DU BRAY -v- RSM AUSTRALIA [2026] WASC 113 (8 April 2026)

(a) summarily dismiss the proceedings; or

(b) alternatively, transfer the proceedings to the Federal Court of Australia pursuant to Jurisdiction of Courts (Cross-Vesting) Act 1997 (Cth) (CVA) s 5(1).

Counsel for QRS joined in this application. For ease of reference, and given the neutral position of Bad Wolf, I will refer to RSM, DBA and QRS collectively as the Defendants.

1. The basis for the former was that the issues the subject of the Application had been determined by the Federal Court in Bad Wolf FCA. The basis for the latter was that the Federal Court in its Victorian Registry had oversight of the liquidation of DBA.
2. At the hearing on 19 March 2026, I ordered that the issues in [6] be determined on the papers and made programming orders. It was common ground by those present in court, including Mr Du Bray, that Bad Wolf intended to abide by the decision of the court.
3. Mr Du Bray read and relied on an affidavit affirmed by him on 19 February 2026 (Du Bray Affidavit). He also filed submissions on submissions on 12 March 2026 (First Du Bray Submissions), 17 March 2026 (Second Du Bray Submissions) and 1 April 2026 (Third Du Bray Submissions).
4. Counsel for RSM and DBA read and relied on:

(a) an affidavit affirmed on 16 March 2026 by Vincent Zhi-Qing Zhu, a director of the solicitors for RSM and DBA (First Zhu Affidavit); and

(b) an affidavit affirmed on 27 March 2026 by Mr Zhu (Second Zhu Affidavit).

RSM and DBA also rely on submissions filed 19 March 2026 (First Liquidator Submissions) and 27 March 2026 (Second Liquidator Submissions).

1. Counsel for QRS read and relied on the evidence filed by RSM and DBA and also filed submissions on 26 March 2026 (QRS Submissions).
2. For the reasons which follow, the Application must be summarily dismissed. It follows, that I do not need to consider the issue of a transfer.
3. In determining the action, I am mindful that Mr Du Bray is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.[4] The court is required to approach the documents in which he articulates his case with some flexibility.[5] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[6] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[7] Having said that, the submissions filed by Mr Du Bray were very sophisticated as if drafted by an experienced counsel.

1. The starting point in determining the issues before me is the decision in Bad Wolf FCA. The plaintiff was Bad Wolf. DBA was the first defendant, the Liquidators the second defendant, Westpac Banking Corporation (Westpac) the third defendant and QRS the fourth defendant.
2. The background facts were not in issue:[8]

(a) the Trust is a discretionary trust;

(b) Mr Du Bray was initially the Appointor and Guardian of the Trust;

(c) Mr Du Bray is a beneficiary of the Trust;

(d) DBA was the trustee of the Trust;

(e) a winding up order was made in respect of DBA on 11 August 2022;

(f) by operation of the trust deed for the Trust, on being placed into liquidation, DBA ceased to be the trustee of the Trust;

(g) as at 11 August 2022 the Appointor of the Trust was one Danielle Woodhouse; and

(e) Ms Woodhouse appointed Bad Wolf as the new trustee of the Trust.

1. Also by way of background, Mr Du Bray was the subject of a sequestration order made on 16 July 2020. He was discharged from bankruptcy by operation of law on 17 November 2024.[9]
2. McElwaine J noted that the consequence of the appointment of Bad Wolf as trustee was the DBA became a bare trustee, or trust de son tort, of the Trust property, with an obligation to protect that property.[10]
3. Bad Wolf sought an order vesting in it certain funds in an account of Westpac on the basis that it was the property of the Trust of which Bad Wolf was the Trustee. The Liquidators resisted the application. Westpac filed a notice of submission. I do not need to consider the position of QRS.
4. By interlocutory process under Corporations Act 2001 (Cth), Schedule 2 - Insolvency Practice Schedule (Corporations) (IPSC), s 90‑15, the Liquidators also sought determination of a number of questions in the liquidation of DBA. That section provides:

90-15 Court may make orders in relation to external administration

Court may make orders

(1) The Court may make such orders as it thinks fit in relation to the external administration of a company.

Orders on own initiative or on application

(2) The Court may exercise the power under subsection (1):

(a) on its own initiative, during proceedings before the Court; or

(b) on application under section 90-20.

Examples of orders that may be made

(3) Without limiting subsection (1), those orders may include any one or more of the following:

(a) an order determining any question arising in the external administration of the company;

(b) an order that a person cease to be the external administrator of the company;

(c) an order that another registered liquidator be appointed as the external administrator of the company;

(d) an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;

(e) an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator;

(f) an order in relation to remuneration, including an order requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company.

Matters that may be taken into account

(4) Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a) whether the liquidator has faithfully performed, or is faithfully performing, the liquidator's duties; and

(b) whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and

(c) whether an action or failure to act by the liquidator is in compliance with an order of the Court; and

(d) whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and

(e) the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.

Costs orders

(5) Without limiting subsection (1), an order mentioned in paragraph (3)(d) in relation to the costs of an action may include an order that:

(a) the external administrator or another person is personally liable for some or all of those costs; and

(b) the external administrator or another person is not entitled to be reimbursed by the company or its creditors in relation to some or all of those costs.

Orders to make good loss sustained because of a breach of duty

(6) Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that:

(a) the external administrator is personally liable to make good some or all of the loss; and

(b) the external administrator is not entitled to be reimbursed by the company or creditors in relation to the amount made good.

Section does not limit Court's powers

(7) This section does not limit the Court's powers under any other provision of this Act, or under any other law.

