge”? There is no fixed percentage. If an assessor chops 15 % or more off a bill, LPUL s 204(2) usually saddles the firm with the costs of the assessment—another financial sting.

5. Evidence that Wins (or Sinks) a Billing Case

• Metadata never lies – native timesheet logs reveal when an entry was really made. A note created after a bill is issued “screams” reconstruction.

• File notes must match the narrative – vague descriptions such as “file review – 3 h” invite disbelief.

• Expert cost assessors set the benchmark – tribunals lean heavily on their view of what a competent solicitor would have charged.

• Patterns tell stories – a lawyer who always records a neat six hours per day, or rounds every unit to the next hour (see LSC v Panayi [2023] VCAT 39), quickly looks suspect.

6. Disciplinary Consequences

1. Reprimand or caution – for negligent over‑recording quickly rectified.

2. Fine – up to $25 000 in WA; often coupled with extra CPD or practice management training.

3. Conditions on practice – supervision requirements, trust‑account audits, or ethics courses.

4. Suspension – months or years off the roll for dishonest padding.

5. Strike‑off – the “nuclear option” when dishonesty is systemic or the practitioner shows no insight.

Whatever the disciplinary label, tribunals almost always order restitution: over‑charged clients get their money back, sometimes with interest.

7. A Practical Checklist to Stay Safe

• Record time contemporaneously. Reconstruction is where mistakes and temptations breed.

• Compare every draft bill to scale or market norms. Write off hours that look excessive.

• Supervise juniors. Partners remain responsible for systemic padding.

• Use clear narratives. Specify what was done and why it took the time recorded.

• Document write‑offs. They evidence judgement and help defend complaints.

• Invite questions. A bill‑review chat often defuses client anger and reveals errors early.

• Audit files randomly. Compare output to hours; anomalies tend to surface quickly.

• Educate the team. Circulate cautionary case summaries; make ethics part of KPIs, not just budgets.

8. Key Take‑Away

Time‑based billing is not inherently unethical, but transparency and proportionality are non‑negotiable.

The moment a lawyer knowingly records time that was not worked—or continues to bill an amount no reasonable peer could defend—the conduct shifts from sloppy to dishonest.

WA’s Uniform Law, the SAT and the courts have shown they will act decisively when that line is crossed.

A robust billing culture, built on contemporaneous records, active supervision and client‑centred communication, is the best protection.

Pre-Action Discovery in Western Australia

1. Introduction

Pre-action discovery is a procedural mechanism available in Western Australian civil litigation that enables prospective litigants to obtain information before commencing formal proceedings. The Supreme Court of Western Australia has developed a body of jurisprudence addressing various aspects of pre-action discovery, particularly under Order 26A of the Rules of the Supreme Court 1971 (WA) (RSC). This article examines the law relating to pre-action discovery through an analysis of four key decisions: Reynolds v Higgins [2024] WASC 260 (Reynolds), John Lovegrove & Co. Pty. Ltd. & A.J Lovegrove & M.H Lovegrove Trading as Lovegrove Electrical v Lumley [2024] WASC 59 (Lovegrove), Jako Industries Pty Ltd v City of Wanneroo [No 4] [2025] WASC 63 (Jako Industries), and Global Smart Cities Pty Ltd v Perkins (WA) Pty Ltd [2025] WASC 129 (Global Smart Cities).

These decisions collectively address applications for pre-action discovery in various contexts: to identify a potential party (Reynolds), to obtain documents from a former employee (Lovegrove), to extend time for compliance with pre-action discovery orders (Global Smart Cities), and to determine whether a potential cause of action exists (Jako Industries).

2. Legal Framework for Pre-Action Discovery

2.1 Pre-Action Discovery to Identify a Potential Party (O 26A r 3)

Order 26A r 3 of the RSC empowers the Court to order a non-party to give discovery to identify a potential party to an action. In Reynolds v Higgins [2024] WASC 260, Quinlan CJ summarized the principles governing such applications, stating at [31]:

"The principles relating to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) are well settled. Order 26A r 3 empowers the Court to order a non-party to give discovery to identify a potential party to an action where the following conditions are satisfied: (a) the plaintiff wants to commence proceedings against the potential party; (b) the plaintiff has made reasonable enquiries; (c) the plaintiff has not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against that potential party; and (d) there are reasonable grounds for believing that the non-party had, has or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party."

