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

An Analysis of Dakin v Bellizzi [2026] FCA 488

1. Introduction

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

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

2. Relevant Legal Framework

Federal Court jurisdiction over defamation

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

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

Cross-vesting and transfer

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

Colourable claims and accrued jurisdiction

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

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

Serious harm in defamation

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

3. The Facts of the Case

The parties and the property transaction

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

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

The dinner and the alleged defamatory statements

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

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

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

Commencement of proceedings and the jurisdictional challenge

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

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

The proposed ACL claim

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

4. Analysis of the Court’s Reasoning

The colourability finding

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

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

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

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

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

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

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

Alternative basis: summary dismissal

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

Serious harm

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

5. Assessing the Consequences

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

Indemnity costs

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

Lost cause of action

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

6. Worked Example

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

Analysis from Ms Kapoor’s perspective

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

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

Analysis from Mr Webb’s perspective

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

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

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

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

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

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

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

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

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

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

The Evidentiary Threshold for Reopening Before the State Administrative Tribunal

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

1.  Introduction

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

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

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

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

2.  Relevant Legal Framework

2.1  The SAT Act and the Power to Reopen

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

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

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

2.2  The Westgem Principles

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

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

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

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

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

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

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

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

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

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

3.  The Facts of the Case

3.1  The Proposed Structure Plan and the Bushfire Issue

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

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

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

3.2  The Hearing and the Enforceability Issue

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

3.3  The Application to Reopen

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

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

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

4.  Analysis of the Tribunal’s Reasoning

4.1  The Primary Ground: Submissions Without Evidence Cannot Assist

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

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

4.2  The Extraordinary Nature of the Proposal

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

4.3  The WAPC’s Unanswered Questions

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

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

4.4  The Obligation to Put Forward a Considered Proposal

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

4.5  The Secondary Grounds

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

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

5.  Assessing the Consequences

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

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

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

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

6.  Worked Example

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

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

Analysis from Greenfield’s perspective

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

Analysis from the respondent’s perspective

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

Likely outcome

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

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

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

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

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

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

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

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

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

8.  Evidence and Arguments Available to Each Side

8.1  For the Party Seeking to Reopen

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

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

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

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

8.2  For the Party Opposing Reopening

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

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

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

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

9.  Key Takeaways for Legal Practice

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

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

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

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

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

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

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

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

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

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

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

1. Introduction

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

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

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

2. Relevant Legal Framework

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

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

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

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

3. The Facts of the Case

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

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

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

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

4. Analysis of the Tribunal’s Reasoning

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

The evidentiary gap

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

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

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

The unrepresented party’s silence

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

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

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

5. Assessing the Consequences

The cost of the evidentiary omission

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

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

Contrast with Ebtash

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

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

6. Worked Example

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

Scenario A: The Kaur approach

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

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

Scenario B: The Ebtash approach

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

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

Analysis

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

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

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

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

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

2.      Step 2: Prepare a solicitor’s affidavit

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

3.      Step 3: Annex all relevant invoices and receipts

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

4.      Step 4: Prepare a detailed schedule of costs

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

5.      Step 5: Address reasonableness and necessity in submissions

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

6.      Step 6: Do not assume silence is consent

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

7.      Step 7: Consider the applicable rate

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

8. Evidence and Arguments Available to Each Side

The party seeking costs

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

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

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

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

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

The party resisting costs

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

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

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

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

9. Key Takeaways for Legal Practice

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

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

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

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

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

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

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

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

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

10. Conclusion

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

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

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

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

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

1. Introduction

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

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

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

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

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

2. Relevant Legal Framework

(a) The inconsistency principle in Mann v Carnell

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

(b) The content-of-communications line

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

(c) The broader subject-matter line

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

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

(d) Waiver and affidavits filed before trial

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

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

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

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

(f) The overarching purpose and modern case management

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

3. The Facts of the Case

(a) The proceeding

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

(b) The ACCC’s case on purpose

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

(c) Mastercard’s defence

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

(d) The affidavits in issue

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

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

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

(e) The privilege and discovery dispute

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

(f) The decision of the primary judge

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

(g) The appeal

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

4. Analysis of the Court’s Reasoning

(a) The inconsistency principle is unified

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

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

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

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

(b) Application to Mr Koh’s affidavit

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

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

(c) Application to Mr Molu’s affidavit

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

(d) The scope of the orders

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

(e) The timing question

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Practical Consequences

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

(a) Reorientation of pre-trial conduct

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

(b) Breadth of any waiver

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

(c) Strategic implications for regulators and applicants

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

(d) Strategic implications for the privilege holder

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

(e) Case management and proportionality

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

6. Worked Example

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

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

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

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

(a) Analysis for Mr Quinn (applicant)

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

(b) Analysis for Polaris (privilege holder)

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

(c) Timing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8. Evidence and Arguments Available to Each Side

(a) Arguments available to the applicant or regulator

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

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

(b) Arguments available to the privilege holder

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

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

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

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

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

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

9. Key Takeaways for Legal Practice

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

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

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

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

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

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

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

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

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

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

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

10. Conclusion

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

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

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

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

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

1. Introduction

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

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

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

2. Relevant Legal Framework

2.1 The statutory right of recovery

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

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

2.2 First principles of costs recovery

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

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

2.3 The state of the law before Sowden

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

3. The Facts of the Case

3.1 The underlying debt

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

3.2 The Oakbridge phase

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

3.3 The MinterEllison phase

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

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

3.4 The trial evidence

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

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

3.5 The magistrate's decision

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

4. Analysis of the Court's Reasoning

4.1 The two errors identified

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

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

4.2 The assessment methodology — the seven factors

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

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

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

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

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

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

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

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

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

4.3 The privilege problem

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

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

4.4 The role of the Magistrates Court scale

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

5. Assessing the Consequences

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

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

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

6. Worked Example

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

Applying the Sowden framework

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

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

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

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

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

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

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

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

Step 1: Identify the recovery proceedings narrowly

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

Step 2: Resource proportionately at the outset

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

Step 3: Keep contemporaneous itemised time records

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

Step 4: Decide early on the privilege position

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

Step 5: Prepare the evidence in an admissible form

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

Step 6: Address each of the seven factors in submissions

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

Step 7: Address proportionality squarely

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

8. Evidence and Arguments Available to Each Side

8.1 For the local government

The local government should marshal the following categories of evidence:

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

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

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

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

8.2 For the ratepayer

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

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

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

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

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

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

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

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

9. Key Takeaways for Legal Practice

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

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

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

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

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

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

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

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

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

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

10. Conclusion

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

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

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

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

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

1. Introduction

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

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

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

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

2. Relevant Legal Framework

The statutory gateway: section 6 of the Act

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

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

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

The procedural framework: Order 44A RSC

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

Inconsistency: the Act prevails

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

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

Foreign-law interest

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

Costs

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

The state of the law before Packer

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

3. The Facts of the Case

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

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

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

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

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

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

4. Analysis of the Court's Reasoning

Registration is mandatory

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

The Act overrides inconsistent Rules

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

Foreign-law interest is recoverable on registration

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

Currency conversion mechanics

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

Costs – the crux of the decision

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

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

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

5. Assessing the Consequences

The registered judgment sum

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

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

Consequences for the judgment creditor of the costs order

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

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

Consequences for the judgment debtor

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

Systemic consequences

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

6. Worked Example

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

The judgment creditor's perspective

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

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

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

The judgment debtor's perspective

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

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

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

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

Step 1 – Confirm the foreign court is within the Schedule

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

Step 2 – Verify limitation

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

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

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

Step 4 – Establish foreign-law interest by admissible evidence

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

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

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

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

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

Step 7 – Prepare the costs evidence properly

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

Step 8 – File ex parte and attend the first return

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

Step 9 – Serve the notice of registration personally

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

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

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

8. Evidence and Arguments Available to Each Side

For the judgment creditor

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

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

For the judgment debtor

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

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

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

9. Key Takeaways for Legal Practice

The following propositions distil the practical message of the decision.

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

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

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

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

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

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

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

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

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

10. Conclusion

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

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

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

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

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

1. Introduction

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

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

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

2. Relevant Legal Framework

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

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

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

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

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

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

3. The Facts of the Case

The underlying claim

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

Procedural history

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

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

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

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

The substantive amendments

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

4. Analysis of the Court's Reasoning

The trigger for r 48A leave

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

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

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

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

Her Honour observed (at [38]):

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

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

The distinction that saved the application

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

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

Pleading adequacy versus evidentiary sufficiency

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

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

The refused contributory negligence amendment

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

5. Assessing the Consequences

The practical consequences of the decision flow in several directions.