1. In relation to IPSC s 90-15, McElwaine J observed:[11]

The procedure is analogous to the well-understood Chancery procedure available to a trustee that was explained at length in His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand v Macedonian Orthodox Community Church [2008] HCA 42; (2008) 237 CLR 66 at [34]- [45]. On such applications, as explained by the Court at [104], by reference to the Privy Council in Marley v Mutual Security Merchant Bank and Trust Co Ltd [1990] UKPC 44; [1991] 3 All ER 198 at 201, in giving directions or advice to a trustee a court is 'essentially engaged solely in determining what ought to be done in the best interests of the trust estate and not in determining the rights of adversarial parties'. That is the case on the Liquidators' application for advice as to the assets of the Trust pursuant to s 90-15 of the Insolvency Practice Schedule.

1. The issue and its determination were succinctly put by McElwaine J in the following terms:[12]

During the course of the proceeding, the primary dispute narrowed to a single issue: are the funds of approximately $464,000 held in a Westpac account ending with the numerals 976 property of the Trust? If the answer to that question is in the affirmative, then the dispute between Bad Wolf and the Liquidators is whether the funds may be held by the Liquidators unless and until they have ascertained the extent of the creditors of DBA in its capacity as Trustee and have determined the extent, if any, of the right of recoupment or exoneration that DBA has over the assets of the Trust. For convenience I will refer to account 976 as the Westpac Trust Account.

For the reasons that follow, I am not satisfied that balance of funds in the Westpac Trust Account is the property of the Trust and for that reason the claim of Bad Wolf fails and the orders sought by the Liquidators will be made.

(For ease of reference, I will also refer to the Westpac account ending 976 as the Westpac Trust Account).

1. Significantly for present purposes, his Honour also observed:[13]

What is plain from the proceeding is that a final determination must be made as to the status of the funds in the Westpac Trust Account. The Liquidators have spent considerable funds and energy thus far in investigating the facts; though thus far inconclusively. The Liquidators are independent. Presently, it is uncertain whether external creditors have claims against DBA in its own right and/or in its capacity as trustee of the Trust. Questions of whether DBA is entitled to be indemnified for incurred liabilities, by recoupment or exoneration, remain to be determined. There is no dispute that substantial funds in other Westpac accounts and in the Wise Payments Accounts are not assets of the Trust. The obviously efficient course is to make orders that place the Liquidators as receivers and managers of all the assets of DBA as owned by it and those which it holds as trustee of the Trust, or perhaps some other trust.

1. His Honour also found that Mr Du Bray directed the director of Bad Wolf to commence the proceeding in the name of Bad Wolf and that he was funding the proceeding though a related entity; the director was a 'puppet' of Mr Du Bray.[14] Mr Du Bray did not give evidence, though he 'features prominently' in the evidence. [15] His absence was not unable to be explained by the witnesses who did give evidence.[16]
2. The final orders made dismissed the application by Bad Wolf. On the application by the Liquidators, the orders made were:

3....

(a) Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), Schedule 2 to the Corporations Act 2001 (Cth) and s 57(1) of the Federal Court of Australia Act 1976 (Cth), the second defendants (Liquidators) be appointed joint and several receivers of the assets of the Du Bray Property Trust without security and the requirement to file a guarantee under r 14.21 and r 14.22 of the Federal Court Rules 2011 is dispensed with.

(b) It be declared that the Liquidators, as the Liquidators of Du Bray and Associates Pty Ltd (ACN 095 326 935) (in liquidation) and the receivers of the Du Bray Property Trust are entitled to collect and realise the property of Du Bray and Associates Pty Ltd and the Du Bray Property Trust, notwithstanding the freezing orders made by the High Court of New Zealand.

(c) Without limiting Order 3(b), the Liquidators are entitled to the monies in bank accounts in the name of Du Bray and Associates Pty Ltd referred to in the affidavits of Richard Stone affirmed on 5 September 2024 and 5 June 2025.

(d) The third defendant is to release to the Liquidators all monies in bank accounts in the name of Du Bray and Associates Pty Ltd, including the following accounts (partially redacted):

(i) XXXXXXXXX976 (as trustee for the Du Bray Property Trust);

(ii) XXXXXXXXX438;

(iii) XXXXXXXXX446;

(iv) XXXXXXXXX039;

(v) XXXXXXXXX618.

(e) Pursuant to section 90-15 of the Insolvency Practice Schedule:

(i) the Liquidators may call for proofs of debt in the winding up of Du Bray and Associates Pty Ltd together with the receivership of the Du Bray Property Trust, to be lodged by a particular date, after which any claims not so lodged, including claims by creditors of the Du Bray Property Trust, shall be deemed to be abandoned;

(ii) Du Bray and Associates Pty Ltd is entitled to be exonerated from the assets of the Du Bray Property Trust in respect of such liabilities incurred as trustee as are proved in the winding up;

(iii) the Liquidators are entitled to be exonerated from and hold a lien over assets of the Du Bray Property Trust for their remuneration, disbursements and costs, including legal costs, incurred in respect of investigating the affairs of the Du Bray Property Trust and as receivers of the Du Bray Property Trust, the amount of which to be determined by the Court, in respect of which the plaintiff, the fourth defendant and the Liquidators be granted liberty to apply.

(f) The Liquidators shall give notice of these orders by circular sent by email and by ordinary prepaid post within seven days of the making of these orders to each of the persons known to be potential creditors of Du Bray and Associates Pty Ltd and the Du Bray Property Trust and persons known to be beneficiaries of the Du Bray Property Trust.

(g) There be liberty to apply to any person not a party to these proceedings claiming to be prejudiced by the making of these orders (that is 3(a)-(f)) to apply to vacate or vary the orders within one month of the making of these orders.

