The Sufficient Connection Test in Qualified Privilege: When Defamatory Statements Are Germane to the Protected Occasion

Introduction: The Slater v Ecosol Case

The decision in Slater v Ecosol Pty Ltd [2025] SASCA 78 provides guidance on when defamatory statements are sufficiently connected to an occasion of qualified privilege.

The case involved a dispute over the proposed sale of a stormwater treatment manufacturing business. Mr Slater, a shareholder, opposed the sale to management (through Urban Asset Solutions Pty Ltd) and communicated his concerns to fellow shareholders. In response, the company's chairman, Mr Smith, sent letters to shareholders that included statements Mr Slater claimed were defamatory – including imputations that he had lied to shareholders and was improperly motivated. While the trial judge found the statements were defamatory, the defence of qualified privilege succeeded because the statements were sufficiently connected to the privileged occasion of communicating with shareholders about the proposed transaction.

The Broad Approach to Connection

The law takes a deliberately broad view of what constitutes a sufficient connection to a privileged occasion. As the Court in Slater v Ecosol emphasised, statements need not be central to the topic or contribute positively to the discussion to attract protection. Drawing on the High Court's guidance in Cush v Dillon (2011) 243 CLR 298, the Court confirmed that "no narrow view should be taken of the pursuit of a duty or interest in what was said."

This broad approach reflects the underlying rationale of qualified privilege – that in certain circumstances, a plaintiff's right to protect their reputation must yield to the public interest in free communication on matters of legitimate concern (Roberts v Bass (2002) 212 CLR 1; Stone v Moore (2016) 125 SASR 81).

Key Principles from the Authorities

Relevance and Germaneness

The fundamental test is whether the defamatory matter is "relevant" or "germane" to the privileged occasion. In Adam v Ward [1917] AC 309, various formulations were used:

• Matter that is "not relevant and pertinent" to the occasion

• Something "beyond what was germane and reasonably appropriate to the occasion"

• Matter "quite unconnected with and irrelevant to the main statement"

• Matter "not in any reasonable sense germane" to what was being conveyed

As Cush v Dillon clarified, these different formulations should not be read as imposing varying levels of stringency – the key point is that the law does not require a narrow view of relevance.

Errors and Inaccuracies Don't Break the Connection

Importantly, the fact that a statement is wrong, defamatory, or even excessive does not automatically mean it lacks sufficient connection. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, an error in identifying the party subject to court findings did not sever the connection to the privileged occasion. Similarly, in Cush v Dillon, referring to a rumour as fact (when discussing governance concerns) maintained the requisite connection.

The Distinction Between Excessive and Extraneous

There is a crucial distinction between statements that are excessive yet within the privileged occasion, and statements that exceed the occasion by being irrelevant (Marshall v Megna [2013] NSWCA 30). As Stone v Moore explained, the focus is on the topic in respect of which the relevant duty or interest exists, not the precise words spoken. Even strident, incorrect or extravagant language can be protected if it relates to the privileged topic.

Self-Defence and Rebuttal

The authorities recognise that "great latitude" must be allowed to persons defending themselves against attacks (Penton v Calwell (1945) 70 CLR 219; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251). This principle was relevant in Slater v Ecosol, where the company's responses to Mr Slater's criticisms were held to be sufficiently connected to the privileged occasion.

Practical Examples: When Connection May Be Lost

Example 1: The Board Meeting Discussion

At a company board meeting convened to discuss the annual budget, a director raises concerns about proposed cost-cutting measures. During the discussion, she states: "The CFO's budget projections are as reliable as his taste in music – I saw him at that terrible boy band concert last week with someone who definitely wasn't his wife."

While criticising the CFO's budget projections would be germane to the occasion, the gratuitous comments about his musical preferences and personal life would likely not be sufficiently connected. These statements are "quite unconnected with and irrelevant" (Adam v Ward) to the budgetary discussion that creates the privileged occasion.

Example 2: The Workplace Safety Report

A workplace safety officer sends a report to management about safety breaches in the warehouse. The report includes: "John Smith has repeatedly operated the forklift at dangerous speeds in the loading bay. This doesn't surprise me given that he was convicted of drink driving last year and his ex-wife told me he's a compulsive gambler who owes money all over town. Someone with such poor judgment in their personal life obviously can't be trusted with workplace safety."

While the observations about John Smith's forklift operation would be germane to the privileged occasion, the gratuitous references to his criminal history and alleged gambling problems bear no reasonable connection to workplace safety concerns. Following Guise v Kouvelis (1947) 74 CLR 102, such comments would be "so foreign to the occasion that they must be held to be extraneous or irrelevant."

The Position of Directors and Fiduciaries

The Slater v Ecosol decision also clarifies that a person's position or duties (such as being a director or fiduciary) does not narrow the scope of privileged occasion or impose additional constraints on what can be said. The Court rejected arguments that directors must confine themselves to statements that "contribute to" or "assist" debate. As long as the statements relate to the privileged topic in the broad sense recognised by the authorities, they remain protected even if they are attacks on character or motivation.

Practical Checklist: Assessing Whether Statements Are Germane

When advising on whether defamatory statements are sufficiently connected to a privileged occasion, practitioners should work through the following comprehensive checklist:

1. Identify the Privileged Occasion

• What is the precise nature of the duty or interest that creates the privilege?

  • Is it a legal duty, moral duty, or social duty?

  • Is it a public interest or private interest?

  • Who are the relevant parties to the privileged communication?

• What is the scope of the subject matter covered by the privilege?

  • Define the topic broadly rather than narrowly

  • Consider all aspects reasonably connected to the main subject

  • Remember that tangential matters may still be included

2. Analyse the Context of the Communication

• What prompted the communication?

  • Was it in response to an attack or criticism? (Remember the "great latitude" principle)

  • Was it initiated by the publisher or reactive?

  • What was the timeline of communications?

• What was the publisher's role or position?

  • While position doesn't narrow the privilege, it provides context

  • Consider whether the publisher had authority to speak on the matter

  • Note any special knowledge or expertise relevant to the topic

3. Examine the Defamatory Statements

• How do the statements relate to the privileged topic?

  • Do they directly address the subject matter?

  • Are they examples or illustrations of points about the topic?

  • Do they provide context or background to the main issue?

• If the statements attack character or motivation:

  • Is the person's character relevant to their role in the privileged matter?

  • Do the attacks relate to their conduct concerning the privileged topic?

  • Are they responding to attacks made by that person?

4. Apply the Legal Tests

• The "Adam v Ward" formulations - are the statements:

  • "Relevant and pertinent" to the discharge of duty or protection of interest?

  • Within what is "germane and reasonably appropriate to the occasion"?

  • Not "quite unconnected with and irrelevant to the main statement"?

  • Not matter that is "not in any reasonable sense germane"?

• The "Guise v Kouvelis" test:

  • Are the words "so foreign to the occasion that they must be held to be extraneous or irrelevant"?

5. Consider Common Scenarios

• If the statements contain errors or are false:

  • Remember this doesn't automatically break the connection (Bashford)

  • Focus on subject matter, not accuracy

• If the statements are excessive or extravagant:

  • Distinguish between excessive language about the relevant topic (likely protected)

  • Versus statements about extraneous matters (not protected)

• If the statements seem unhelpful or unconstructive:

  • The law doesn't require statements to advance debate positively

  • Even counterproductive statements can be germane

6. Red Flags - Factors Suggesting Lack of Connection

• Purely personal attacks unrelated to the privileged matter

  • References to unrelated personal relationships

  • Attacks on characteristics irrelevant to the topic

  • Historical grievances with no bearing on current matter

• Subject matter from entirely different spheres

  • Professional criticism veering into unrelated personal life

  • Business discussions including irrelevant social commentary

  • Official communications containing private vendettas

• Timing disconnects

  • References to events far removed in time with no logical connection

  • Dragging in historical matters not relevant to current issue

7. Special Considerations

• For company/shareholder communications:

  • Broad scope for discussing company affairs, transactions, and governance

  • Criticism of directors/management conduct generally germane

  • Shareholder activism and opposition typically within scope

• For employment references:

  • Focus on work performance and conduct

  • Personal life only relevant if impacts work capacity

• For public interest communications:

  • Wider scope for discussion of public figures

  • Context of public debate allows broader range of comment

8. Document Your Analysis

• Create a clear record showing:

  • The identified privileged occasion and its scope

  • How each defamatory statement relates to that occasion

  • Any statements that may fall outside protection

  • The authorities supporting your conclusions

9. Borderline Cases

• When connection is arguable:

  • Remember the broad approach mandated by Cush v Dillon

  • Consider whether a reasonable person would see some relationship to the topic

  • If genuinely borderline, the broad approach suggests inclusion

• Mixed communications:

  • Separate germane from non-germane portions

  • Privilege protects the connected statements even if others are not protected

10. Final Review Questions

• Have I taken too narrow a view of the privileged occasion?