This framework was further affirmed by reference to The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147 at [19] and NW v Bechtel (Western Australia) Pty Ltd [2014] WASC 375 at [13].

2.2 Pre-Action Discovery to Determine Whether to Commence Proceedings (O 26A r 4)

Order 26A r 4 allows for pre-action discovery to enable a prospective plaintiff to determine whether to commence proceedings. In Jako Industries [2025] WASC 129, Howard J referenced the Court of Appeal's summary in BWS v ARV [No 2] [2021] WASCA 62 at [28]-[37], explaining at [22]:

"The discretionary power under O 26A r 4(4) is enlivened if the court is satisfied that: (a) the applicant 'may have a cause of action against' the potential party; (b) the applicant wants 'to commence proceedings against' the potential party; (c) the applicant has made 'reasonable enquiries' for the purpose of obtaining sufficient information to enable him or her to decide whether to commence proceedings; (d) the applicant has not been able to obtain sufficient information to enable him or her to make a decision; and (e) there are 'reasonable grounds for believing' that the potential party had, has, or is likely to have had or have, possession of documents that may assist the applicant in making the decision."

3. The "May Have a Cause of Action" Threshold

A critical threshold for pre-action discovery under O 26A r 4 is establishing that the applicant "may have a cause of action" against the potential party. The courts have clarified that this is a lower threshold than establishing a prima facie case, but requires more than mere assertion.

In Jako Industries [2025] WASC 129, Howard J, referring to BWS v ARV [2021] WASCA 62 at [33], emphasized at [41]-[42]:

"In my view, there is nothing on the material which could be described as '... some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion.'

While Jako Industries did not have to positively establish the existence of a cause of action, it has to demonstrate more than mere assertion, conjecture or suspicion."

This principle was further explained in Reynolds [2024] WASC 260, where Quinlan CJ noted at [40]:

"As reflected in the principles set out above, an order for discovery will not be made if the prospective action is merely speculative. This does not mean that the plaintiff seeking discovery as to the identity of a prospective party must demonstrate that it has a prima facie case. To use the words of O 26A r 3, the plaintiff must 'appear' to have a cause of action; it is not necessary, under the rule, to find that the plaintiff in fact has a good cause of action."

4. Discretionary Factors Governing Pre-Action Discovery

Even where the threshold requirements for pre-action discovery are met, the Court retains a discretion whether to order discovery. The Court of Appeal in BWS v ARV [2021] WASCA 62 identified several factors relevant to this discretion, which were summarized in Jako Industries [2025] WASC 129 at [26]:

"1. the likelihood that a cause of action of the kind suggested will be found to exist; 2. the nature and significance of the potential cause of action; 3. the likely effect of an order of the kind contended for on the potential party; 4. whether the applicant has any other adequate means of obtaining the information; 5. the nature and confidentiality of the documents proposed to be obtained; 6. the possible significance of the information in a documents to the decision whether to commence the contemplated proceedings; 7. whether the applicant is able to compensate the potential party for its costs of complying with the order; 8. whether there is any evidence of bad faith on the part of the applicant; and 9. the extent to which the cost and effort involved in undertaking the proposed discovery and inspection is proportionate to the likely value of the claim if successful."

In Reynolds [2024] WASC 260, Quinlan CJ applied these factors and concluded at [82]-[83]:

"In all of the circumstances, I am satisfied that the interests of justice favour an order for pre-action discovery of the trust deed of the Trust or such other documents that identify the trustee.

