Pre-Action Discovery in Western Australia

1. Introduction

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

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

2. Legal Framework for Pre-Action Discovery

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Discretionary Factors Governing Pre-Action Discovery

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

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

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

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

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

5. Costs Principles for Pre-Action Discovery

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

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

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

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

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

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

6. Confidentiality and Procedural Considerations

6.1 Confidentiality of Discovered Documents

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

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

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

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

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

6.2 The Kelbush Costs Mechanism and Time Limitations

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

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

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

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

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

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

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

The specific orders at issue in that case included:

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

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

3. An application to further extend the time period

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

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

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

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

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

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

This case demonstrates the courts' concern with balancing:

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

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

7. Conclusion

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

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

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

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

Walking the Tightrope: When to Consider Capacity Applications in Litigation

Introduction

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

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

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

Background of Relevant Case Law

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

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

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

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

Facts of the Case

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

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

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

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

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

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

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

Analysis of the Court's Reasoning

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

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

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

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

3. Proof of complete incapacity is not required

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Quantification and Assessment Aspects

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

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

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

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

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

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

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

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

Worked Example: Practical Application

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

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

Step 1: Document all instances of concerning conduct or communications

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

• Collate all written communications demonstrating disorganised thinking or paranoid ideation

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

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

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

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

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

Step 3: Consider the ethical implications and proportionality

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

• Are there less intrusive alternatives available?

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

Step 4: Frame the application with appropriate sensitivity

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

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

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

Step-by-Step Guidance for Practitioners

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

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

   • Inability to understand or engage with legal concepts

   • Persistent irrelevant submissions or evidence

   • Paranoid or delusional thinking in correspondence or submissions

   • Inability to follow court directions or understand procedural requirements

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

3. Consider whether the threshold for intervention is met:

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

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

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

4. Explore alternative pathways:

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

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

5. Frame the application appropriately:

   • Seek preliminary assistance from appropriate authorities before requesting declarations

   • Structure proposed orders to allow for investigation before determination

   • Request the court's guidance on procedure

6. Prepare for procedural delays:

   • Advise clients that such applications may extend timeframes

   • Consider whether interim arrangements are necessary

7. Maintain proportionality:

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

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

Evidence and Arguments for Each Side

For the Applicant (Party Questioning Capacity)

Evidence:

• Court documents containing irrelevant, excessive, or disorganised content

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

• Correspondence showing paranoid ideation or delusional thinking

• Witness evidence of behaviour in court or mediation settings

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

Arguments:

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

• Allowing proceedings to continue risks injustice to both parties

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

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

• The alternative pathway approach provides appropriate procedural safeguards

For the Respondent (Party Whose Capacity is Questioned)

Evidence:

• Evidence of capacity to manage other aspects of life

• Examples of logical and coherent submissions or correspondence

• Evidence of previous successful litigation management

• Character evidence from professional colleagues or associates

• Expert evidence (if available) supporting capacity

Arguments:

• The presumption of capacity must be respected

• Passionate or unusual advocacy is not equivalent to incapacity

• The application represents an attempt to impede access to justice

• Less restrictive alternatives have not been explored

• The absence of medical evidence is fatal to the application

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

Key Takeaways for Legal Practice

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

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

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

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

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

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

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

Conclusion

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

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

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

Adequacy of Judicial Reasons

1 Introduction and Principles

The obligation to provide adequate reasons is a fundamental aspect of the judicial function and a key component of procedural fairness. Adequate reasons serve multiple purposes: they demonstrate that the decision-maker has properly considered the issues; they allow parties to understand why they have won or lost; they enable effective appellate review; and they contribute to transparency and public confidence in the administration of justice.

As the High Court observed in DL v The Queen (2018) 266 CLR 1 at [32], the "content and detail of reasons 'will vary...'" according to the jurisdiction of the court and the subject matter being considered. However, the usual baseline for adequacy is that reasons "identify the principles of law applied by the judge and the main factual findings on which the judge relied."

2 The Public Interest Immunity Context: Chief Commissioner of Police v Crupi

The 2024 High Court decision in Chief Commissioner of Police v Crupi [2024] HCA 34 provides important guidance on the adequacy of reasons, particularly in the context of public interest immunity claims. The case illustrates that even in sensitive matters, courts must articulate their reasoning process with sufficient clarity to demonstrate that the required evaluative exercise has been properly undertaken.

Background

The first respondent, Vincenzo Crupi, was charged with the murder of Giuseppe "Pino" Acquaro, a solicitor who had provided information to police and was shot dead in March 2016. The Chief Commissioner of Police had disclosed substantial documentation to Crupi but sought to resist disclosure of approximately 600 pages of additional material ("the PII material") on the ground of public interest immunity. The basis for the claim was that disclosure might reveal the identity of an informer ("Informer Z") or enable that identity to be ascertained, with serious risk to the informer's safety.

The primary judge dismissed the application to resist disclosure in a decision comprising only five paragraphs. The substantive reasoning was limited to observations that information concerning Informer Z would be "likely to be of substantial assistance to the defence" and that the Chief Commissioner had "not made good his claim."

The High Court's Analysis

The High Court found the primary judge's reasons to be "extremely brief" and inadequate. They did not disclose any process of weighing the competing public interests for and against production as required by s 130(1) of the Evidence Act 2008 (Vic), and they did not justify the order for production that was made.

The Court emphasized several key deficiencies:

1. The reasons did not reveal whether the primary judge had "evaluate[d] the respective public interests and determine[d] whether on balance the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence" (citing Sankey v Whitlam (1978) 142 CLR 1 at 95-96).

2. There was no evidence to suggest the primary judge engaged in the balancing exercise at the appropriate level for each individual document or class of document.

3. The reasons failed to address how competing interests were balanced, particularly given the "potential for serious harm to be occasioned to Informer Z should disclosure be ordered, and the impact on the provision of criminal intelligence by other informers."

4. The reasons did not explain key considerations such as whether refusing production would deny the first respondent a fair trial, or whether there were alternative means of disclosing parts of documents without revealing the informer's identity.

3 Principles for Ensuring Adequacy of Reasons

Drawing from Crupi and other authorities, the following principles should guide judicial officers in delivering adequate reasons:

(a) Articulation of the Legal Framework

Reasons must identify the relevant legal principles and statutory provisions being applied. This provides the framework within which the factual findings and evaluative judgments operate.