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

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

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

6. Worked Example

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

Scenario A – defendant certifies, then seeks to amend

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

Scenario B – defendant declines to certify

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

What the prudent practitioner does

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Step 8 – Where amendments narrow the issues, seek consent

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

8. Evidence and Arguments Available to Each Side

Arguments for the moving (amending) party

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

Arguments for the opposing party

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

9. Key Takeaways for Legal Practice

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

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

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

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

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

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

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

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

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

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

10. Conclusion

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

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

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

Post-Death Access to SAT Guardianship Files: Why the Will-Challenger's Door Remains Closed

An Analysis of AC [No 2] [2026] WASAT 30

1. Introduction

AC [No 2] [2026] WASAT 30 is a short but significant decision of the State Administrative Tribunal of Western Australia on the use that may be made of a Tribunal guardianship file after the represented person has died. Member Child refused two applications under s 112(4) of the GA Act for access to material held on the Tribunal's file: one brought on behalf of the represented person's son to support a proposed Supreme Court challenge to the represented person's will, and another brought by the represented person's daughter who said she had not been properly informed about the earlier proceedings.

The decision is of particular interest to practitioners in estates litigation, guardianship and administration, and elder law. In short, it confirms that a SAT guardianship file is not a discovery device for will challenges. The decision draws a clear line between applications that serve the interests of the represented person — which may attract access (as in OR [2024] WASAT 2 (S)) — and applications that are, in substance, directed to the interests of others. The latter remain subject to the strict confidentiality regime in s 112 and s 113 of the GA Act, and an applicant must show very cogent reasons for access.

The practical consequence is that estate practitioners contemplating a challenge under the Administration Act 1903 (WA), a family provision claim, or a capacity-based probate dispute cannot assume that evidence assembled by the Tribunal — medical reports, capacity assessments, transcripts and affidavits — will be made available to them following the death of the represented person. The decision is a timely reminder that the confidentiality protections in the GA Act survive death.

2. Relevant Legal Framework

Section 112 and s 113 of the GA Act

Section 112 of the GA Act establishes three distinct classes of access to Tribunal documents. First, under s 112(1), the proposed represented person (or represented person) has a conditional entitlement to inspect material lodged with or held by the Tribunal for the purposes of any application in respect of that person. Second, under s 112(2), any other party to proceedings commenced under the GA Act has a conditional entitlement to inspect documents (other than medical opinions not concerning that party) for the purpose of those proceedings. Third, under s 112(4), the Tribunal may, on the application of any person, authorise access to documents or materials, conditionally or unconditionally.

Section 113 imposes a parallel confidentiality obligation on persons performing functions under the GA Act, prohibiting the divulging of personal information relating to a represented person or proposed represented person except in prescribed circumstances. Section 112(3) backs the regime with criminal sanctions: unauthorised inspection attracts a penalty of $2,000 or imprisonment for nine months.

The cogent reasons threshold

The leading authority is CD [2020] WASAT 41 (CD), in which the then President of the Tribunal articulated the test for applications under s 112(4). Where an applicant seeks access for purposes unrelated to proceedings before the Tribunal, the applicant must provide very cogent reasons and demonstrate a particular need (see CD at [43]). A general desire to be informed is not sufficient, nor are convenience or cost savings. Those principles had earlier been stated in MM (2001) 28 SR (WA) 320 and AB and the Public Trustee [2015] WASAT 68.

The rationale reflects two public interests. The first is the privacy of the represented person. The second is the integrity of the Tribunal's processes: the exercise of the Tribunal's jurisdiction depends upon candid evidence from medical practitioners, service providers and family members. If those sources believed their material might routinely be released for use in collateral civil litigation, the frankness and supply of evidence would be compromised (see CD at [36]–[37]).

Where access has been granted: OR

In OR [2024] WASAT 2 (S) the Tribunal granted the represented person access to transcripts of hearings in Tribunal proceedings concerning him. Access was granted because it was in OR's own best interests and relevant to closely related Family Court property settlement proceedings between OR and his former wife, who had acted under OR's enduring power of attorney. The critical feature was that the access served the represented person's interests, not the interests of a third party seeking to litigate against him or his estate.

The post-death boundary

The objects of the GA Act are directed to the personal and financial affairs of adults who need assistance during their lifetime. In Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [57], Heenan J held that the conservation of an estate under administration during the represented person's lifetime does not extend to the preservation of the estate after death; this is reflected in s 78(1)(b), under which the administrator's authority ceases on death. The legislation is not concerned with will-making or the administration of deceased estates. AC [No 2] applies that orientation to the access regime: the Tribunal's file is not to be repurposed to serve the probate jurisdiction.

3. The Facts of the Case

AC was an 86-year-old businessman with a diagnosis of dementia at the time of the earlier Tribunal proceedings (at [1]). In those earlier proceedings, the partner of AC sought appointment as guardian and administrator of AC's estate, while AC's son, RC, sought orders bringing into force an enduring power of attorney made by AC which appointed RC as attorney (at [2]).

Orders were made appointing guardians and an administrator, and bringing into force and then varying the EPA. Those proceedings concluded in 2024 (at [3]). Oral reasons were delivered on the day of the final hearing and were only recently published following the present access applications (at [4]). AC died on 23 December 2025 (at [5]).

RC's application

On 5 January 2026, and through his solicitors, RC applied under s 112(4) for access to documents held on the Tribunal's file, including medical and other material. The purpose stated was to obtain advice about commencing proceedings in the Supreme Court under the Administration Act 1903 (WA). The concerns articulated related to AC's alleged lack of testamentary capacity, lack of knowledge and approval, and undue influence in respect of a will made by AC after RC believed AC had lost mental capacity (at [8]).

MR's application

On 21 January 2026, AC's daughter MR applied for all information on the Tribunal's file. MR asserted that she had not received any letters about AC's matters and believed she had not been properly informed. She said her brother RC had told her she would be advised in due course, and that although Tribunal staff had told her five letters had been sent to her, she had received none and it was unlikely all had gone missing (at [9], [19]–[20]).

The Tribunal noted that three notices had been sent by mail to MR at her confirmed home address — a notice of the original hearing, and subsequent orders. MR did not attend the original or subsequent hearings. It was apparent from her application that she had been aware of the proceedings through RC. It had been indicated in the earlier proceedings that MR was estranged from AC; whether accurate or not, MR had not sought access during AC's lifetime (at [20]–[21]).

4. Analysis of the Tribunal's Reasoning

MR's application: a general desire to be informed

Member Child characterised MR's application as being in the nature of a general desire to be informed, applying MM (as followed in CD). The timing weighed against the applicant: MR had not sought information during AC's lifetime, when the GA Act processes were on foot and capable of responding to a genuine informational interest in a represented person's welfare. The Tribunal was not satisfied that MR had demonstrated cogent reasons for access and dismissed the application (at [21]).

RC's application: interests of others, not the represented person

The reasoning on RC's application is the heart of the decision. Member Child accepted that material on a Tribunal file may sometimes be relevant to matters outside the stated purposes of the GA Act, including testamentary capacity (at [23], [26]). The tests for capacity differ: the test for capacity to execute a will is the Banks v Goodfellow test of sound mind, memory and understanding ((1870) LR 5 QB 549 at 565), whereas appointment of an administrator under s 64 of the GA Act requires a finding that the person is unable by reason of a mental disability to make reasonable judgements about his or her estate (at [26] and footnotes 9 and 10). There may therefore be overlap in the evidentiary subject matter, without identity of the legal tests.

The Tribunal nevertheless refused access. The critical distinction drawn from OR is that, in OR, access advanced the represented person's interests in closely related proceedings; here, access was sought not to advance AC's interests (AC having died), but the interests of RC as a potential will-challenger (at [27]).

Member Child then applied the CD rationale directly (at [28]–[31]). Granting access to the documents for RC's stated purpose would not uphold the public interest in maintaining the integrity of the Tribunal's processes. Medical practitioners and other professionals produce reports on the footing that those reports will be used for the Tribunal's statutory function. The candour of evidence from proposed represented persons, applicants and family members relies on a reasonable expectation that the information given will be used only in GA Act proceedings (at [31], citing PJB [2008] WASAT 190 at [46], which was in turn cited in OR). If it became known that GA Act material would be routinely released to support post-death will challenges, those sources may be hesitant to provide material, or less frank in doing so.

Death does not dissolve confidentiality

A further plank of the reasoning — picked up from AB and the Public Trustee at [14] — is that personal information does not cease to be confidential simply because the person has died. The result is that the s 113 confidentiality regime, and by extension the s 112 access controls, survive the represented person's death. The fact that the represented person can no longer consent does not convert the file into something more accessible; if anything, it heightens the protection because the person whose interests are at stake can no longer speak for herself or himself.

5. Assessing the Consequences

The practical consequences of AC [No 2] for estates practitioners are significant. Will-challengers frequently look to guardianship proceedings as a ready-made evidentiary foundation. The Tribunal's file may contain capacity assessments by treating geriatricians, neuropsychological reports, affidavit evidence from family members, and transcripts of hearings at which the represented person's cognition was directly canvassed. That material is often more contemporaneous with the impugned testamentary act than any report a litigant could now procure.

After AC [No 2], practitioners must treat a Tribunal file as presumptively inaccessible for the purposes of will challenges or family provision claims. Access will be granted only on very cogent reasons, and the stated purpose of advancing a will challenge will ordinarily tell against access because it is directed to the interests of the applicant rather than the represented person.

The cost and time consequences for clients are real. Evidence of capacity at or around the time of a will may instead need to be reconstructed from medical records obtained by subpoena in the Supreme Court, interviews with treating clinicians, and expert retrospective reports — an undertaking substantially more expensive than copying the Tribunal file. Practitioners should factor this into scope, estimates and costs disclosure at the outset of any file where the testator was the subject of GA Act proceedings.