1. On 18 August 2025, Du Bray and Associates Ltd (NZ) (DBANZ) filed an interlocutory process pursuant to the liberty to apply. This was on the basis that the funds or rights to the funds held the in Westpac Account were held by DBA on an express or resulting trust for DBANZ. The application of DBANZ was later withdrawn and its interlocutory process dismissed.[17] Mr Du Bray is a director of DBANZ. [18]
2. I note that in an affidavit filed in support of DBANZ's application, the deponent, its lawyer, states that:[19]

1. Between February 2022 and June 2024, payments representing revenue of DBNZ's New Zealand consulting business were paid into the Accounts;
2. Those monies are not proceeds of the Du Bray Property Trust (Trust), were never held for any purpose of the Plaintiff (DBA), and were remitted solely for the benefit of DBNZ; and
3. The Liquidators have no entitlement, beneficial or otherwise, to those funds.

1. There has been no appeal from the decision in Bad Wolf FCA.

1. The decision in Bad Wolf FCA places the relief sought in the Application in its proper context. The following declarations and orders are sought pursuant to TA s 92, s 93 and s 94:

(a) A declaration that the Du Bray Property Trust is governed by the laws of Western Australia, including the Trustees Act 1962 (WA);

(b) A declaration that only the Supreme Court of Western Australia has jurisdiction under section 6 of the Trustees Act 1962 (WA) to determine applications concerning the DBPT and its property;

(c) A declaration that the Federal Court of Australia had no jurisdiction to determine whether the funds in the DBPT bank account are trust property, and that the purported determination by McElwaine J in VID1066/2023 on 18 July 2025 was made without jurisdiction and is void;

(d) A declaration that the funds held in the DBPT bank account (Westpac account in the name of 'Du Bray and Associates Pty Ltd ATF The Du Bray Property Trust') are, and at all material times were, trust property held on the terms of the DBPT trust deed;

(e) A declaration that Bad Wolf Purchasing Pty Ltd (Third Defendant) became trustee of the DBPT upon the automatic removal of Du Bray & Associates Pty Ltd (in liquidation) (Second Defendant) by operation of clause 12 of the trust deed, and that the orders made by McElwaine J on 18 July 2025 in proceeding VID1066/2023 are void and of no effect;

(f) Directions pursuant to section 92 of the Trustees Act 1962 (WA) concerning the administration and recovery of the DBPT trust funds, including directions to the Third Defendant as trustee;

(g) Interest on the trust funds from the date they were removed from the DBPT bank account to the date of payment, at such rate as the Court considers appropriate;

(h) Costs of and incidental to this application, on an indemnity basis, to be paid from the trust fund or by the Defendants as the Court considers appropriate; and

(i) Such further or other orders as the Court considers appropriate.

1. In the Amended Application, Mr Du Bray seeks to change the clause referred to in paragraph (e) to 'clause 18(4)'.

Should the Amended Application be summarily dismissed? Plaintiff's position

1. In the Du Bray Affidavit, Mr Du Bray deposes in terms of the background facts from Bad Wolf FCA which I have set out at [15].[20] He adds that the deed creating the Trust provides that it is to be governed by the laws of Western Australia. [21] He sets out in some detail the reasons why he asserts that the funds the Westpac Trust Account are the funds of the Trust.[22]
2. Mr Du Bray deposes that the proceedings in Bad Wolf FCA 'concerned a narrow question: whether the outgoing trustee in liquidation retained a possessory right over trust funds as against the incoming Trustee'.[23] He says that the proceedings initially progressed on the basis that it was not in issue that the funds in the Westpac account were the funds of the Trust.[24] Then:[25]

On approximately day 2 of the 2-day trial, McElwaine J raised, of his own motion, an 'anterior question' about whether the funds were trust property at all. This question had not been pleaded by any party and was contrary to the Agreed Statement of Facts. Bad Wolf had no notice this issue would be raised and no opportunity to call witnesses or adduce evidence directed to it.

...

The Federal Court record shows that between the first case management hearing on 2 February 2024 and the commencement of the hearing on 10 June 2025, there were 11 case management events before McElwaine J, including case management hearings on 15 March, 21 August, 24 October and 20 December 2024 and 4 February 2025, interlocutory hearings on 9 May 2024 and 15 March 2024, administrative listings on 12 April, 30 May and 21 November 2024, and a conference before Registrar Luxton on 11 October 2024. At any of those events, McElwaine J could have identified the trust property question, directed evidence on it, or permitted the parties to plead to it. He did not do so. The 'anterior question' was raised for the first time on the second and final day of the hearing, after the evidence had closed, giving Bad Wolf no opportunity to call witnesses or adduce evidence directed to it.

1. In submissions, Mr Du Bray develops in some detail the argument that Bad Wolf, along with himself, was denied procedural fairness by the approach taken by McElwaine J.
2. As to the final outcome: [26]

At paragraph [86], McElwaine J stated that 'a final determination must be made as to the status of the funds in the Westpac Trust Account' but made no such final determination. He made no positive finding about whose property the funds are.

At paragraph [90], McElwaine J recorded that the liquidators' counsel withdrew proposed orders fixing the liquidators' remuneration and observed that there are ' live issues' as to what are the assets of the trust, what costs have been incurred in getting in and preserving trust assets, what claims are within the scope of DBA's right of indemnity as former trustee, and what costs relate to the general administration of DBA's non-trust business.

1. Mr Du Bray then makes the point that: [27]

At no point in his judgment did McElwaine J refer to, or apply, the Trustees Act 1962 (WA) - the statute that governs the DBPT, defines its legal framework, and reserves jurisdiction over its administration to the Supreme Court of Western Australia.