• Have I focused on the topic rather than the specific words used?

• Would excluding these statements unduly restrict free communication on the privileged matter?

• Is there any reasonable argument connecting the statements to the privileged topic?

This checklist should be applied flexibly, remembering that the law favours protection of free communication on matters of legitimate interest. When in doubt, the authorities suggest taking a broad rather than narrow approach to connection.

Conclusion

The sufficient connection test in qualified privilege requires courts to take a broad, practical approach. Defamatory statements will be protected if they are relevant and germane to the privileged occasion, even if they are wrong, excessive, or unhelpful to constructive debate. Only statements that are truly extraneous or irrelevant to the privileged topic will fall outside protection. For practitioners, this means carefully identifying the scope of the privileged occasion and assessing whether impugned statements relate to that topic, however tangentially. The law's broad approach reflects the importance placed on protecting free communication on matters of legitimate interest, even when that communication is robust, mistaken, or defamatory.

Suppression Orders in Defamation Cases: Balancing Open Justice with the Protection of Minor Witnesses

Introduction: The Kerry Case

A decision of the NSW Supreme Court in Kerry v The New South Wales Ice Skating Association Inc [2025] NSWSC 833 provides important guidance on when courts will grant suppression orders to protect the identities of minors and alleged victims of sexual misconduct in defamation proceedings. The case involved an Australian Olympian and coach who sued for defamation after the defendant published a note to its members about sanctions imposed by the US Centre for SafeSport. The sanctions related to findings of sexual misconduct involving two individuals: a 17-year-old in California (where the age of consent is 18) and a 14-year-old in Queensland. The Court granted suppression orders protecting both individuals' identities, despite the plaintiff's opposition.

The Principle of Open Justice

The starting point for any discussion of suppression orders is the fundamental principle of open justice. As Rothman J noted in Kerry, the primary objective of the administration of justice is to safeguard the public interest in open justice, which is "generally, fundamental to the proper administration of justice and to the democratic nature of society."

However, this principle is not absolute. The Court of Criminal Appeal in R v Kwok & Ors [2005] NSWCCA 245 recognised two distinct classes of exception:

1. Exceptions based on general considerations relating to the administration of justice

2. Exceptions where specific considerations concerning a specific witness or person affect the administration of justice

Special Considerations for Sexual Offence Victims

Courts have long recognised that victims of sexual offences, particularly minors, warrant special protection. In Kwok, the Court of Criminal Appeal explained that there are "recognised categories in which the publication of names may, as a matter of necessity, be prohibited," including victims of sexual offences alongside informers and victims of blackmail.

The rationale is compelling. As the Court observed in Kwok:

• Publication of victims' identities can further the criminal activity of perpetrators[^1]

• It inhibits victims from giving evidence and reporting crimes

• Child victims particularly face difficulties reporting abuse when publicity becomes a detriment to their mental health

[^1]: This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Legislative Protections for Child Victims

The Kerry case highlighted how each Australian state and territory has enacted specific protections for child victims of sexual offences. In Queensland, the Child Protection Act 1999 makes it a criminal offence to publish identifying information about a "relevant person" - defined as a child in relation to whom an offence was committed or alleged to have been committed. Section 194 provides for significant penalties: up to 100 penalty units or 2 years imprisonment for individuals.

This legislative framework reflects society's recognition that child victims of abuse are often traumatised by the conduct itself, and that public identification represents "an aggravating feature of the trauma and damage that occurs as a consequence of that abuse."

The Test for Suppression Orders

When determining whether to grant suppression orders, courts apply the test of "necessity" - but this doesn't mean "essential." As the High Court clarified in Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435, necessary in this context means orders that are "reasonably required" or "legally ancillary" to the accomplishment of justice. The term is "subjected to the touchstone of reasonableness."

In the defamation context, courts will consider whether suppression orders are necessary to:

• Prevent prejudice to the proper administration of justice[1]

• Protect the safety of persons

• Serve the public interest

Practical Implications for Defamation Proceedings

The Kerry decision demonstrates that suppression orders in defamation cases:

• Do not prevent the examination of the court's jurisdiction or inhibit public scrutiny of judgments

• Can be limited to protecting specific identities while maintaining transparency of proceedings

• Create confidence in victims to give evidence openly without fear of exposure

• Encourage other victims to come forward

Importantly, mere embarrassment is insufficient to warrant suppression. As Rothman J noted, "Each criminal charge creates embarrassment." The court requires evidence of genuine harm or impediment to justice.

Balancing Competing Interests

Courts must carefully balance the public interest in open justice against other compelling interests. In Kerry, the Court found that protecting the identities of alleged sexual misconduct victims - particularly the 14-year-old - significantly outweighed the public interest in full disclosure of names.

This balancing exercise recognises that suppression orders can actually serve the administration of justice by:

• Ensuring witnesses feel safe to give evidence

• Maintaining public confidence in the justice system's ability to protect vulnerable witnesses

• Preventing further trauma to victims who have already suffered harm

Conclusion

The Kerry decision reinforces that while open justice remains the cornerstone of our legal system, courts retain discretion to make limited suppression orders where necessary to protect vulnerable witnesses and ensure the proper administration of justice. For practitioners in defamation matters involving allegations of sexual misconduct or minor witnesses, early consideration should be given to whether suppression orders may be appropriate. The key is demonstrating not just potential embarrassment or discomfort, but genuine necessity based on harm prevention and the broader interests of justice.

When seeking such orders, practitioners should be prepared to provide concrete evidence of potential harm and frame their applications within the established categories recognised by the courts. The burden remains on the applicant to satisfy the court of necessity, but where minor victims of alleged sexual offences are involved, courts will give serious consideration to protective orders that maintain the substance of open justice while shielding vulnerable individuals from unnecessary harm.

Footnote:

1. This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Costs Payable "In Any Event" in Interlocutory Proceedings

Introduction

The District Court of Western Australia has developed a distinct practice regarding the timing of costs orders in interlocutory proceedings. Unlike the Supreme Court, which generally orders costs to be paid forthwith pursuant to Consolidated Practice Direction 4.7.1, the District Court maintains a "usual practice of ordering the payment of costs from interlocutory hearings to be payable 'in any event'": QBE Insurance (Australia) Ltd v Coffey [2015] WADC 110 (S) at [61]. This practice reflects important policy considerations regarding the efficient administration of justice and the fair allocation of litigation risks between parties.

The General Rule

As articulated by Davis DCJ in QBE Insurance v Coffey, the phrase "in any event" means that costs are to be paid at the conclusion of the proceedings, regardless of the ultimate outcome of the substantive matter. His Honour observed at [61] that "the practice in this court is not to make an order for payment of costs forthwith unless there is something out of the ordinary so as to warrant the making of such an order." This principle has been consistently applied in District Court decisions: see Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43 at [52] (Commissioner Gething); Herbertson v Morton [2013] WADC 7 (S) at [7] (Eaton DCJ).