For the Tribunal system, the decision reinforces the integrity of its evidentiary environment. Medical and allied-health professionals can continue to provide candid reports to the Tribunal on the footing that their reports will not be routinely turned over to estate litigation. That protection is not absolute — s 112(4) remains a discretionary gateway — but the threshold is high and the cases in which it is cleared will be unusual.

6. Worked Example

Assume the following facts. E is an 84-year-old widower with a diagnosis of vascular dementia. In 2023, E's daughter D (with whom E lived) was appointed E's administrator by the Tribunal following a contested hearing at which E's son S opposed the application and asserted E retained capacity. In the course of those proceedings, the Tribunal received two geriatrician's reports, an occupational therapist's capacity assessment, and affidavits from each of D and S. In 2024, E executed a new will naming D as sole beneficiary. E died in 2026. S wishes to challenge the will, asserting lack of testamentary capacity and undue influence by D.

S's application for access under s 112(4)

S, as a former party to the GA Act proceedings, no longer has any entitlement under s 112(2) following final determination (see CD at [40]). S must apply under s 112(4). Following AC [No 2], the stated purpose — to challenge the will — places the application on the wrong side of the OR/AC [No 2] line: the access is directed to S's own interests, not those of E. The application would likely be refused, absent additional material such as evidence of fraud or of something seriously amiss in the underlying GA Act proceedings.

D's position

D, as propounder of the will, will resist access. D can point to AC [No 2] and CD and submit that the policy of the GA Act is to protect the evidentiary environment of the Tribunal. D might add that, even if access were granted, the distinct legal test (Banks v Goodfellow vs s 64 of the GA Act) means that GA Act material has only limited probative weight in a probate action in any event.

Could the position change?

Access may be more realistically available where, for example, S could identify a specific document (rather than the whole file), show that it could not be obtained from any alternative source (for example, the author of a medical report), and articulate the particular need for it in the proposed probate action. Even then, the Tribunal will weigh the cogency of the reasons against the confidentiality concerns (see CD at [45]).

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

Step 1 — Identify the purpose and the beneficiary of access

Before drafting any s 112(4) application, articulate in a single sentence whose interests the access serves. If the answer is the represented person (for example, to pursue a claim that benefits the represented person's estate during life, as in OR), access is realistic. If the answer is the applicant or a beneficiary seeking to litigate against the estate, the application will face the AC [No 2] headwind.

Step 2 — Audit available alternative sources

Catalogue every alternative source: treating doctors' clinical notes, hospital records, aged care facility notes, family observations, bank records, solicitor's file notes on the will instructions. The Tribunal will give weight to whether access is necessary, not merely convenient (see CD at [43]).

Step 3 — Scope the request narrowly

Avoid a blanket request for the whole file. Specify the documents sought (for example, a particular capacity report dated X by Y) and explain why each is needed. Narrow, reasoned requests are more likely to be granted than sweeping fishing expeditions (see AC [No 2] at [23]–[27]).

Step 4 — Articulate very cogent reasons

Translate the CD threshold into evidence. Address: (a) the relevance of each specific document to the proposed proceedings; (b) the impossibility or unreasonable cost of obtaining the evidence by any other means; (c) any undertaking to use the material only for identified purposes and to limit circulation; and (d) any features of the case that distinguish it from an ordinary will challenge.

Step 5 — Consider the public interest factors

Confront the CD public interest factors directly. Explain why granting access will not chill the supply of evidence in future GA Act cases. For example, identify whether the relevant report author has already consented, or whether the material has already entered the public domain in some form (at [28]–[31]).

Step 6 — Address confidentiality safeguards

Offer practical safeguards: limitation to identified solicitors, confidentiality undertakings, return or destruction at the end of the litigation, and restrictions on further disclosure. These mitigate the s 113 concerns (AB and the Public Trustee at [14]) and help address the weight against access.

Step 7 — Manage client expectations and costs

Advise the client at the outset that the Tribunal file is presumptively unavailable, that an application is likely to be refused if its purpose is a will challenge, and that the probate proceedings will generally need to be resourced on the footing that a fresh evidentiary record must be built. Build costs estimates accordingly and provide costs disclosure reflecting that scope.

Step 8 — Consider timing

If a GA Act file exists and the represented person is still alive, consider whether any access that may benefit the represented person (for example, to pursue claims for the represented person's benefit) should be sought before death. Post-death, the AC [No 2] bar operates, and the window for OR-type applications largely closes.

8. Evidence and Arguments Available to Each Side

Applicant seeking access

An applicant will seek to characterise access as serving the represented person's interests (for example, by reference to a claim that preserves or restores the estate for rightful beneficiaries). The applicant should be prepared to tender: (a) affidavit evidence of the proposed proceedings, the parties and the issues; (b) evidence of unsuccessful attempts to obtain the material from alternative sources; (c) a targeted list of the specific documents sought with a stated purpose for each; and (d) proposed confidentiality undertakings and orders limiting use.

Useful authorities include OR (where access served the represented person's interests in closely related proceedings) and s 112(4)'s broad, unlimited discretionary language recognised in CD at [42].

Party resisting access

AC [No 2] and CD together provide the skeleton of the resistance. The respondent should emphasise: (a) the confidentiality policy in s 112 and s 113; (b) the post-death persistence of confidentiality (AB and the Public Trustee); (c) the OR/AC [No 2] distinction that access must serve the represented person's interests; (d) the chilling effect on the Tribunal's evidentiary environment (CD at [36]–[37]; PJB at [46]); and (e) the availability of alternative evidentiary sources in the probate jurisdiction.

Respondents should also draw attention to the distinct legal tests: because GA Act findings are made on a different capacity standard from the Banks v Goodfellow test, the material is of limited weight in a probate action in any event, which is a further reason against taking the step of releasing it.

9. Key Takeaways for Legal Practice

1. A SAT guardianship file is not a discovery tool for will challenges.

The central message of AC [No 2] is that access under s 112(4) will not be granted where the stated purpose is to support a will challenge or similar claim directed to the interests of third parties (at [27]–[32]).

2. The CD threshold — very cogent reasons — remains intact.

A general desire to be informed is insufficient. So are convenience and cost savings. The applicant must demonstrate a particular need (CD at [43]–[44]).

3. Confidentiality survives death.

Personal information held on the Tribunal's file does not become releasable merely because the represented person has died (AB and the Public Trustee at [14]).

4. OR is a narrow authority.

The grant of access in OR reflected closely related proceedings in which access served the represented person. It does not provide a template for post-death will-challenge applications.

5. Different tests mean limited probative value.

Administration and testamentary capacity are assessed under different tests (Banks v Goodfellow and s 64 of the GA Act respectively). GA Act findings are not determinative of testamentary capacity, a point respondents can deploy against access.

6. Narrow, reasoned requests fare better than blanket requests.

Identify specific documents, their relevance, and the impossibility of obtaining them elsewhere. Offer confidentiality safeguards.

7. Build cost estimates on the assumption that access will be refused.

Where the testator was the subject of GA Act proceedings, practitioners advising a will-challenger should assume a fresh evidentiary record will need to be built and scope costs accordingly.

8. Timing matters.

Consider any possible OR-type access during the represented person's lifetime, where the access may serve the represented person's interests in related proceedings.

9. The integrity of the Tribunal's evidentiary environment is a substantive public interest.

The decision protects the willingness of clinicians, family members and represented persons to provide candid evidence, which has systemic benefits well beyond the individual case.

10. Document all alternative evidentiary avenues.

Subpoenas to treating clinicians, aged care records, the solicitor's will-taking file notes and contemporaneous bank records will usually need to carry the evidentiary burden in a capacity challenge.

10. Conclusion

AC [No 2] is a measured and principled restatement of the Tribunal's confidentiality regime applied to the post-death context. The decision is not a change in the law so much as a clear application of CD and AB and the Public Trustee to the common scenario of a will challenge following GA Act proceedings. Its significance for practitioners is practical: estate practitioners cannot rely on Tribunal material to carry the evidentiary weight of a testamentary capacity challenge; guardianship practitioners can reassure medical and other professionals that the integrity of the evidentiary environment will be protected after, as well as during, the represented person's lifetime.

The decision leaves room for unusual cases. Section 112(4) is a broad discretion, and access may be granted where it serves the represented person or where very cogent reasons are made out. But the default position, confirmed in AC [No 2], is firmly on the side of confidentiality. For those advising clients in estates litigation, that default position must now inform scope, strategy and costs from the outset.

Interstate Defamation and the Mandatory Concerns Notice: When WA Practitioners Must Comply with Another Jurisdiction’s Pre-Action Requirements

An Analysis of Aguasa v Hunter [2026] WASCA 37

1. Introduction

Aguasa v Hunter [2026] WASCA 37 is the first appellate decision in Western Australia to determine whether the mandatory concerns notice requirement under s 12B of the Defamation Act 2005 (NSW) is a substantive law for the purposes of the choice of law provision in s 11(1) of the Defamation Act 2005 (WA). The Court of Appeal (Mitchell JA, Vaughan JA, and Cobby J) unanimously held that s 12B is substantive in character, with the consequence that a plaintiff commencing defamation proceedings in Western Australia in respect of matter published wholly in New South Wales must comply with the NSW concerns notice regime before filing proceedings.

