LEE -v- BRANDIS [2025] WASCA 125 (22 August 2025)

1. It is appropriate to outline the considerable history of the litigation that Mr Lee has pursued in the Supreme Court of Western Australia. Much of that litigation, but not all, has involved one or other of the respondents. At the outset, however, it should be recognised that Mr Lee became a bankrupt on a debtor's petition on 3 November 2022. Mr Lee's status as a bankrupt has affected his standing to continue much of the ligation he wishes to continue to pursue. It should also be mentioned that, since 21 November 2023, Kingsfield has been the subject of winding up orders made by the Federal Court of Australia.
2. Mr Lee, often with Kingsfield as a co-plaintiff, has pursued litigation arising out of commercial activities conducted on Rottnest Island and more recently arising out of that earlier litigation or steps Mr Lee has taken with a view to pursuing further litigation. The litigation includes:[2]
   1. Actions CIV 1106 of 2013 and CIV 1147 of 2013 against an Ivan Rutherford - these were defamation proceedings claiming that Mr Rutherford defamed Mr Lee and Kingsfield in relation to a statement about Quokka Joe's Café (a business run by Kingsfield on Rottnest Island). See Kingsfield Holdings Pty Ltd v Rutherford.[3]
   2. Action CIV 2660 of 2015 against the first, third, fourth and fifth respondents - this proceeding, which is the proceeding in which the orders the subject of the present appeals were made, is described more fully below (see [14] - [31] below).
   3. Appeal GDA 7 of 2019 against the Department of Health - this concerned refusal of access to documents under the Freedom of Information Act 1992 (WA). See Lee v Department of Health.[4]
   4. Appeal GDA 11 of 2019 against the Department of Justice - this concerned refusal of access to documents under the Freedom of Information Act. See Lee v Department of Justice.[5]
   5. Action CIV 2270 of 2020 against, among others, Sullivan Commercial Pty Ltd, Mr Rutherford, the RIA, the third respondent in the present appeals and the Department of Health. Mr Lee and Kingsfield alleged that they were misled into commencing and maintaining earlier defamation actions by the fraudulent conduct of the defendants who, acting in pursuit of a common design, caused them to suffer loss and damage by becoming liable for costs. Mr Lee and Kingsfield sought damages for fraud and conspiracy and orders setting aside the judgments entered against them. See Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd.
   6. Appeal GDA 4 of 2020 against the Department of Justice - this concerned refusal of access to documents under the Freedom of Information Act. See Lee v Department of Justice.[6]
   7. Appeal CACV 50 of 2020 against the Department of Justice - this was a further appeal to this court from the final orders made in appeal GDA 11 of 2019 (see [9](4) above). See Lee v Department of Justice.[7]
   8. Action CIV 2167 of 2021 - this is a negligence action by Mr Lee and Kingsfield against their former solicitors in the defamation proceedings against Mr Rutherford. See Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd;[8] Lee v Lawfirst Pty Ltd;[9] Lee v Lawfirst Pty Ltd [No 2].[10]
   9. Action CIV 2011 of 2022 against the State of Western Australia ‑ this was an action seeking pre-action discovery. The action arose out of an access application by Mr Lee seeking access to documents under the Freedom of Information Act. Mr Lee claimed that the Department of Justice, on behalf of the State, had wrongly failed to produce documents in answer to his access application. The cause of action which Mr Lee said he may have, and which Mr Lee wished to assess by obtaining documents for pre-action discovery, was grounded in an alleged breach of statutory duty. Mr Lee identified potential losses to be claimed in the form of legal costs (including adverse costs orders) incurred by Mr Lee in other proceedings. See Lee v SoWA - 1st Stay Appeal.[11]
   10. Appeal GDA 7 of 2022 against the Pharmacy Board of Australia - this was an appeal from costs orders made in the State Administrative Tribunal. See Lee v SOWA [No 2] (Stay Decision).[12]
   11. Appeal GDA 10 of 2022 against the Department of Health - this was another appeal against a decision of the Information Commissioner. See Lee v SOWA [No 2] (Stay Decision) [69] ‑ [73].
   12. Appeal CACV 66 of 2022 - this was an appeal to this court by Mr Lee from orders of the State Administrative Tribunal dismissing an application for review of the dismissal of his professional disciplinary complaints pursuant to the Legal Profession Act 2008 (WA) against his former solicitors in the defamation proceedings against Mr Rutherford. See Lee v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee.[13]
   13. Appeal CACV 56 of 2023 - this was an appeal to this court by Mr Lee from orders made by the primary judge on 24 May 2023 in action CIV 2011 of 2022. The appeal was dismissed on 16 June 2023. See Lee v The State of Western Australia.[14]
   14. Appeals CACV 87 of 2023 and CACV 88 of 2023 - these were appeals to this court by Mr Lee from orders made on 5 July 2023 by the primary judge in action CIV 2660 of 2015 and action CIV 2011 of 2022. These appeals are discussed in more detail below (see [23]). See generally Lee v SoWA - 1st Stay Appeal.
   15. Appeals CACV 54 of 2024, CACV 55 of 2024 and CACV 57 of 2024 - these were also appeals to this court by Mr Lee from various orders made in action CIV 2660 of 2015 and action CIV 2011 of 2022. Again, these appeals are discussed in more detail below (see [24]). See generally Lee v Brandis - 2nd Stay Appeal.[15]
   16. Action CIV 1839 of 2024 against the State of Western Australia and another person - this is an action seeking pre-action discovery. As at the date of the hearing before this court, Master Russell had heard and is to deliver in due course a reserved judgment on the question of Mr Lee's standing to bring the application. See Lee v Chang.[16]
   17. Appeal CACV 13 of 2025 - this was an appeal to this court by Mr Lee from an order made on 19 February 2025 refusing leave to issue a subpoena in action CIV 1839 of 2024. The appeal was dismissed on 11 April 2025. See Lee v Chang.
   18. Appeals CACV 35 of 2025 and CACV 36 of 2025 - the present appeals as commenced by Mr Lee on 8 May 2025.
3. A complete recounting of the outcome or present status of Mr Lee's plethora of litigation would occupy a disproportionate amount of any reader's time. The following suffices. The defamation proceedings against Mr Rutherford were tried before Kenneth Martin J over three days in November 2015. The actions failed. So too did the subsequent proceedings in action CIV 2270 of 2020 alleging that Mr Lee and Kingsfield were misled into commencing and maintaining the defamation actions by fraudulent conduct. Allanson J granted the relevant defendants summary judgment for reasons that were delivered on 25 August 2021. The 2019 and 2020 General Division appeals against the Freedom of Information Act access refusals failed. The further appeal to this court in respect of the access request refusal the subject of appeal GDA 11 of 2019 was also dismissed.
4. Thereafter Mr Lee's litigation has been affected by his status as a bankrupt.
5. Mr Lee's claim against his former solicitors in the defamation proceedings against Mr Rutherford has not been finally determined. On 11 May 2022 Master Sanderson struck out various paragraphs of an amended statement of claim. There was an appeal by Mr Lee and Kingsfield (appeal CACV 54 of 2022). Before the appeal was heard Kingsfield filed a notice discontinuing its appeal. This court refused leave to appeal in respect of much of Mr Lee's appeal on the ground that the relevant claims were deemed abandoned pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth). However, leave to appeal was granted, and the appeal was allowed, so far as the master struck out pleas directed to a head of damage for personal injury to credit and reputation. That claim remains to be tried.
6. Following Mr Lee's bankruptcy, some of the other litigation has also been brought to an end as a result of court rulings to the effect that there was a deemed abandonment pursuant to s 60(3) of the Bankruptcy Act. That, in substance, was the basis of the dismissals in action CIV 2011 of 2022, appeal GDA 7 of 2022, appeal GDA 10 of 2022 and appeal CACV 66 of 2022. See Lee v SOWA [No 2] (Stay Decision) [82]; Lee v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [6], [37].
7. The present appeals are concerned with action CIV 2660 of 2015. We will refer to this action as the 'primary proceedings'. We summarised the claims in the primary proceedings in our reasons in Lee v SoWA - 1st Stay Appeal [46] - [48]. For ease of reference it is convenient to substantially reproduce what we stated on that occasion.
8. The nature of the primary proceedings appears from a re-amended statement of claim dated 6 May 2020 (SOC). Mr Lee claims damages for causes of action alleging misleading conduct and misfeasance in public office. There are, in substance, two matters complained of:
   1. A letter which recommended that the Geordie Bay General Store at Rottnest Island retain a licence which enabled it to continue to sell certain pharmaceutical products in competition with a pharmacy business carried on by Mr Lee at Rottnest Island.
   2. The swearing of affidavits in proceedings in the State Administrative Tribunal concerning a rent review clause in a lease agreement. The lease agreement was between the RIA and Kingsfield.
9. There are detailed pleas as to the loss and damage Mr Lee claims to have suffered. Mr Lee alleges that, in relation to the letter, a decision not to cancel the Geordie Bay General Store licence was made on the basis of or was influenced by the letter (SOC par 97(a)). Mr Lee contends for a counterfactual whereby but for the letter:

[Mr Lee] would have been able to increase sales of Schedule 2 Products from 1 April 2010, and would have derived additional profits during the period from 1 April 2010 to 31 December 2011. (SOC par 97(d)(i))

1. As to the affidavits, Mr Lee refers to Kingsfield making rent review payments in an additional amount of approximately $15,000 (SOC pars 98 - 99). Self-evidently that is damage allegedly suffered by Kingsfield rather than Mr Lee. Accordingly, so far as Mr Lee is concerned, the relevant aspect of the claim in the primary proceedings is the alleged damage for additional profit that Mr Lee says he would have derived between April 2010 and December 2011. Mr Lee also seeks exemplary damages (SOC par 101).
2. After Mr Lee's bankruptcy, the primary judge considered whether Mr Lee ought to be granted leave to proceed with the primary proceedings pursuant to s 60(4)(a) of the Bankruptcy Act. Relevantly, Mr Lee contended that: (1) the proceedings were not stayed by operation of s 60(2) of the Act; and (2) he could continue to prosecute the proceedings pursuant to s 60(4) of the Act.
3. In previous reasons concerning Mr Lee we have explained why, conceptually, any purported grant of leave to proceed pursuant to s 60(4) of the Bankruptcy Act involves a misapprehension of s 60(4). Section 60(4) does not empower or require an order of the court granting leave to proceed. Nor, conversely, is it necessary for a bankrupt to make an application for leave to proceed pursuant to s 60(4). Rather, if the statutory criterion under s 60(4) is met, a bankrupt may continue a pending proceeding in his or her own name. However, for practical purposes, the apparent misapprehension as to the operation of s 60(4) was irrelevant. The primary judge recognised, correctly, that s 60(4) preserves the right of a bankrupt to continue with an action in respect of the rights specified in s 116(2)(g) of the Bankruptcy Act - relevantly any right to recover damages or compensation for personal injury or wrong done to the bankrupt. Also, in determining whether the criterion under s 60(4) was satisfied the primary judge correctly identified the principles in relation to s 60 of the Bankruptcy Act. See Lee v SoWA - 1st Stay Appeal [9], [13] (see also [15] - [20]).
4. Mr Lee sought to adjourn the hearing before the primary judge to consider the issues under s 60 of the Bankruptcy Act. The primary judge refused that application and decided to determine the issue on the papers. See Lee v The State of Western Australia;[17] Lee v SOWA [No 2] (Stay Decision) [2]. Separately, Mr Lee brought an appeal and applied to stay the determination of the Bankruptcy Act point in the context of action CIV 2011 of 2022. That would have had the practical consequence of staying the determination of the point in the primary proceedings since the question was being considered and determined by the primary judge in a number of actions including action CIV 2011 of 2022 and the primary proceedings. In any event this court refused the application for a stay and dismissed the appeal (see [9](13) above).
5. On 5 July 2023 the primary judge published reasons in Lee v SOWA [No 2] (Stay Decision). Among other things, the primary judge found that Mr Lee's trustee in bankruptcy was deemed, pursuant to s 60(3) of the Bankruptcy Act, to have abandoned the primary proceedings [39](b). More importantly, his Honour determined that Mr Lee was not able to proceed with the primary proceedings pursuant to s 60(4) of the Bankruptcy Act because it was not an action in respect of any personal injury or wrong done to Mr Lee [6], [49] - [54], [76], [82]. For present purposes it is relevant to observe that, while the primary judge made orders dismissing other proceedings brought by Mr Lee, his Honour made a different order in relation to the primary proceedings. The primary judge made orders that [82]:
   1. The action will be listed for further directions to hear submissions from the parties as to whether [the] action should be dismissed.
   2. Other than the directions hearing contemplated by order 3, the action will otherwise remain stayed by operation of s 60(2) of the Bankruptcy Act 1966 (Cth).
6. The primary judge explained why his Honour took this course. His Honour referred to authorities in this court which considered whether the deemed abandonment should result in an order for dismissal [78] ‑ [80]. The primary judge considered that dismissal was appropriate in three of the actions. However, his Honour said that, as to the primary proceedings:

which is a substantive claim for declarations and damages, I will afford the parties a further opportunity to make submissions as to whether that action should be dismissed, or merely stayed. In addition to the estoppel concern noted above, a further relevant consideration to which regard should be had in this respect is the degree of prejudice to the defendants of simply allowing the action to be stayed. Wheeler J noted this consideration in Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47 and, on the facts of that case, considered it appropriate to seek further submissions from the parties as to whether an order for dismissal should be made. [81] (citations omitted)

1. Mr Lee appealed from the orders made 5 July 2023 in the primary proceedings and other proceedings (see [9](14) above). On 24 November 2023, for reasons published on 27 November 2023, this court dismissed the appeals as being incompetent: Lee v SoWA - 1st Stay Appeal [2] - [3], [10], [45], [55], [57]. In substance, for the reasons that were then given, the court determined that the primary judge was correct to reject Mr Lee's contention that the primary proceedings were an action in respect of a personal injury or wrong done to Mr Lee. Mr Lee's applications for special leave to appeal from the dismissal of these appeals were refused by the High Court of Australia on 11 April 2024: Lee v Kingsfield Holdings Pty Ltd & Ors;[18] Lee v The State of Western Australia.[19]
2. In September 2024, undaunted by this court's prior dismissal of the appeal from the primary judge's orders of 5 July 2023 and the High Court's refusal of special leave to appeal, Mr Lee again sought to appeal against the orders refusing his application for leave to proceed pursuant to s 60(4)(a) of the Bankruptcy Act (see [9](15) above). These appeals were dismissed on 22 November 2024. See Lee v Brandis - 2nd Stay Appeal. This court summarised its earlier reasons in Lee v SoWA - 1st Stay Appeal and explained that they were determinative of the purported second appeal: Lee v Brandis - 2nd Stay Appeal [22] ‑ [28]. In any case, as the court went on to explain, Mr Lee had already exhausted his right to appeal: Lee v Brandis - 2nd Stay Appeal [29] ‑ [32].
3. While Mr Lee was pursuing his appeals from the orders made 5 July 2023 in the primary proceedings various steps were being taken in those proceedings.
4. It will be recalled that the primary judge ordered that the action was to be listed for further directions to hear submissions from the parties as to whether the action should be dismissed. Otherwise, however, the action was stayed. Notwithstanding the stay of the action, Mr Lee purported to make various applications in the primary proceedings. These included: (1) an application for leave to amend the writ to change the capacity in which Kingsfield sued as a plaintiff in the primary proceedings; (2) an application to restrain the State Solicitor's Office from acting for the defendants in the primary proceedings; (3) a discovery application; (4) a recusal application; and (5) an application to re-open (an application made after the primary judge had refused some of Mr Lee's applications and after his Honour had reserved his decision on other applications and an application by the defendants to dismiss the primary proceedings). See Kingsfield v RIA 2025 [21] ‑ [27].
5. On 23 May 2024 the primary judge dismissed the amendment application, the restraint application and the discovery application. Those orders are the subject of Mr Lee's interlocutory appeal in appeal CACV 36 of 2025. The reasons for those orders were provided in Kingsfield v RIA 2025 [21], [52] - [74].
6. Subsequently, on 17 April 2025, the primary judge published his reasons in Kingsfield v RIA 2025, determining that: (1) the primary proceedings should be discontinued insofar as Kingsfield was concerned [14]; (2) Mr Lee's recusal application should be dismissed [75] ‑ [187]; (3) Mr Lee's application to re-open should be dismissed [188] ‑ [198]; and (4) the primary proceedings should be dismissed [199] ‑ [227].
7. These orders of 17 April 2025 are the subject of Mr Lee's appeal in appeal CACV 35 of 2025.
8. On delivery of the reasons in Kingsfield v RIA 2025 the primary judge heard the parties on the question of the costs of the proceedings. Among other things, the defendants sought that Mr Lee pay their costs of the proceedings up to 21 March 2023 on a party and party basis and thereafter on an indemnity basis. The application for indemnity costs relied on a letter sent by the State Solicitor's Office on 22 March 2023. The primary judge determined that Mr Lee and Kingsfield, jointly and severally, pay the defendants' costs of the proceedings until 27 November 2023 to be assessed on a party and party basis. Thereafter, however, Mr Lee was to pay the defendants' costs of the proceedings on an indemnity basis. The primary judge's costs orders are also challenged in appeal CACV 35 of 2025.
9. The date of 27 November 2023 corresponded with the publication of this court's reasons in Lee v SoWA - 1st Stay Appeal.