Worked Example 1:

Inadequate approach: "Having considered the evidence and submissions, I find that the plaintiff has established a cause of action."

Adequate approach: "This application requires consideration of s 130(1) of the Evidence Act, which provides that if the public interest in admitting evidence is outweighed by the public interest in preserving secrecy or confidentiality, the court may direct that the information not be adduced. Section 130(5) requires consideration of several factors including [list relevant factors]. I must undertake a balancing exercise, weighing the competing public interests for each document or class of documents."

(b) Identification of Key Facts and Findings

Reasons should identify the material facts found by the court and explain, at least briefly, the basis for those findings.

Worked Example 2:

Inadequate approach: "Having reviewed the affidavits, I accept the plaintiff's evidence."

Adequate approach: "The critical factual dispute concerns when the defendant became aware of the defect. On this point, I accept Ms. Smith's evidence, corroborated by the contemporaneous email dated 15 March 2023 (Exhibit P3), that she notified the defendant on that date. I reject the defendant's claim of having no knowledge until April, finding this inconsistent with both the documentary evidence and the testimony of the independent witness, Mr. Johnson."

(c) Demonstration of the Evaluative Process

Where a decision involves balancing competing considerations or interests, the reasons must demonstrate that this evaluative process has occurred, even if necessarily expressed in general terms.

Worked Example 3:

Inadequate approach: "Having considered all factors, I find that an injunction should be granted."

Adequate approach: "In considering whether to grant the interlocutory injunction, I must weigh the balance of convenience and the risk of injustice to either party. If I refuse the injunction and the plaintiff ultimately succeeds, they will suffer the following prejudice: [details]. Conversely, if I grant the injunction and the defendant ultimately succeeds, they will suffer harm through: [details]. Having weighed these considerations, I find the balance favors granting the injunction because [reasoning]."

(d) Document-Specific Analysis Where Required

In cases involving multiple documents or pieces of evidence that require individual assessment (such as claims of privilege or public interest immunity), reasons should demonstrate consideration at the appropriate level of specificity.

Worked Example 4:

Inadequate approach: "Having reviewed all the documents, I find they should be disclosed."

Adequate approach: "I have reviewed each category of documents claimed to be subject to public interest immunity. For Category A (operational methods), I find the public interest in non-disclosure outweighs the interest in disclosure because [reasons]. For Category B (informant information), I must consider each document individually. Documents 1-5 contain information that would identify the informant and, given the evidence of serious risk to their safety, the public interest favors non-disclosure. However, Documents 6-10 can be partially disclosed with appropriate redactions because they contain factual information potentially crucial to the defense while redactions can adequately protect the informant's identity."

(e) Justification of Orders Made

Reasons must explain how the findings and evaluative process lead to the specific orders made.

Worked Example 5:

Inadequate approach: "For these reasons, the application is allowed."

Adequate approach: "Having found that Documents 1-5 should not be disclosed but Documents 6-10 should be partially disclosed with redactions, I make the following orders: (1) The application for public interest immunity is upheld in respect of Documents 1-5; (2) Documents 6-10 shall be produced with redactions to paragraphs [specific paragraphs] to protect the identity of the informant while providing the defendant with the factual information relevant to their defense; (3) The redacted documents shall be disclosed within 14 days."

4 Special Considerations for Sensitive Matters

As demonstrated in Crupi, cases involving sensitive matters such as public interest immunity, legal professional privilege, or confidential information present particular challenges. In such cases:

1. Balance between transparency and protection: While the content of what can be disclosed publicly may be limited, the reasoning process itself must still be visible.

2. Consideration of alternative measures: Reasons should address whether alternative measures (such as redactions, summaries, or agreed facts) might satisfy the needs of justice while protecting sensitive information.

3. Specific consideration of harm: Where disclosure may cause specific harm (as with the risk to Informer Z in Crupi), the reasons must demonstrate how this potential harm has been evaluated against the interests favoring disclosure.

5 Adoption of Submissions

While adoption of a party's submissions may sometimes be sufficient to provide adequate reasons, Crupi demonstrates the limitations of this approach. The Court noted that even if the primary judge's adoption of the amici curiae's submissions sufficiently explained the forensic utility of the PII material, it did not address the balancing exercise required by s 130(1).

Worked Example 6:

Inadequate adoption: "I adopt the plaintiff's submissions on this point."

Adequate adoption: "I accept and adopt the plaintiff's submissions on the interpretation of clause 5.2 of the contract, as set out at paragraphs 15-27 of their written submissions. Those submissions correctly identify that the natural and ordinary meaning of 'reasonable endeavors' in this commercial context does not require the defendant to take steps that would be commercially disadvantageous. I would add that this interpretation is consistent with the authorities cited, particularly Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [41]-[43]."

6 Adequacy in Interlocutory Decisions

Crupi highlights that even interlocutory decisions require adequate reasons, particularly where significant consequences may flow from the decision. While interlocutory reasons may be more concise than final judgments, they must still demonstrate proper consideration of the relevant issues.

This is particularly important where:

• The decision may have significant practical consequences for the parties

• The decision involves a complex evaluative exercise

• The decision may effectively determine substantive rights

• The decision involves competing interests of substantial weight

7 Practical Guidance

To ensure reasons are adequate, particularly in complex or sensitive cases, consider these guidelines:

1. Structured approach: Adopt a structured approach that identifies the legal framework, key factual findings, and reasoning process.

2. Checklist for evaluative exercises: Where balancing competing considerations (as in Crupi), consider creating a checklist of factors to address.

3. Document management: Where multiple documents require individual consideration, develop a systematic approach (such as categories or a schedule) to demonstrate that appropriate consideration has been given to each.

4. Transparency about constraints: Where the sensitivity of information limits what can be included in public reasons, acknowledge this constraint while still demonstrating that the required reasoning process has occurred.

5. Review for comprehensibility: Consider whether a party reading the reasons would understand why they succeeded or failed, and whether an appellate court could effectively review the decision.

8 Conclusion

The adequacy of judicial reasons is not merely a formal requirement but a substantive aspect of the proper administration of justice. As Crupi demonstrates, even in sensitive contexts involving competing public interests, courts must articulate their reasoning with sufficient clarity to demonstrate that the required evaluative process has been undertaken and to justify the orders made. Failure to do so may result in appealable error, even where the ultimate decision might have been correct.