The decision is of considerable practical significance for WA defamation practitioners. Western Australia has not adopted the 2021 uniform defamation reforms enacted in New South Wales, Queensland, Victoria, South Australia, Tasmania, and the Australian Capital Territory (at [17]). Those reforms introduced, among other things, a “serious harm” element to the cause of action (s 10A), a mandatory concerns notice regime (ss 12A–12B), a public interest defence (s 29A), and the removal of the triviality defence (at [16]–[17], [84]). Until Aguasa, it was arguable—supported by the obiter reasoning of Applegarth J in Peros v Nationwide News Pty Ltd [2024] QSC 80—that a WA plaintiff could avoid the concerns notice requirement by commencing proceedings in Western Australia, treating s 12B as merely procedural and therefore not picked up by s 11(1) of the WA Act.

That argument has now been decisively rejected. The decision requires WA practitioners to identify, at the outset of any defamation retainer, the jurisdiction in which the relevant publication occurred, to ascertain whether that jurisdiction has enacted a mandatory concerns notice regime, and to comply with the requirements of that regime before issuing proceedings. Failure to do so may result in the summary dismissal of the proceedings, as occurred at first instance before Tottle J (Aguasa v Hunter [2024] WASC 380) and as was upheld on appeal.

2. Relevant Legal Framework

The choice of law provision: s 11(1) of the WA Act

Section 11(1) of the Defamation Act 2005 (WA) provides that if a matter is published wholly within a particular Australian jurisdictional area, the substantive law applicable in that area must be applied in Western Australia to determine any cause of action for defamation based on the publication. The term “Australian jurisdictional area” includes each State and Territory: s 11(5)(a).

The provision gives effect to a “no advantage” principle. As Vaughan JA explained, s 11(1) evinces a legislative choice that it is undesirable for a plaintiff to receive a substantive advantage by suing in one forum rather than another (at [92]–[93]). Importantly, the substantive law of the other jurisdiction is applied in WA by operation of the WA Act itself; the law does not operate extraterritorially as a law of the other jurisdiction (at [90]–[91]).

The distinction between substantive and procedural law

The distinction between substantive law and procedural law is fundamental to this decision and warrants brief explanation. Substantive law is concerned with the rights, duties, and obligations of parties. It determines what a party is entitled to, what defences are available, and what remedies may be granted. Procedural law, by contrast, governs the manner in which those rights and duties are enforced—the machinery of litigation. It prescribes the steps by which a party brings and conducts court proceedings, such as rules about filing, service, pleading, and evidence.

The distinction matters in a choice of law context because, when a court in one jurisdiction applies the law of another, it ordinarily applies only the substantive law of the other jurisdiction and follows its own procedural rules. A WA court hearing a defamation claim governed by NSW substantive law will apply the NSW rules about the elements of the cause of action, available defences, and quantification of damages, but will follow WA procedural rules about how the proceedings are conducted.

In practice, the line between substance and procedure is not always clear. A legislative requirement that a plaintiff take a step before commencing proceedings—such as giving a notice—sits at the boundary. If such a requirement is characterised as procedural, it forms part of the machinery of the forum court and need not be complied with where proceedings are commenced in a different jurisdiction. If it is characterised as substantive, it attaches to the cause of action itself and must be complied with wherever the proceedings are commenced. That is the central question addressed in Aguasa v Hunter.

The uniform defamation law framework

The WA and NSW Acts were enacted in 2005 as part of uniform model provisions agreed to by all State and Territory Attorneys General. They were in substantially identical terms until the NSW Act was amended by the Defamation Amendment Act 2020 (NSW), effective 1 July 2021 (at [15]–[16], [82]–[83]).

The 2020 NSW amendments

The amendments introduced several significant changes, including the serious harm element (s 10A), the mandatory concerns notice regime (ss 12A–12B), a reformed s 18 defence, an extension of the limitation period to accommodate the concerns notice process (Limitation Act 1969 (NSW), s 14B(2)–(3)), and a new public interest defence (s 29A) (at [16], [84]).

The substantive/procedural distinction

The foundational authority is John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503. The plurality identified two guiding principles: first, matters that affect the existence, extent, or enforceability of rights or duties are matters of substance; and second, rules directed to governing or regulating the mode or conduct of court proceedings are procedural (at [99]). As Vaughan JA observed, these are not alternative formulations but complementary descriptions of the same conceptual distinction (at [162]–[164]).

The key “notice before action” authority is Hamilton v Merck and Co Inc [2006] NSWCA 55, in which the NSW Court of Appeal characterised pre-commencement requirements under the Personal Injuries Proceedings Act 2002 (Qld) as procedural. Spigelman CJ recognised, however, that such a prohibition on commencement of proceedings is “capable” of constituting a substantive condition precedent where employed in a legislative scheme that creates a new right or substitutes a legislative scheme for pre-existing common law rights (at [34], [171]–[172]).

In Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66, the NSW Court of Appeal held that provisions which were integral parts of a legislative package limiting common law entitlements could not be isolated as procedural, even where they regulated the process by which the entitlement was established (at [37], [175]–[177]).

Peros v Nationwide News Pty Ltd [2024] QSC 80 was the only prior decision to directly address s 12B in the defamation context. Applegarth J held, in obiter, that s 12B of the Queensland equivalent was procedural, reasoning that it regulated the enforcement of a pre-existing common law right and was analogous to the provisions considered in Hamilton (at [50]–[58], [180]–[185]).

3. The Facts of the Case

The appellant, Ms Aguasa, commenced defamation proceedings against the respondents, Ms Hunter and Ms Cotter, in the Supreme Court of Western Australia on 29 November 2023 (at [74]). The proceedings concerned emails published by the respondents on 18 August 2023 to a third party located in New South Wales (at [1], [74]). It was an agreed fact that publication occurred wholly within New South Wales (at [1]).

It was also agreed that the appellant gave no notice—whether a concerns notice within the meaning of the NSW Act or otherwise—to either respondent prior to serving the writ of summons (at [75]).

The respondents applied to Tottle J, as case manager, to dismiss the proceedings on the ground that the appellant had failed to comply with s 12B(1) of the NSW Act (at [3], [76]–[77]). The appellant accepted that, by operation of s 11(1) of the WA Act, the substantive law of NSW applied, but contended that s 12B was procedural and therefore not picked up by s 11(1) (at [78]).

The primary judge held, with “some hesitation,” that s 12B was substantive and dismissed the proceedings (at [4], [79]–[80]).

4. Analysis of the Court’s Reasoning

The joint reasons: Mitchell JA and Cobby J

Mitchell JA and Cobby J approached the characterisation by considering the 2020 NSW amendments as a coherent legislative package. Their Honours identified four reasons why s 12B should be characterised as substantive.

First, the enactment of s 10A introduced a new element of the cause of action (serious harm), representing a substantive change to the existing law (at [41]).

Second, ss 12A and 12B restrict the right to commence proceedings for defamation. The court lacks power to excuse non-compliance with s 12B(1)(a) (the concerns notice requirement) or to permit reliance on imputations not identified in the concerns notice under s 12B(1)(b). Each of those provisions therefore concerns the “existence, extent and enforceability” of the aggrieved person’s right to commence proceedings (at [42]–[45]).

Third, the amendments to the Limitation Act 1969 (NSW) extending the limitation period to accommodate the concerns notice process are ordinarily to be characterised as substantive, consistent with John Pfeiffer (at [46]).

Fourth, the availability of the s 18 defence is conditioned upon the issue of a concerns notice. A construction of s 12B that renders the s 18 defence unavailable because no concerns notice was issued is to be avoided (at [48]–[49], [63]).

The separate reasons: Vaughan JA

Vaughan JA arrived at the same conclusion but by a different analytical route, providing separate reasons that addressed additional arguments raised by the appellant. His Honour accepted several propositions that were, in isolation, favourable to the appellant.

Vaughan JA accepted that pt 3 of the NSW Act, viewed holistically, is “distinctly more procedural than substantive” (at [203]). His Honour also accepted that, standing alone, s 12B(1)(a) does not modify or extinguish the general law right to damages for defamation; it is concerned only with the procedural means by which the cause of action is commenced (at [228]). Further, Vaughan JA accepted that the statutory purpose behind the concerns notice regime is to avoid litigation altogether, which is “distinctly procedural in nature” (at [215]–[216]).

Despite these concessions, Vaughan JA held that the determinative factor was the interaction between s 12B(1)(a) and the defence of failure to accept a reasonable offer to make amends in s 18(1) of the NSW Act. The s 18(1) defence is substantive—it provides a defence to an action, thereby precluding a remedy and affecting the enforceability of rights (at [244]). The defence is predicated on the giving of a concerns notice under s 12A (at [129], [242]). Accordingly, if s 12B(1)(a) is characterised as procedural, the s 18(1) defence becomes unavailable in proceedings commenced in WA—a result contrary to the “no advantage” principle evinced by s 11(1) of the WA Act (at [241]).