The primary judge's reasons in Kingsfield v RIA 2025

1. It is not necessary to recount the whole of the primary judge's reasons in Kingsfield v RIA 2025. It will be seen that the grounds of appeal only touch on particular aspects of those reasons. We will recount the salient parts of the primary judge's reasons so far as is necessary to deal with the grounds of appeal. It is, however, appropriate to emphasise one aspect of Kingsfield v RIA 2025. Largely this is because the primary judge made some material findings that are not challenged - and, indeed, could not be challenged - in either of the appeals now before the court. Those unchallenged findings are dispositive in relation to key aspects of the appeals.
2. In Kingsfield v RIA 2025 the primary judge commenced by explaining the nature of the primary proceedings ([3] - [10]) and the legal status pertaining to Kingsfield and Mr Lee ([12] - [18]). In that context his Honour determined that the primary proceedings should be discontinued as far as Kingsfield was concerned [14]. It will be seen that Mr Lee purports to challenge that conclusion even though the relevant order solely concerns Kingsfield. The primary judge then summarised the applications before the court and identified where, in the reasons, his Honour dealt with the application [19] ‑ [29]. Critically, the primary judge then asked himself whether Mr Lee had standing to conduct the primary proceedings. In answering that question his Honour referred to the history we have recited above. In doing so the primary judge made specific reference to the conclusions in each of Lee v SOWA [No 2] (Stay Decision), Lee v SoWA - 1st Stay Appeal and Lee v Brandis - 2nd Stay Appeal [31] - [36].
3. The primary judge observed that:
   1. His Honour's decision in Lee v SOWA [No 2] (Stay Decision) remained undisturbed such that, insofar as Mr Lee was concerned, the primary proceedings were stayed [37] (see also [45] ‑ [47]).
   2. Mr Lee had no standing or capacity to bring applications or take steps in the primary proceedings (unless those application or steps were directed at appealing or challenging the orders made by the primary judge on 5 July 2023) [49]. (We would add that Mr Lee has exhausted all available avenues to appeal the orders made on 5 July 2023.)
   3. This was, in and of itself, a sufficient basis for the court to dismiss: (a) the application to restrain the State Solicitor's Office from acting for the defendants; (b) the discovery application; and (c) the application to re-open. It was, accordingly, not necessary to determine those applications on their merits. However, his Honour had done so [50] (see also [52] ‑ [67], [68] ‑ [74] and [188] ‑ [198]).
4. These findings are not challenged by any ground of appeal in appeal CACV 35 of 2025 or appeal CACV 36 of 2025. They are self‑evidently correct. These findings, unchallenged by any ground of appeal, are insurmountable obstacles to Mr Lee succeeding in an appeal against the orders dismissing those applications.
5. The primary judge also said that Mr Lee's status as a bankrupt, and the stay of the primary proceedings, was a sufficient basis to dismiss the recusal application [51]. Again, however, notwithstanding his Honour's view that it was not necessary to do so, the primary judge addressed the application on the merits [75] - [187]. The primary judge found that, having regard to each of the matters Mr Lee complained of as giving rise to a reasonable apprehension of bias, it was not the case ‑ individually or collectively - that a fair-minded observer might reasonably apprehend that his Honour might not bring an impartial mind to the determination of the various issues raised by Mr Lee [172] (see also [168], [170]). Further, Mr Lee had not satisfactorily addressed or explained the logical connection between the matters raised and the feared deviation from the course of deciding the issues on their merits [173]. In the alternative, the primary judge was satisfied that Mr Lee had waived any right to raise a challenge to the primary judge determining the issues on the ground of reasonable apprehension of bias [175] - [187].
6. It will be seen that, while Mr Lee advances various grounds of appeal in relation to the dismissal of the recusal application, there is no ground directed to the conclusion that Mr Lee's status as a bankrupt, and the stay, sufficed to dismiss the application. Nor is there a ground directed to the conclusion that Mr Lee had waived any right to seek recusal based on reasonable apprehension of bias.

1. Mr Lee has commenced two new appeals: appeal CACV 35 of 2025 and appeal CACV 36 of 2025. Those appeals are the subject of these reasons.
2. Appeal CACV 36 of 2025 is from the interlocutory orders made by the primary judge on 23 May 2024 in the primary proceedings (ie action CIV 2660 of 2015). Those orders were that:
   1. The chamber summons seeking orders to restrain solicitors and for leave to amend the writ, filed by [Mr Lee] and dated 16 October 2023, be and is hereby dismissed.
   2. The chamber summons seeking orders for discovery, filed by [Mr Lee] and dated 5 March 2024, be and is hereby dismissed.
3. Mr Lee accepts that he requires both an extension of time, and leave to appeal, to pursue this appeal. Mr Lee has sworn an affidavit of 8 May 2025 in support of the application for an extension of time. Mr Lee says, in summary, that the primary judge did not publish reasons for the challenged orders until 17 April 2025 and Mr Lee was unable to appeal until he had an opportunity to read the reasons. Mr Lee is referring to the primary judge's reasons in Kingsfield v RIA 2025.
4. Appeal CACV 35 of 2025 is from the orders made by the primary judge on 17 April 2025 in the primary proceedings. Those orders were that:
   1. [Kingsfield] is granted leave to discontinue its action against the defendants pursuant to Order 23 rule 2(3) of the Rules of the Supreme Court 1971 (WA), and the action is hereby discontinued.
   2. The action brought by [Mr Lee] is dismissed.
   3. [Mr Lee's] application for the recusal of Justice Lundberg dated 9 August 2024 is dismissed.
   4. [Mr Lee's] application to re-open the proceedings dated 3 January 2025 is dismissed.
   5. The plaintiffs [ie Kingsfield and Mr Lee], jointly and severally, are to pay the defendants' costs of the proceedings from the commencement of the proceedings until 27 November 2023, to be assessed on a party/party basis if not agreed.
   6. [Mr Lee] is to pay the defendants' costs of the action including any reserved costs, on and from 28 November 2023, to be assessed on an indemnity basis, if not agreed, such that the defendants are completely indemnified by [Mr Lee] for their costs on and from that date except insofar they are of an unreasonable amount or have been unreasonably incurred.
5. The 'defendants' are the first, third, fourth and fifth respondents in the appeals.

1. The grounds of appeal in appeal CACV 35 of 2025 are prolix. We will, however, repeat them in full. In doing so we have, to assist in subsequent identification, added an 'A', 'B', 'C' and 'D' to the grounds. We have also summarised, in parentheses, the nature of the orders the subject of the grounds:

1. Grounds of appeal for orders 1 and 2 (orders for discontinuance and dismissal of action)

1. His Honour erred in law in applying Order 23 Rule 2(3) of the Rules of the Supreme Court 1971 (WA) as no leave was sought by the liquidators for [Kingsfield] to discontinue the action and his Honour made order 1 without requiring the liquidators to make an application and/or to attend at court and be heard. 2. His Honour erred in law by dismissing [Mr Lee's] action being order 2, based on the inherent jurisdiction of the court where the application by the defendants before the court was for dismissal based on want of prosecution which his Honour did not find. 3. His Honour erred in law by denying [Mr Lee] procedural fairness in permitting submissions to be made by defendants' counsel and authorities to be relied upon which [Mr Lee] did not have the opportunity to consider prior to the hearing on 23 May 2024 when making order 2. 4. Orders 1 and 2 are subject to [Mr Lee's] appeal concerning whether his Honour should have recused himself based on apprehended bias which if successful will taint the orders made and the orders made in the matter generally by his Honour. 5. Orders 1 and 2 made by his Honour are subject to [Mr Lee's] appeal concerning the restraint application made with respect to the State Solicitor's Office (SSO) which if successful will taint the orders made and the orders made in the matter generally by his Honour.