The "Apparent Relevance" Test: Accessing Documents by Subpoena in Defamation Cases

Introduction

A recent defamation case from the New South Wales District Court has provided guidance on when a party can access documents via subpoena in defamation proceedings. In O'Shanassy v Turland (No 3) [2025] NSWDC 27, the Court dealt with an application to set aside a subpoena issued to Westpac Bank seeking financial records of companies associated with the plaintiff. The defendant had sought banking records to support a justification defense. Justice Gibson rejected the plaintiff's application to set aside the subpoena, holding that the documents met the "apparent relevance" test for legitimate forensic purpose.

The "Apparent Relevance" Test for Subpoenas

When a party seeks to access documents via subpoena in defamation proceedings, the documents must satisfy what is known as the "apparent relevance" test. As explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], a subpoena is justified as having a legitimate forensic purpose if the documents sought are "apparently relevant" to an issue in the proceedings.

The Court in Blacktown explained that this test is satisfied if it can be seen that the documents sought will "materially assist on an identified issue" or if there is a "reasonable basis beyond speculation" that the documents will assist. Importantly, if the material assistance will benefit the party that issued the subpoena, the prospect of the forensic purpose being impugned as illegitimate is "virtually non-existent."

Documents Need Not Be Directly Admissible

Documents sought by subpoena need not be directly admissible as evidence. As noted in Maddison v Goldrick, documents subpoenaed for the purposes of cross-examining a witness are considered documents required for the purposes of evidence. This extends to cross-examination on issues of credit, as highlighted in cases such as Brand, Norris v Kandiah [2007] NSWSC 1296, and Liristis v Gadelrabb [2009] NSWSC 441.

Common Objections to Subpoenas in Defamation Cases

There are several common objections to subpoenas in defamation cases, all of which were addressed in O'Shanassy v Turland (No 3):

1. Lack of written evidence: In defamation cases, oral evidence is the general starting position unless parties apply for statements or affidavits. As noted in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy [2020] NSWDC 1, requirements for written statements typically do not apply to defamation actions.

2. Inadequate particulars: Some plaintiffs argue that subpoenas should be rejected if the defendant has not provided sufficiently detailed particulars of justification. However, as explained in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331, the requirement for particulars with "precision as in an indictment" is about specificity rather than the amount of information provided.

3. Timing of information: A common objection is that defendants can only rely on information in their possession at the time the defence was delivered. However, the Full Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 clarified that proof of a justification defence "may be augmented after invoking processes of discovery and production of documents by subpoena."

4. Non-parties to litigation: The fact that a subpoena seeks documents from entities not party to the litigation is irrelevant, provided there is a connection to an issue in the proceedings.

Augmentation of Truth Particulars

A key principle emerging from recent cases is that truth particulars in defamation cases need not be "frozen in time." As Kenneth Martin J stated in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347, "an augmentation to particulars is a common scenario in commercial litigation, even in defamation actions. It simply means that as more precise information comes to hand, the precision of the particulars is magnified."

This principle recognizes that justification is the "keystone of freedom of speech" and highlights the importance of maintaining public confidence in the legal system, as noted in Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98.

Relevance Beyond the Particulars

Documents sought by subpoena might be relevant to issues beyond the particulars of justification. For example, in O'Shanassy v Turland (No 3), the Court noted that documents were relevant to the plaintiff's plea that knowledge of the falsity of imputations aggravated his hurt to feelings. As pointed out in Della Bosca v Arena [1999] NSWSC 1057, such a plea "raises an 'issue' in the proceedings" that may require production of documents.

Conclusion

The "apparent relevance" test provides a relatively low threshold for accessing documents by subpoena in defamation proceedings. While fishing expeditions remain impermissible, courts generally allow access where there is a reasonable basis to believe the documents will assist on an identified issue or in cross-examination.

Judicial Inspections in Civil Proceedings

1. Introduction and Legal Basis

A judicial inspection (also referred to as a "view") involves an out-of-court examination by the judicial officer of a location, property, or thing which is relevant to proceedings. In Western Australia, the power to conduct judicial inspections is conferred by Order 34 rule 7(1) of the Rules of the Supreme Court 1971 (WA), which provides:

"The judge before whom any cause or matter is heard or tried may inspect any property, place or thing concerning which a question arises in the cause or matter."

This provision establishes a broad discretionary power enabling judges to personally inspect locations or objects that are material to the determination of issues in a case. Similar provisions exist in other Australian jurisdictions, although the evidentiary status of observations made during inspections may vary.

2. Purpose and Principles

The common law has established that the purpose of a judicial inspection is not to gather evidence but rather to enable the Court "to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence" (Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300, 313, citing London General Omnibus Company Ltd v Lavell [1901] 1 Ch 135, 139).

A judicial inspection serves to complement and contextualise evidence formally adduced in court, rather than to supplant it. As confirmed in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 at [27], the process does not permit the Court to gather anything in the nature of extraneous evidence and apply it to the determination of the issues.

The primary benefits of inspections include:

(a) Enhanced comprehension of complex physical environments or objects; (b) Better understanding of spatial relationships and scale; (c) Contextualisation of diagrams, photographs, and other visual evidence; (d) Clarification of technical evidence relating to physical features; and (e) Improved capacity to assess witness testimony concerning locations or objects.

3. Discretionary Considerations

The decision to conduct a judicial inspection is discretionary and should be driven by whether the inspection will assist the Court in resolving issues of fact or understanding the evidence, and if the inspection will be of forensic utility (Shire of Numurkah (311-313)).

In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, Lundberg J articulated that the central question is "the degree of utility and assistance the proposed orientation exercise would provide to the Court, in the context of the trial issues" (at [41]).

Factors that may influence the exercise of discretion include:

3.1 Relevance and Utility

(a) Whether the inspection would genuinely assist in understanding issues in dispute; (b) Whether the physical characteristics of the location or object are central to the proceedings; (c) Whether there are particular features that cannot be adequately conveyed through other evidence; (d) The complexity and scale of the subject matter; and (e) Whether the benefits of inspection outweigh any potential disadvantages.