In Vaughan JA’s analysis, s 12B(1)(a) is “inseparable from and ought not be considered in isolation as fulfilling a function distinct from the substantive defence provided for in s 18(1)” (at [251]). The concerns notice regime has a “continuing consequence” for the purpose of the substantive defence; it is “an integral part of a legislative package that has as one of its key features a substantive defence in s 18(1)” (at [249]).

Departure from Peros

All members of the Court respectfully declined to follow Applegarth J’s obiter reasoning in Peros. Mitchell JA and Cobby J considered that Applegarth J’s analysis of the s 18 defence—which characterised the unavailability of the defence as merely a consequence of s 12B “simply not applying” in a rare case—was unsatisfactory (at [59]–[63]). Vaughan JA considered that Applegarth J’s reasoning on this point was grounded in the anterior extraterritoriality finding, which did not arise in the present appeal (at [254]).

5. Assessing the Consequences

Immediate procedural consequences

The immediate consequence of the decision is that defamation proceedings commenced in WA without a concerns notice compliant with the law of the place of publication will be liable to summary dismissal. This follows from the NSW Court of Appeal’s holding in Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126 that it is “clearly correct” to summarily dismiss proceedings commenced in contravention of s 12B(1) (at [76]).

The s 18 defence

A critical practical consequence is that the s 18 defence under the NSW Act—predicated on a concerns notice having been issued—replaces the s 18 defence under the WA Act in proceedings to which s 11(1) applies. The WA Act’s s 18 defence, which requires only that the publisher made an offer “as soon as practicable after becoming aware” that the matter is or may be defamatory, will not be available. The NSW Act’s s 18 defence requires both the receipt of a concerns notice and the making of an offer within the applicable period (at [25]–[26], [127]–[129]).

Limitation period implications

Where s 11(1) of the WA Act applies to pick up NSW substantive law, the limitation provisions of the Limitation Act 1969 (NSW) will also apply by operation of s 5 of the Choice of Law (Limitation Periods) Act 1994 (WA) (at [89], [119]). This includes s 14B(2)–(3) of the Limitation Act 1969 (NSW), which extends the one-year limitation period by up to 56 days where a concerns notice is given within 56 days of the limitation period’s expiry (at [22]–[23], [117]–[118]).

Broader implications for non-reform jurisdictions

Western Australia and the Northern Territory are the only Australian jurisdictions that have not adopted the 2021 uniform defamation reforms (at [17]). The decision means that WA’s non-adoption of the reforms offers no practical advantage to a plaintiff in respect of publications occurring in reform jurisdictions. The “no advantage” principle embedded in s 11(1) of the WA Act ensures that the substantive law of the place of publication governs, regardless of the forum chosen.

6. Worked Example

Hypothetical: A Perth-based business owner discovers that a former employee has published a defamatory post on social media on 1 February 2026. The post is accessible to and read by recipients in Queensland, where the former employee resides. There is no evidence of publication outside Queensland. The business owner consults a WA lawyer on 15 March 2026.

Identification of applicable law

Publication occurred wholly within Queensland. By operation of s 11(1) of the WA Act, the substantive law of Queensland must be applied. Queensland has adopted the 2021 uniform defamation reforms. The Defamation Act 2005 (Qld) includes an equivalent mandatory concerns notice regime (ss 12A–12B) and the reformed s 18 defence.

Pre-action steps required

The lawyer must prepare and serve a concerns notice complying with s 12A of the Queensland Act. The notice must: (a) be in writing; (b) specify the location where the matter can be accessed (the social media URL); (c) inform the publisher of the defamatory imputations; and (d) inform the publisher of the serious harm to the aggrieved person’s reputation.

Timing

The limitation period is one year from publication: 1 February 2027. If the concerns notice is served by 15 March 2026, the applicable period for an offer to make amends is 28 days (s 14(2)(b)). Proceedings may not be commenced before expiry of that period unless leave is granted under s 12B(3). If the concerns notice is served within 56 days before 1 February 2027 (i.e. after 7 December 2026), the limitation period is automatically extended under the Queensland equivalent of s 14B(2)–(3).

Consequences of non-compliance

If the lawyer issues proceedings in WA without a compliant concerns notice, the defendant may apply for summary dismissal. Based on Aguasa and Cavar, such an application will succeed. The s 18 defence under the WA Act will not be available to the defendant; only the Queensland Act’s s 18 defence (requiring a concerns notice) will apply.

Defendant’s position

If a compliant concerns notice is served, the defendant should consider making an offer to make amends within the applicable period. A reasonable offer, if not accepted, provides the defendant with the substantive defence under s 18(1) of the Queensland Act. Failure to make such an offer within the applicable period forecloses the defence.

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

Step 1: Identify the place of publication. At the outset of every defamation retainer, determine where the relevant matter was published. If the matter was published wholly within a single Australian jurisdiction, s 11(1) of the WA Act applies and the substantive law of that jurisdiction governs. If the matter was published across multiple jurisdictions, s 11(2) applies and the law of the jurisdiction with the closest connection to the harm governs. In either case, the applicable substantive law must be ascertained before any pre-action steps are taken.

Step 2: Determine whether the applicable jurisdiction has adopted the 2021 reforms. As at the date of this article, all Australian jurisdictions except Western Australia and the Northern Territory have enacted mandatory concerns notice regimes. If the applicable jurisdiction is a reform jurisdiction, s 12B applies as a substantive law: Aguasa at [6], [73], [256].

Step 3: Prepare a compliant concerns notice. Ensure the concerns notice complies with the requirements of s 12A of the applicable jurisdiction’s legislation. This includes the serious harm requirement in s 12A(1)(a)(iv), which does not appear in the WA Act’s definition of a concerns notice (s 14(2) of the WA Act). The concerns notice must identify the imputations to be relied upon in any subsequent proceedings, as the plaintiff will be confined to those imputations or imputations substantially the same: s 12B(1)(b), s 12B(2).

Step 4: Serve the concerns notice and allow the applicable period to elapse. The applicable period for an offer to make amends is ordinarily 28 days (s 14(2)(b)). If the publisher requests further particulars under s 12A(3), the applicable period runs from 14 days after those particulars are provided (s 14(2)(a)). Proceedings cannot be commenced before the applicable period elapses, unless leave is granted under s 12B(3).

Step 5: Consider limitation period implications. If the concerns notice is served within 56 days of the one-year limitation period’s expiry, s 14B(2)–(3) of the Limitation Act 1969 (NSW) (or its equivalent) extends the limitation period automatically. Calculate the applicable dates at the outset to avoid being statute-barred. The limitation provisions apply as part of the substantive law by operation of s 5 of the Choice of Law (Limitation Periods) Act 1994 (WA): Aguasa at [89], [119].

Step 6: For defendants, respond to the concerns notice promptly. A publisher who receives a concerns notice should consider making an offer to make amends within the applicable period. The s 18(1) defence under the NSW Act requires the offer to have been made “as soon as reasonably practicable after the publisher was given a concerns notice” and “within the applicable period” (s 18(1)(a)). Delay may forfeit the defence.

Step 7: Document compliance. Retain evidence of service of the concerns notice and the date on which the applicable period elapses. If the publisher requests further particulars, retain copies of the request and the response. This documentation will be critical if the defendant challenges the validity of the concerns notice or the timing of commencement.

8. Evidence and Arguments Available to Each Side

For the plaintiff (aggrieved person)

•         Compliance evidence: Retain copies of the concerns notice, proof of service, and evidence that the applicable period elapsed before proceedings were commenced.

•         Imputation particulars: Ensure that all imputations pleaded in the statement of claim were particularised in the concerns notice, or are substantially the same as those particularised: s 12B(1)(b), s 12B(2)(b). Detailed imputation drafting at the concerns notice stage is essential, as the plaintiff will be confined to those imputations or substantially similar ones.

•         Serious harm evidence: Prepare evidence of serious harm at the concerns notice stage, as s 12A(1)(a)(iv) requires the notice to inform the publisher of the alleged serious harm. This evidence will also be required at the s 10A stage of proceedings.

•         Leave applications: If the limitation period is imminent and the applicable period has not elapsed, consider applying for leave under s 12B(3). The court may grant leave if it is just and reasonable to do so (s 12B(3)(b)) or the proceedings will be statute-barred once the applicable period has expired (s 12B(3)(a)).

For the defendant (publisher)

•         Non-compliance challenge: If proceedings are commenced without a compliant concerns notice, apply for summary dismissal. Aguasa and Cavar establish that summary dismissal is the appropriate remedy.

•         Concerns notice deficiency: Challenge the adequacy of the concerns notice under s 12A. If the notice fails to adequately particularise the information required by s 12A(1)(a)(ii)–(v), the publisher may issue a further particulars notice under s 12A(3). If the aggrieved person fails to provide reasonable further particulars within 14 days, the aggrieved person is taken not to have given a concerns notice: s 12A(5).

•         Section 18 defence: If a concerns notice is received, make an offer to make amends promptly and within the applicable period to preserve the s 18(1) defence. Document the reasonableness of the offer.