Senator Reynolds seeks to bring a bona fide claim to set aside the Trust pursuant to s 89 of the Property Law Act 1969 (WA). That claim is (a) not merely speculative, and (b), on the evidence before me, may be the only prospect of Senator Reynolds ever satisfying a potential judgment debt in the defamation proceedings. Those two matters in my view weigh strongly in favour of Senator Reynolds at least having discovery so as to enable such a claim to be formulated, and having received further advice including as to the prospects of success, commencing that claim."

5. Costs Principles for Pre-Action Discovery

The costs principles governing pre-action discovery applications have been addressed in several decisions. In Lovegrove [2024] WASC 59, Master Russell summarized the general approach at [15]-[17]:

"It was also uncontroversial that in an application for pre-action discovery, the usual rule is that the party seeking discovery should pay the costs of the application and the discovering party's reasonable costs and expenses of complying with any order made."

This starting position reflects the characterization of pre-action discovery as an "indulgence" sought by the applicant. However, the Court of Appeal in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S) established an important qualification to this general rule by creating a mechanism for potential recoupment of these costs when substantive proceedings are later commenced. The details of this mechanism and its practical application are discussed in Section 6.2 below.

The principles from Kelbush were further applied in Lovegrove [2024] WASC 59, where Master Russell noted at [24]-[25]:

"As observed by Martin CJ in the Kelbush Costs Decision, the proper course in proceedings of this nature is to order, in the absence of any reason to the contrary, that the applicant for the indulgence of pre-trial discovery pay both the respondent's costs of the application and the respondent's reasonable costs of complying with any order for discovery made.

I am not satisfied there is any reason in this case to justify any change from the usual course or why the applicant for pre-action discovery, Lovegrove, should not pay the costs of the application and Mr Lumley's reasonable costs and expenses of giving the discovery."

6. Confidentiality and Procedural Considerations

6.1 Confidentiality of Discovered Documents

The Court may impose confidentiality regimes on documents obtained through pre-action discovery. In Reynolds [2024] WASC 260, Quinlan CJ addressed confidentiality at [86]-[89]:

"Ms Higgins submitted that, in the event that I made an order for pre-action discovery, reliance upon the implied undertaking (i.e., the so-called Harman undertaking) in relation to the use of discovered documents would not be sufficient and that I should make particular orders to protect the confidentiality of the document (or documents) discovered.

I am satisfied that I should do so. The evidence before me confirms, and I would have to be living under a rock not to know, that litigation involving Ms Higgins is litigated as much in the public arena as it is in the courts: court documents are provided to media outlets prior to their being served or even filed, speeches and 'door-stop' interviews are regularly conducted on the doors of the courts and self-appointed experts dissect, analyse and predict the outcome of court proceedings before they have even begun...

The Court, however, can and should control the dissemination of private and sensitive documents that have neither been tendered nor adduced in evidence. This is particularly so in relation to documents produced under compulsion such as will occur in this case...

While I will hear the parties as to the precise terms of the orders, my preliminary view is that the document or documents discovered should be provided to a single nominated practitioner from the solicitors acting for Senator Reynolds, following the provision by the practitioner of a signed undertaking to the Court that he or she will retain possession and control of the document, not copy the document and not communicate the contents of the document, save for the purpose of taking instructions from Senator Reynolds and commencing the proposed proceedings (and for no other purpose)."

6.2 The Kelbush Costs Mechanism and Time Limitations

The Court of Appeal in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S) established a specific mechanism for addressing costs in pre-action discovery cases. Martin CJ (with whom Buss JA and Mitchell J agreed) set out the following principles at [2]-[4]:

"[2] ... the proper course in proceedings of this nature is to order, in the absence of any reason to the contrary, that the applicant for the indulgence of pre-trial discovery pay both the respondent's costs of the application and the respondent's reasonable costs of complying with any order for discovery made. Further, it is my view that the obligation to pay costs should not be deferred indefinitely merely because proceedings are subsequently commenced by the applicant against the respondent.

[3] However, as a matter of principle, there should be a mechanism by which such an applicant can recoup not only the costs that it is ordered to pay to such a respondent, but also its own costs of the pre-trial discovery application if it commences proceedings against the respondent and it appears to the court responsible for those proceedings that such costs should be ordered to be paid to the applicant...