Rationale for the "In Any Event" Rule

The policy justifications for ordering costs "in any event" rather than forthwith were comprehensively explained in QBE Insurance v Coffey at [62], drawing upon the Federal Court's analysis in Mango Boulevard Pty Ltd v Whitton; in the matter of Spencer (Bankrupt) (No 2) [2011] FCA 845 at [23]. Davis DCJ identified three primary purposes:

1. Avoiding Multiple Taxations

The rule promotes judicial economy by consolidating all costs issues to be dealt with at the conclusion of the proceedings. This prevents the inefficiency of multiple taxation proceedings throughout the life of the litigation.

2. Preventing Apparent Unfairness

As noted at [62], the rule "avoids the apparent unfairness which may arise if, at an early stage in the proceedings, the party who is ultimately successful is required to pay costs to a party who is ultimately unsuccessful." This recognizes that interlocutory success may not translate to ultimate success in the substantive proceedings.

3. Preventing Tactical Exploitation

The rule "prevents interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties": QBE Insurance v Coffey at [62], citing Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503 at [20] (Besanko J). This is particularly important where there is a significant disparity in the financial resources of the parties.

When Costs May Be Ordered Forthwith

While the general rule favors costs being payable "in any event," the District Court retains discretion to order costs payable forthwith in exceptional circumstances. As stated in QBE Insurance v Coffey at [61], such an order will only be made where "there is something out of the ordinary so as to warrant the making of such an order."

The mere fact that interlocutory proceedings are "difficult, complex and important" or involve "substantial" quantum of costs does not, without more, justify departure from the usual practice: QBE Insurance v Coffey at [64]-[65]. In that case, Davis DCJ rejected arguments that costs should be paid forthwith despite the defendants' success in discharging a freezing order, finding at [70] that the plaintiff's application "was [not] ill-considered, or needless, or in the category of applications that ought to be discouraged."

Examples of circumstances that may warrant costs being paid forthwith include:

• Ill-considered or defective applications that fall within the category of proceedings that ought to be discouraged: Cristovao v Butcher Paull & Calder [2008] WADC 49 at [56]

• Needless applications that represent an abuse of process: Cristovao v Butcher Paull & Calder at [58]

• Unreasonable or reprehensible conduct by a party, coupled with long delays before final determination: Mango Boulevard Pty Ltd v Whitton at [24]

Relationship with Supreme Court Practice

It is important to note that the District Court's approach differs from the Supreme Court's practice under Consolidated Practice Direction 4.7.1, which provides that "as a general rule, when an order for costs is to be made against a party in interlocutory proceedings, the costs will be ordered to be paid forthwith or by a particular date": QBE Insurance v Coffey at [63].

However, as Davis DCJ acknowledged at [69], the Supreme Court's practice direction "may be a guide to the exercise of my discretion in an appropriate case in this court." The key consideration is whether the policy objectives underlying the Supreme Court's approach—particularly discouraging ill-considered or needless interlocutory applications—are engaged in the particular circumstances.

Practical Considerations

When considering whether to depart from the usual practice, the court should have regard to:

• The nature and merits of the interlocutory application

• The conduct of the parties

• Any disparity in financial resources between the parties

• The likely delay until final determination

• Whether the proceedings are likely to remain in the District Court or be transferred

As noted in QBE Insurance v Coffey at [74], where proceedings may be transferred to the Supreme Court, "there is no reason why taxation of the costs of these interlocutory proceedings could not take place in the Supreme Court, if this matter is transferred there, as the Determination also applies to the taxation of costs in the Supreme Court."

Conclusion

The District Court's practice of ordering costs "in any event" reflects a balanced approach to interlocutory costs orders that promotes efficiency, fairness, and access to justice. While the court retains discretion to order costs payable forthwith in appropriate cases, the general rule serves important policy objectives that should not be lightly displaced.

Sale of Land in Lieu of Partition: Conduct and Terms Under Section 126 of the Property Law Act 1969 (WA)

Introduction

The recent decision in Genders v Synergia Health Pty Ltd [2024] WASC 223 provides valuable guidance on the application of section 126(1) of the Property Law Act 1969 (WA), particularly regarding which party should have conduct of sale and the appropriate terms for such sales. In this case, Master Russell considered an application by Warren Gilbert Genders for summary judgment seeking the sale of two strata units in Beldon, Western Australia, which he owned as tenant in common with Synergia Health Pty Ltd in equal shares (paragraph 1). While the parties agreed the properties should be sold, they disputed who should conduct the sale and on what terms (paragraph 7).

The Statutory Framework

Section 126(1) of the Property Law Act 1969 (WA) provides that where parties holding at least a half share in land request the court to direct a sale and distribution of proceeds instead of partition, "the Court shall, unless it sees good reason to the contrary, direct a sale accordingly" (paragraph 33). The purpose of this provision is to provide a remedy for joint tenants or tenants in common who may otherwise lack adequate remedies to protect their interests in the event of disputes with co-tenants (Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 650, 656-657, cited at paragraph 34).

Importantly, as Master Sanderson observed in Trainor v Trainor [2021] WASC 40 at paragraphs 4-6, section 126(1) "does not embody a broad discretion in the court to grant or refuse an order for sale" (paragraph 35). The court's choice is limited to ordering either sale or partition, with no other alternatives available.

Determining Who Should Have Conduct of Sale

The Court's Discretion

The court possesses "a complete discretion as to who it will appoint to conduct a sale ordered under s 126(1) of the Act" (Bombara v Bombara [2010] WASC 314 at paragraph 80, cited at paragraph 38). While ordinarily the conduct of sale is given to the plaintiff as a matter of practice (Bombara v Bombara at paragraph 80, citing Dixon v Pyner (1850) 68 ER 135; Dale v Hamilton (1853) 68 ER 1116; and Murray v Geoffroy (1918) 18 SR (NSW) 259), this is not an inflexible rule (paragraph 39).

In exercising this discretion, the court must consider a broad range of factors, and good reasons might displace the ordinary course (Gray v Gray [2023] WASC 70 at paragraph 37, cited at paragraph 39). The overriding consideration is that any party having conduct must "act in good faith and in the interests of both parties in the conduct of the sale" (paragraph 64).

When Joint Conduct Is Inappropriate

The Genders decision provides clear guidance on when joint conduct of sale is unsuitable. Master Russell noted that where court determination of sale terms is necessary, "it is clear the parties are in dispute and there will likely be lack of cooperation, disagreement, and further dispute between the parties after the sale order is made" (paragraph 51, citing Manifis v Mouzalidis [2021] WASC 454 at paragraph 3).

Critical factors suggesting joint conduct is inappropriate include:

• Absence of positive evidence that parties can work together (paragraph 54)

• A broken-down relationship between the parties (paragraph 55)

• Risk that joint decision-making requirements will cause further disputes and delays (paragraph 57)

In Genders, Master Russell concluded that orders requiring both parties to agree on critical matters "would likely result in further dispute between them" with inevitable delays and increased costs (paragraph 57).

Factors Affecting Sole Conduct

When determining whether the plaintiff should have sole conduct, the court will consider any conduct that might disqualify them. In Genders, Synergia raised two objections: first, that Mr Genders might seek to acquire the property at undervalue (based on a three-year-old offer), and second, that he had withheld rent payments (paragraphs 45-46). Master Russell found neither reason sufficient to disqualify the plaintiff, noting his clear statement that he had no intention to purchase the properties and finding he was not responsible for loan defaults (paragraphs 61-62).

Terms of Sale

Method of Sale

The court has broad discretion in determining sale methods. Master Russell emphasized that orders under section 126 "are for the sale of property. They are not orders for sale at the best possible price" (Manifis v Mouzalidis [2021] WASC 454 at paragraph 8, cited at paragraph 74). While price is relevant and must be reasonable, it is not the sole consideration.

The appropriate approach is for the party with conduct to "tak[e] into account the agent's advice and recommendations, acting reasonably, as to which method or methods of sale are likely to result in the best outcome in terms of price, and achieving a completed sale as expeditiously as possible" (paragraph 75).