•         Imputation confinement: If the plaintiff pleads imputations not particularised in the concerns notice and not substantially the same, challenge those imputations as impermissible under s 12B(1)(b) and s 12B(2)(b). The court has no power to excuse non-compliance with s 12B(1)(b): Aguasa at [44].

9. Key Takeaways for Legal Practice

1.      Section 12B of the NSW Act is substantive. The WA Court of Appeal has unanimously held that the mandatory concerns notice requirement under s 12B of the NSW Act (and by extension, its equivalents in other reform jurisdictions) is a substantive law for the purposes of s 11(1) of the WA Act. This is now settled law in Western Australia.

2.      The concerns notice regime of the place of publication applies. Where a defamatory matter is published wholly within a reform jurisdiction, the concerns notice requirements of that jurisdiction must be complied with before proceedings are commenced in WA. A concerns notice compliant with the WA Act will not suffice if the applicable law is that of NSW, Queensland, or another reform jurisdiction.

3.      The interaction with the s 18 defence is determinative. The reasoning of both the joint judgment and Vaughan JA identifies the interaction between s 12B(1)(a) and the s 18(1) defence as a critical, and ultimately determinative, factor. The s 18 defence is substantive; characterising s 12B as procedural would render the s 18 defence unavailable, contrary to the “no advantage” principle.

4.      The WA Act’s s 18 defence is displaced. Where s 11(1) of the WA Act applies, the substantive law of the place of publication replaces the substantive law of WA. This means the WA Act’s s 18 defence—which does not require a concerns notice—is not available. It is not a mandatory law of the forum: Aguasa at [65], [151]–[153].

5.      Peros is not to be followed. The obiter reasoning of Applegarth J in Peros that s 12B is procedural has been respectfully declined by all three members of the WA Court of Appeal. Practitioners should not rely on Peros as authority for characterising s 12B as procedural.

6.      Imputation drafting at the concerns notice stage is critical. The plaintiff is confined to imputations particularised in the concerns notice, or imputations substantially the same (s 12B(1)(b), s 12B(2)). Careful and comprehensive imputation drafting at the pre-action stage is essential. The court has no power to excuse non-compliance: Aguasa at [44].

7.      Limitation period calculations must account for the concerns notice process. Practitioners must calculate the applicable period for an offer to make amends (ordinarily 28 days) and any potential extension of the limitation period under the applicable limitation legislation when planning the timing of concerns notices and proceedings.

8.      The cross-vesting legislation does not alter the analysis. The Court rejected the argument that s 11(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) could affect the characterisation of s 12B or the availability of the WA Act’s s 18 defence (at [66]–[68], [154]–[157]).

9.      WA’s non-adoption of the reforms does not insulate WA plaintiffs. The decision underscores that WA’s failure to adopt the 2021 uniform defamation reforms offers no advantage to a plaintiff whose publication occurred in a reform jurisdiction. The “no advantage” principle in s 11(1) ensures parity of substantive law regardless of the forum chosen.

10.  Broader implications for the substance/procedure distinction. The decision contributes to the developing jurisprudence on the characterisation of notice before action provisions. Vaughan JA’s detailed analysis of the principles from John Pfeiffer, Hamilton, and Wickham Freight Lines provides a structured framework for determining whether a notice before action requirement is substantive or procedural, with particular emphasis on whether the requirement interacts with other substantive provisions of the legislative regime.

10. Conclusion

Aguasa v Hunter resolves a question of significant practical importance for WA defamation practitioners. The decision establishes that the mandatory concerns notice requirement enacted by reform jurisdictions is a substantive law that applies in WA proceedings by operation of s 11(1) of the WA Act. The characterisation turns not on the procedural appearance of s 12B in isolation, but on its inseparable connection to the substantive defence in s 18(1)—a connection that gives the concerns notice regime a continuing significance well beyond the pre-action phase.

For practitioners, the core message is one of diligence at the intake stage. The jurisdiction of publication must be identified, the applicable concerns notice regime ascertained, and compliance achieved before proceedings are filed. Defendants, equally, must understand that the s 18 defence under the applicable jurisdiction—not the WA Act—governs their position, and must respond to concerns notices promptly and within the statutory timeframe.

The decision also highlights the consequences of WA’s continued divergence from the uniform defamation law framework. While WA retains the pre-reform regime for publications occurring within its borders, the practical reality is that WA practitioners are increasingly required to navigate the reformed regime when acting in respect of interstate publications. A working knowledge of the concerns notice requirements under the NSW Act and its counterparts is now indispensable.

Navigating the Intersection of Enduring Powers of Attorney, Administration Orders, and SMSF Compliance When a Member Loses Capacity

An Analysis of AC [2024] WASAT 146

1. Introduction

The decision in AC [2024] WASAT 146 addresses a problem of increasing practical significance for guardianship and administration practitioners in Western Australia: how to structure Tribunal orders when a represented person’s estate includes a self-managed superannuation fund (SMSF) and the interplay between the Guardianship and Administration Act 1990 (WA) and the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) creates constraints on the form and scope of administration orders.

The decision is notable for three reasons. First, it provides a worked example of the Tribunal varying an EPA under s 108 of the GA Act to carve out a limited role for an attorney alongside a Public Trustee appointment. Second, it applies the conflict of interest provisions in s 44(1)(b) to a partner who had used a power of attorney to purchase property in her own name with the represented person’s funds. Third, it addresses the evidentiary weight of estate planning documents executed when the represented person’s capacity was in question.

The decision warrants attention beyond the immediate parties because the combination of an SMSF, a corporate trustee, and an incapacitated member is a scenario that will arise with increasing frequency as the population ages. Practitioners advising families in these circumstances need to understand the structural limitations of the Public Trustee’s powers and the mechanisms available under the GA Act to address them.

2. Relevant Legal Framework

The Guardianship and Administration Act 1990 (WA)

The GA Act provides for the appointment of guardians and administrators for persons who, by reason of a mental disability, are unable to make reasonable judgments about their person or estate. The guiding principles in s 4 establish a presumption of capacity, require that orders be made only where necessary, and mandate the least restrictive intervention consistent with the represented person’s needs. The primary consideration in all proceedings is the best interests of the represented person, and the Tribunal must ascertain the wishes of the represented person as expressed or gathered from past actions (s 4(7)).

Section 43 provides for the appointment of a guardian where the Tribunal is satisfied that a person is incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person, and in need of oversight, care, or control. Section 44(1) requires that a proposed guardian has consented, will act in the best interests of the represented person, is not in a position where his or her interests conflict or may conflict with those of the represented person (s 44(1)(b)), and is otherwise suitable.

Section 64(1) provides for the appointment of an administrator where the Tribunal is satisfied that a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his or her estate, and is in need of an administrator. Section 65 confers an interim power, enabling the Tribunal to exercise such powers as may be necessary for the protection of a person’s estate pending determination of the question whether an administration order should be made.

Enduring Powers of Attorney and s 108

Part 9 of the GA Act governs enduring powers of attorney. Section 105 provides that an EPA created under the Act survives the incapacity of the donor. Section 106 empowers the Tribunal to declare that a donor does not have legal capacity and to bring an EPA into force.

Section 108 is of central importance to this decision. Subsection (1) provides that where the Tribunal makes an administration order or an order under s 65 or s 66, the Tribunal may revoke or vary an EPA. Subsection (1a) goes further: where the continued operation of an EPA would be inconsistent with the functions of the administrator, the Tribunal shall revoke the power or vary it to remove the inconsistency. Subsection (2) provides that where an administrator is appointed, the donee of the EPA is accountable to the administrator as if the administrator were the donor, and the administrator has the same power to vary or revoke the EPA as the donor would have if of full legal capacity.

The Superannuation Industry (Supervision) Act 1993 (Cth)

Section 17A of the SIS Act prescribes requirements for SMSFs. A fund is an SMSF only if each member is a trustee (or, where the trustee is a body corporate, a director of the trustee). Section 17A(3)(b)(ii) provides an exception: a member who is under a legal disability is not required to be a trustee or director if the member’s “legal personal representative” is a trustee or director in the member’s place. The SIS Act defines “legal personal representative” to include a person who holds an EPA in respect of a member of the fund.

Related Case Law

The Tribunal referred to two earlier decisions. In FY [2019] WASAT 118, the Tribunal considered the assessment of a person’s ability to make reasonable judgments about their estate by reference to their actual estate. In SAL and JGL [2016] WASAT 63, the Tribunal defined “estate” broadly to encompass the aggregate of a person’s property, assets, liabilities, and the entirety of their real and personal property and financial affairs.

3. The Facts of the Case

The represented person and his estate

AC was an 87-year-old retired businessman with a diagnosis of vascular dementia (at [1]). His estate was large and complex, comprising commercial properties (some rented), real property, bank accounts and term deposits in his sole name, a company ([redacted] Investments Pty Ltd) of which he was the sole shareholder and sole director, and an SMSF ([redacted] Superannuation Fund) of which the company was the corporate trustee (at [71]–[72]).

The medical evidence was extensive and consistent. AC had been diagnosed with vascular dementia in July 2023. His MMSE score was 15/30 in October 2023, declining to 3/10 by November 2023 and 5/30 by February 2024 (at [24]–[27]). He required full assistance with all activities of daily living, could not communicate, and had no insight into his personal care needs (at [25]–[28]).

