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

Introduction

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

The Statutory Framework

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

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

Determining Who Should Have Conduct of Sale

The Court's Discretion

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

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

When Joint Conduct Is Inappropriate

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

Critical factors suggesting joint conduct is inappropriate include:

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

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

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

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

Factors Affecting Sole Conduct

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

Terms of Sale

Method of Sale

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

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

Protective Mechanisms

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

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

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

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

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

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

Distribution of Proceeds

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

Conclusion

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

Mental Disability as a Prerequisite for the Appointment of an Administrator

Introduction

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

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

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

The Statutory Framework

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

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

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

The Meaning of Mental Disability

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

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

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

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

Application to Complex Cases

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

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

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

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

Distinguishing Temporary Conditions

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

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

Conclusion

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

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

1. Introduction

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

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

2. Background of Relevant Preceding Case Law

2.1 The Foundation: Chakravarti v Advertiser Newspapers

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

• Comprehended in the pleaded meaning

• Less injurious than the pleaded meaning

• A mere shade or nuance of the pleaded meaning

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

2.2 The Modern Framework: ABC v Chau Chak Wing

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

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

2.3 Hore-Lacy Meanings

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

3. Facts of Mond v The Age Company

3.1 The Parties and Context

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

3.2 The Publications

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

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

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

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

3.3 The Pleaded Imputations

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

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

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

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

3.4 The Respondents' Alternative Meanings

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

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

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

4. The Court's Determinations on Specific Imputations

4.1 The 5 May 2021 Articles

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

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

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

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

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

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

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

4.2 The 13 December 2021 Articles

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

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

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

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

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

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

• Finding: Upheld (at [131])

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

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

• Finding: Substance conveyed (at [132])

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

• Finding: Not conveyed (at [133])

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

4.3 The 18 February 2022 Articles

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

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

• Finding: Substance conveyed (at [152])

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

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

• Finding: Substance conveyed (at [153])

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

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

• Finding: Conveyed (at [155])

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

5. Analysis of the Court's Reasoning

5.1 The Framework for Permissible Variants

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

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

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

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

4.2 Application to Specific Imputations

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

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

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

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

4.3 The Role of Defendants' Alternative Meanings

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

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

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

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

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

5. Quantification and Assessment of Damages

5.1 The Serious Harm Threshold

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

• Each defamatory matter must independently satisfy the serious harm element

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

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

5.2 Damages Assessment

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

Mitigating factors:

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

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

Aggravating factors:

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

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

6. Worked Example: Practical Application

6.1 From the Plaintiff's Perspective

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

Pleading strategy:

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

2. Alternative imputation: The CEO engaged in financial misconduct

3. Further alternative: The CEO mismanaged company finances

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

6.2 From the Defendant's Perspective

Defence strategy:

1. Deny all imputations

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

3. Advance justification defence to this lesser meaning

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

7. Step-by-Step Guidance for Practitioners

7.1 For Plaintiff's Counsel

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

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

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

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

7.2 For Defendant's Counsel

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

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

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

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

8. Evidence and Arguments for Each Side

8.1 Plaintiff's Evidence and Arguments

Evidence to lead:

• Extent of publication and readership data

• Impact on specific reputational interests

• Evidence negativing any truth in extravagant elements

Arguments to advance:

• Natural progression from greater to lesser meanings

• Defendants' alternatives confirm variants are within pleaded case

• Procedural fairness not compromised as defendants addressed these meanings

8.2 Defendant's Evidence and Arguments

Evidence to lead:

• Factual basis supporting alternative meanings

• Context showing why lesser meanings are appropriate

• Evidence of plaintiff's prior conduct relevant to mitigation

Arguments to advance:

• Plaintiff's imputations contain essential elements not established

• Accepting variants would require different defence evidence

• Alternative meanings are maximum extent of liability

9. Key Takeaways for Legal Practice

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

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

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

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

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

10. Conclusion: Broader Significance

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

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

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

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

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

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

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

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

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

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

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

• The assessment of evidence quality when determining serious allegations

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

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

2.1 The Foundation: Briginshaw v Briginshaw

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

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

This formulation introduced three critical considerations:

1. The seriousness of the allegation made

2. The inherent unlikelihood of an occurrence

3. The gravity of the consequences flowing from a finding

2.2 Subsequent Development

The principle evolved through several key decisions:

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

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

2.3 Statutory Codification: Section 140

The Evidence Act 1995 (Cth) codified these principles:

140 Civil proceedings: standard of proof

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

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

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

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

3.1 The Parties and Claims

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

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

3.2 The Publications and Imputations

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

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

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

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

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

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

3.3 The Defence of Truth

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

3.4 The Primary Judgment

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

• The articles conveyed defamatory imputations about the appellant

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

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

Critically, the primary judge made express findings that:

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

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

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

3.5 The Appeal

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

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

• Specific factual findings regarding each incident

• The primary judge's assessment of witness credibility

• The admission and use of tendency evidence

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

4.1 The Standard Articulated

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

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

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

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

4.2 The Primary Judge's Approach

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

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

4.3 Practical Application to Evidence

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

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

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

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

4.4 The Presumption of Innocence

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

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

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

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

4.5 Credibility Findings and Appellate Restraint

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

• The trial extended over 110 days

• The primary judge observed 44 witnesses

• Credibility assessments were central to the factual findings

• The appellant's credibility was comprehensively rejected

5. Quantification and Assessment: The Judicial Calculus

5.1 The Nature of Assessment

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

5.2 Factors in the Assessment Matrix

The following factors influence the required cogency of evidence:

A. Intrinsic Factors

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

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

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

B. Evidence Quality Indicators

1. Directness: Eyewitness testimony preferred over circumstantial evidence

2. Consistency: Internal consistency and consistency with objective facts

3. Corroboration: Multiple independent sources strengthening the evidence

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

5. Credibility: Honesty and reliability of witnesses

C. Contextual Considerations

1. Documentary Support: Contemporaneous documents enhancing reliability

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

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

5.3 The Sliding Scale in Practice

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

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

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

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

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

5.4 Practical Application in Roberts-Smith

The Court's analysis reveals how this assessment operated:

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

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

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

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

6. Worked Example: Practical Application in Commercial Fraud Litigation

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

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

Strategic Considerations:

• Fraud carries severe reputational consequences requiring cogent evidence

• Must overcome inherent improbability of established company committing fraud

• Need evidence of both falsity and intention

Evidence Assembly:

1. Documentary Foundation

   • Forensic accounting analysis showing systematic discrepancies

   • Email communications indicating knowledge of falsity

   • Board minutes revealing awareness of issues

   • Whistleblower statements with contemporaneous notes

2. Witness Evidence

   • Former CFO willing to testify about pressure to manipulate figures

   • Independent auditor identifying red flags ignored by management

   • Multiple employees corroborating culture of deception

3. Pattern Evidence

   • Demonstration of repeated conduct over multiple reporting periods

   • Evidence of cover-up attempts when questions arose

   • Correlation between misstatements and executive bonuses

Argument Structure:

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

Key Submissions on Standard:

• Acknowledge the Briginshaw requirement explicitly

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

• Address each element of fraud with specific, compelling evidence

• Emphasise multiple independent sources of verification

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

Strategic Considerations:

• Emphasise gravity of fraud allegation and required proof standard

• Challenge evidence quality rather than quantity

• Provide innocent explanations for suspicious circumstances

Defensive Evidence:

1. Alternative Explanations

   • Expert evidence on accounting judgment legitimacy

   • Industry practice evidence supporting interpretations

   • Documentation of good faith decision-making processes

2. Credibility Challenges

   • Motivation of whistleblowers (dismissed employees)

   • Inconsistencies in witness accounts

   • Lack of contemporaneous complaint

3. Systemic Defences

   • Robust internal controls and audit processes

   • Clean regulatory history

   • Professional advice supporting accounting treatments

Argument Structure:

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

Key Submissions on Standard:

• Emphasise that suspicion, however grave, is insufficient

• Highlight gaps, inconsistencies and alternative explanations

• Invoke presumption of innocence as interpretive principle

• Demonstrate failure to meet Briginshaw threshold

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

7.1 Initial Case Assessment

Step 1: Categorise the Allegations

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

• Assess reputational and legal consequences of adverse findings

• Determine applicable Briginshaw considerations

Step 2: Evidence Audit

• Catalogue available evidence by type and quality

• Assess cogency against Briginshaw requirements

• Identify evidence gaps requiring attention

Step 3: Strategic Planning

• Determine whether evidence meets required threshold

• Identify additional evidence needed

• Consider alternative causes of action with lower thresholds

7.2 Pleading Considerations

For Plaintiffs:

• Plead serious allegations with precision and particularity

• Ensure factual foundation for each element

• Consider whether lesser allegations might achieve client objectives

For Defendants:

• Challenge adequacy of particulars for serious allegations

• Reserve position on standard of proof arguments

• Consider strategic admissions on less serious matters

7.3 Evidence Gathering Phase

Documentary Evidence:

• Prioritise contemporaneous documents

• Seek corroborating documentation

• Preserve metadata and chain of custody

Witness Evidence:

• Identify witnesses with direct knowledge

• Assess credibility and potential bias

• Obtain signed statements early

• Consider expert evidence on industry standards

Strategic Considerations:

• Focus resources on evidence meeting cogency requirements

• Consider cost-benefit of pursuing marginal evidence

• Maintain evidence integrity throughout process

7.4 Pre-Trial Preparation

Witness Preparation:

• Explain significance of serious allegations

• Emphasise importance of clarity and precision

• Address potential credibility challenges

• Prepare for rigorous cross-examination

Expert Evidence:

• Ensure experts understand Briginshaw requirements

• Focus opinions on clear, demonstrable conclusions

• Avoid speculation or equivocation

7.5 Trial Strategy

Opening Submissions:

• Address standard of proof explicitly

• Preview evidence meeting Briginshaw requirements

• Frame case theory consistent with required cogency

Evidence Presentation:

• Lead with strongest, most direct evidence

• Build corroboration systematically

• Address credibility proactively

Cross-Examination:

• Target evidence quality, not just contradictions

• Explore bias and motivation

• Test reliability of observations

• Highlight absence of corroboration

Closing Submissions:

• Synthesise evidence against Briginshaw standard

• Address each serious allegation systematically

• Emphasise cumulative effect of cogent evidence (if plaintiff)

• Highlight evidential deficiencies (if defendant)

8. Evidence and Arguments: Detailed Strategic Analysis

8.1 For Parties Making Serious Allegations

Essential Evidence Components:

1. Primary Evidence

   • Direct witness testimony from participants

   • Contemporaneous documents showing intent

   • Admissions or inconsistent statements

   • Expert analysis of objective facts

2. Corroborative Evidence

   • Multiple independent witnesses

   • Documentary trails supporting testimony

   • Circumstantial evidence forming coherent pattern

   • Post-incident conduct suggesting guilt

3. Credibility Enhancement

   • Evidence of witness independence

   • Absence of motive to fabricate

   • Consistency with objective facts

   • Prior consistent statements

Argument Framework:

• Acknowledge gravity of allegations upfront

• Demonstrate evidence exceeds Briginshaw threshold

• Address each element with specific, cogent proof

• Emphasise multiple sources of verification

• Distinguish from criminal standard whilst meeting civil requirements

8.2 For Parties Defending Serious Allegations

Defensive Evidence Strategy:

1. Direct Contradiction

   • Witness testimony refuting allegations

   • Documentary evidence disproving claims

   • Expert evidence challenging interpretations

   • Alibi or impossibility evidence

2. Credibility Attacks

   • Evidence of bias or motive

   • Prior inconsistent statements

   • Collusion or contamination

   • Memory reliability challenges

3. Alternative Narratives

   • Innocent explanations for suspicious facts

   • Industry practice evidence

   • Contextual evidence changing interpretation

   • Good character evidence (where admissible)

Argument Framework:

• Emphasise exceptional gravity requiring exceptional proof

• Systematically identify evidential deficiencies

• Challenge quality, not just quantity of evidence

• Invoke presumption of innocence

• Demonstrate reasonable alternative explanations

9. Key Practice Points: Lessons from Roberts-Smith

9.1 For Litigation Strategy

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

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

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

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

9.2 For Evidence Management

1. Preserve Contemporaneous Records: These carry exceptional weight

2. Witness Statements Early: Memory degradation affects cogency

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

4. Corroboration Systematically: Build mutually reinforcing evidence

9.3 For Client Management

1. Realistic Assessment: Clients must understand heightened proof requirements

2. Cost Implications: Proving serious allegations requires substantial resources

3. Risk Analysis: Consider reputational damage even if successful

4. Alternative Strategies: Lesser allegations might achieve objectives

9.4 For Procedural Management

1. Pleadings Precision: Particulars crucial for serious allegations

2. Discovery Breadth: Cast wide net for corroborative evidence

3. Witness Management: Credibility preparation essential

4. Appeal Prospects: Credibility findings create high appellate barrier

10. Conclusion: The Enduring Relevance of Principled Analysis

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

The case establishes several enduring principles:

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

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

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

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

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

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

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

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

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

Assessing Evidence of Spoken Words

1. Introduction: The Inherent Challenges

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

2. The Fallibility of Human Memory

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

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

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

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

3. The Primacy of Contemporaneous Documents and Objective Facts

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

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

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

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

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

4. Credibility, Reliability, and Demeanour

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

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

5. Onus and Standard of Proof

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

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

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

6. Identical or "Copied" Affidavit Evidence

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

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

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

7. Specificity of Recollection and Inherent Probabilities

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

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

8. Failure to Call Material Witnesses

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

9. Conclusion

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

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

1. Introduction

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

2. Facts of JB [2025] WASAT 42

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

3. Jurisdiction to Make Administration Orders for Non-Residents

3.1 Statutory Basis

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

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

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

3.2 Limitations of Jurisdiction

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

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

4. Recognition of Interstate Administration Orders

4.1 Statutory Recognition Mechanism

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

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

4.2 Requirement for Physical Presence

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

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

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

5. Constitutional Considerations

5.1 "Full Faith and Credit" Provisions

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

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

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

5.2 Nature of Guardianship and Administration Powers

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

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

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

5.3 Alternative Analysis

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

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

5.4 Analogous Nature to Child Custody Orders

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

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

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

6. Practical Application

6.1 Independent Assessment

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

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

6.2 Evidentiary Value of Interstate Orders

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

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

7. Procedural Considerations

7.1 Service Requirements

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

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

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

8. Conclusion

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

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

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

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

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

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

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

Inactive Cases and Procedural Steps in Civil Proceedings

1. Introduction to Inactive Cases List

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

2. Legislative Framework

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

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

3. Procedural Steps - General Principles

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

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

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

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

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

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

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

4. Actions that Constitute a Procedural Step

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

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

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

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

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

5. Actions that Do Not Constitute a Procedural Step

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Distinguishing Features of a Procedural Step

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

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

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

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

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

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

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

8. Importance of Taking Timely Procedural Steps

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

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

9. Practical Considerations

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

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

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

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

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

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

10. Conclusion

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

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

Introduction

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

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

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

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

The Grapevine Effect: Concept and Significance

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

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

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

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

The Serious Harm Threshold and the End of Presumed Damage

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

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

Limited Spread: Rader v Haines [2022] NSWCA 198

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

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

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

Procedural Clarity: Newman v Whittington [2022] NSWSC 249

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

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

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

Digital Dissemination: Evidence of Online Reach vs. Potential Reach

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

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

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

Conclusion

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

Sources

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

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

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

·         Newman v Whittington [2022] NSWSC 249.

·         Rader v Haines [2022] NSWCA 198.

·         Martin v Najem [2022] NSWDC 479.

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

·         Bartlett v Roffey [2023] WASC 3.

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

Grapevine Effect in Australian Defamation Law – Case Summaries

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

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

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

Newman v Whittington [2022] NSWSC 249

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

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

Rader v Haines [2022] NSWCA 198

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

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

Martin v Najem [2022] NSWDC 479

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

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

Hockings v Lynch & Adams [2022] QDC 127

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

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

Dabrowski v Greeuw [2014] WADC 175

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

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

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

Wilson v Ferguson [2015] WASC 15

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

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

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

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

The Capacity to Make Specific Medical Treatment Decisions

Introduction

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

The Legislative Framework for Medical Treatment Decisions

Part 9B of the GA Act

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

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

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

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

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

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

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

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

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

Limitations on Medical Decision-Making Authority

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

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

The Presumption of Capacity

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

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

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

Evidentiary Standards for Capacity Determinations

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

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

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

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

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

This approach means that the Tribunal will:

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

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

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

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

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

Capacity as Decision-Specific Rather Than Global

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

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

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

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

The Test for Capacity to Make Medical Treatment Decisions

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

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

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

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

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

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

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

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

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

Distinguished from Global Declarations of Incapacity

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

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

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

Advance Health Directives and Capacity Requirements

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

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

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

Balancing Protection with Autonomy

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

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

Worked Example: Assessing Capacity for a Specific Medical Decision

Case Study: Mrs. Wilson

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

Application of Principles

Step 1: Consider the presumption of capacity

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

Step 2: Assess capacity specifically for the cataract surgery decision

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

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

During the assessment, Mrs. Wilson demonstrates that she:

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

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

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

• Recognizes that without surgery her vision will continue to deteriorate

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

• Can communicate her decision and reasoning clearly

Step 3: Apply the legal test for capacity

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

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

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

• Can communicate her decision

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

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

Checklist for Assessing Capacity for Specific Medical Decisions

Preliminary Considerations

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

Assessment Process

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

Documentation Requirements

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

Next Steps

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

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

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

Conclusion

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

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

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

Growth in Application Volume

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

Growth Pattern (2016-2024)

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

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

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

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

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

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

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

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

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

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

Factors Contributing to Growth

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

Demographic Changes

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

NDIS and Regulatory Changes

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

Mandatory Review Requirements

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

Recent Growth Factors

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

Operational Impact

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

Future Outlook

Based on current trends:

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

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

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

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