Protective Mechanisms

To protect the interests of the party not having conduct, courts typically include several safeguards:

1. Notice requirements: The conducting party must notify the other of key decisions, including chosen sale method and reasons for any changes (paragraph 65)

2. Information sharing: Real estate agents must provide copies of engagement agreements, offers received, signed contracts, and cost summaries to both parties simultaneously (proposed order 4(f), discussed at paragraph 66)

3. Acceptance restrictions: For sales other than by auction, the non-conducting party typically receives three days' notice before any offer is accepted (paragraph 67)

4. Reserve price protection: Sales below an agreed reserve may require consent or agent recommendation depending on timing (paragraphs 67-68)

5. Restrictions on self-dealing: To address concerns about conflicts of interest, courts may prohibit the conducting party from bidding during an initial period (paragraph 80)

Distribution of Proceeds

The net proceeds after deduction of sale costs are typically distributed according to the parties' ownership shares. Where secured debts exist, as with the Bank of Queensland loan in Genders, amounts owing are deducted from the responsible party's share to discharge registered mortgages (paragraph 76).

Conclusion

The Genders decision reinforces that while courts have broad discretion in appointing who conducts sales under section 126(1), this discretion must be exercised with regard to practical realities. Where relationships have broken down and cooperation is unlikely, joint conduct is inappropriate. The primary consideration remains achieving an effective sale that protects both parties' interests through appropriate safeguards and oversight mechanisms, rather than pursuing the theoretical best price at the cost of prolonged disputes and delays.

Mental Disability as a Prerequisite for the Appointment of an Administrator

Introduction

The decision in RN [2025] WASAT 46 provides guidance on the meaning and application of "mental disability" as a prerequisite for appointing an administrator under section 64 of the Guardianship and Administration Act 1990 (WA).

In this case, the State Administrative Tribunal considered whether a woman in her 60s who had fallen victim to a sophisticated international romance scam, losing at least $1 million over seven years, had a mental disability warranting the appointment of an administrator.

The Tribunal ultimately found that RN's combination of histrionic personality disorder and low average IQ constituted a mental disability within the meaning of the Act, with her abnormal susceptibility to exploitation being a significant symptom or manifestation of this disability.

The Statutory Framework

To appoint an administrator under the Guardianship and Administration Act 1990 (WA), section 64(1)(a) requires the Tribunal to be satisfied that the person is "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate" (RN [2025] WASAT 46 at [31]).

This provision establishes a two-stage test: first, the existence of a mental disability, and second, a causal connection between that disability and the inability to make reasonable judgments about one's estate.

The term "mental disability" is defined inclusively in section 3 of the Guardianship and Administration Act 1990 (WA) to include "intellectual disability, a psychiatric condition, dementia, and acquired brain injury" (RN [2025] WASAT 46 at [32]). However, as the Full Tribunal clarified in FY [2019] WASAT 118, this definition is not exhaustive.

The Meaning of Mental Disability

The Full Tribunal's decision in FY [2019] WASAT 118 provides the authoritative interpretation of "mental disability" in Western Australian guardianship law. As cited in RN [2025] WASAT 46 at [32], the Full Tribunal held that:

"The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties" (FY [2019] WASAT 118 at [27]).

Importantly, the Full Tribunal emphasized that "the definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark" (FY [2019] WASAT 118 at [31], cited in RN [2025] WASAT 46 at [32]). This recognizes that mental ability exists along a spectrum, with various aspects of cognitive functioning including "the speed and ease of information processing, problem solving, reasoning, and memory" (FY [2019] WASAT 118 at [31]).

Furthermore, the Full Tribunal noted that while a mental disability may be "referrable to the existence of one, or a combination of more than one, identified medical conditions," in other cases "the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt" (FY [2019] WASAT 118 at [32], cited in RN [2025] WASAT 46 at [32]).

Application to Complex Cases

The decision in RN [2025] WASAT 46 demonstrates how the Tribunal approaches cases where mental disability arises from a combination of factors rather than a single, clearly diagnosed condition. The Tribunal found that RN had a mental disability comprising two core elements:

First, a histrionic personality disorder, which the Tribunal described by reference to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as "an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment" (RN [2025] WASAT 46 at [35]). The Tribunal noted specific features including high suggestibility, being easily influenced by others, and being "overly trusting, especially of strong authority figures whom they see as magically solving their problems" (RN [2025] WASAT 46 at [36]).

Second, a low average IQ that "contributes to her poor judgment and limited financial literacy" (RN [2025] WASAT 46 at [39]). The Tribunal emphasized that cognitive screening tools like the Montreal Cognitive Assessment or Rowland Universal Dementia Assessment Scale may not capture impairments in higher-order executive functions, noting that "being able to make a deliberated, informed decision after weighing up the pros and cons of different options, which is the type of decision-making the Tribunal is concerned with, falls into this highest category of executive functions" (RN [2025] WASAT 46 at [41]).

The Tribunal also identified "a further aspect of RN's mental disability, or a symptom of it," namely her "abnormal susceptibility to being exploited or coerced, and her inability to identify when it is occurring" (RN [2025] WASAT 46 at [43]). Importantly, the Tribunal stressed that "the fact that a person is a victim of a scam does not of itself mean that a person has a mental disability" but found that RN demonstrated "a pattern, over the course of her life, of being persuaded or pressured into making decisions that are not in her best interests" (RN [2025] WASAT 46 at [43]). This susceptibility to exploitation was viewed as a manifestation of the underlying mental disability rather than a separate constituent element.

Distinguishing Temporary Conditions

The Tribunal in RN [2025] WASAT 46 also addressed the distinction between mental disability and temporary emotional responses. While RN was diagnosed with an adjustment disorder, defined as "an emotional or behavioural response to an identified stressor, with such distress being out of proportion to the severity or intensity of the stressor," the Tribunal specifically noted that it "have not relied on this diagnosis as a basis for RN's mental disability" because adjustment disorders are temporary and symptoms do not persist beyond six months after the stressor concludes (RN [2025] WASAT 46 at [48]-[49]).

The Tribunal concluded: "I am satisfied, and I find, that RN's condition falls within the meaning of 'mental disability' as described in FY, based on the most comprehensive and recent assessment of RN that was performed by Dr F. I am satisfied that the existence of the mental disability was clearly established by the evidence and is referable to the combination of the personality disorder, her low average IQ and her abnormal, and long-standing, susceptibility to being exploited" (RN [2025] WASAT 46 at [50]). This formulation suggests that while the susceptibility to exploitation forms part of the overall picture, the core mental disability comprises the personality disorder and low IQ, with the exploitation vulnerability being a significant manifestation of these underlying conditions.

Conclusion

The decision in RN [2025] WASAT 46 reinforces that determining whether a person has a mental disability for the purposes of the Guardianship and Administration Act 1990 (WA) requires a holistic assessment of their cognitive functioning and decision-making capacity. The Tribunal's approach demonstrates that mental disability can arise from a combination of factors that collectively impair a person's ability to make reasonable judgments, even where no single factor might be sufficient on its own. Importantly, the decision clarifies that vulnerability to exploitation, while not itself constituting a mental disability, can be a significant symptom or manifestation of underlying cognitive or psychiatric conditions. This nuanced approach ensures that vulnerable individuals who genuinely require protection can access the safeguards provided by the Act, while maintaining the high threshold required to override personal autonomy through the appointment of an administrator.

Permissible Variants in Defamation Pleadings: A Practitioner's Guide to Mond v The Age Company Pty Limited

1. Introduction

The decision in Mond v The Age Company Pty Limited [2025] FCA 442 provides significant guidance on the boundaries of permissible variants in defamation pleadings. Wheelahan J's judgment clarifies when courts may find defamatory meanings within the scope of pleaded imputations, even where those meanings differ from the precise formulations advanced by plaintiffs. This decision has substantial implications for how practitioners frame imputations and conduct defamation proceedings.

The case demonstrates the tension between procedural fairness to defendants and the substantive rights of plaintiffs to vindicate their reputations. Understanding the principles articulated in Mond is essential for practitioners advising clients on both sides of defamation disputes.