The parties and their competing interests

MC, the applicant, described herself as AC’s de facto partner from 30 November 2020. She had previously worked as his cleaner and then became his carer during the COVID-19 pandemic (at [16]). She sought her own appointment as plenary guardian and administrator.

RC, AC’s son, held an EPA made on 23 May 2017 as part of a broader estate planning exercise that included a will with testamentary trust, a binding death benefit nomination, and an enduring power of guardianship (EPG) (at [33]–[34]). The 2017 EPA was unrestricted in its terms and styled to come into force only on a declaration by the Tribunal that AC lacked legal capacity (at [31]).

The relationship between MC and RC was acrimonious. A brief reconciliation at the second hearing in June 2024 collapsed before the third hearing in August 2024, with each opposing the other’s appointment in any form (at [14]).

The power of attorney and the property purchase

AC had made a general power of attorney in favour of MC in October 2022, but its terms specified that it did not survive his loss of capacity (at [8], [30]). Using that power, MC withdrew funds from a term deposit in AC’s sole name and purchased a property in her own name in January 2024. Her explanation was that the purchase “perfected” a gift AC had made when he undertook to redevelop her property, which had been demolished, but the redevelopment was abandoned due to problems with the builder (at [102]–[104]).

The SMSF compliance problem

The Public Trustee’s solicitor identified a significant compliance issue. On AC’s loss of capacity, his position as sole director of [redacted] Investments was vacant (at [74]–[75]). The SMSF was at risk of non-compliance with s 17A of the SIS Act because neither a trustee nor a director of the corporate trustee was a member or the legal personal representative of a member (at [74]). The Public Trustee submitted that it could not act as a director of the company (at [77], [90]).

Procedural history

The matter was heard across three hearings on 13 March, 19 June, and 28 August 2024. At the first hearing, MC was appointed limited guardian with functions in treatment and services, and the Public Trustee was appointed under s 65 on an interim basis (at [5], [10]). The administration application was adjourned for further information. RC’s application under s 106 to bring the 2017 EPA into force was filed on 17 July 2024 (at [3]). The reasons were delivered orally on 28 August 2024 and published on 1 April 2026 following AC’s death and applications for access to documents (preamble to the reasons).

4. Analysis of the Tribunal’s Reasoning

Displacement of the presumption of capacity

The Tribunal’s finding on capacity was straightforward. Member Child was satisfied on the medical evidence that AC had a significant cognitive impairment, impaired memory, and was dependent on others for all aspects of personal care and management of his affairs (at [48]). The diagnosis of vascular dementia established the “mental disability” required by s 64(1)(a), and the complexity of AC’s estate – assessed by reference to his actual estate in accordance with FY [2019] WASAT 118 – meant he lacked the intellectual ability to make the decisions required for its management (at [50]–[52]).

Guardianship: the conflict of interest under s 44(1)(b)

The more instructive aspect of the reasoning concerned the suitability of MC for appointment as guardian. The Public Advocate submitted that MC was in a position of conflict because she had potentially breached her obligations as attorney and may therefore be liable to AC’s estate (at [63]). The Tribunal accepted this submission and found that the conflict related “in particular” to the property of the represented person (at [63]).

The Tribunal’s approach was to disaggregate the guardian’s functions. MC was found suitable to exercise treatment and restrictive practices functions, as she was the primary carer and familiar with AC’s medical needs, and there was no conflict in that role (at [69]–[70]). However, the conflict precluded her appointment for accommodation and services decisions. The Public Advocate was appointed limited guardian for those functions, with the additional function of seeking information from health professionals and providing it as necessary to advance AC’s best interests (at [64]–[65], [70]).

RC was found unsuitable for appointment as guardian because of his limited involvement in AC’s direct care and his lack of knowledge of AC’s current circumstances (at [67]–[68]).

Administration: the EPA and SMSF compliance solution

The Tribunal’s reasoning on the administration order was shaped by the structural limitation that the Public Trustee could not act as a director of [redacted] Investments (at [77], [90]). This meant that the appointment of the Public Trustee as plenary administrator – the outcome sought by MC – would not resolve the SMSF compliance problem.

The solution adopted was a composite one. The 2017 EPA was brought into force under s 106, but varied under s 108(1) and s 108(1a) to confine the attorney’s powers to four specified matters: rights and functions as a member or beneficiary of the SMSF; the office of trustee of the Fund; the office of director of the company in its capacity as trustee; and the management of specified commercial properties (at Orders 3–4). The Public Trustee was appointed limited administrator with plenary authority save for those reserved powers (at Order 5).

The legal reasoning proceeds in steps. First, the Public Trustee’s submission was that the SIS Act definition of “legal personal representative” includes a person who holds an EPA in respect of a member – and that a limited administrator may not qualify (at [78]–[79]). Second, s 108(1a) requires the Tribunal to vary an EPA to remove any inconsistency with the administrator’s functions. Third, the variation was drafted to limit the EPA to those functions that the Public Trustee could not perform, thus avoiding the inconsistency while maintaining SIS Act compliance (at [80], [89]–[93]).

The 2022 documents and the question of wishes

The Tribunal addressed the competing evidence of AC’s wishes with care. The 2022 will referred to estrangement from RC commencing in 2015, but this was inconsistent with the 2017 estate planning documents by which AC appointed RC as his attorney and guardian (at [84]). The Public Advocate submitted that questions arose about AC’s capacity to give instructions in 2022, given these anomalies (at [85]). The Tribunal concluded that it could not place weight on the 2022 will as a true reflection of AC’s wishes (at [108]).

Conversely, the 2017 EPA was made before any suggestion of cognitive impairment and as part of a comprehensive estate planning exercise conducted through solicitors (at [88]). The Tribunal treated it as an expression of AC’s wishes at a time when his capacity was not in question.

5. Assessing the Consequences

Structural consequences of the orders

The orders made in AC created a tripartite decision-making structure: MC as limited guardian for treatment and restrictive practices; the Public Advocate as limited guardian for accommodation, services, and information-sharing; and a split administration between RC as attorney (for the SMSF, corporate trustee, and specified properties) and the Public Trustee as limited administrator (for all other aspects of the estate, including day-to-day maintenance, investigation of the alleged misappropriation, and any litigation).

Practical implications for SMSF compliance

The decision demonstrates that where an SMSF member loses capacity and the fund’s corporate trustee has only one director (the member), the fund will be non-compliant unless the member’s legal personal representative is appointed as a trustee or director. Because the Public Trustee cannot act as a director of a private company, an EPA is the most practical mechanism to achieve compliance. If no EPA exists, or if it does not extend to SMSF-related functions, the fund may face prolonged non-compliance and regulatory consequences.

Implications of the alleged misappropriation

The Tribunal found that MC’s purchase of property in her own name using AC’s funds, while holding a general power of attorney and acknowledging AC’s incapacity, may amount to a breach of fiduciary duty (at [105]). The Public Trustee’s appointment was directed in part at investigating this allegation (at [94], [99], [105]). MC remains accountable to the Public Trustee, who holds the same power to vary or revoke the EPA as the donor would have at full capacity (s 108(2)).

Financial consequences

The orders directed RC as attorney to place the Public Trustee in funds and to reimburse costs and expenses from AC’s resources (at Order 7). The Public Trustee was authorised to apply AC’s funds for the maintenance and benefit of both AC and MC (at Order 8). The maximum review period of five years was imposed given the progressive nature of AC’s condition (at [111]).

6. Worked Example

Consider the following hypothetical, adapted from the facts of AC.

Scenario: David, aged 82, is diagnosed with moderate Alzheimer’s disease. He is the sole member, sole shareholder, and sole director of DK Pty Ltd, the corporate trustee of his SMSF. The SMSF holds two commercial properties and a share portfolio worth a total of $3.2 million. David’s personal estate includes a residential property, bank accounts, and term deposits worth approximately $1.5 million. David made an EPA in 2018 appointing his daughter, Emma, as his sole attorney, but the EPA is unrestricted and does not specifically reference the SMSF or the company. David’s second wife, Fiona, has been his primary carer for the past four years. Fiona applies for her appointment as plenary guardian and administrator.

Analysis from Fiona’s perspective (applicant)

Fiona’s strongest case is for appointment as guardian with treatment and care-related functions, given her role as primary carer. However, following AC, if there is any allegation that Fiona has used David’s funds for her own benefit, or any basis for suggesting a conflict of interest, s 44(1)(b) may preclude her appointment for accommodation and financial decisions. Fiona’s application for plenary administration is unlikely to succeed if the estate includes an SMSF, because she cannot resolve the compliance issue unless she holds an EPA.

Analysis from Emma’s perspective (attorney)

Emma’s position is that the 2018 EPA should be brought into force under s 106 and should operate as a less restrictive alternative to administration. However, following AC, the Tribunal is unlikely to accept that an unrestricted EPA can operate on its own where there is family conflict and the estate is complex. The probable outcome is a variation of the EPA under s 108 to confine Emma’s powers to SMSF-related functions (and perhaps property management), with the Public Trustee appointed as limited administrator for the balance of the estate.