1. Mr Du Bray is critical of the conduct of the Liquidators and the lack of work they have done in the four years since the Westpac Account was frozen. He adds that the Liquidators have never sought directions from the Supreme Court of Western Australia pursuant to TA s 92. In submissions, he elaborates on his concerns leading to the assertion that the conduct of the Liquidators amounted to 'equitable fraud'.[28]
2. Mr Du Bray sets out the background to the claims made by QRS, which it is not necessary for me to consider for present purposes.[29] Likewise, it is not necessary for me to consider the detailed submissions made by Mr Du Bray relating to the position of QRS.[30] Though I do note that, somewhat disingenuously, Mr Du Bray submits that QRS is issue estopped by the findings of McElwaine J in Bad Wolf FCA, though the Trust is not. [31] He later addresses the latter argument by stating that:[32]

Res judicata and issue estoppel do not apply where the first court lacked jurisdiction. A void judgment cannot found an estoppel.

1. As to urgency and prejudice, Mr Du Bray deposes: [33]

On or about 28 August 2025, Westpac released the funds from the DBPT bank account to the liquidators pursuant to the orders of McElwaine J. The funds are now in the hands of the liquidators.

To my knowledge, the liquidators have not yet called for proofs of debt. The 'live issues' identified by McElwaine J at paragraph [90] of his judgment remain unresolved.

The liquidators' claimed entitlement to the trust funds remains unquantified and unparticularised.

The DBPT has suffered significant loss as a result of the liquidators' conduct. The trust held properties in Broome, Western Australia. The mortgage over the Broome property went into default as a direct consequence of the liquidators freezing the trust bank account. The properties were sold for a fraction of their value. The trust and its beneficiaries have suffered catastrophic financial loss.

There is a real risk that the liquidators will dissipate the trust funds in satisfaction of their own costs and expenses - costs that have never been quantified and that may not be recoverable from trust property at all, given the terms of the trust deed and the Trustees Act 1962 (WA).

1. As to why the Application was made to this court: [34]

I seek the orders set out in my originating summons filed herein. This Court is the only court with jurisdiction to determine questions concerning the property and administration of the DBPT under the Trustees Act 1962 (WA). The Federal Court had no jurisdiction to make the orders it made concerning the DBPT, and its determination that the funds were 'not established' to be trust property was made without jurisdiction, contrary to the Agreed Statement of Facts, and in denial of natural justice.

1. Mr Du Bray reiterates this point in the First Du Bray Submissions, asserting that the Supreme Court of Western Australia is the only court with the jurisdiction to determine whether the funds in the Westpac Account are trust property. It has exclusive jurisdiction over Western Australian trust matters. The Federal Court, he says, purported to determine it without jurisdiction, without proper process, and contrary to the agreed facts. The Supreme Court should now make the determination the Federal Court had no power to make.
2. More specifically, Mr Du Bray asserts that TA s 6 confers exclusive jurisdiction on the Supreme Court of Western Australia to determine issues relating to a trust governed by the laws of Western Australia. He argues that the trust deed itself reinforces this Court's jurisdiction. Clause 13 of the trust deed provides that the trustee may apply to 'the Court' for directions, and clause 30 confirms that WA law governs. Read together, the trust deed contemplates that 'the Court' for the purposes of trust administration is the Supreme Court of Western Australia. He makes a detailed argument that, even absent the express choice of law in clause 30, applying common law, the proper law of the Trust would be Western Australia.
3. On the other hand, he says, the Federal Court of Australia is a court of limited, statutory jurisdiction. It has no inherent jurisdiction and no original jurisdiction over trusts. There is no 'trusts power' in section 51 of the Constitution. There was no federal matter involved in the determination of the issues in dispute. The powers in IPSC s 90‑15(1) do not extend to empowering the court to determining whether the funds in the account were the property of the Trust, saying that the property of the Trust was never the property of the estate of DBA. Mr Du Bray is critical of McElwaine J for not undertaking the exercise of identifying whether or not the Federal Court had jurisdiction.
4. Mr Du Bray goes in the considerable detail to elaborate on his arguments. Beyond the matters I have summarised, I do need to address each specific submission made in order to determine the issues presently before the court. He concludes that, for the reasons set out in the submissions, the Federal Court had no jurisdiction to determine questions concerning the property of the Trust. The Federal Court's finding that the funds were 'not established' to be property of the Trust was, he says:[35]

(a) made without jurisdiction;

(b) made in a court that McElwaine J's own findings confirmed had no jurisdiction;

(c) not binding on the Supreme Court; and

(d) void or liable to be set aside.

1. As to what the Court should decide, he says that the evidence establishing that the funds held in the Westpac Account are the funds of the Trust is 'straightforward'.[36] He proceeds to go through this evidence in some detail. He then goes through the reasons why the decision of McElwaine J that the funds were not the property of the Trust was wrong. He says that the cumulative effect of the errors made by McElwaine J is that the threshold for jurisdictional error has been met. This occurs where 'a judge so fundamentally misunderstands the nature of the application before the court that 'in effect the application is not considered',[37] citing CZA19 v Federal Circuit Court of Australia.[38]
2. As to why an appeal would not have been the appropriate option, Mr Du Bray submits: [39]

(a) This application is not an appeal from the Federal Court. It is a fresh application to the only court with jurisdiction under the Trustees Act 1962 (WA). The two proceedings address different matters: the Federal Court proceeding concerned the Corporations Act; this application concerns WA trust law;

(b) An appeal within the Federal Court system cannot confer jurisdiction the Federal Court does not have. The Federal Court cannot acquire jurisdiction over WA trust matters by appellate process;

(c) This Court's jurisdiction under sections 92 and 93 exists independently of any Federal Court proceeding. Bad Wolf's statutory right to seek directions from this Court is not extinguished by a Federal Court judgment made without jurisdiction.