2. Background of Relevant Preceding Case Law

2.1 The Foundation: Chakravarti v Advertiser Newspapers

The High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 established fundamental principles regarding the boundaries of pleaded meanings in defamation cases. At [21]-[22], Brennan CJ and McHugh J held that a plaintiff's case may extend to meanings that are:

• Comprehended in the pleaded meaning

• Less injurious than the pleaded meaning

• A mere shade or nuance of the pleaded meaning

However, their Honours emphasised at [19] that a plaintiff cannot seek a verdict on a meaning so different from that pleaded that the defendant would have been entitled to plead different issues, adduce different evidence, or conduct the case on a different basis.

2.2 The Modern Framework: ABC v Chau Chak Wing

The Full Federal Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 clarified the application of Chakravarti principles. At [33], the Court confirmed that plaintiffs may allege multiple distinct defamatory imputations and may plead imputations in the alternative.

Significantly, the Court in ABC v Wing at [87] recognised that plaintiffs are entitled to seek vindication on specific points through their pleaded imputations. This reinforces the role of pleadings in defining the territory for dispute.

2.3 Hore-Lacy Meanings

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 established that defendants may plead alternative meanings to support positive defences. These "Hore-Lacy meanings" allow defendants to advance defences to meanings they contend are permissible variants of the plaintiff's imputations.

3. Facts of Mond v The Age Company

3.1 The Parties and Context

David Mond served as president of the Caulfield Hebrew Congregation from September 2018 to October 2021 (at [13]). The respondents comprised The Age Company Pty Ltd, Fairfax Media Publications Pty Ltd, and journalists Stephen Brook and Samantha Hutchinson (at [2]).

3.2 The Publications

Seven articles were published in The Age's "CBD" column between May 2021 and February 2022:

1. 5 May 2021 articles: Reported controversy over Mr Mond agreeing to host Jonathan Pollard, a convicted spy, at a Jerusalem Day event (at [4], [25])

2. 13 December 2021 articles: Referenced the earlier controversy and reported on the board's apology to Adam Slonim following Mr Mond's critical email about him (at [4], [29])

3. 18 February 2022 articles: Claimed divisions at the synagogue persisted and attendance at Rabbi Rabin's inauguration was low (at [4], [31])

3.3 The Pleaded Imputations

Mr Mond pleaded complex, rolled-up imputations. For the 13 December 2021 articles, these included (at [118]):

• That he was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

• That his "previous actions have inflicted lingering damage on CHC"

• That he "compounded the damage" by his "lack of consultation" and by sending an email that "forced the Board to issue an extraordinary apology"

3.4 The Respondents' Alternative Meanings

The respondents pleaded Hore-Lacy meanings including (at [120]):

• That Mr Mond "agreed to host an address by a person who was convicted of spying for Israel without appropriately consulting the Senior Rabbi"

• That he "had damaged the standing of the Caulfield Shule by sending an ill-considered and defamatory email"

4. The Court's Determinations on Specific Imputations

4.1 The 5 May 2021 Articles

The Court's treatment of the first publications demonstrates the importance of precision in identifying defamatory stings.

Plaintiff's pleaded imputations (at [93]):

• Mr Mond was "so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne's Orthodox Jewish community without appropriate consultation"

• Mr Mond was "a disruptive person who has caused uproar within the Orthodox Jewish community"

The Court's findings (at [101]-[105]): Wheelahan J held that these imputations were not conveyed. The critical finding was that the articles contained no suggestion about whether consultation was required, expected, or had occurred. The judge stated at [102]: "the article says nothing about whether consultation was required, or expected, or took place."

The Court found that while the articles conveyed the existence of controversy and implied questions about judgment, they did not support the specific elements of the pleaded imputations regarding lack of consultation or the applicant being a "disruptive person."

Significance: The plaintiff failed entirely on these articles because the pleaded imputations contained necessary elements not supported by the publications.

4.2 The 13 December 2021 Articles

These articles produced mixed results, demonstrating how courts parse complex imputations.

Imputation 11(a) - "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation" (at [118]):

• Finding: Partially upheld in a lesser form (at [130])

• Reasoning: The "extravagant adverbs 'recklessly and autocratically'" were not conveyed, but the articles did convey that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have

• Key passage: "The ordinary reasonable reader would understand the articles as conveying that the applicant thereby caused the 'rift'"

Imputation 11(c) - "Mr Mond's previous actions have inflicted lingering damage on CHC":

• Finding: Upheld (at [131])

• Reasoning: The reference to "previous actions" encompassed both the lack of consultation and the August email to members

Imputation 11(d) - Mr Mond "compounded the damage" by lack of consultation and by sending an email that "forced the Board to issue an extraordinary apology":

• Finding: Substance conveyed (at [132])

Imputation 11(e) - "so lacking in judgment due to his reckless and autocratic personality that his wrongful conduct on multiple occasions has created a mess at CHC":

• Finding: Not conveyed (at [133])

• Reasoning: Essential elements including "reckless and autocratic personality" were not established

4.3 The 18 February 2022 Articles

The Court's analysis of the final articles shows how repetition of false claims across publications affects findings.

Imputation 13(a) - "created bad times at CHC through his wrongful conduct by hosting a speech by a convicted spy without appropriate consultation":

• Finding: Substance conveyed (at [152])

• Reasoning: Despite the "elusive term" of "wrongful conduct," the articles implied the applicant's failure to consult was wrong

Imputation 13(e) - "compounded the damage he has inflicted on CHC by hosting a speech by a convicted spy without appropriate consultation by a further incident" involving the Slonim email:

• Finding: Substance conveyed (at [153])

• Reasoning: The articles stepped through episodes conveying that Mr Mond compounded damage from the rift with further conduct

Imputation 13(f) - "the divisions Mr Mond has created within CHC... have been so serious that they have not yet been able to be remedied":

• Finding: Conveyed (at [155])

• Reasoning: References to "bad times" and "divisions at the synagogue still exist" supported this meaning

5. Analysis of the Court's Reasoning

5.1 The Framework for Permissible Variants

Wheelahan J articulated key principles at [79]-[82]:

1. The cause of action is publication of matter, not imputations: Under s 8 of the Defamation Act 2005 (Vic), publication gives rise to a single cause of action even if multiple defamatory imputations are conveyed.

2. Pleadings shape but do not rigidly confine the issues: While an applicant's case is shaped by pleaded meanings, it may extend to permissible variants.

3. Procedural fairness is paramount: Courts will not allow applicants to succeed on meanings so different from those pleaded that defendants would have conducted their case differently.

4.2 Application to Specific Imputations

The Court's treatment of Mr Mond's imputation 11(a) illustrates the analysis (at [129]-[130]):

Pleaded imputation: Mr Mond was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

Finding: While the "extravagant adverbs 'recklessly and autocratically'" were not conveyed, a lesser defamatory meaning was established - that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have.

This demonstrates how courts may strip away hyperbolic elements while finding the essential sting remains.

4.3 The Role of Defendants' Alternative Meanings

Wheelahan J held at [87] that where defendants plead Hore-Lacy meanings as permissible variants of plaintiffs' imputations, these may constitute meanings on which plaintiffs are entitled to succeed. This is because defendants' alternative meanings are premised on being bound up with plaintiffs' imputations.

However, the Court emphasised three qualifications at [88]:

1. Where plaintiffs expressly or impliedly exclude meanings other than those strictly pleaded

2. Where imputations contain necessary elements whose absence materially changes the case

3. Where accepting variants of defendants' alternative meanings would constitute "variants on variants"

5. Quantification and Assessment of Damages

5.1 The Serious Harm Threshold

For publications after 1 July 2021, s 10A of the Defamation Act requires proof of serious harm to reputation. The Court's analysis at [406]-[412] demonstrates:

• Each defamatory matter must independently satisfy the serious harm element

• Harm from different publications cannot be aggregated unless they constitute the same matter

• Inference of serious harm may arise from extent of publication and importance of the reputational aspect affected

5.2 Damages Assessment

The Court awarded $120,000 in damages (at [530]), considering:

Mitigating factors:

• One sting (regarding the email about Mr Slonim) was substantially true (at [441])

• The defamatory meanings sat "in the lower end of the spectrum of seriousness" (at [410])

Aggravating factors:

• The false claim about failing to consult was repeated across multiple articles

• The articles targeted Mr Mond personally in a mocking tone (at [483])

6. Worked Example: Practical Application

6.1 From the Plaintiff's Perspective

Scenario: A company CEO is accused in a newspaper article of "corruptly and dishonestly manipulating financial records to deceive shareholders"

Pleading strategy:

1. Primary imputation: The CEO corruptly and dishonestly manipulated financial records

2. Alternative imputation: The CEO engaged in financial misconduct

3. Further alternative: The CEO mismanaged company finances

At trial: If evidence shows financial irregularities but not corruption, the plaintiff may succeed on the lesser variant of financial misconduct, provided it remains within the pleaded case's boundaries.