The SMSF compliance pathway

The practitioner advising Emma should ensure the s 106 application is filed promptly, as the SMSF is non-compliant from the date David’s directorship is vacant. The proposed variation of the EPA should be drafted to expressly address s 17A of the SIS Act and to include authority to act as a director of DK Pty Ltd in its capacity as trustee. The variation should mirror the formulation in the AC orders, specifying the attorney’s authority in relation to membership and beneficial interests, the office of trustee, the office of director, and any ancillary powers required.

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

The following framework is derived from the Tribunal’s approach in AC and is intended for practitioners advising clients where the represented person’s estate includes an SMSF with a corporate trustee.

Identify the SMSF structure early. At the outset of any guardianship or administration matter, ascertain whether the represented person is a member of an SMSF and, if so, the identity and structure of the trustee. If the trustee is a body corporate and the represented person is the sole director, the compliance problem identified in AC will arise on loss of capacity (at [74]–[75]).

Locate and assess existing estate planning instruments. Determine whether there is an EPA in force or capable of being brought into force, an EPG, a will with testamentary trust, and a binding death benefit nomination. Note the terms and date of execution of each instrument. If the EPA is unrestricted, it will likely require variation under s 108 if an administration order is also made (at [80], [101]).

Assess the Public Trustee’s capacity to act. Confirm whether the Public Trustee is able to act as a director of the corporate trustee. The position in AC was that the Public Trustee could not do so (at [77], [90]). If this remains the position, the EPA is the primary mechanism for achieving SMSF compliance.

File a s 106 application promptly. If the EPA is styled to take effect only on a Tribunal declaration, file the s 106 application as early as possible. Delay extends the period of SMSF non-compliance. The application should be accompanied by a minute of proposed orders that addresses the variation required under s 108 (at [40]).

Draft the EPA variation with specificity. The variation should expressly address the attorney’s authority in relation to: (a) rights as a member or beneficiary of the fund; (b) the office of trustee; (c) the office of director of the corporate trustee, including the power to appoint a director; and (d) management of any real property held by the fund or specified in the EPA. The formulation in the AC orders provides a precedent (at Orders 3–4).

Address potential conflicts of interest. Assess whether any proposed guardian or administrator has a conflict of interest under s 44(1)(b). If the partner or carer has used the represented person’s funds for personal benefit, this will likely disqualify them from appointment for financial or accommodation functions, even if they remain suitable for treatment decisions (at [63], [69]–[70]).

Consider the role of the Public Advocate. Where there is family conflict, the Public Advocate may be the appropriate appointee for accommodation and services decisions, and for information-sharing functions that reduce tension between the parties (at [64]–[65], [70]).

Prepare for accountability obligations. Advise the attorney that under s 108(2), they are accountable to the administrator as if the administrator were the donor. The administrator has the power to vary or revoke the EPA. The attorney should maintain detailed records of all transactions and decisions made under the EPA (at [110]).

8. Evidence and Arguments Available to Each Side

For the applicant seeking appointment as guardian and/or administrator

The applicant in a comparable matter should lead evidence of their role as primary carer, familiarity with the represented person’s medical needs, and the practical difficulties of managing care without formal legal authority. The letter from the dementia support specialist in AC was relied upon in support of the initial guardianship order (at [17]–[18]). Evidence of cohabitation and the nature of the relationship will be relevant to the question of suitability.

However, the applicant must address any allegation of conflict of interest squarely. If the applicant has used the represented person’s funds for personal benefit, an explanation should be prepared in advance, supported by documentary evidence. The Tribunal in AC considered MC’s explanation that the property purchase “perfected” an earlier gift, but found a prima facie breach of fiduciary duty (at [103]–[105]). An applicant in this position should consider whether a regularisation proposal (such as returning equivalent value to the estate) can be advanced.

For the attorney seeking to act under an EPA

The attorney should demonstrate knowledge of the represented person’s estate and financial affairs. In AC, RC’s detailed understanding of his father’s financial affairs at the second hearing was a factor in the Tribunal’s satisfaction that he could operate under the EPA (at [97]). The attorney should file a minute of proposed orders early, addressing the s 108 variation and the SMSF compliance mechanism. Expert evidence or submissions on the SIS Act requirements may assist.

The attorney should also address any allegation that the represented person’s wishes have changed since the EPA was made. The Tribunal’s approach in AC was to give weight to the 2017 estate planning documents (made with legal advice and at a time of unquestioned capacity) over the 2022 will and power of attorney (made at a time when capacity was doubtful and the content was internally inconsistent) (at [84]–[85], [108]).

For the Public Advocate or Public Trustee

The Public Advocate’s role in AC was critical. The investigator’s reports provided the evidentiary foundation for the conflict of interest finding and the recommendation for an independent administrator. Practitioners should consider requesting a referral to the Public Advocate for investigation where allegations of financial mismanagement are made, as the Public Advocate’s report carries significant weight with the Tribunal.

The Public Trustee’s submissions on the SIS Act were determinative of the form of the orders. Practitioners acting for or against the Public Trustee should be prepared to address the structural limitations of the Public Trustee’s powers and the interaction with Commonwealth superannuation legislation.

9. Key Takeaways for Legal Practice

The Public Trustee cannot act as a director of a private company. This structural limitation means that where an SMSF is held through a corporate trustee and the represented person is the sole director, the Public Trustee alone cannot bring the fund into compliance with s 17A of the SIS Act. An EPA is the most practical alternative mechanism (at [77], [90]).

Section 108 of the GA Act mandates variation of an EPA where inconsistency arises with an administration order. The obligation under s 108(1a) is mandatory (“shall”). Practitioners must draft the EPA variation with sufficient specificity to delineate the attorney’s powers from the administrator’s functions, avoiding overlap and potential conflict (at [101]).

An EPA holder may qualify as a “legal personal representative” under the SIS Act. Section 17A(3)(b)(ii) of the SIS Act permits a legal personal representative to act as trustee or director in place of an incapacitated member. A person holding an EPA satisfies this definition, whereas there is doubt whether a limited administrator would (at [78]–[79]).

Conflict of interest under s 44(1)(b) can be addressed by disaggregating guardian functions. A person may be suitable for appointment as guardian with some functions (such as treatment) but disqualified from others (such as accommodation) where there is a conflict. The Tribunal’s approach in AC was to split functions between the partner and the Public Advocate (at [69]–[70]).

Use of a donor’s funds to purchase property in an attorney’s own name raises a prima facie breach of fiduciary duty. Even where the attorney offers an explanation (such as perfecting an earlier gift), the Tribunal may find the conduct gives rise to a conflict warranting an independent investigation by the Public Trustee (at [102]–[105]).

Estate planning documents executed when capacity is questionable may be given reduced weight. The Tribunal in AC declined to place weight on the 2022 will because of internal inconsistencies and doubts about the represented person’s capacity at the time of execution, preferring the 2017 instruments made with legal advice and at a time of unquestioned capacity (at [84]–[85], [108]).

An enduring power of guardianship that cannot be produced in completed form cannot operate as a less restrictive alternative. The GA Act requires execution and a signed acceptance. Where the completed document cannot be produced, the Tribunal will not rely on it as a basis for declining to make a guardianship order (at [58]–[59]).

Estate planners should ensure EPAs specifically address SMSF functions. The compliance problem in AC could have been mitigated at the planning stage if the 2017 EPA had expressly addressed the attorney’s authority in relation to the SMSF, the corporate trustee, and the directorship. Practitioners drafting EPAs for clients with SMSFs should include these provisions as a matter of course.

The involvement of a neutral administrator can reduce family conflict. The Tribunal’s approach of appointing the Public Trustee to manage day-to-day finances and maintenance – removing the attorney’s responsibility to provide an allowance to the partner – was directed at reducing contact points for conflict between family members (at [96], [107]).

10. Conclusion

AC [2024] WASAT 146 provides important guidance at the intersection of state guardianship legislation and Commonwealth superannuation regulation. Where a represented person’s estate includes an SMSF with a corporate trustee, the appointment of an administrator alone may not resolve compliance issues under the SIS Act. The Tribunal’s use of s 108 to vary an EPA – confining the attorney’s powers to SMSF-related functions while appointing the Public Trustee for the balance of the estate – provides a workable template for analogous cases.

The decision also reinforces the significance of the conflict of interest provisions in s 44(1)(b) and the Tribunal’s willingness to disaggregate guardian functions to manage conflicts. Practitioners should be alert to the possibility that a person who is suitable for one category of guardian function may be disqualified from another.

For estate planners, the decision underscores the importance of drafting EPAs with sufficient specificity to address SMSF-related functions, corporate trustee directorships, and the interaction with Commonwealth legislation. An EPA that does not address these matters may require variation by the Tribunal at a time of family conflict – a situation that careful planning could avoid.

Note: All names used in this article are pseudonyms assigned by the Tribunal. The judgment was published under those pseudonyms in accordance with the standard practice of the State Administrative Tribunal in proceedings brought under the Guardianship and Administration Act 1990 (WA) to protect the privacy of the represented person. No details in this article identify or are intended to identify any party, witness, or associated person.