3.2 Case Management Considerations

(a) The timing of the application for inspection relative to trial; (b) The impact on pre-trial preparation and trial schedules; (c) The resources required (including time, costs, and logistical arrangements); (d) The proximity of the location to the Court; (e) The opportunity cost of conducting the inspection; and (f) Whether any prejudice might arise to parties from the inspection process.

4. Procedural Aspects

4.1 Timing of Inspections

An inspection may be ordered at different stages of proceedings:

(a) Pre-trial - To assist the Court in comprehending the issues before formal evidence is led; (b) During trial - After sufficient context has been provided through opening addresses or evidence; or (c) Post-evidence - After evidence has been led, to clarify understanding of particular features.

In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, Lundberg J preferred to conduct the inspection during trial "once the parties have sufficiently opened their cases to put the physical aspects of the Project into context for the Court" (at [61]).

4.2 Attendance and Conduct

Typically, the following persons attend an inspection:

(a) The presiding judicial officer; (b) Representatives of the parties (usually including at least one legal representative from each side); (c) Court staff (such as the judicial officer's associate); and (d) Any necessary support personnel (such as security or technical staff).

Best practice dictates that:

(a) No evidence should be taken during the inspection; (b) Parties should not make submissions to the Court during the inspection; (c) Any necessary factual explanations should be limited to identifying locations or objects being viewed; (d) All parties should have equal opportunity to contribute to the inspection itinerary; and (e) A record should be kept of the inspection, including locations visited and any questions raised by the Court.

4.3 Practical Arrangements

Careful consideration should be given to:

(a) Transport arrangements and their suitability; (b) Duration of the inspection; (c) Safety and accessibility considerations; (d) Weather conditions for outdoor inspections; (e) The need for specialized equipment or clothing; and (f) Efficient structuring of the itinerary.

In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, the Court specifically addressed concerns related to the type of aircraft to be used and ensured that representatives of both parties would be present throughout the inspection.

5. Costs

There are two distinct cost considerations:

5.1 Costs of the Inspection

These typically include transport, accommodation (if necessary), and any other logistical expenses. The Court may:

(a) Order one party (typically the applicant) to bear these costs; (b) Order costs to be shared between the parties; or (c) Reserve the question of costs for later determination.

5.2 Costs of the Application

The costs of an application for judicial inspection may be:

(a) Costs in the cause; (b) Costs of the application to the successful party; or (c) Reserved for later determination.

In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, Lundberg J ordered that "costs should be in the cause... [as] the costs of the application should properly be seen as part of the overall costs of the litigation process" (at [64]).

6. Evidentiary Status

The Western Australian position follows the common law approach that a judicial inspection does not constitute evidence in itself. Rather, it enables the Court to better understand and apply the evidence formally adduced.

Judicial officers should be cautious not to base findings on observations made during an inspection that go beyond the evidence formally presented in court. Any significant observations made during an inspection that might influence findings should be raised with the parties to provide an opportunity for comment or further evidence.

7. Conclusion

Judicial inspections can be valuable tools for enhancing a court's understanding of complex physical environments or objects. However, they should be approached with careful consideration of their utility, practicality, and limitations. The decision to conduct an inspection should be guided by a balanced assessment of the potential benefits against the resource implications and case management considerations.

When properly conducted, inspections serve to complement rather than replace formal evidence, allowing for more informed and accurate adjudication of disputes involving physical locations or objects.

Assessing and Weighing Evidence in Civil Proceedings

1. Introduction: The Judicial Function in Evidence Assessment

The assessment of evidence constitutes the core of the judicial function in civil proceedings. Unlike questions of law, which are amenable to precise rules and principles, the evaluation of evidence is an inherently discretionary exercise informed by legal principle, experience, and reasoned judgment. The ultimate question is whether the tribunal of fact has been persuaded to the requisite standard that the facts necessary to establish the cause of action or defense have been proved.

The standard of proof in civil proceedings is the balance of probabilities.

1.1 The Briginshaw Principle: Subtleties and Application

While the balance of probabilities remains the applicable standard, the High Court in Briginshaw recognized that the degree of satisfaction required may vary according to the gravity of the matters alleged. Dixon J articulated this principle (at 361-362):

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

It is crucial to understand that Briginshaw does not alter the standard of proof or create a "third standard" between the civil and criminal standards. Rather, it recognizes that the more serious the allegation, the more carefully the court should scrutinize the evidence before being satisfied on the balance of probabilities (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450).

This principle operates as a practical recognition that, in considering whether the balance of probabilities has been met, the nature and consequences of the facts to be proved are inherently relevant to whether the court feels an actual persuasion that they occurred. This nuance was further clarified in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 at [322], where the Court emphasized that the Briginshaw principle does not impose a higher standard of proof but "merely reflects a conventional perception that members of society do not ordinarily engage in fraudulent or criminal behavior."

2. Assessing Oral Evidence

2.1 Credibility versus Reliability

A critical distinction when evaluating oral testimony is that between credibility (honesty) and reliability (accuracy). A witness may be entirely truthful yet provide unreliable evidence due to perception, memory, or articulation issues. Conversely, a witness might generally be unreliable but accurately recall certain specific details.

In Doherty v Sampey [2023] WASC 10, Allanson J demonstrated this distinction in practice, finding that some witnesses, while attempting to be honest, had memories affected by "the passage of time... strong emotions... and, in the case of Norris, his health" (at [31]). The court proceeded to accept parts of testimony while rejecting others, showing the nuanced approach required.

2.2 Demeanor: A Cautionary Approach

Traditional emphasis on demeanor as a central element in credibility assessment has been significantly qualified by modern jurisprudence, which recognizes the limitations of demeanor-based evaluations. This shift is evident in Fox v Percy (2003) 214 CLR 118, where the High Court noted at [30]-[31] that "recent research has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of demeanor."

The Full Court of the Federal Court articulated this limitation in SBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 195 at [82], observing that "it is all too easy for a judge to think that a shifty-looking witness is a liar, when his appearance may be due to stress, embarrassment... [or] personality." This recognition requires judges to treat demeanor as just one factor among many, with greater emphasis placed on objective factors such as consistency with established facts, contemporaneous documentation, and inherent probability.