6.2 From the Defendant's Perspective

Defence strategy:

1. Deny all imputations

2. Plead Hore-Lacy alternative: "The CEO made accounting errors that required correction"

3. Advance justification defence to this lesser meaning

Advantage: By pleading the alternative meaning, the defendant shapes the permissible variants available to the plaintiff while positioning defences to those variants.

7. Step-by-Step Guidance for Practitioners

7.1 For Plaintiff's Counsel

1. Draft imputations at multiple levels: Include primary and alternative formulations capturing different degrees of seriousness

2. Avoid unnecessary hyperbole: Extravagant language risks the court finding no imputation was conveyed

3. Consider defendants' likely alternatives: Anticipate Hore-Lacy meanings and ensure your alternatives encompass them

4. Preserve flexibility: Avoid language that locks you into single interpretations

7.2 For Defendant's Counsel

1. Analyse the boundaries: Identify what variants might fall within plaintiff's pleadings

2. Plead strategic alternatives: Use Hore-Lacy meanings to define the playing field

3. Focus defences appropriately: Target defences to both pleaded and variant meanings

4. Document the basis for meanings: Ensure evidence supports any alternative meanings advanced

8. Evidence and Arguments for Each Side

8.1 Plaintiff's Evidence and Arguments

Evidence to lead:

• Extent of publication and readership data

• Impact on specific reputational interests

• Evidence negativing any truth in extravagant elements

Arguments to advance:

• Natural progression from greater to lesser meanings

• Defendants' alternatives confirm variants are within pleaded case

• Procedural fairness not compromised as defendants addressed these meanings

8.2 Defendant's Evidence and Arguments

Evidence to lead:

• Factual basis supporting alternative meanings

• Context showing why lesser meanings are appropriate

• Evidence of plaintiff's prior conduct relevant to mitigation

Arguments to advance:

• Plaintiff's imputations contain essential elements not established

• Accepting variants would require different defence evidence

• Alternative meanings are maximum extent of liability

9. Key Takeaways for Legal Practice

1. Precision in pleading remains crucial: While variants are permissible, poorly drafted imputations risk complete failure

2. Strategic use of alternatives: Both sides should utilise alternative formulations to shape the boundaries of dispute

3. Evidence must address variants: Parties cannot assume courts will only consider precise pleaded meanings

4. Procedural fairness governs: Courts will not permit variants that would have changed how defendants conducted their case

5. Hyperbole is dangerous: Extravagant language in imputations risks defeating the entire claim

10. Conclusion: Broader Significance

Mond v The Age Company reinforces that defamation pleadings require careful strategic consideration. The decision confirms that while courts retain flexibility to find meanings within the boundaries of pleaded cases, this flexibility has defined limits.

The judgment provides clarity on how Hore-Lacy alternatives interact with plaintiffs' imputations, confirming that defendants' alternatives may inadvertently expand the meanings available to plaintiffs. This creates tactical considerations for both sides in framing their cases.

Most significantly, Mond demonstrates that successful defamation litigation requires more than identifying defamatory publications. It demands precise articulation of meanings that capture the essential sting while maintaining sufficient breadth to encompass likely findings. Practitioners who master these principles will better serve their clients' interests, whether seeking vindication or defending freedom of expression.

The decision ultimately strikes a balance between allowing plaintiffs reasonable latitude in seeking vindication and protecting defendants from unfair procedural prejudice. This balance reflects the fundamental tension in defamation law between protecting reputation and preserving open discourse - a tension that careful pleading can help resolve.

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67: A Comprehensive Analysis of the Standard of Proof for Serious Civil Allegations

1. Introduction: The Enduring Significance of Briginshaw in Contemporary Civil Litigation

The Full Court's decision in Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67 represents a watershed moment in the application of the standard of proof to grave civil allegations. This case provides essential guidance on how courts approach allegations of criminal conduct within civil proceedings, particularly where such allegations involve matters of profound public interest and severe reputational consequences.

The decision's significance extends beyond defamation law, offering critical insights into:

• The practical application of s 140(2) of the Evidence Act 1995 (Cth)

• The contemporary relevance of Briginshaw v Briginshaw (1938) 60 CLR 336

• The interplay between the presumption of innocence and civil burden of proof

• The assessment of evidence quality when determining serious allegations

This analysis examines how the Court navigated the delicate balance between maintaining the civil standard of proof whilst ensuring appropriate rigour when adjudicating allegations of war crimes—arguably among the most serious allegations possible in civil proceedings.

2. The Evolution of Legal Principles: From Briginshaw to Section 140

2.1 The Foundation: Briginshaw v Briginshaw

The High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336 established the fundamental principle that whilst the civil standard remains the balance of probabilities, the degree of satisfaction required varies with the gravity of the allegation. Dixon J articulated this principle at 361-362:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved."

This formulation introduced three critical considerations:

1. The seriousness of the allegation made

2. The inherent unlikelihood of an occurrence

3. The gravity of the consequences flowing from a finding

2.2 Subsequent Development

The principle evolved through several key decisions:

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: The High Court confirmed that "clear, or cogent or strict proof is necessary where so serious a matter as fraud is to be found" (at 450). This decision emphasised that the quality of evidence, not merely its quantity, determines whether the requisite satisfaction is achieved.

Qantas Airways Limited v Gama (2008) 167 FCR 537: The Full Federal Court clarified that Briginshaw does not create a third standard of proof but rather informs the application of the existing civil standard (at [139]).

2.3 Statutory Codification: Section 140

The Evidence Act 1995 (Cth) codified these principles:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

This provision explicitly requires courts to consider the gravity of allegations when determining whether the balance of probabilities is satisfied, effectively incorporating the Briginshaw principle into statute.

3. The Roberts-Smith Litigation: Factual Matrix and Procedural History

3.1 The Parties and Claims

Appellant: Ben Roberts-Smith VC, MG, a decorated former member of the Special Air Service Regiment (SASR), recipient of the Victoria Cross and Medal for Gallantry.

Respondents: Fairfax Media Publications Pty Limited, The Age Company Pty Ltd, The Sydney Morning Herald, and journalists Nick McKenzie, Chris Masters, and David Wroe.

3.2 The Publications and Imputations

The proceedings arose from articles published in June 2018 alleging various acts of misconduct during the appellant's service in Afghanistan. The defamatory imputations, as found by the primary judge, included that the appellant:

1. Whiskey 108 (2009): Murdered an unarmed Afghan civilian by kicking him off a cliff and procuring soldiers to shoot him (J[5])

2. Darwan (2012): Murdered an unarmed Afghan by machine gun fire (J[6])

3. Chinartu (2012): Committed murder by pressuring a subordinate soldier to execute an elderly, unarmed Afghan (J[7])

4. Engaged in domestic violence against his mistress (J[8])

5. Bullied and threatened fellow soldiers (J[9])

3.3 The Defence of Truth

The respondents pleaded substantial truth under s 25 of the Defamation Act 2005 (NSW), contending that the imputations conveyed by the articles were substantially true (J[1]). This defence required them to prove, on the balance of probabilities, that the appellant had committed the alleged acts.