1. Grounds of appeal for order 3 (order dismissing application for recusal)

1. His Honour erred in law by applying the wrong legal tests in dismissing [Mr Lee's] application. 2. His Honour erred in law by providing inadequate or insufficient reasons for dismissing the application and in failing to address pertinent submissions and material of [Mr Lee]. 3. His Honour erred in factual findings when there was no evidence to support the facts which caused him to err in law when applying the test for apprehended bias. 4. Order 3 is subject to [Mr Lee's] appeal concerning the restraint application made with respect to the SSO which if successful will taint the order made and the orders made in the matter generally by his Honour.

1. Grounds of appeal for order 4 (order to re-open)

1. His Honour erred in law by providing inadequate or insufficient reasons for dismissing the application and in failing to address pertinent submissions and material of [Mr Lee]. 2. Order 4 made by his Honour is subject to [Mr Lee's] appeal concerning whether his Honour should have recused himself based on apprehended bias which if successful will taint the order made and the orders made in the matter generally by his Honour. 3. The order made by his Honour is subject to [Mr Lee's] appeal concerning the restraint application of the SSO which if successful will taint the order made and the orders made in the matter generally by his Honour.

1. Grounds of appeal for orders 5 and 6 (costs orders)

1. His Honour erred in law by failing to provide [Mr Lee] with procedural fairness by denying him the reasonable opportunity to present evidence and make submissions concerning proposed costs orders 5 and 6. 2. His Honour erred in law by the court's failure to be and appear to be impartial and provide each party to the proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. 3. His Honour erred in law by relying upon without prejudice correspondence which had not been admitted into evidence. 4. The orders made by his Honour are subject to [Mr Lee's] appeal concerning the restraint application made with respect to the SSO which if successful taints the orders made by his Honour in this matter and the orders made in the matter generally by his Honour. 5. The order made by his Honour is subject to [Mr Lee's] appeal concerning the recusal of his Honour based on apprehended bias which if successful taints orders 5 and 6 and the orders made in the matter generally by his Honour. 6. The discretion to award indemnity costs to the defendants in order 6 was not exercised judicially by his Honour based on the grounds of appeal set out above.
2. Apart from their prolixity, the grounds of appeal are also deficient. There is, for example, no identification of the paragraph number within Kingsfield v RIA 2025 where the claimed error is alleged to occur. Compare Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(d). Nor, in asserting that the primary judge applied wrong legal tests or erred in factual findings, do the grounds identify in what respects the legal tests and factual findings were wrong, and the tests that should have been applied or the findings that should have been made.
3. There are two proposed grounds of appeal in appeal CACV 36 of 2025 (the appeal as to the orders made 23 May 2024 in the primary proceedings). Mr Lee contends that:
   1. His Honour erred in law by failing to apply the correct test in determining whether the State Solicitor's Office should have been restrained from acting in matter CIV 2660 of 2015 Lee & Anor v State of Western Australia and Ors.
   2. His Honour erred in law by failing to provide sufficient and adequate reasons for his decision to dismiss the application to restrain the State Solicitor's Office in matter CIV 2660 of 2015 Lee & Anor v State of Western Australia and Ors.
4. Accordingly, the grounds are solely directed to part of par 1 of the orders made 23 May 2024 (see [41] above). Mr Lee no longer pursues an appeal against par 2 of the orders made 23 May 2024 (ie the refusal of the chamber summons seeking orders for discovery). Nor does Mr Lee seek to appeal against the dismissal of the application for leave to amend the writ in the primary proceedings.

1. The respondents (other than Kingsfield) submit that the appeals are incompetent due to Mr Lee's status as an undischarged bankrupt. On that basis they say that appeal CACV 35 of 2025 should be dismissed; and the application for an extension of time to appeal, and leave to appeal, in appeal CACV 36 of 2025 should also be dismissed. The respondents (other than Kingsfield) rely on the unchallenged findings of the primary judge in Kingsfield v RIA 2025, as specified at [34] above, and this court's decisions in Lee v SoWA - 1st Stay Appeal and Lee v Brandis - 2nd Stay Appeal as well as the High Court's refusal of special leave to appeal from this court's decision in Lee v SoWA - 1st Stay Appeal.
2. As has been seen at [35] above, and for reasons that follow, we partially accept this submission - at least insofar as Mr Lee seeks to challenge the primary judge's dismissal of the restraint application and the application to re-open the proceedings.
3. However, we do not accept the respondents' (other than Kingsfield's) contention that appeal CACV 35 of 2025 is incompetent insofar as Mr Lee seeks to challenge the primary judge's costs orders made 17 April 2025. The costs orders created a liability which stands outside the debts provable in Mr Lee's bankrupt estate: Foots v Southern Cross Mine Management Pty Ltd.[20] As the costs orders created a liability, one that may be enforced against Mr Lee despite his bankruptcy, Mr Lee's status as an undischarged bankrupt does not affect the competency of this aspect of appeal CACV 35 of 2025.
4. Also, while there are doubts as to the competency of appeal CACV 35 of 2025 so far as Mr Lee seeks to challenge the dismissal of the primary proceedings, it is not necessary to resolve that matter. For reasons that follow, that aspect of appeal CACV 35 of 2025 must be dismissed in any event. The challenge to the dismissal of the recusal application is bound up with the dismissal of the primary proceedings; and, in any case the allegation of apprehended bias is something that challenges the validity of the primary judge's orders more generally. Thus, in our view, it is best to consider the merits of this aspect of the appeal. For reasons that follow it too must be dismissed in any event.

Disposition - appeal CACV 35 of 2025 The nature of the hearing

1. Among other things, the Registrar's Notice to Attend in appeal CACV 35 of 2025 invoked r 43(2)(f)(i) and r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules. Those rules confirm the court's jurisdiction:

(f) to strike out any ground of appeal that -

(i) does not have a reasonable prospect of succeeding or does not comply with these rules or any order made under them;

(g) to dismiss the appeal if:

(i) none of the grounds of appeal has a reasonable prospect of succeeding[.]

1. The purpose of these rules is to weed out unmeritorious appeals: In de Braekt v Legal Profession Complaints Committee.[21]
2. Both rules are directed to grounds of appeal that do not have a 'reasonable prospect of succeeding'. In that respect:
   1. A ground of appeal has a reasonable prospect of succeeding if it has a rational and logical prospect of succeeding, ie it would not be irrational, fanciful or absurd to envisage the ground succeeding. The ground must have a 'real prospect' of success: Samuels v The State of Western Australia;[22] In de Braekt v Legal Profession Complaints Committee [47]; Farrant v Westpac Banking Corporation.[23]
   2. If the court is to strike out a ground as not having a reasonable prospect of succeeding, or is to dismiss an appeal on the basis that none of the grounds has a reasonable prospect of succeeding, the court must be positively satisfied that the ground, or all of the grounds, lacks or lack a rational and logical prospect of succeeding: Farrant v Westpac Banking Corporation [19].
   3. A ground of appeal does not have a reasonable prospect of succeeding simply because, standing alone, it might be upheld. The ground must allege material error. A ground of appeal will only have a reasonable prospect of succeeding where, if upheld, the ground - either by itself or in combination with other grounds that have a rational and logical prospect of succeeding - would result in the primary court's judgment or order being disturbed: Farrant v Westpac Banking Corporation [20].
3. For reasons that we will now explain the last of those principles is important in the present case.