2.3 Consistency and Corroboration

Consistency takes multiple forms that must be evaluated differently:

2.3.1 Internal Consistency

Minor inconsistencies within a witness's testimony may actually enhance credibility, as they can indicate lack of rehearsal or fabrication. Conversely, perfect consistency on peripheral details over multiple tellings may suggest preparation rather than genuine recall. The focus should be on whether inconsistencies relate to central or peripheral matters, and whether they follow a pattern suggesting unreliability or merely reflect natural memory processes.

2.3.2 External Consistency

External consistency involves the relationship between a witness's testimony and:

• Objectively established facts

• Contemporaneous documents

• The testimony of other witnesses, particularly independent ones

• Previous statements by the same witness

When assessing external consistency, particular weight should be given to consistency with contemporaneous documents and objectively verifiable facts. The Court of Appeal in Kakavas v Crown Melbourne Ltd [2012] VSCA 95 at [449] observed that "the objective facts... provided the most reliable yardstick against which to measure the reliability of the evidence given by the various witnesses about past events."

2.4 Memory and Recollection

Courts must be acutely aware of the reconstructive nature of memory, particularly regarding conversations or events occurring years before trial. The inherent frailties of human memory were articulated by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319:

"Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time... The difficulty is compounded when the conversation is heard differently by different listeners, and is affected by the bias and interest of those who purport to recall it."

This scientific understanding of memory has important consequences for evidence assessment:

1. Greater weight will typically be accorded to contemporaneous documents than to later recollections

2. The more time that has elapsed, the more carefully oral recollections should be scrutinized

3. Memories of specific conversations should be assessed with particular caution

4. The court should consider the effect of post-event discussions or information that may have influenced memory

Nevertheless, as Vaughan J noted in Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244 at [53], and as endorsed by Allanson J in Doherty v Sampey [2023] WASC 10 at [35], the correct approach is not to "simply place little reliance on oral recollection" but to "assess that evidence in light of its inherent probabilities in the context of the objectively established facts."

2.5 Reconstruction versus Independent Recollection

Courts should be alert to the distinction between genuine independent recollection and reconstructed memory. A witness who is reconstructing what "must have happened" based on knowledge of events, documents reviewed, or subsequent conversations, is not providing direct evidence of recollection. While reconstruction may still be valuable evidence, it does not carry the same weight as authentic independent recollection.

In Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431, Lord Pearce observed that "witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active."

2.6 Interest and Bias

A witness's interest in the outcome of proceedings, whether financial, emotional, or reputational, requires the court to scrutinize their evidence with particular care. This does not mean that interested witnesses should be disbelieved merely because of their interest; rather, their evidence should be tested against objective facts and inherent probabilities with heightened attention.

Allanson J's treatment of the evidence of Mr. Hughes in Doherty v Sampey [2023] WASC 10 illustrates this approach. The court observed that Mr. Hughes, as a loyal friend to one party, could not be regarded "in the same way as... a truly independent witness" because he was "obviously affected by his friend's distress" (at [97]). The court acknowledged that this relationship may have "distorted his recollection of events" without automatically rejecting his evidence.

2.7 Witness Unavailability: Special Considerations

When evidence relates to dealings with a person who cannot give evidence (due to death, incapacity, or non-attendance), particular caution is required. This principle has been articulated in cases such as Blacket v Barnett [2017] NSWSC 1032 at [243]-[250], where the court emphasized the need for careful scrutiny of evidence about conversations with deceased persons.

These principles were applied by analogy in Ng v Sevastos [2024] WADC 75, where Curwood DCJ carefully scrutinized evidence concerning dealings with a party who could not testify due to cognitive impairment. The court accepted the plaintiff's evidence only after finding it corroborated by contemporaneous documents and conduct.

The rationale for this heightened scrutiny is that the evidence cannot be tested through cross-examination of the other participant in the conversation or transaction, removing a crucial safeguard for testing reliability and truthfulness.

2.8 Partial Acceptance of Evidence

The principle that a court may accept some parts of a witness's evidence while rejecting others is well-established. In Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 at [118], the court noted that "the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest" after making an assessment of all the evidence.

This selective approach recognizes that witnesses may be honest and accurate on some matters but not others, whether due to memory lapses, unconscious bias, or deliberate deception on specific points. The court's task is to identify which aspects of testimony are reliable and which are not, based on objective indicia of reliability rather than making a global assessment of the witness's credibility.

3. Assessing Documentary Evidence

3.1 Categories and Weight

Different categories of documentary evidence attract different evaluative approaches:

3.1.1 Contemporaneous Business Records

Documents created in the ordinary course of business, without contemplation of litigation, generally have enhanced probative value. This includes invoices, ledgers, meeting minutes, emails, and routine reports. Such documents are typically created for operational rather than forensic purposes and are less likely to reflect bias or advocate a particular position.

3.1.2 Self-Serving Documents

Documents created by a party after a dispute has arisen, or in contemplation of potential litigation, warrant greater scrutiny. While not automatically discounted, such documents may reflect a party's desired interpretation of events rather than an objective record.

3.1.3 Official Records and Public Documents

Documents created pursuant to statutory or regulatory obligations often carry heightened reliability due to the formal responsibilities under which they were prepared.

3.2 Authentication and Chain of Custody

Before a document's content can be evaluated, its authenticity must be established. This involves consideration of:

• Who created the document and when

• How the document has been stored and preserved

• Whether there is evidence of alteration or tampering

• The source from which the document was obtained

In Ng v Sevastos [2024] WADC 75, questions arose about an envelope allegedly signed by a key witness but kept in the defendant's safe. The court carefully considered the chain of custody and potential for alteration when assessing its evidentiary value.

3.3 Electronic Documents: Special Considerations

Electronic documents present unique challenges and considerations:

• Metadata may provide important information about creation, modification, and access

• Electronic documents may exist in multiple versions

• Questions of authentication are often more complex

• The manner of production and preservation may affect reliability

Courts should be alert to these issues when assessing electronic evidence, particularly when authenticity or integrity is contested.

3.4 Interpreting Documentary Evidence

The interpretation of documents involves both their literal content and contextual meaning. Courts should consider:

• The purpose for which the document was created

• The author's knowledge and authority

• The intended audience

• Contemporary circumstances that inform meaning

• Technical or specialized terminology

• Consistency with related documents

In commercial contexts, the objective approach to contractual interpretation articulated in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] may be instructive – focusing on what a reasonable business person would understand the document to mean, considering the language, surrounding circumstances, and commercial purpose.