1. The primary position of RSM and DBA is that the Application should be summarily dismissed pursuant to either Rules of the Supreme Court 1971 (WA) (RSC) O 16 r 1 or the inherent jurisdiction of the court.
2. Counsel for RSM and DBA, in effect, submit that it is vexatious for Mr Du Bray to seek an order in the Supreme Court of Western Australia declaring the orders made in Bad Wolf FCA void. The Federal Court of Australia is a superior court of record.[40] Accordingly, its judgments and orders are not void, even if the Court was acting without jurisdiction, as Mr Du Bray contends. It can authoritatively determine its own jurisdiction.[41] Its orders are valid and binding until set aside on appeal or by judicial review by the High Court pursuant to Constitution s 75(v). Accordingly, the Supreme Court of Western Australia cannot determine these matters afresh. To challenge the decision of the Federal Court, Bad Wolf must appeal the decision to the Full Court or by special leave or Constitutional writ proceeding to the High Court of Australia.
3. Counsel for QRS took the same position, referring to following observations by Gaudron J in Macks:[42]

In establishing the Federal Court as a 'superior court of record', the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties' right to appeal or to seek relief pursuant to s 75(v) of the Constitution. And, if the Federal Court determines that it has jurisdiction, it is obliged, subject only to limited and well recognised exceptions, to exercise that jurisdiction to determine the rights and liabilities in issue. That is the nature of judicial power. The practical consequence of those two considerations is that, by operation of s 109 of the Constitution, orders of the Federal Court, even if made without jurisdiction, are final and binding unless set aside on appeal or pursuant to s 75(v) of the Constitution.

1. Counsel for RSM and DBA also submits that Mr Du Bray is also wrong to contend that the Federal Court lacked jurisdiction to make the orders it did. Those orders were sought pursuant to IPSC s 90‑15, which by s 90‑15(1) authorised the Federal Court to 'make such orders as it thinks fit in relation to the external administration of a company', and by subsection (3)(a) to make 'an order determining any question arising in the external administration of the company', which would include deciding questions relating to the trust in respect of which the company in liquidation was a former trustee.
2. Counsel for RSM and DBA also submits Mr Du Bray wrongly asserts that the Supreme Court of Western Australia has exclusive jurisdiction in respect of trust matters, by reason of the definition of 'Court' in TA s 6, and a construction of the legislation that is said evinces a legislative intention that no other Court should have jurisdiction over Western Australian trust property.
3. Rather:[43]

Both of these contentions are incorrect. The High Court considered the corresponding judicial advice provision of the NSW Trustee Act 1925 (NSW), finding that the statutory jurisdiction for private advice, which is an exception to the courts' ordinary function of deciding disputes between litigants: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar [2008] HCA 42; (2008) 237 CLR 66 at 91 [64]. As Kiefel J noted at 127 [195], proceedings under s 63 'do not involve the determination of a controversy, but rather than giving or advice or direction'. Hence the adversarial determination of controversies are intended for the ordinary jurisdiction of courts of competent jurisdiction, whether the Supreme Court of Western Australia, exercising jurisdiction in equity over trusts and trustees, or the Federal Court of Australia, exercising jurisdiction to determine matters arising in a winding up...

As for the prescription of Court, the powers expressly exercisable by the Supreme Court of Western Australia, may be exercised by the Federal Court pursuant to s 79 of the Judiciary Act 1903 (Cth), which picks up and applies the Trustees Act 1962 (WA) as a federal law: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1; Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88.

Applying the High Court decision in Edensor, the Full Court held in Coshott v Prentice that s 79 of the Judiciary Act entitled the Federal Court of Australia to exercise the power vested in the Supreme Court to appoint trustees for sale pursuant to 66G of the Conveyancing Act 1919 (NSW). The Full Court at 475 [111] referred to McHugh J in Edensor at 612 [137] that: The fact that a State statute either expressly or as a matter of construction provides only for State courts to enforce its provisions does not mean that it cannot be 'picked up' and applied by s 79 of the Judiciary Act in the exercise of federal jurisdiction.

More recently, Stellios J in Barnden (Trustee), in the matter of Ross (Bankrupt) v Macedo (No 3) [2026] FCA 21 held that the Federal Court could exercise the power under s 74K of the Real Property Act 1900 (NSW) to extend a caveat, notwithstanding that the legislation vested that power in the Supreme Court of New South Wales.

Finally, even if the Trustees Act 1962 (WA) were construed in the manner contended by the plaintiff, that could not prevent the proper exercise of federal jurisdiction by the Federal Court of Australia, exercised under Commonwealth legislation by the operation of s 109 of the Constitution.

For these reasons, the plaintiff's submission that the Supreme Court of Western Australia has exclusive jurisdiction over controversies regarding trusts in Western Australia must be rejected.

1. In the alternative, the position of RSM and DBA is that the Application should be transferred to the Federal Court pursuant to CVA s 5(1).
2. Counsel for QRS also submits that the decision in Bad Wolf FCA finally determined that the balance of the funds in the Westpac Trust Account was not the property of the Trust. In this regard, counsel referred to the following observations of French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing Pty Limited:[44]

An exercise of judicial power, it has been held, involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense.

1. Counsel adds that, by operation of orders 3(b) and 3(d), even if McElwaine J was satisfied that the funds in the Westpac Account were the property of the Trust, those funds would nonetheless be in the control of the liquidators.