3.4 The Primary Judgment

Following a 110-day trial involving 44 witnesses (J[32]), Besanko J delivered judgment on 1 June 2023. His Honour found:

• The articles conveyed defamatory imputations about the appellant

• The defence of substantial truth succeeded for the murder allegations at Whiskey 108, Darwan, and Chinartu

• The defence failed for certain other imputations, including allegations concerning missions at Fasil and allegations of domestic violence

Critically, the primary judge made express findings that:

• At Whiskey 108: EKIA56 was executed by Person 4 on the appellant's direction, and EKIA57 was murdered by the appellant with machine gun fire (J[5])

• At Darwan: The appellant murdered Ali Jan with machine gun fire (J[6])

• At Chinartu: The appellant directed Person 4 to execute an elderly, unarmed Afghan (J[7])

3.5 The Appeal

The appellant advanced 41 grounds of appeal (J[13]), including challenges to:

• The application of s 140 and Briginshaw principles (Ground 19)

• Specific factual findings regarding each incident

• The primary judge's assessment of witness credibility

• The admission and use of tendency evidence

4. The Court's Analysis: Applying Briginshaw in Practice

4.1 The Standard Articulated

The Full Court (Allsop CJ, Besanko and Lee JJ) began by reaffirming fundamental principles:

1. The standard remains civil: Despite the criminal nature of the allegations, "the standard of proof is the balance of probabilities, not the criminal standard" (J[16])

2. No intermediate standard exists: There is "no shifting standard of proof" or "third standard" between civil and criminal (J[17])

3. Quality of evidence varies: The Briginshaw principle affects "the strength or cogency of the evidence necessary to establish a fact on the balance of probabilities" (J[18])

4.2 The Primary Judge's Approach

The Court found that Besanko J had correctly applied these principles:

"The primary judge discussed the law at some length... He repeatedly reminded himself of those principles. We are satisfied that the primary judge was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." (J[23])

4.3 Practical Application to Evidence

The Court identified several examples demonstrating the primary judge's rigorous approach:

Fasil Mission: Despite evidence from an SASR member about misconduct, the primary judge declined to find this imputation true because identification evidence was not "sufficiently clear and cogent" (J[24]-[25])

Person 17 Assault: Evidence of an alleged assault was rejected as insufficiently reliable given the gravity of the allegation (J[26])

Reliance on Eyewitness Testimony: Where findings were made, they were "largely relied on eyewitness accounts" rather than inference or speculation (J[23])

4.4 The Presumption of Innocence

The Court addressed the appellant's argument regarding the presumption of innocence:

1. The presumption operates as a factor influencing the required cogency of evidence (J[19])

2. The primary judge explicitly considered this presumption (J[23], citing J[114] of the primary judgment)

3. The presumption does not create a different standard but informs the assessment of whether evidence is sufficiently cogent

4.5 Credibility Findings and Appellate Restraint

The Court emphasised the "natural limitations" on appellate review of credibility findings (J[32]), particularly where:

• The trial extended over 110 days

• The primary judge observed 44 witnesses

• Credibility assessments were central to the factual findings

• The appellant's credibility was comprehensively rejected

5. Quantification and Assessment: The Judicial Calculus

5.1 The Nature of Assessment

The assessment required under s 140 and Briginshaw is not mathematical but qualitative. The Court explicitly noted that the primary judge "did not engage in any mechanical comparison of probabilities divorced from a belief in the occurrence or existence of the matters in dispute" (J[24]).

5.2 Factors in the Assessment Matrix

The following factors influence the required cogency of evidence:

A. Intrinsic Factors

1. Gravity of Allegation: Murder allegations require the highest degree of cogency

2. Consequences: Reputational destruction, criminal investigation, loss of honours

3. Inherent Probability: Courts must consider whether the alleged conduct is inherently unlikely

B. Evidence Quality Indicators

1. Directness: Eyewitness testimony preferred over circumstantial evidence

2. Consistency: Internal consistency and consistency with objective facts

3. Corroboration: Multiple independent sources strengthening the evidence

4. Contemporaneity: Evidence closer in time to events generally more reliable

5. Credibility: Honesty and reliability of witnesses

C. Contextual Considerations

1. Documentary Support: Contemporaneous documents enhancing reliability

2. Motive to Fabricate: Absence of apparent bias or interest

3. Opportunity to Observe: Witness proximity and capacity to perceive events

5.3 The Sliding Scale in Practice

The required cogency operates on a sliding scale that increases with the severity of the allegation. Understanding this progression helps practitioners calibrate their evidence gathering and assessment strategies.

At the lower end of the spectrum, minor civil wrongs require only standard civil evidence meeting the basic balance of probabilities test. These might include simple contractual breaches or minor negligence claims where no serious moral culpability is alleged.

Moving up the scale, professional misconduct allegations demand clear and convincing evidence. In the Roberts-Smith case, the bullying allegations against fellow soldiers fell into this category. The evidence needed to be more than merely probable; it needed to be clear and persuasive given the professional consequences such findings would entail.

Fraud and dishonesty allegations require clear, cogent, and strict proof. This elevated standard reflects both the moral opprobrium attached to findings of dishonesty and the severe consequences for professional and personal reputation. In Roberts-Smith, allegations that the appellant gave false evidence to investigations would fall within this category, demanding evidence of particularly high quality.

At the apex of the scale, criminal conduct allegations—particularly serious crimes—require highly cogent and compelling evidence. The murder allegations in Roberts-Smith exemplified this highest category. The evidence needed to be of such quality that it could produce reasonable satisfaction despite the inherent improbability of a decorated soldier committing war crimes and the devastating consequences of such findings.

5.4 Practical Application in Roberts-Smith

The Court's analysis reveals how this assessment operated:

1. Multiple Witnesses: The murder findings relied on testimony from multiple SASR members who were present at the incidents

2. Consistency on Core Facts: Whilst witnesses differed on peripheral details, their accounts were consistent on central allegations

3. Absence of Contamination: The primary judge considered but rejected arguments of collusion or contamination

4. Credibility Differential: The comprehensive rejection of the appellant's credibility contrasted with acceptance of key prosecution witnesses

6. Worked Example: Practical Application in Commercial Fraud Litigation

Consider a civil claim where Company B alleges Company A engaged in systematic fraud through financial statement manipulation, causing $50 million in losses.

6.1 Company B's Perspective (Plaintiff/Alleging Party)

Strategic Considerations:

• Fraud carries severe reputational consequences requiring cogent evidence

• Must overcome inherent improbability of established company committing fraud

• Need evidence of both falsity and intention

Evidence Assembly:

1. Documentary Foundation

   • Forensic accounting analysis showing systematic discrepancies

   • Email communications indicating knowledge of falsity

   • Board minutes revealing awareness of issues

   • Whistleblower statements with contemporaneous notes

2. Witness Evidence

   • Former CFO willing to testify about pressure to manipulate figures

   • Independent auditor identifying red flags ignored by management

   • Multiple employees corroborating culture of deception

3. Pattern Evidence

   • Demonstration of repeated conduct over multiple reporting periods

   • Evidence of cover-up attempts when questions arose

   • Correlation between misstatements and executive bonuses

Argument Structure:

"Whilst we acknowledge fraud is a serious allegation requiring cogent proof, the evidence surpasses this threshold. We present not mere suspicion but a compelling mosaic: forensic analysis revealing systematic manipulation, contemporaneous documents showing intent, and consistent testimony from multiple independent witnesses. This is not inexact proof or indefinite testimony—it is clear, cogent evidence establishing deliberate deception."