[4] The mechanism by which those costs can be recouped would be by way of an order empowering the current appellant to make an application in the course of any subsequent proceedings for orders with respect to not only the costs that it is ordered to pay the respondent today, but also with respect to its own costs of the application before the master."

In implementing these principles, the Court of Appeal made the following costs order in Kelbush: "Appellant to pay respondent's costs of application for and compliance with orders for pre-action discovery" (as recorded in the "Result" section of the judgment). Importantly, as Martin CJ explained at [3], this was "subject to an order enabling recoupment of those costs" through the mechanism described in paragraph [4].

This costs mechanism typically includes a time limitation to ensure that costs issues are not left unresolved indefinitely. In Global Smart Cities v City of Wanneroo [No 4] [2025] WASC 63, Howard J considered an application to extend such a time limitation. The case demonstrated that this type of order concerning time limitations has become a common feature in pre-action discovery applications, as Howard J noted at [20]:

"The Master made Order 6, which is now commonly made in these actions. The idea being that these matters should be addressed promptly, and the question of costs not left to hang indefinitely, as the Chief Justice might have said."

The specific orders at issue in that case included:

1. Orders 5 and 6 made by the Master, with Order 6 placing a time limit on when the cost issues could be addressed through the Kelbush mechanism

2. Order 2 made by Howard J on 13 October 2023 extending that time limit in light of a confidentiality regime that had been imposed

3. An application to further extend the time period

As Howard J noted at [19]-[21]:

"I consider, in making his Orders 5 and 6, the Master recognised and adapted that mechanism but also sought to give effect to the statements of principle in [2] of the Chief Justice's reasons that the obligation should not be deferred indefinitely.

The Master made Order 6, which is now commonly made in these actions. The idea being that these matters should be addressed promptly, and the question of costs not left to hang indefinitely, as the Chief Justice might have said.

Order 2 I made on 13 October 2023 sought to extend that to a definable or knowable date to give effect to Order 6, as made by the Master, in light of the confidentiality regime which I considered should be imposed."

Howard J ultimately declined to further extend the time limitation, emphasizing at [27] that:

"It seems to me that the plaintiff has not taken advantage of the time that was extended by my Order, and it seems to me in the interests of justice that that time period ought not to be further extended."

This case demonstrates the courts' concern with balancing:

1. The right of pre-action discovery applicants to potentially recover their costs if they subsequently commence proceedings; and

2. The need to ensure that cost issues are resolved within a reasonable timeframe rather than being deferred indefinitely.

7. Conclusion

Pre-action discovery in Western Australia is governed by a body of jurisprudence that balances the interests of prospective plaintiffs in obtaining information necessary to make informed litigation decisions against the burden placed on potential defendants.

The courts have developed nuanced approaches to the threshold requirements, discretionary factors, costs principles, and procedural considerations involved in pre-action discovery applications.

While the courts generally recognize pre-action discovery as an "indulgence", they have also acknowledged its important role in facilitating access to justice by enabling parties to make informed decisions about whether to commence litigation.

The consistent theme throughout the jurisprudence is that pre-action discovery should be ordered where it serves the interests of justice and the proper administration of potential litigation, but with appropriate safeguards to prevent abuse and unnecessary burden on responding parties.

Walking the Tightrope: When to Consider Capacity Applications in Litigation

Introduction

The decision in M -v- P [No 3] [2024] WASC 123 provides guidance on the approach courts take when considering applications regarding a litigant's capacity.

Justice Lundberg's judgment illuminates the delicate balance courts must strike between protecting potentially vulnerable litigants and respecting individual autonomy. This decision carries particular significance for practitioners faced with opposing self-represented litigants whose capacity may be questionable, offering a roadmap for appropriate procedural steps while highlighting the evidentiary threshold required for such applications.

The case reinforces the Court's protective jurisdiction while demonstrating judicial reluctance to make declarations of incapacity without proper evidence. It establishes an intermediate pathway through referral to the Public Advocate that practitioners should note when contemplating similar applications.