1. Mr Lee has advanced a variety of grounds of appeal against the various orders the subject of appeal CACV 35 of 2025. However, as has been seen at [34] - [35] above, the primary judge made findings that Mr Lee's status as a bankrupt (and the stay of the primary proceedings) precluded Mr Lee from bringing applications in the primary proceedings. As such, without more, the restraint application, the discovery application and the application to re-open had to be dismissed. Those findings are unchallenged by any ground of appeal. It follows that, even if standing alone one or more of the grounds concerning the orders dismissing those applications had a reasonable prospect of succeeding, there is no reasonable prospect of succeeding in demonstrating material error and disturbing the primary judge's order dismissing those applications.
2. This suffices to dispose of ground C.1 as to the dismissal of Mr Lee's application to re-open.
3. Nevertheless, having read Kingsfield v RIA 2025 [188] - [198], we are comfortably satisfied that the primary judge provided legally adequate reasons for concluding that the application to re-open should be dismissed. The principles applicable to such a ground of appeal are summarised in Zamora v OCS Services Pty Ltd.[24] In rejecting the application to re-open, the primary judge enumerated four reasons which succinctly exposed his Honour's essential path of reasoning: Kingsfield v RIA 2025 [198]. The further contention that the primary judge failed to address pertinent submissions and materials is unparticularised and is not supported by the written submissions contained in Mr Lee's appellant's case.
4. The dismissal of the application to restrain the State Solicitor's Office from acting for the defendants will be addressed below in the context of dealing with appeal CACV 36 of 2025. However, it will be appreciated that the analysis at [55] above applies equally to grounds 1 and 2 in that appeal. It follows that neither ground 1 nor ground 2 in appeal CACV 36 of 2025 has a reasonable prospect of succeeding. That too - in addition to the matters addressed below - requires that leave to appeal must be refused in appeal CACV 36 of 2025.
5. A feature of the grounds of appeal in appeal CACV 35 of 2025 is that Mr Lee relies across the board on his contentions that the primary judge should have recused himself and the State Solicitor's Office should have been restrained from acting for the defendants in the primary proceedings. Mr Lee does so by stipulating that particular orders are subject to various other aspects of the appeals on the basis that, if successful, this 'will taint' the order made. Thus, as to each of the orders for discontinuance and dismissal, the application to re-open and the costs orders, Mr Lee raises his appeal against dismissal of the recusal application (see grounds A.4, C.2, D.5). So too, as to each of the orders for discontinuance and dismissal, the recusal application, the application to re-open and the costs orders, Mr Lee raises his appeal against the dismissal of the application to restrain the State Solicitor's Office from acting for the defendants (see grounds A.5, B.4, C.3, D.4).
6. There is no basis for Mr Lee's contention that, if erroneous, the dismissal of the application to restrain the State Solicitor's Office from acting for the defendants in the primary proceedings taints the other orders made as are the subject of appeal CACV 35 of 2025. Those orders were made on their merits having regard to the facts as found by the primary judge and his Honour's application of the law to those facts. The orders for discontinuance and dismissal, dismissing the application to re-open and the costs orders were not affected, either materially or at all, by the circumstance that the State Solicitor's Office continued to act for the defendants in the primary proceedings. None of grounds A.5, B.4, C.3 or D.4 has a reasonable prospect of succeeding. In any case, for reasons already explained, neither ground 1 nor ground 2 in appeal CACV 36 of 2025 has a reasonable prospect of succeeding; and, as will be seen, leave to appeal must be refused in appeal CACV 36 of 2025. In those circumstances grounds A.5, B.4, C.3 and D.4 also lack a reasonable prospect of succeeding given the conclusions we have reached as to the appeal against the dismissal of the application to restrain the State Solicitor's Office from acting for the defendants.
7. A different position pertains in relation to Mr Lee's reliance on that aspect of the appeal concerning the dismissal of the application for recusal. Actual or apprehended bias strikes at the validity of the hearing and its outcome: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd.[25] We accept that - if this part of the appeal had merit - it would impact on the orders of the primary judge the subject of grounds A.4, C.2 and D.5. If the primary judge had recused himself none of those orders would have been made. Accordingly, to the extent that one or more of grounds B.1 to B.3 have a reasonable prospect of succeeding, so too do each of grounds A.4, C.2 and D.5. However, for reasons we will now come to, none of grounds B.1 to B.3 have a reasonable prospect of succeeding. It follows that neither do grounds A.4, C.2 and D.5.

Grounds B.1 to B.3 - the remaining grounds as to the order dismissing the application for recusal

1. Apart from ground B.4, which has already been disposed of, Mr Lee advances three grounds in relation to the primary judge's dismissal of the recusal application. In substance, Mr Lee contends that the primary judge erred by: (1) applying the wrong legal test (ground B.1); (2) providing legally inadequate reasons (ground B.2); and (3) making erroneous factual findings (ground B.3).
2. It is convenient to first deal with ground B.3. This alleges that the primary judge erred in factual findings when there was no evidence to support those facts. However, the ground does not identify the factual findings which are said to be in error. Nor is there any Consolidated Practice Direction PD 7.4 schedule (such a schedule being required whenever an appellant challenges a finding of fact made by the primary court). These deficiencies alone suffice to conclude that the ground does not have a reasonable prospect of succeeding. We will, however, go on to examine the ground by reference to Mr Lee's written submissions.
3. Mr Lee's written submissions in support of the challenge to order 3 of the orders made 17 April 2025 allege factual errors as follows:

1. Mr Lee claims that the primary judge was in error in factual findings made in Lee v The State of Western Australia (see [20] above). The alleged errors were:

(a) The primary judge's statement that '[a]s Mr Lee is a legal practitioner, I infer he would be well aware of the correct approach to follow in order to seek an adjournment and the need to properly justify such a request' [10]. (We observe that this passage is reproduced in Kingsfield v RIA 2025 [100].)
>
> (b) The primary judge's statement that 'Mr Lee regards an adjournment of these matters as available when necessary to suit his circumstances' [28].

1. Mr Lee says that, so far as in Kingsfield v RIA 2025 [102] ‑ [103] the primary judge acknowledged that his Honour gave little weight to Mr Lee's medical condition without any supporting foundation, that went to credibility and there was no foundation for the finding. 2. Mr Lee claims that, in Kingsfield v RIA 2025 [80], the primary judge was wrong when his Honour stated that Mr Lee explained that a recusal in action CIV 2167 of 2021 (see [9](8) above) would not be necessary and was not sought.
2. Whether or not, in terms of [64](1) above, the primary judge made factual errors when adjudicating on Mr Lee's adjournment request on 31 May 2023 in Lee v The State of Western Australia is irrelevant to his Honour's disposition of the recusal application on 17 April 2025 in Kingsfield v RIA 2025. The impugned findings - made nearly two years earlier - were not relied on by the primary judge in dismissing the recusal application. Nor is there a relevant factual finding in respect of the matter mentioned at [64](2) above. The primary judge was not making a factual finding in that passage. His Honour was simply recounting the basis for one aspect of his conclusion in the earlier decision of Lee v The State of Western Australia (Mr Lee having relied on the outcome in that decision in the recusal application). Similarly, the primary judge's observation the subject of [64](3) was immaterial to the disposition of the recusal application. The primary judge was doing no more than explaining why his Honour was of the belief that recusal was not sought in that action. That circumstance was not relied on by the primary judge in dismissing the recusal application.
3. Ground B.3 amounts to a series of irrelevant distractions; it does not have a reasonable prospect of succeeding.
4. There is no merit in ground B.1's claim that the primary judge applied the wrong legal tests in dismissing the recusal application. The primary judge correctly stated, and then applied, the 'double-might' Ebner[26] test in assessing whether there was a reasonable apprehension of bias [93], [170], [172] - [173] (see also [92], [94] - [95]). In written submissions Mr Lee complained that the primary judge was in error in accepting that, where the issue is apprehended bias, it is irrelevant to consider how a judicial officer will or has actually approached a case [170]. But in so stating his Honour was doing no more than paraphrasing the following passage from the plurality's reasons in Ebner:

There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror [7]. (emphasis added)