4. Weighing Different Forms of Evidence

4.1 The Primacy of Contemporaneous Documents

Where reliable contemporaneous documents conflict with subsequent oral testimony, courts typically accord greater weight to the documents. As Lord Goff observed in Armagas Ltd v Mundogas SA [1986] AC 717 at 757:

"The judge's task is to assess the testimony of the witnesses but also to evaluate it in light of the contemporaneous documentation, the pleaded case and the inherent probability or improbability of the competing cases."

This principle reflects recognition of memory's fallibility and the fact that documents are typically less susceptible to the distorting effects of time, bias, and suggestion. However, this does not amount to an absolute rule that documentary evidence always prevails. Documents may be ambiguous, incomplete, or even inaccurate, and oral evidence may convincingly explain apparent inconsistencies.

4.2 Reconciling Conflicts in Evidence

When faced with conflicting evidence, courts should first attempt to reconcile apparent inconsistencies. Only when reconciliation is impossible should the court determine which evidence to prefer.

In Doherty v Sampey [2023] WASC 10, Allanson J demonstrated this approach when evaluating contradictory accounts about whether certain agreements were loans or property sales. The court reasoned:

"Although Norris and Doherty were uncertain in their recollection of these events, I am satisfied that they would have remembered an agreement to sell the Fanfare premises and 720 Albany Highway. Their evidence that it was a loan that was discussed and agreed is consistent with later documents, and I accept it."

This analysis shows the court drawing on probability (the likelihood that parties would remember selling property), consistency with documentary evidence, and the inherent plausibility of competing accounts to resolve the conflict.

4.3 Absence of Evidence: Jones v Dunkel Considerations

The absence of expected evidence may, in appropriate circumstances, permit an inference that the missing evidence would not have assisted the party who failed to adduce it. This principle, derived from Jones v Dunkel (1959) 101 CLR 298, applies where:

1. A party fails to call a witness who would be expected to be called if their evidence would assist that party;

2. The witness's evidence would have elucidated a matter; and

3. No satisfactory explanation is given for the failure to call the witness.

Similar principles apply to documentary evidence that would naturally be expected to exist but is not produced.

However, the principle has important limitations. As clarified in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63]-[64], the rule "cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference." It does not operate as a substantive rule of law but as a permissible inference that may, not must, be drawn depending on the circumstances.

In Ng v Sevastos [2024] WADC 75 at [155]-[156], the court noted the absence of evidence from defendants regarding the source of funding for certain payments or their purpose if unrelated to the disputed property development. This absence strengthened the plaintiff's case by leaving the plaintiff's explanation unchallenged and unsupplanted by any alternative account.

5. Expert Evidence: Special Considerations

5.1 Admissibility versus Weight

The assessment of expert evidence involves two distinct inquiries:

1. Admissibility - whether the evidence satisfies legal thresholds for admission

2. Weight - the probative value to be accorded to the evidence once admitted

This section focuses on the latter, assuming admissibility requirements have been met.

5.2 Evaluating Expert Opinions

Expert evidence should be assessed with reference to:

5.2.1 Qualifications and Specialized Knowledge

The expert's qualifications must be relevant to the specific opinion offered. Expertise in one field does not necessarily qualify a witness to give opinions in related but distinct areas.

In Doherty v Sampey [2023] WASC 10, Allanson J identified instances where an expert valuer had "strayed from his proper role" by making deductions from signatures that went "beyond his accepted expertise." While this did not entirely invalidate the expert's evidence, it affected the weight given to those specific opinions.

5.2.2 Factual Foundation

An expert opinion is only as reliable as the facts upon which it is based. Courts should scrutinize:

• Whether the expert had all relevant information

• Whether the factual foundation was accurate and complete

• Whether assumptions made by the expert are supported by evidence

Allanson J's critique in Doherty v Sampey [2023] WASC 10 of an expert valuer's report illustrates this point. The court found that "the factual foundation for the opinions expressed... was not established" and that it was impossible to "ascertain the extent to which [the expert] acted on information... which was not included in the letter of instruction, and was not otherwise proved."

5.2.3 Reasoning Process

The expert's reasoning process should be transparent, logically sound, and based on methodologies accepted within the relevant field. Courts should be skeptical of opinions that:

• Fail to explain underlying reasoning

• Rely on unsupported assertions

• Do not address contrary evidence or alternative explanations

• Employ novel or contested methodologies without adequate justification

5.2.4 Independence and Objectivity

The expert's role is to assist the court, not to advocate for a party. Evidence of bias, partisanship, or lack of objectivity diminishes the weight of expert testimony. Indicators may include:

• Selective use of data

• Failure to acknowledge limitations or uncertainties

• Dismissal of contrary viewpoints without adequate analysis

• A history of consistently testifying for one side

• Financial arrangements that could incentivize particular outcomes

5.3 Conflicting Expert Evidence

When experts disagree, courts should not simply count opinions or choose the expert who appears most confident or credible. Instead, the court should engage with the substance of competing opinions, considering:

• Which opinion is better supported by established facts

• Which expert provides more transparent and thorough reasoning

• Whether one expert possesses greater relevant expertise

• Whether one expert has considered and addressed the other's methodology

In Doherty v Sampey [2023] WASC 10, Allanson J carefully evaluated competing valuation evidence, identifying specific methodological flaws and factual deficiencies in each expert's approach before determining which aspects of each opinion to accept.

6. Practical Guidance for Evidence Assessment

6.1 Applying the Balance of Probabilities

The balance of probabilities standard requires the court to determine whether it is more likely than not that the fact in issue occurred. This involves weighing the evidence for and against the proposition, not merely identifying possibilities.