Background of Relevant Case Law

The principles applicable to applications under Order 70 of the Rules of the Supreme Court 1971 (WA) ('RSC') have been developed through several key decisions.

In A v City of Swan [No 5] [2010] WASC 204, Murphy JA provided a detailed analysis of the Court's parens patriae jurisdiction and the principles governing determinations of capacity. His Honour emphasised that capacity is not a fixed standard but fluctuates according to the legal character, complexity, and significance of the matter in question.

More recently in Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91, Seaward J summarised the applicable principles, noting that proof of complete incapacity is not required, and that a person can lack mental capacity to participate in legal proceedings whilst still being capable of performing the usual activities of daily life.

The Court in Farrell v Allregal Enterprises Pty Ltd [2008] WASCA 264 established a procedural framework for seeking assistance from the Public Advocate in determining questions of capacity, which Justice Lundberg adopted in the present case.

Facts of the Case

M -v- P [No 3] concerned a defamation action brought by an unrepresented plaintiff against the defendant, both of whom were medical practitioners (at [1]). The action, which had been on foot for over a year, involved allegations of defamation through "several oral and written communications allegedly published by the defendant" with "around 18 publications identified in the pleadings" (at [1]).

The plaintiff was engaged in multiple disputes across various courts and tribunals, all whilst self-represented (at [1]-[2]).

The defendant applied for an order that the plaintiff be declared a person under a disability by reason of mental illness, defect or infirmity, within the meaning of paragraph (c) of the definition of 'person under disability' in Order 70 rule 1 of the RSC (at [3]).

Order 70 RSC relates to the Court's parens patriae jurisdiction, which derives from "the inherent obligation of the Crown to care for those who are unable to care for themselves" and is expressly conferred by s 16(1)(d) and s 23 of the Supreme Court Act 1935 (WA) (at [5]).

Significantly, the defendant did not present any medical evidence in support of the application (at [14]) but rather invited the Court to draw inferences about the plaintiff's capacity from the plaintiff's conduct, communications, and court documents.

The defendant presented an alternative pathway in the event the Court was not prepared to make an immediate declaration, proposing orders that would request the Public Advocate investigate and report on whether the plaintiff had the ability to make reasonable judgments about the conduct of the proceedings (at [7]-[8]).

The plaintiff strongly opposed the application, filing multiple submissions totalling 87 pages and a 156-page affidavit (at [15]).

Analysis of the Court's Reasoning

Justice Lundberg commenced his analysis by acknowledging the serious nature of the application and the Court's duty to consider whether a person has the requisite capacity when put on notice (at [19]). His Honour emphasised the risk that any final determination of the action could later be challenged as irregular if the plaintiff were subsequently found to be under a disability (at [20]).

The Court accepted the following principles from Snook v Magistrate Trevor Darge [No 2] (at [21]):

1. There is no fixed standard of mental capacity required at law

2. The standard fluctuates according to the legal character, complexity and significance of the matter

3. Proof of complete incapacity is not required

4. A person can lack capacity for legal proceedings while still managing daily activities

5. The Court must consider whether the person can understand the case, make decisions, and give instructions

6. Self-represented litigants are held to a higher standard of capacity than those with legal representation

Justice Lundberg stressed the serious consequence of a declaration under Order 70 RSC - namely, that it would "preclude the individual exercising their right to prosecute, compromise or participate in the specific litigation in their own name" (at [22]).

Rather than determining the application on the material before the Court, His Honour opted for the alternative pathway of seeking assistance from the Public Advocate (at [24]), but only after satisfying himself that the application had a "reasonable basis of succeeding" (at [24]).