1. More generally, the primary judge observed that the contentions advanced by Mr Lee effectively challenged how his Honour had actually approached the case [170]. In other words the primary judge discerned that Mr Lee's contentions in support of the application for recusal concerned the merits of his Honour's decision-making - it was sought to establish apprehended bias based on the outcome of the decision-making process. As to that, in the context of allegations of apprehended bias, it is well established that the principles of natural justice are not concerned with the merits of a particular exercise of power but rather with the procedure that must be followed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision. See Ogbonna v CTI Logistics Ltd;[27] G v W;[28] Zaghoul v Bradley Bayly Holdings Pty Ltd.[29]
2. Ground B.1 does not have a reasonable prospect of succeeding.
3. This leaves ground B.2 dealing with whether there are legally adequate reasons for the dismissal of the recusal application. We have summarised the primary judge's reasons at [36] above. More specifically, the primary judge dealt with the application as follows:
   1. Initially the primary judge recounted the background to the application [75] - [83].
   2. His Honour then mentioned the materials before the court [84] ‑ [86]. These included, among other things, Mr Lee's affidavit sworn 10 October 2024. Specific mention is made of this affidavit as Mr Lee's written submissions criticise the primary judge's reasons in Kingsfield v RIA 2025 as having not considered this affidavit at all. That criticism is without merit. Apart from the specific mention of the 10 October 2024 affidavit it is clear that the primary judge had regard to Mr Lee's affidavit evidence in identifying the grounds for the recusal application [87]. The primary judge also deals with the arguments advanced by the 10 October 2024 affidavit - as substantially reproduced in Mr Lee's written submissions - when considering Mr Lee's response to the allegation of waiver [181] - [186].
   3. The primary judge identified that Mr Lee's grounds for the recusal application comprised of events in the procedural history of the action to be considered in isolation and collectively [88] - [90]. Seven matters were enumerated [88]. The primary judge addressed each matter extensively [96] ‑ [167].
   4. His Honour identified the applicable legal test and the defendants' response to the application [91] - [95].
   5. The primary judge then expressed his conclusions in the manner we have summarised above [168] - [187].
4. The primary judge's reasoning process is fully exposed. The essential pathway by which his Honour reasoned to the conclusion that the recusal application should be dismissed is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) Mr Lee ought to know why he was unsuccessful; and (2) this court may determine whether the decision involved appellable error. It is plain, beyond argument, that the primary judge has provided legally adequate reasons for his Honour's conclusion that the recusal application ought to be dismissed.
5. Much of Mr Lee's written submissions in support of ground B.2 concern whether the primary judge's reasoning process was correct. It is, however, wrong to equate the requirement that reasons be legally adequate with a requirement that reasons be factually and legally correct: Zamora v OCS Services Pty Ltd [100]. Mr Lee also complains that the primary judge did not refer to some of the evidence and arguments that he relied on. It is not necessary to mention every piece of evidence or demolish every argument, however misguided, to provide legally adequate reasons. Indeed, were it to be thought that the primary judge had failed to consider and determine a material issue raised by Mr Lee - thus committing an error of law by failing to determine the real issue between the parties - that might have been the subject of a different kind of ground of appeal. The primary judge's reasons in Kingsfield v RIA 2025 are more than adequate to identify whether any such critical issue was not addressed (particularly so far as the primary judge conveniently enumerates the individual matters relied on by Mr Lee in support of the recusal application [88]). There is, however, no specific ground of appeal to this effect.
6. Ground B.2 does not have a reasonable prospect of succeeding.
7. None of the grounds of appeal challenging the dismissal of Mr Lee's recusal application have a reasonable prospect of succeeding. That aspect of appeal CACV 35 of 2025 must be dismissed. This is all the more so where - as is evident from the reproduction of the relevant grounds at [43] above - none of the grounds expressly challenge the conclusion that Mr Lee waived any right to seek recusal on the ground of apprehended bias. There is a throwaway sentence in Mr Lee's written submissions to the effect that the 10 October 2024 affidavit was at the core of his submissions as to why he had not waived his right to seek recusal and that did not appear to have been considered at all. That submission is misconceived for the reasons previously given.

Grounds A.1 to A.3 - the remaining grounds as to the orders for discontinuance and dismissal of the action

1. By ground A.1 Mr Lee seeks to disturb the discontinuance order made in relation to Kingsfield. That is not a matter for Mr Lee; it is a matter for Kingsfield (by its liquidator). Ground A.1 does not have a reasonable prospect of succeeding.
2. Grounds A.2 and A.3 should be considered together. They each, in substance, allege a denial of procedural fairness in how the primary judge considered and determined that, as between Mr Lee and the defendants in the primary proceedings, the action should be dismissed. Mr Lee argues, in effect, that the defendants filed an application to dismiss the action for want of prosecution. The primary judge mentions this application, referring to it as the 'State's Dismissal Application' [28], [199]. The application was heard on 23 May 2024. However, in dismissing the primary proceedings for the reasons given in Kingsfield v RIA 2025, his Honour relied on Mr Lee's bankruptcy and the deemed abandonment of the action pursuant to s 60(3) of the Bankruptcy Act rather than whether there had been a want of prosecution. That conclusion was consistent with the oral submissions made on behalf of the defendants at the 23 May 2024 hearing [210] ‑ [211]. The primary judge determined that it was appropriate to determine the application for dismissal on the basis developed at the hearing on 23 May 2024 [217].
3. Mr Lee submits that:
   1. He prepared his submissions and arguments for the hearing on 23 May 2024 based on the application for want of prosecution made by the defendants and the authorities relied on by them.
   2. The primary judge relied on the decision of Wheeler J in Temsign Pty Ltd v Biscen Pty Ltd, as well as a District Court authority, in support of the conclusion that the action should be dismissed. Neither of those decisions had been referred to Mr Lee before the 23 May 2024 hearing.
   3. He did not have an opportunity to file submissions or consider legal authorities on the point in advance of the hearing on 23 May 2024.
   4. The defendants should have been required to file a further application dealing with the alternate basis for the dismissal of the primary proceedings.
   5. In all the circumstances there was a denial of procedural fairness.
4. Grounds A.2 and A.3 are completely without merit. Relevant general propositions as to affording procedural fairness to a litigant are collected in Zamora v OCS Services Pty Ltd [57] (see also [59] - [63]). See also Armet v Stephen Browne[30] as to affording procedural fairness to a self-represented litigant. It is true that, prior to 23 May 2024, the defendants were proceeding on an application seeking dismissal for want of prosecution. However, without objection by Mr Lee at the time, the basis for seeking dismissal developed at the hearing (in part due to the intervening liquidation of Kingsfield). The primary judge summarised the position in these terms in the course of the argument on 23 May 2024:

Mr Lee, so it seems to me what the State and the other parties are presenting is an application with two hemispheres. The first, perhaps logically, concerns what I should do in light of the decision I published last year [ie Lee v SOWA [No 2] (Stay Decision)] where I held the matter over and didn't dismiss it by reason of the bankruptcy issues, and allied to that is the fact that Kingsfield is in liquidation. The second and, perhaps more factually complicated matter, the second hemisphere, is the more traditional application to dismiss for want of prosecution ... I think that's the battleground, if I can just summarise it in general terms. So, over to you to make submissions as you see fit.[31]

1. Mr Lee raised in oral submissions before the primary judge that the only written application before the court was in terms an application for dismissal for want of prosecution.[32] The defendants said that a formal application was not necessary.[33] The hearing was in circumstances where, in the course of the primary judge's reasons in Lee v SOWA [No 2] (Stay Decision), his Honour had foreshadowed affording the parties a further opportunity to make submissions as to whether the primary proceedings should be dismissed or merely stayed (see [21] - [22] above). The parties were before the court to deal with that matter as well as the defendants' application to dismiss for want of prosecution.[34]
2. Mr Lee accepted that it was in the inherent jurisdiction of the court to take action, given his status as a bankrupt, but submitted that: 'I just don't feel that it should be taken because of the fact that ... no specific application has been made'.[35] There was, at the time, no suggestion that the defendants' reliance on this argument took Mr Lee by surprise or that Mr Lee was not equipped to deal with the point.
3. In the latter respect it should be remembered that, although a self‑represented litigant, Mr Lee has been a legal practitioner. Mr Lee has also, on multiple occasions before this time, addressed the primary judge and this court on the subject of the legal consequences of his bankruptcy for the litigation that Mr Lee has sought to progress notwithstanding his status as a bankrupt.
4. The following matters emerge. First, the primary judge made it plain in Lee v SOWA [No 2] (Stay Decision) that the parties were to be afforded a further opportunity to make submissions as to whether, as a result of Mr Lee's bankruptcy, the primary proceedings were to be dismissed or stayed. The hearing on 23 May 2024 was that opportunity. Second, contrary to Mr Lee's protestations in this court that he had not been referred to Temsign Pty Ltd v Biscen Pty Ltd before the hearing on 23 May 2024, it was in fact referred to in his Honour's reasons in Lee v SOWA [No 2] (Stay Decision) (see [22] above). Third, the possibility that the primary proceedings might be dismissed due to Mr Lee's bankruptcy and the s 60(3) Bankruptcy Act deemed abandonment was self-evident - that is what had happened earlier in relation to each of actions CIV 2011 of 2022, GDA 7 of 2022 and GDA 10 of 2022 as well as appeal CACV 66 of 2022. Fourth, counsel for the defendants relied on this basis for dismissal in his oral submissions on 23 May 2024. Fifth, the primary judge expressly referred to this aspect of the defendants' argument in inviting Mr Lee to make oral submissions as to why the primary proceedings should not be dismissed.
5. There is, in the circumstances, no credible argument that Mr Lee has not been afforded procedural fairness insofar as the primary judge dismissed the primary proceedings based on Mr Lee's bankruptcy and the deemed abandonment. Mr Lee was given a reasonable opportunity of being heard on that question. Grounds A.2 and A.3 do not have a reasonable prospect of succeeding.