1. In the Third Du Bray Submissions, Mr Du Bray accepts the proposition from the decision in Macks that Federal Court orders are valid and binding until set aside on appeal or by constitutional writ. However, he contends that it is irrelevant. This is because he does not seek to set aside, vary or appeal the orders made by McElwaine J. The 'Federal Court orders can remain in place and this Court can still exercise its own jurisdiction'.[45]
2. Mr Du Bray then asserts that he was not a party to the Federal Court proceedings, and did not choose that forum. His right to seek directions pursuant to TA s 92 to 94 has not been extinguished. It is misconceived to say that his remedy was to exercise the liberty to apply in the orders made. Moreover, the expiry of that right did not extinguish his statutory right under State legislation.[46]

1. A defendant may apply to the court pursuant to RSC O 16 r 1(1) to summarily dismiss an action within 21 days after it enters an appearance, which the Defendants have done. The court has the power to summarily dismiss the action if it is satisfied 'that the action is frivolous or vexatious [or] that the defendant has a good defence on the merits'. Unlike an application by a plaintiff pursuant RSC O 14 r 1(2), the power in RSC O 16 is not limited to actions commenced by writ.[47] So it may be used in the present case where the Application was commenced by originating summons.
2. Pursuant to RSC O 16 r 1(2), the Defendants' application ought to have been made by summons as opposed to orally after reference to it in submissions. Their application was, however, supported by affidavits verifying the facts on which it was made as required by O 16 r 1(2). Mr Du Bray did not take the point that the First Zhu affidavit was not served less than 7 days prior to the first hearing of the application as required by O 16 r 1(4). This was in the context of Mr Du Bray having sought an expedited hearing of the Application. Given these compliance issues, it is preferable that I determine the issue of summary judgment on the inherent jurisdiction of the court. The procedural limitations in RS O 16 r 1 do not apply where the application is made in the court's inherent jurisdiction.[48]
3. It is well established that the court has an inherent jurisdiction to protect its process from abuse by summarily disposing of an action which is frivolous, vexatious or so obviously untenable that it cannot possibly succeed.[49] The onus is on the applicant to satisfy the court that summary judgment is appropriate.[50] The onus of satisfying the court that there is an abuse of process is a heavy one.[51] An action is frivolous or vexatious if it is obviously unsustainable and an abuse of the processes of the court.[52]
4. I start with the declarations sought in paragraphs (c) and (e) to declare the decision in Bad Wolf FCA void. The fact that Mr Du Bray requests this court to declare that the decision in Bad Wolf FCA void is at odds with his submission in the Third Du Bray Submissions that he 'does not seek to set aside, vary, or appeal' the orders of McElwaine J.[53] Likewise his submission that the cumulative effect of the breaches made by McElwaine J 'meets the threshold for jurisdictional error'[54] is at odds with his submissions in the Third Du Bray Submissions that the Application is neither an appeal nor a constitutional writ application.[55]
5. I accept the position set out by the Defendants at [45] and [46] that:

(a) the Federal Court of Australia is a superior court of record (as well as being 'a court of law and equity');[56]

(b) it can authoritatively determine its own jurisdiction;[57] and

(c) its decisions, even if made without jurisdiction, are binding unless set aside on appeal or pursuant to Constitution s 75(v).

1. There is no suggestion that an appeal lies from the decision in Bad Wolf FCA to the General Division of the Supreme Court of Western Australia. The Federal Court of Australia is not an inferior court over which the Supreme Court of Western Australia exercises supervisory jurisdiction.[58] It follows that Supreme Court of Western Australia does not have jurisdiction to make the orders sought in paragraphs (c) and (e). The attempt to argue to the contrary is obviously unsustainable and an abuse of the processes of this court, and is thus both frivolous and vexatious. This part of the Application must be dismissed.
2. The court has power, whether inherent or under RSC 0 16, to summarily dismiss only part of a claim.[59] So, the remaining paragraphs of the Application need to be considered on the basis that only paragraphs (c) and (e) are dismissed. However, the effect of the dismissal of paragraphs (c) and (e) is that the decision in Bad Wolf FCA remains a binding and enforceable decision.
3. I accept the position of the Defendants that the Supreme Court of Western Australia does not have exclusive jurisdiction in relation to applications pursuant to TA s 92, s 93 and s 94 (see [49]). There is nothing in the nature of the TA that would make it inapplicable to proceedings in the federal jurisdiction.[60] Rather the TA, to the extent it applies, was and is binding on the Federal Court pursuant to Judiciary Act 1903 (Cth) s 79(1).[61] In Edensor Gleeson CJ, Gaudron and Gummow JJ stated:[62]

It is well established from the decisions under s 79 of the Judiciary Act ... that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies.

In similar terms, McHugh J endorsed the following statement of the Supreme Court of the United States in Railway Co v Whitton's Administrator as being 'a sound guide to the effect of s 79 of the Judiciary Act':[63]

Whenever a general rule as to property or personal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to State limitation.

1. More specifically, to the extent that the TA was applicable to the circumstances in Bad Wolf FCA , McElwaine J was bound to apply it. If Mr Du Bray asserts that McElwaine J did not properly apply the TA, he may only raise this issue on appeal or pursuant to Constitution s 75(v).
2. The balance of the Application centres on the relief sought in paragraph (d), being a declaration that the funds held in what I have described as the Westpac Trust Account were held on the terms of the Trust deed.
3. I accept that Bad Wolf FCA finally determined that the balance of the funds in the Westpac Trust Account was not the property of the Trust. What the court left open was a final determination as to the status of the balance of the funds in the Westpac Trust Account. In other words, the court left open the issue of who, other than the Trust, was entitled to these funds. So, with one caveat, I accept the point made by Mr Du Bray that McElwaine J 'made no positive finding about whose property the funds are' (see [33]). The caveat is that there was a positive finding that the funds were not those of the Trust.
4. What will constitute an abuse of process is incapable of being described exhaustively.[64] One category of conduct which has attracted the intervention of the courts on the ground of abuse of process is where there are successive proceedings which cause or are likely to cause improper vexation or oppression.[65] In Sheraz,[66] Buss JA quoted with approval the following observation of Lord Halsbury LC in Reichel v Magrath:[67]

I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure.

In Walton, Mason CJ, Deane and Dawson JJ said the powers of a court in relation to proceedings that are an abuse of process extend to 'all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness' (393). An example given by their Honours of such an abuse of process is where an estoppel cannot be established, but the proceedings in question are unjustifiably oppressive in that it is sought to re-litigate an issue which has already been disposed of by earlier proceedings.