The Court found that the defendant had raised the issue in a "legitimate manner" and that there was material capable of supporting the declaration sought (at [25]). This conclusion was reached after considering:

1. The material in the plaintiff's submissions and affidavit

2. The Court's own observations of the plaintiff in several appearances since early 2023

3. The "volume of the material adduced by the plaintiff and the nature of the serious allegations he raises"

4. The manner in which the plaintiff articulated allegations, which "goes well beyond the ordinary language of a passionate or zealous litigant in person" (at [26])

Of particular note, Justice Lundberg observed that the plaintiff's affidavit material contained "lengthy personal accounts of the plaintiff's life, his family and background, personal photographs one would not expect to be adduced in evidence in this action, and personal and intimate WhatsApp and text messages, as well as records of voicemail messages" - all deemed irrelevant to both the application and the proceeding (at [27]).

The Court also highlighted the plaintiff's "intense focus on those who stand against him" and "the belief that there is a network of people coordinating actions against him" (at [28]).

Justice Lundberg considered the complexity of defamation actions and the significant decisions a plaintiff would ordinarily need to make regarding pleadings, evidence, and responses to defences (at [29]).

Ultimately, the Court decided to request assistance from the Public Advocate under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (at [30]-[31]), with specific orders structured to facilitate this assistance while preserving procedural fairness (at [37]).

Quantification and Assessment Aspects

Justice Lundberg's judgment provides valuable guidance on how courts assess a litigant's capacity in the absence of direct medical evidence. The Court identified several quantifiable factors that may indicate capacity concerns:

1. The volume of material produced by a litigant (the plaintiff filed 87 pages of submissions and a 156-page affidavit)

2. The relevance of material to the proceedings (substantial irrelevant personal content was noted)

3. The nature and manner of allegations made (references to "criminal networks" and conspiracies)

4. The complexity of the underlying proceedings (defamation involving multiple publications)

5. The litigant's conduct in court proceedings over time

The Court acknowledged that drawing inferences about capacity from these factors is "legitimate" (at [14]) but also that "the absence of direct medical evidence renders an applicant's task of discharging its burden of proof more onerous" (at [14]).

The judgment establishes that the threshold for referring the matter to the Public Advocate is that "the application has a reasonable basis of succeeding" (at [24]), which is evidently lower than the threshold for making the declaration itself.

Worked Example: Practical Application

Consider a solicitor representing a defendant in a complex commercial dispute where the unrepresented plaintiff exhibits concerning behaviours:

Scenario: The plaintiff has filed multiple, excessively lengthy submissions containing irrelevant personal information, makes allegations of widespread conspiracy against various institutions, demonstrates an inability to focus on relevant legal issues despite judicial guidance, and produces volumes of irrelevant evidence.

Step 1: Document all instances of concerning conduct or communications

• Compile court transcripts showing the plaintiff's inability to follow judicial directions

• Collate all written communications demonstrating disorganised thinking or paranoid ideation

• Catalogue filed documents showing irrelevant content or inability to address legal issues

Step 2: Assess whether the conduct crosses the threshold from merely vexatious to suggesting incapacity

• Compare to established case law (e.g., M -v- P [No 3], A v City of Swan [No 5])

• Consider the complexity of the particular proceedings and demands on the litigant

• Evaluate whether the conduct suggests an inability to understand the proceedings or make reasonable judgments

Step 3: Consider the ethical implications and proportionality

• Is the application genuinely in the interests of justice, or merely tactical?

• Are there less intrusive alternatives available?

• What impact would the application have on the proceedings and the plaintiff?

Step 4: Frame the application with appropriate sensitivity

• Propose the "alternative pathway" approach rather than seeking an immediate declaration

• Structure orders similar to those in M -v- P [No 3] requesting Public Advocate assistance

• Ensure all evidence presented is objective and factual, avoiding speculation

Step-by-Step Guidance for Practitioners

When faced with a potentially incapacitated opposing party, practitioners should:

1. Maintain detailed records of all interactions with the opposing party, particularly noting:

   • Inability to understand or engage with legal concepts

   • Persistent irrelevant submissions or evidence

   • Paranoid or delusional thinking in correspondence or submissions

   • Inability to follow court directions or understand procedural requirements

2. Consult the relevant procedural rules governing capacity in your jurisdiction (e.g., Order 70 RSC in Western Australia)

3. Consider whether the threshold for intervention is met:

   • Is there a genuine basis for concern beyond mere frustration with a difficult litigant?