Grounds D.1 to D.3, D.6 - the remaining grounds as to the costs orders

1. The remaining aspect of appeal CACV 35 of 2025 concerns the costs orders made by the primary judge at pars 5 and 6 of the orders made 17 April 2025 (see [41] above). Mr Lee was ordered to pay the costs of the proceedings on a party and party basis up to 27 November 2023 and thereafter on an indemnity basis.
2. The primary judge made the costs orders following argument that was consequential on the delivery of judgment in Kingsfield v RIA 2025 on 17 April 2025. The parties were provided with an advance copy of the reasons on 16 April 2025 (ie the day before judgment delivery). Subsequently, before close of business on 16 April 2025, the defendants' solicitors provided to the court and Mr Lee a minute of the orders the defendants intended to seek on judgment delivery. In substance, among other things, the defendants sought an order that Mr Lee pay their costs of the proceeding on a party and party basis up to 21 March 2023 and thereafter on an indemnity basis.
3. At the hearing on 17 April 2025, counsel for the defendants explained the date of 21 March 2023 as following from a letter dated 22 March 2023. This was a letter from the defendants' solicitors to the solicitors that were then on the record for the plaintiffs. The letter is part of attachment 'SJO-5' to the affidavit of Stephen Olynyk sworn 27 April 2023. It followed an email from Mr Lee dated 20 March 2023 in which he foreshadowed bringing an application to proceed with the primary proceedings based on s 60(4) of the Bankruptcy Act. By the defendants' solicitors' letter dated 22 March 2023 they stated:

Please note that should your client [ie Mr Lee] seek to take such steps outlined in his email ... the defendants put your client on notice that they will seek their costs of any such application payable on an indemnity basis. (par 10)

...

The defendants shall rely on this correspondence on any question of costs. (par 15).

1. At the hearing following judgment delivery the primary judge ensured that Mr Lee was provided with access to a copy of the letter of 22 March 2023.[36] The primary judge also clarified that the application for costs to be paid on an indemnity basis was based on the correspondence rather than any characterisation his Honour might reach regarding the merits of the substantive action.[37] The primary judge then invited Mr Lee's submissions on the costs orders as sought (together with other outstanding matters that are presently immaterial).[38] Mr Lee proceeded to make submissions on the question of the costs of the proceedings. Those submissions extend over some 10 pages of transcript.[39] In the course of Mr Lee making those submissions the primary judge sought to assist Mr Lee by providing a succinct summary of the basis on which the defendants sought that they be awarded costs on an indemnity basis.[40]
2. Mr Lee submitted, in effect, that it was not unreasonable - at the material time - for him to continue with the primary proceedings based on the authorities that he was aware of and that he had brought to the attention of the court.[41]
3. The primary judge provided oral reasons for the costs determination. Among other things the primary judge stated:

It ought to have been apparent to Mr Lee and his legal advisors, in my respectful view, in March 2023, that the application [ie for leave to proceed with the primary proceedings notwithstanding Mr Lee's bankruptcy] would fail. In any event, it would be apparent from my decision on 5 July [2023] [ie Lee v SOWA [No 2] (Stay Decision)] that the application had failed.

And then on 24 November 2023, when the Court of Appeal dismissed the appeal [ie Lee v SoWA - 1st Stay Appeal], it was undeniably apparent to Mr Lee that the application had no merit. There was then an application of a special leave to appeal to the High Court, which was not determined until 11 April 2024, but I don't think I need to dwell too much on the time-lapse between November [2023] and April [2024] in that regard, given it is well understood that applications for special leave are rarely granted.

Putting all that together, it seems to me that on and from 27 November 2023, when the Court of Appeal delivered its orders, that it was objectively apparent to Mr Lee that the attempt by Mr Lee to engage the exception under the Bankruptcy Act had no merit ...

... proceeding further from that juncture in those circumstances is more than capable of being described as unreasonable conduct.

But that is not a matter to be assessed on its own. It must be assessed together with the fact that a letter had been sent, putting the parties on notice on 22 March 2023 of the prospect of indemnity costs being sought. And I think it's always important in matters such as this that there be some evidence that a party has put its counter-party on notice of the potential for such an application. It seems to me then, while I can see merit in the date of 21 March 2023 - or 22 March, rather, 2023, being a basis upon which the characterisation of conduct from reasonable to unreasonable might be drawn, it seems to me a safer basis to draw that position from 27 November 2023.

In my view, there is a proper basis in this case to impose an award of indemnity costs for that reason - or for those reasons ...

...

Ultimately, it seems to me that there is a basis in the present circumstance for the grant of an indemnity costs order as an appropriate sanction marking the disapproval of unreasonable conduct in the circumstances. That unreasonable conduct is identified in my reasons, but is identified, I think, quite crisply from the continuation of this proceeding post the decision of the Court of Appeal on 27 November 2023.[42]

1. The remaining grounds of appeal challenging the costs orders have three strands. First, Mr Lee alleges that he was not afforded procedural fairness as he was denied a reasonable opportunity to present evidence and make submissions regarding the proposed orders (grounds D.1 and D.2). Second, Mr Lee alleges a lack of impartiality - both actual and apparent - on the part of the primary judge (ground D.2). Third, Mr Lee alleges that the primary judge erred by relying on without prejudice correspondence which had not been admitted into evidence (ground D.3).
2. The assertion by grounds D.1 and D.2 that Mr Lee was denied procedural fairness in relation to the costs orders made 17 April 2025 in the primary proceedings is completely without merit.
3. On delivery of judgment in Kingsfield v RIA 2025 Mr Lee was aware (and had been aware since the previous afternoon) that the defendants would be seeking their costs of the proceedings including indemnity costs from a particular date. Insofar as costs were sought from a particular date - and that date coincided with the defendants' solicitors' letter foreshadowing that indemnity costs would be sought if Mr Lee proceeded as in fact he did - it ought to have been readily apparent to Mr Lee that the defendants would be relying on the letter dated 22 March 2023. In any event that reliance was made manifest at the hearing and the primary judge ensured that Mr Lee was provided with a copy of the letter and a reasonable opportunity to deal with it.
4. The primary judge was also assiduous in ensuring that Mr Lee understood the nature of the costs argument to which he had to respond. In that regard Mr Lee made oral submissions, opposing the application, and said all that he could properly and reasonably have said in opposition to the defendants' costs application. It is telling that Mr Lee's written submissions in support of grounds D.1 and D.2 do not advance anything new which Mr Lee says he would or could have said (or provided by way of evidence) had there been a further opportunity to do so. Nor, at the time, did Mr Lee seek an adjournment to deal with costs; or ask for an opportunity to file further submissions or evidence on the question of costs. It was to be expected, given Mr Lee's status as a former legal practitioner, that he would have sought that opportunity had he truly believed he had been prejudiced by the primary judge proceeding to decide the question of costs immediately on judgment delivery. Mr Lee was not a neophyte in the world of litigation. To the contrary, as has been seen, Mr Lee has been immersed in litigation - much of which he has conducted himself as a self-represented litigant - over the last five years.
5. Mr Lee was afforded procedural fairness in relation to the costs orders made 17 April 2025. Nothing has been raised in support of grounds D.1 and D.2, so far as they allege to the contrary, that goes beyond bald assertion. Neither ground D.1 nor ground D.2 (so far as the latter is concerned with procedural fairness) has a reasonable prospect of succeeding.
6. The second aspect of ground D.2 is the suggestion that there was actual or apprehended bias on the part of the primary judge. This is even more devoid of merit than the assertion of denial of procedural fairness. There is no need to discuss the applicable legal principles. See generally the discussion in Armet v Stephen Browne [56] - [59]. We have considered the totality of the transcript of 17 April 2025. The primary judge was scrupulously impartial and went out of his way to ensure that Mr Lee understood the case made against him as to costs and to provide Mr Lee with an opportunity to answer that case. The final result as to costs was, on the evidence, somewhat generous to Mr Lee. The defendants had a cogent case for indemnity costs from the date of the 22 March 2023 letter - or, at the latest, from the delivery of the primary judge's reasons in Lee v SOWA [No 2] (Stay Decision). This aspect of ground D.2 does not have a reasonable prospect of succeeding. The allegation that the primary judge in fact lacked impartiality was groundless and should never have been made.
7. Ground D.3 is concerned with the 22 March 2023 letter. Mr Lee contends that this was without prejudice correspondence which was not admitted into evidence. Mr Lee is mistaken. In Kingsfield v RIA 2025 the primary judge referred to other without prejudice correspondence to which objection was taken and which his Honour disregarded [204].[43] However, that was correspondence attached to a 2 November 2023 affidavit sworn by Mr Olynyk. The 27 April 2023 affidavit, to which the 22 March 2023 letter was attached, was admitted as evidence at the hearing on 23 May 2024 without objection.[44] It is too late for Mr Lee to contend, on appeal, that the letter was subject to without prejudice privilege: Fitzroy River LLC v Tucker.[45] In any event we do not accept that without prejudice privilege attaches to the salient parts of the letter in circumstances where it was made plain that the letter would be relied on in relation to any question of costs. Ground D.3 does not have a reasonable prospect of succeeding.
8. We are yet to mention ground D.6. Ground D.6 is a catch-all. It relies on one or more of grounds D.1 to D.5 succeeding. None of grounds D.1 to D.5 have a reasonable prospect of succeeding. It follows that ground D.6 does not have a reasonable prospect of succeeding.