It is well-established by a long line of authority, including Reichel and Walton, that the principles of abuse of process are not confined by the doctrines of res judicata, issue estoppel and Anshun estoppel. A court may invoke those principles to prevent attempts to litigate an issue which should have been litigated in earlier proceedings, as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings...

Both Reichel and Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 concerned a plaintiff who sought to make a claim in later proceedings based wholly or substantially on the facts of an unsuccessful claim made by the plaintiff in earlier proceedings. The only material difference was that the later proceedings were brought against a different defendant. The later proceedings were dismissed as an abuse of process.

1. The facts of Sheraz are instructive for present purposes. As recorded by Murphy JA:[69]

The appellant company (Sheraz) was at all material times the trustee of a discretionary family trust. Mr Clifford, a barrister, at all material times controlled Sheraz. He was also a beneficiary under the terms of the discretionary family trust.

In 2006, Mr Clifford caused Sheraz to acquire shares in the respondent, a surf wear company (Vegas). By about July 2006, Vegas had acquired the controlling interest in the company which, in effect, owned the 'Rusty' surf wear brand.

Mr Clifford was, and had been for some time, an advisor to Vegas. Mr Clifford thought (as found by the primary judge in the Federal Court proceedings referred to below) that Vegas' 'star was on the rise' in the surf wear business... The investment was a substantial one. The investment, according to Mr Clifford, proved not to be advantageous.

In 2009, Mr Clifford commenced proceedings in the Federal Court of Australia, in his own name, alleging that the investment was brought about by the misleading or deceptive conduct of Vegas. He alleged that the shares in Vegas which had been acquired by Sheraz were beneficially owned by him under a bare trust and that he had personally suffered the loss occasioned by the investment. The trial went for nine days. Mr Clifford's action was dismissed. Mr Clifford appealed. He lost the appeal.

After this, Mr Clifford caused Sheraz to commence proceedings in the Supreme Court of Western Australia against Vegas in relation to the same investment. This time, it was alleged that Sheraz, as trustee of the discretionary trust, was the entity that suffered the loss. The loss was again said to be caused by the misleading or deceptive conduct of Vegas.

On the application of Vegas, the learned master found that the principles precluding relitigation applied to Sheraz's action in the Supreme Court and he entered summary judgment in favour of Vegas. Sheraz appeals the learned master's decision.

1. The Court of Appeal dismissed the appeal.
2. Murphy JA observed:[70]

In all the circumstances, the continuation of the Supreme Court action would plainly have been seriously and unfairly burdensome or unjustifiably oppressive to Vegas. Sheraz was the alter ego of Mr Clifford, and Mr Clifford at all material times controlled Sheraz. Sheraz's claim could and should have been litigated in the Federal Court in connection with, in the sense of at least immediately following, Mr Clifford's claims with appropriate orders concerning the commonality of evidence. The result would have been that all of the claims of Sheraz and Mr Clifford would have been heard and determined effectively at the one time and with minimal additional time, cost and expense. The additional time, cost and expense would have been insignificant compared with the time, cost and expense involved with the pursuit of the Supreme Court action.

1. The decision in Sheraz is apposite to the present case, though the facts of the present case are stronger. The issue sought to be litigated in the Application is exactly the same one as litigated in Bad Wolf: are the funds in what I have described as the Westpac Trust Account held on the terms of the Trust deed (being the words used in the Application) or the property of the Trust (being the words used in Bad Wolf FCA [7]). The substance is the same.
2. There is ample basis to determine the dismissal application without recourse to questions of res judicata, issue estoppel and the like.[71] To use the words of Murphy JA in Sheraz, in all the circumstances of the present case, the continuation of the Supreme Court action will be seriously and unfairly burdensome or unjustifiably oppressive to the Defendants.[72] The balance of the Application seeks to abuse the processes of the court by relitigating what was decided in Bad Wolf FCA and is appropriately characterised as vexatious.
3. The arguments now raised by Mr Du Bray could, and should, have been raised in Bad Wolf FCA.[73] Mr Du Bray could have given evidence at the trial of Bad Wolf FCA. In his affidavit material filed in the Application, he did not set out any reason why he did not nor any reason why he could not have done so. He does raise the argument that he was denied procedural fairness in the sense of an opportunity to adduce evidence and make submissions in relation to the primary dispute identified by McElwaine J. If Mr Du Bray was genuinely concerned that he was not afforded procedural fairness, he could have placed the same evidence and submissions as was before me, before McElwaine J pursuant to the liberty to apply. If he was not then satisfied with the outcome, he could have appealed the decision. A denial of procedural fairness is a well-established ground of appeal. I do not accept his arguments at [44] as to why an appeal would not have been appropriate. As mentioned, the submissions filed by Mr Du Bray are sophisticated. They are in substance the submissions one would expect to be filed in an appeal from the decision in Bad Wolf FCA and/or a jurisdictional error challenge pursuant to Constitution s 75(v).
4. What Mr Du Bray cannot do is seek to collaterally challenge the decision in Bad Wolf FCA in the Supreme Court of Western Australia. His attempt to do so in the Application is an abuse of the processes of this court.
5. There are two further factors which reinforce this conclusion. The first is that the position now taken by Mr Du Bray is at odds with the position taken by Bad Wolf in Bad Wolf FCA. It was Bad Wolf who commenced the proceedings in the Federal Court claiming an order vesting in it the funds in the Westpac Trust Account.[74] It did so at the direction of Mr Du Bray (see [23]). Mr Du Bray must necessarily have accepted that the Federal Court had the jurisdiction to make the order sought by Bad Wolf.
6. The second is that the position now taken by Mr Du Bray that the funds in the Westpac Trust Account are those of the Trust is at odds with the position he took in August 2025 as a director of DBANZ. As set out at [25] and [26], DBANZ on his instructions, invoked the liberty to apply to assert that the funds in the Westpac Trust Account were its funds and not those of the Trust.
7. Even exercising the caution I am required to,[75] the Application must be summarily dismissed in its entirety.