When applying this standard:

• The court must feel an actual persuasion of the fact's existence

• The fact must be proved by evidence, not conjecture or speculation

• The more serious the allegation, the more carefully the evidence should be scrutinized (Briginshaw principle)

• The degree of persuasion required varies with the gravity of the facts alleged and their inherent probability

6.2 Addressing Cognitive Biases

Decision-makers should be aware of common cognitive biases that can affect evidence assessment:

6.2.1 Confirmation Bias

The tendency to search for, interpret, and recall information that confirms pre-existing beliefs while giving disproportionately less attention to information that contradicts them. To counteract this bias, courts should:

• Actively consider alternative explanations

• Test provisional conclusions against contrary evidence

• Consider the evidence from multiple perspectives

6.2.2 Anchoring Bias

The tendency to rely too heavily on the first piece of information encountered. To mitigate this:

• Reserve judgment until all evidence has been considered

• Consciously revisit initial impressions in light of subsequent evidence

• Consider the evidence in different sequences

6.2.3 Hindsight Bias

The tendency to perceive past events as having been more predictable than they actually were. To address this:

• Evaluate decisions based on information available at the time

• Avoid imposing unrealistic standards of foresight

• Recognize the difference between actual and apparent predictability

6.2.4 Availability Heuristic

The tendency to overestimate the likelihood or importance of things that come readily to mind. To counter this:

• Consider whether vivid or memorable evidence is being given disproportionate weight

• Ensure all relevant evidence is considered, not just the most salient

• Be attentive to potentially important but less dramatic evidence

6.3 Giving Reasons

Comprehensive, reasoned judgments serve multiple purposes:

• Demonstrating to the parties that their evidence has been considered

• Enabling appellate courts to understand the basis for findings

• Promoting public confidence in the administration of justice

• Providing guidance for future cases

Effective reasons should:

• Identify the key factual issues

• Explain the evidence relevant to each issue

• Address significant conflicts in the evidence

• Articulate why certain evidence was preferred over other evidence

• Connect the findings to the applicable legal principles

In Doherty v Sampey [2023] WASC 10, Allanson J exemplified this approach by explicitly acknowledging the evidentiary challenges presented by events occurring years earlier, explaining his method for resolving conflicts in the evidence, and providing detailed reasoning for his findings on contested issues.

7. Conclusion

The assessment of evidence in civil proceedings remains an art informed by legal principle rather than a mechanical process. It requires judges to bring to bear their knowledge of human behavior, understanding of evidentiary principles, and capacity for logical reasoning to determine where the truth most likely lies.

The task is inherently evaluative and discretionary, but not arbitrary. By applying established principles consistently, acknowledging the strengths and limitations of different forms of evidence, and providing transparent reasoning, courts can ensure that findings of fact are as reliable and just as the imperfect nature of human fact-finding allows.

Mediators Making Orders: An Issue Explored in Nugawela v Medical Board

In Nugawela v Medical Board of Australia (WA Branch) [2024] WASC 15, the Supreme Court of Western Australia considered whether a mediator presiding over a mediation in the State Administrative Tribunal (SAT) had the power to make orders giving effect to a settlement reached between the parties at the end of that mediation.

The background to the case involved disciplinary proceedings brought by the Medical Board against Dr Nugawela, a medical practitioner. After an unsuccessful mediation, a further mediation was held which resulted in signed consent orders between the parties. The mediator, upon being presented with the consent orders, stated words to the effect that she would make orders to give effect to them. Orders were subsequently made in identical terms to the consent orders.

In considering whether the mediator had the power to make the orders, the court analysed the interplay between the procedural provisions in the Health Practitioner Regulation National Law (HPL) - the legislation under which the disciplinary proceedings were brought - and the procedural provisions of the SAT Act which establishes SAT. The court held that the consent orders constituted an application to the mediator to approve the settlement reflected in the consent orders. The court was satisfied that the mediator made an independent decision to make the orders, as required by the HPL.

Citing the Western Australian Court of Appeal decision in Chang v Legal Profession Complaints Committee [2020] WASCA 208, the court stated that the consent of parties alone is not enough to finally dispose of vocational proceedings, with the tribunal needing to be independently satisfied of the appropriateness of any settlement. However, the court noted that the parties' agreement is still a relevant consideration in making that assessment.

Discretion to Set Aside Irregular Default Judgments

Setting Aside Irregular Default Judgments

This blog examines the principles applicable to setting aside a default judgment where the entry of default judgment was irregular.

It discusses the relevant legislative provisions and procedural rules, and cites the recent decision in Cicirello v Carter [2023] WADC 130 (Cicirello) as an illustrative example.

The Facts

The facts in Cicirello, as outlined at [4]-[30], were that the plaintiffs commenced an action against the defendant builder seeking damages for overcharging under a 'costs plus' building contract.

The defendant sought to enter an appearance after the time for doing so had expired under the rules, by emailing it to the court. However, this went to the court's 'junk mail' and was not entered on the court file.

Default judgment was later entered against the defendant. Some months later, after the plaintiffs had taken steps to enforce the judgment, it came to light that the defendant had attempted to enter an appearance.

The court then brought the matter on of its own motion to consider whether the default judgment had been irregularly entered and if so, whether it should be set aside.

Irregularity in Entry of Default Judgment

Pursuant to Order 2 rule 1 of the Rules of the Supreme Court 1971 (WA), any failure to comply with court rules is an irregularity: Cicirello at [32]. Relevantly, under Order 13 rule 1(2), default judgment may only be entered if the defendant 'does not enter an appearance within the time limited for appearing'.

In Cicirello, the defendant had in fact sent an appearance to the court by email before default judgment was entered, so the entry of default judgment was irregular: see [35]-[44]. The rules enable a defendant to enter an appearance after the specified time, unless judgment has already been entered: Order 12 rule 5, cited at [41] of Cicirello.

Setting Aside Irregular Judgment

An irregular judgment is not a nullity, but may be varied or set aside pursuant to Order 2 rule 1, which gives the court a broad discretion to make appropriate orders: Cicirello at [45]. The defendant or plaintiff may apply to set aside an irregular judgment within a reasonable time of discovering the irregularity, under Order 2 rule 2: Cicirello at 46.

Additionally, for default judgments specifically, Order 13 rule 12 requires the judgment to notify the defendant's right to apply to set it aside, while Order 13 rule 14 empowers the court to set aside or vary a default judgment at its discretion: Cicirello at [47].

In Cicirello, although the defendant had not made a formal application to set aside as contemplated by Order 2 rule 2, the court considered it had inherent powers to deal with the irregularity on its own motion, to regulate its processes and prevent abuse: see [53].

Exercise of Discretion

The discretion to set aside an irregular default judgment is expressed in the broadest terms and not limited by any qualifiers: see Cicirello at [55] citing Hall v Hall [2007] WASC 198 at [63].