   • Does the conduct go "well beyond the ordinary language of a passionate or zealous litigant in person"?

   • Is the nature of the proceedings sufficiently complex to require a higher standard of capacity?

4. Explore alternative pathways:

   • Consider whether a less intrusive approach might assist the opposing party

   • Identify relevant support services or authorities (e.g., Public Advocate) that might provide assistance

5. Frame the application appropriately:

   • Seek preliminary assistance from appropriate authorities before requesting declarations

   • Structure proposed orders to allow for investigation before determination

   • Request the court's guidance on procedure

6. Prepare for procedural delays:

   • Advise clients that such applications may extend timeframes

   • Consider whether interim arrangements are necessary

7. Maintain proportionality:

   • Ensure the scope of any application is confined to the specific proceedings

   • Avoid unnecessarily broad declarations that might impact the opposing party's autonomy in other matters

Evidence and Arguments for Each Side

For the Applicant (Party Questioning Capacity)

Evidence:

• Court documents containing irrelevant, excessive, or disorganised content

• Transcripts demonstrating inability to follow judicial guidance or respond to questions

• Correspondence showing paranoid ideation or delusional thinking

• Witness evidence of behaviour in court or mediation settings

• Expert evidence (if available) regarding the cognitive demands of the specific proceedings

Arguments:

• The Court has a duty to ensure parties can meaningfully participate in proceedings

• Allowing proceedings to continue risks injustice to both parties

• The complexity of the proceedings requires a certain level of capacity

• The Court's parens patriae jurisdiction is protective, not punitive

• The alternative pathway approach provides appropriate procedural safeguards

For the Respondent (Party Whose Capacity is Questioned)

Evidence:

• Evidence of capacity to manage other aspects of life

• Examples of logical and coherent submissions or correspondence

• Evidence of previous successful litigation management

• Character evidence from professional colleagues or associates

• Expert evidence (if available) supporting capacity

Arguments:

• The presumption of capacity must be respected

• Passionate or unusual advocacy is not equivalent to incapacity

• The application represents an attempt to impede access to justice

• Less restrictive alternatives have not been explored

• The absence of medical evidence is fatal to the application

• The serious consequences for civil rights require a high evidentiary threshold

Key Takeaways for Legal Practice

1. Evidence threshold: While medical evidence is not strictly required for capacity applications, its absence significantly increases the burden of proof on the applicant.

2. Alternative pathways: Courts may prefer a staged approach involving investigative assistance from authorities such as the Public Advocate before making declarations.

3. Contextual assessment: Capacity requirements fluctuate according to the nature and complexity of the proceedings - defamation actions, with their complexity, demand a higher standard.

4. Preserving autonomy: Courts remain conscious of the serious impact of declarations on individual autonomy and will only intervene where genuinely necessary.

5. Tactical considerations: Practitioners must ensure capacity applications are genuinely motivated by legitimate concerns rather than tactical advantage.

6. Self-representation factor: Courts recognise that self-represented litigants require a higher standard of capacity than those with legal representation.

7. Documentation importance: Systematic documentation of concerning conduct or communications is essential for establishing sufficient grounds for investigation.

Conclusion

M -v- P [No 3] offers a nuanced approach to the challenging intersection of mental capacity and litigation rights. The judgment reinforces the Court's protective role while establishing procedural safeguards that respect individual autonomy. By adopting the "alternative pathway" of seeking Public Advocate assistance, Justice Lundberg has demonstrated a balanced approach that other courts may follow.

For practitioners, the case underscores the need for careful consideration before initiating capacity applications, the importance of thorough documentation, and the value of structured, proportionate approaches that prioritise investigation before declaration.

The decision ultimately serves as a reminder that while the legal system must protect vulnerable individuals, it must do so with appropriate restraint and procedural fairness, recognising that declarations of incapacity represent a significant limitation on fundamental rights of access to justice.