1. There should be an order that the fourth defendant be referred to by the initials 'QRS' (see [5]).
2. The application must be dismissed.
3. I am of the preliminary view that costs should follow the event, and that Mr Du Bray should be required to pay the costs of RSM, DBA and QRS to be taxed if not agreed. If any party seeks a different order, they are to file and serve a minute of the orders they seek by 10 April 2026. If a minute is filed, I will convene a hearing by video link at which all parties who wish to be heard may make submissions. If no minute is filed, I will proceed to make orders that:
   1. The fourth defendant be referred to by the initials 'QRS'.
   2. The application be and is hereby dismissed.
   3. The plaintiff pay the costs of the first, second and fourth defendants to be taxed if not agreed.
   4. There be no order as to costs as regards the third defendant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Rules of the Supreme Court 1971 (WA) O 12 r 1(2) relevantly provides that a 'defendant to ... an action which is a body corporate may not enter an appearance or defend it otherwise than by a legal practitioner'.

[2]Bad Wolf Purchasing Pty Ltd (as trustee for the Du Bray Property Trust) v Du Bray and Associates Pty Ltd [2025] FCA 814 [9] (McElwaine J) (Bad Wolf FCA).

[3] Third Du Bray Submissions [4] - [10].

[4] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).

[5] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).

[6] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).

[7] Neil v Nott [1994] HCA 23 [5]; [1994] HCA 23; (1994) 68 ALJR 509, 510; [1994] HCA 23; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].

[10] Bad Wolf FAC [5], citing Jones v Matrix Partners Pty Ltd; re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 [33] (Allsop CJ).

[17] First Zhu Affidavit [6], [7], pages 53 to 60; Second Vincent Affidavit.

[18] Second Zhu Affidavit, pages 6, 11.

[20] Du Bray Affidavit [4] - [13A].

[22] Du Bray Affidavit [14] - [21F].

[24] Du Bray Affidavit [21] - [22F].

[25] Du Bray Affidavit [23], [23B].

[26] Du Bray Affidavit [29] - [30].

[28] First Du Bray Submissions [85F].

[29] Du Bray Affidavit [38] - [49].

[30] First Du Bray Submissions [70] - [70E].

[31] First Du Bray Submissions [70A].

[33] Du Bray Affidavit [53] - [56].

[35] See also: Third Du Bray Submissions [18] - [24], [35] - [41].

[37] First Du Bray Submissions [54J].

[38] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57 [1] (judgment of the court).

[40] Federal Court of Australia Act 1976 (Cth) s 5(2).

[41] Referring to Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at 183 - 185, [47] - [53] (Gaudron J) (Macks).

[43] Second Liquidator Submissions [11] - [16].

[44] Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 [20] (French CJ, Bell, Gageler and Keane JJ).

[45] Third Du Bray Submissions [14] - [16].

[47] Roche v Douglas [2000] WASC 22 [1] (Sanderson M).

[48] Westpac Banking Corporation v Anderson [2017] WASC 106 [37] (Pritchard J).

[49] Burton v The Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92 (O'Connor J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93; [2015] WASCA 4 [4] (Buss JA) (Sheraz); Helmers v Como [2014] WASC 394 [43] (Acting Master Gething).

[50] Gerovich v Gerovich [2018] WASC 153 [29] (Pritchard J); BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248 [14] (Smith J).

[51] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ); GSA v Chief Executive Officer, Department of Communities [No 3] [2026] WASCA 47 [5] (judgment of the court); Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [26] (Vaughan J) (Gates).

[52] MJL v Chief Executive Officer of the Dept for Child Protection [2010] WASCA 69 [13], [29] (Murphy J, Newnes JA agreeing); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [11] (judgment of the court); Saffari v Western Australia Police [2022] WASC 200 [158] (Acting Master Strk); Gates [30] - [31] (Vaughan J).

[54] First Du Bray Submissions [54J].

[57] Residual Assco Group Ltd v Spalvins [2000] HC 33; [2000] HCA 33; (2000) 202 CLR 629, 638 [8] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Macks [22] (Gleeson CJ), [47] - [53] (Gaudron J), [135] (McHugh J), [214] (Gummow J), [256] (Kirby J), [335] (Hayne and Callinan).

[58] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 118 [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[59] Cardaci v Filippo Primo Cardaci as Executor and trustee of Marco Antonio Cardaci [2018] WASC 100 [44] (Le Miere J).

[60] See generally: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 [137], [141] (McHugh J), and [138] and [139] for examples of legislation that is inapplicable (Edensor).

[61] Edensor [68] (Gleeson CJ, Gummow and Gaudron JJ); [137] - [141] (McHugh J).

[63] Edensor [141], referring to Railway Co v Whitton's Administrator (1871) 13 Wallace 270 at 286 [1871] USSC 105; [80 US 270 at 286].

[64] Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [9] - [15] (Gleeson CJ, Gummow, Hayne & Crennan JJ); PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 [3] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Sheraz [5] (Buss JA).

[67] Reichel v Magrath (1889) 14 App Cas 665, 668 (Lord Halsbury). See also 668 (Lord Watson).

[68] Sheraz [10] - [11], referring to Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ). Other references omitted.

[71] As to which, see generally: Sheraz [87] - [154].

[72] Sheraz [151]; GSA [5]; Gates [26].

[75] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ); GSA [5]; Pisano v South Metropolitan Health Service [2023] WASCA 80 [52] (judgment of the court); Gates [26].