Key Submissions on Standard:

• Acknowledge the Briginshaw requirement explicitly

• Demonstrate how evidence meets the "clear and cogent" threshold

• Address each element of fraud with specific, compelling evidence

• Emphasise multiple independent sources of verification

6.2 Company A's Perspective (Defendant/Responding Party)

Strategic Considerations:

• Emphasise gravity of fraud allegation and required proof standard

• Challenge evidence quality rather than quantity

• Provide innocent explanations for suspicious circumstances

Defensive Evidence:

1. Alternative Explanations

   • Expert evidence on accounting judgment legitimacy

   • Industry practice evidence supporting interpretations

   • Documentation of good faith decision-making processes

2. Credibility Challenges

   • Motivation of whistleblowers (dismissed employees)

   • Inconsistencies in witness accounts

   • Lack of contemporaneous complaint

3. Systemic Defences

   • Robust internal controls and audit processes

   • Clean regulatory history

   • Professional advice supporting accounting treatments

Argument Structure:

"The plaintiff bears the burden of proving fraud—an allegation of utmost gravity requiring the clearest and most cogent evidence. What they present falls materially short: disgruntled former employees with axes to grind, accounting disagreements recharacterised as deception, and a presumption of guilt from legitimate business difficulties. The evidence lacks the clarity, cogency and compelling nature required by Briginshaw for such devastating allegations."

Key Submissions on Standard:

• Emphasise that suspicion, however grave, is insufficient

• Highlight gaps, inconsistencies and alternative explanations

• Invoke presumption of innocence as interpretive principle

• Demonstrate failure to meet Briginshaw threshold

7. Practitioner's Guide: Step-by-Step Approach

7.1 Initial Case Assessment

Step 1: Categorise the Allegations

• Identify all serious allegations (criminal conduct, fraud, professional misconduct)

• Assess reputational and legal consequences of adverse findings

• Determine applicable Briginshaw considerations

Step 2: Evidence Audit

• Catalogue available evidence by type and quality

• Assess cogency against Briginshaw requirements

• Identify evidence gaps requiring attention

Step 3: Strategic Planning

• Determine whether evidence meets required threshold

• Identify additional evidence needed

• Consider alternative causes of action with lower thresholds

7.2 Pleading Considerations

For Plaintiffs:

• Plead serious allegations with precision and particularity

• Ensure factual foundation for each element

• Consider whether lesser allegations might achieve client objectives

For Defendants:

• Challenge adequacy of particulars for serious allegations

• Reserve position on standard of proof arguments

• Consider strategic admissions on less serious matters

7.3 Evidence Gathering Phase

Documentary Evidence:

• Prioritise contemporaneous documents

• Seek corroborating documentation

• Preserve metadata and chain of custody

Witness Evidence:

• Identify witnesses with direct knowledge

• Assess credibility and potential bias

• Obtain signed statements early

• Consider expert evidence on industry standards

Strategic Considerations:

• Focus resources on evidence meeting cogency requirements

• Consider cost-benefit of pursuing marginal evidence

• Maintain evidence integrity throughout process

7.4 Pre-Trial Preparation

Witness Preparation:

• Explain significance of serious allegations

• Emphasise importance of clarity and precision

• Address potential credibility challenges

• Prepare for rigorous cross-examination

Expert Evidence:

• Ensure experts understand Briginshaw requirements

• Focus opinions on clear, demonstrable conclusions

• Avoid speculation or equivocation

7.5 Trial Strategy

Opening Submissions:

• Address standard of proof explicitly

• Preview evidence meeting Briginshaw requirements

• Frame case theory consistent with required cogency

Evidence Presentation:

• Lead with strongest, most direct evidence

• Build corroboration systematically

• Address credibility proactively

Cross-Examination:

• Target evidence quality, not just contradictions

• Explore bias and motivation

• Test reliability of observations

• Highlight absence of corroboration

Closing Submissions:

• Synthesise evidence against Briginshaw standard

• Address each serious allegation systematically

• Emphasise cumulative effect of cogent evidence (if plaintiff)

• Highlight evidential deficiencies (if defendant)

8. Evidence and Arguments: Detailed Strategic Analysis

8.1 For Parties Making Serious Allegations

Essential Evidence Components:

1. Primary Evidence

   • Direct witness testimony from participants

   • Contemporaneous documents showing intent

   • Admissions or inconsistent statements

   • Expert analysis of objective facts

2. Corroborative Evidence

   • Multiple independent witnesses

   • Documentary trails supporting testimony

   • Circumstantial evidence forming coherent pattern

   • Post-incident conduct suggesting guilt

3. Credibility Enhancement

   • Evidence of witness independence

   • Absence of motive to fabricate

   • Consistency with objective facts

   • Prior consistent statements

Argument Framework:

• Acknowledge gravity of allegations upfront

• Demonstrate evidence exceeds Briginshaw threshold

• Address each element with specific, cogent proof

• Emphasise multiple sources of verification

• Distinguish from criminal standard whilst meeting civil requirements

8.2 For Parties Defending Serious Allegations

Defensive Evidence Strategy:

1. Direct Contradiction

   • Witness testimony refuting allegations

   • Documentary evidence disproving claims

   • Expert evidence challenging interpretations

   • Alibi or impossibility evidence

2. Credibility Attacks

   • Evidence of bias or motive

   • Prior inconsistent statements

   • Collusion or contamination

   • Memory reliability challenges

3. Alternative Narratives

   • Innocent explanations for suspicious facts

   • Industry practice evidence

   • Contextual evidence changing interpretation

   • Good character evidence (where admissible)

Argument Framework:

• Emphasise exceptional gravity requiring exceptional proof

• Systematically identify evidential deficiencies

• Challenge quality, not just quantity of evidence

• Invoke presumption of innocence

• Demonstrate reasonable alternative explanations

9. Key Practice Points: Lessons from Roberts-Smith

9.1 For Litigation Strategy

1. Evidence Quality Paramount: Multiple weak sources cannot substitute for cogent proof

2. Credibility Crucial: Adverse credibility findings can be case-determinative

3. Details Matter: Minor inconsistencies in serious allegations can be fatal

4. Context Essential: Understanding operational/industry context affects assessment

9.2 For Evidence Management

1. Preserve Contemporaneous Records: These carry exceptional weight

2. Witness Statements Early: Memory degradation affects cogency

3. Expert Evidence Carefully: Must be clear and compelling, not equivocal

4. Corroboration Systematically: Build mutually reinforcing evidence

9.3 For Client Management

1. Realistic Assessment: Clients must understand heightened proof requirements

2. Cost Implications: Proving serious allegations requires substantial resources

3. Risk Analysis: Consider reputational damage even if successful

4. Alternative Strategies: Lesser allegations might achieve objectives

9.4 For Procedural Management

1. Pleadings Precision: Particulars crucial for serious allegations

2. Discovery Breadth: Cast wide net for corroborative evidence

3. Witness Management: Credibility preparation essential

4. Appeal Prospects: Credibility findings create high appellate barrier

10. Conclusion: The Enduring Relevance of Principled Analysis

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) demonstrates that the Briginshaw principle remains vital in contemporary litigation. The decision confirms that courts can and will make findings of the most serious nature in civil proceedings where evidence meets the required standard of cogency.

The case establishes several enduring principles:

1. No Sliding Scale of Standards: The civil standard remains constant; only evidence quality requirements vary

2. Gravity Demands Cogency: The more serious the allegation, the more compelling the evidence must be

3. Judicial Method Matters: Courts must explicitly consider gravity when assessing evidence

4. Credibility is Central: In serious matters, credibility findings often determine outcomes

5. Appellate Deference Applies: Factual findings based on credibility assessment face high appellate barriers

For practitioners, Roberts-Smith provides both cautionary lessons and practical guidance. Those making serious allegations must assemble evidence of exceptional quality, whilst those defending such allegations can invoke Briginshaw to challenge evidential sufficiency.

Ultimately, the decision reaffirms that civil justice can address the most serious allegations whilst maintaining principled distinctions between civil and criminal standards. The Briginshaw principle, now embodied in s 140 of the Evidence Act, ensures that grave allegations receive appropriately rigorous scrutiny without abandoning the fundamental civil standard of proof.

This balance—between accessibility of civil justice and protection against unfounded serious allegations—remains essential to the integrity of our civil justice system. Roberts-Smith demonstrates that this balance, whilst delicate, can be maintained through rigorous judicial method and careful attention to evidence quality.

Note: This analysis is based on the reported decision and is intended for educational and professional development purposes. Practitioners should consult primary sources and seek specific advice for particular matters.

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.