However, while irregular judgments will usually be set aside, not every irregularity will justify this: Cicirello at [55] citing ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 at [17]-[19].

The discretion must be exercised to 'do justice between the parties, having regard to the particular circumstances': Cicirello at [55] citing Hall v Hall at [63]. Relevant factors include the length of any delay in applying to set aside the judgment, and the defendant's explanation: Cicirello at [56] citing Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 at [11].

In Cicirello, the court refused to set aside the irregular default judgment. The defendant had not explained his failure to engage with the court's orders affording him opportunities to apply to set aside the default judgment and advance his position: see [57]-[59]. He also failed to identify any substantive defence he wished to run if the judgment was set aside: [59(d)].

Meanwhile, the plaintiffs had taken steps in reliance on the judgment, following procedures under the Civil Judgments Enforcement Act 2004 (WA) to enforce it: [59(f)].

In line with Starrs v Retravision (WA) Ltd [2012] WASCA 67 and Scott v Baring [2019] WASC 278, the court determined it was not in interests of justice to set aside the judgment given the defendant's disengagement, nor to further delay resolving the matter: Cicirello at [59]-[61]. As stated in Scott at [51], a defendant 'must bear the consequences' of failing to participate in the proceedings: Cicirello at [62].

Conclusion

In summary, while irregular default judgments will ordinarily be set aside, the court retains a discretion to refuse this if the interests of justice do not require it. Defendants who fail to engage with opportunities to advance their position may not have irregular judgments set aside to their benefit, especially if the plaintiff has acted in reliance on the judgment. When exercising its discretion, the court will look at the particular circumstances holistically. Relevant considerations include delay in applying, the defendant's explanation, whether the plaintiff has taken steps in reliance which may cause prejudice if the judgment is set aside, and any indication of the defendant's substantive case.

Protecting the Estate's Interests: The Need for Independent Legal Advice for Executors

Introduction

In Hall v Hall [2023] WASC 342, Christopher Hall brought proceedings against his brother Michael Hall in Michael's capacity as executor of their mother Alwyn's estate, and in Michael's personal capacity.

An issue arose as to whether the firm acting for Michael in both capacities, Taylor Smart, owed potentially conflicting duties to him in those different capacities.

Facts

Michael was appointed executor of Alwyn's estate, which was valued at over $9 million ([31]).

Christopher sought various orders requiring Michael as executor to take action against Michael personally relating to loans, property improvements and unpaid rent ([35]-[37]).

Michael opposed the orders sought ([39]).

Taylor Smart (lawyers) acted for Michael as executor and personally, filing affidavits and submissions without distinguishing his capacities ([65]).

The court noted Taylor Smart had prepared Alwyn's will and power of attorney ([65]), and there was no evidence Michael as executor had independent advice about potential claims against Michael personally ([68]-[69]).

Analysis

In Hall v Hall, Howard J considered Taylor Smart's representation of Michael in his personal and executor capacities gave rise to a potential conflict of duties ([66]).

His Honour stated it was "imprudent, at the least" for Taylor Smart to act for Michael in these potentially conflicting capacities without distinguishing between them ([70]).

The court has a supervisory role over its officers to ensure the administration of justice, which includes ensuring solicitors avoid acting where there are conflicting duties.

Michael as executor was entitled to be advised independently about potential claims against Michael personally ([68]-[69]).

Michael ought to consider his positions and obligations as executor and personally, and obtain independent advice, given the potential conflict ([74]).

The court refrained from making any order at that time, but considered it sufficient to raise the obvious matter ([75]).

Joinder & Scandalous Affidavits in Defamation Cases: Insights from Souraki Azad -v- Jose [2023] WASC 160

In defamation, issues about the: (a) joinder of parties and (b) scandalous affidavits, commonly arise. Both arose in the recent case of Souraki Azad -v- Jose [2023] WASC 160.

Joinder

The joinder process allows for additional parties to be included in an ongoing lawsuit.

Souraki Azad -v- Jose

In Souraki Azad -v- Jose, the plaintiff and defendant were medical doctors.

The plaintiff sought to join the Australian Health Practitioner Regulation Agency (AHPRA) to his defamation case.

The plaintiff accused AHPRA of conspiring against him, thus playing a role in the defamation.

The Court, following the principles established in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [58] and the Rules of the Supreme Court 1971 (WA) Order 18 rule 3(2), scrutinized the plaintiff's application. What was required was a solid basis in the pleadings for the joinder of AHPRA.

Legal Principles

One of the key factors the court considered was whether the plaintiff had a 'colour of right' to the final relief - a principle established by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [18].

The 'colour of right' implies that the plaintiff must demonstrate a reasonable likelihood of entitlement to the relief they seek.

In this case, the court found no evidence that the plaintiff had a recognised basis in law to sustain final relief against AHPRA.

The court also scrutinized the balance of convenience, as well as the public interest, in this case.

The joinder application did not succeed.

Precision in Joinder Applications

Another noteworthy aspect of this case was the court’s attention to the precision and clarity in joinder applications. This vagueness in the application served as one of the justifications for dismissing the joinder application.

Scandalous Affidavits

When an affidavit crosses the line into scandalous territory, it can complicate proceedings and impact the fairness of the trial.

In Souraki Azad -v- Jose [2023] WASC 160, the plaintiff, Dr. Azad, filed a series of affidavits that were contested by both the defendant and AHPRA.

The affidavits contained serious, unsupported allegations of criminal wrongdoing by various persons, including representatives of the Medical Board and AHPRA, and included inappropriate images of children. Their counsel argued that these were scandalous, irrelevant, and oppressive, necessitating their removal from the court file.

Legal Framework: Order 37 Rule 7 RSC

The objections to the scandalous affidavits were grounded on Order 37 rule 7 of the Rules of the Supreme Court (RSC), which allows the court to strike out scandalous, irrelevant, or otherwise oppressive matter from an affidavit.

Court's Approach in Souraki Azad -v- Jose

In evaluating the scandalous nature of the affidavits, the court recognized the gravity of ordering the removal of affidavit material from the court file, stating it was an 'extreme step' that should be taken with great caution.

Despite the scandalous nature of the affidavits, the court decided to restrict access to these affidavits to the court and parties involved, rather than removing them entirely from the file.

This was an interim solution, with the option to revisit the removal application as the action progressed.