1. None of the grounds of appeal in appeal CACV 35 of 2025 have a reasonable prospect of succeeding. It follows that the appeal should be dismissed.

1. Leave to appeal is required in appeal CACV 36 of 2025 as Mr Lee seeks to appeal from an interlocutory order: Supreme Court Act 1935 (WA) s 60(1)(f). The principles that apply on an application for leave to appeal in respect of an interlocutory order are well established. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[46] To those we would add the observations of the court in Clough Ltd v Forge Group Ltd (in liq) (receivers and managers appointed)[47] and Mineralogy Pty Ltd v CITIC Ltd.[48]
2. In summary, leave to appeal may be granted whenever the interests of justice require it. Often the interests of justice require consideration of two matters. First, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision was left unreversed, supposing the decision to be wrong. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
3. In the circumstances applying to appeal CACV 36 of 2025 there is no practical utility in granting leave to appeal.
4. An appeal from the orders of 23 May 2024 dismissing Mr Lee's application to restrain the State Solicitor's Office from acting for the defendants in the primary proceedings cannot alter the parties' substantive rights as far as the Bankruptcy Act issues are concerned. Nor can it affect the parties' rights and interests in relation to the primary proceedings. Mr Lee's claim in the primary proceedings has been dismissed. Mr Lee's appeal from the dismissal of the primary proceedings will be dismissed on publication of these reasons. No practical consequences could result from a grant of leave to appeal in appeal CACV 36 of 2025. Nor could substantial injustice result if the decision dismissing the application to restrain the State Solicitor's Office from acting for the defendants in the primary proceedings is left unreversed (supposing the decision to be wrong).
5. In the circumstances, the interests of justice militate strongly against the grant of leave to appeal and the application for leave to appeal must be refused.
6. If there was a proper basis to grant leave to appeal we would have been minded to grant Mr Lee's application for an extension of time to appeal. It would have been difficult, if not impossible, for Mr Lee to prepare a compliant appellant's case in the absence of reasons for the dismissal of the application to restrain the State Solicitor's Office from acting for the defendants in the primary proceedings. At best Mr Lee might have relied on the absence of legally adequate reasons as demonstrating appellable error. That, however, would have been disingenuous in circumstances where the primary judge had indicated that he would in due course provide written reasons for dismissing the application. The delay in the filing of the appeal notice is entirely attributable to Mr Lee having to await the publication of the primary judge's reasons in Kingsfield v RIA 2025.
7. There is, however, no point in granting an extension of time to appeal in circumstances where there is no basis for leave to appeal. We would dismiss Mr Lee's application for an extension of time to appeal on the ground that an extension is pointless in circumstances where we would refuse leave to appeal.
8. This leaves Mr Lee's application in an appeal filed 22 May 2025. By that application Mr Lee sought leave to file and rely on various affidavits as additional evidence in the appeal. Mr Lee also sought that the State produce certain documents for inspection. Mr Lee explained at the oral hearing on 25 July 2025 that he sought to rely on the affidavits, and obtain inspection of the documents, so as to deploy them in support of the contention that the State Solicitor's Office should have been restrained from acting for the defendants in the primary proceedings; and the primary judge erred in holding to the contrary. So understood the affidavits, and the application for production of the documents, are concerned with the merits of the appeal should there be leave to appeal.
9. Leave to appeal is to be refused. The affidavits Mr Lee seeks to file and rely on as additional evidence in the appeal can serve no purpose. Nor, given that leave to appeal is to be refused, is there any purpose in production of documents as sought by Mr Lee's application in an appeal filed 22 May 2025. The application must be dismissed and leave to file the affidavits of 26 June 2025, 8 July 2025 and 14 July 2025 must be refused.

1. In appeal CACV 35 of 2025 there will be an order that the appeal is dismissed.
2. The following orders will be made in appeal CACV 36 of 2025:
   1. The appellant's application for an extension of time to file and serve an appeal notice in relation to the orders made 23 May 2024 in Supreme Court of Western Australia action CIV 2660 of 2015 (orders) is dismissed.
   2. The appellant's application for leave to appeal from the orders is dismissed.
   3. The appeal is dismissed.
   4. The appellant's application in an appeal filed 22 May 2025 is dismissed.
   5. Leave to file the appellant's affidavits sworn on 26 June 2025, 8 July 2025 and 14 July 2025 is refused.
3. We will hear from the parties in relation to the costs of the two appeals.

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

[1] Referring to Kingsfield Holdings Pty Ltd (in liq) v Rottnest Island Authority [2025] WASC 121 (Kingsfield v RIA 2025).

[2] There is earlier litigation by Mr Lee not included in this list. It is summarised in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289 [28], [30] - [32]. We have not included that litigation as it appears to be a precursor to some of the other litigation we have listed.

[3] Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117.

[4] Lee v Department of Health [2020] WASC 103.

[5] Lee v Department of Justice [2020] WASC 105.

[6] Lee v Department of Justice [2021] WASC 119.

[7] Lee v Department of Justice [2021] WASCA 152.

[8] Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd [2022] WASC 161.

[9] Lee v Lawfirst Pty Ltd [2023] WASCA 59.

[10] Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166.

[11] Referring to Lee v The State of Western Australia [2023] WASCA 165 (Lee v SoWA - 1st Stay Appeal) [28] - [31].

[12] Referring to Lee v The State of Western Australia [No 2] [2023] WASC 247 (Lee v SOWA [No 2] (Stay Decision)) [14], [55] - [66].

[13] Lee v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [2023] WASCA 60.

[14] Lee v The State of Western Australia [2023] WASCA 97.

[15] Referring to Lee v Brandis [2024] WASCA 150 (Lee v Brandis - 2nd Stay Appeal).

[16] Lee v Chang [2025] WASCA 54 [3].

[17] Lee v The State of Western Australia [2023] WASC 182.

[18] Lee v Kingsfield Holdings Pty Ltd & Ors [2024] HCASL 79 [2].

[19] Lee v The State of Western Australia [2024] HCASL 80 [2].

[20] Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 [65] - [67].

[21] In de Braekt v Legal Profession Complaints Committee [2016] WASCA 220 [47].

[22] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[23] Farrant v Westpac Banking Corporation [2024] WASCA 157 [19].

[24] Zamora v OCS Services Pty Ltd [2025] WASCA 117 [95] - [101].

[25] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [2] - [3], [117].

[26] Referring to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[27] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [25] - [27].

[28] G v W [2021] WASCA 180 [62] - [64].

[29] Zaghoul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 81 [80].

[30] Armet v Stephen Browne [2024] WASCA 44 [55] - [56].

[44] ts 143. See also Kingsfield v RIA 2025 fn 10, fn 20.

[45] Fitzroy River LLC v Tucker [2025] WASCA 118 [114].

[46] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].

[47] Clough Ltd v Forge Group Ltd (in liq) (receivers and managers appointed) [2022] WASCA 179 [18] ‑ [23].

[48] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [56] - [63].