LEE -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASC 247 (5 July 2023)

1. The four proceedings in this court which are the subject of the present reasons are disparate in nature. The table in Attachment A to these reasons details the parties involved in each proceeding and the form and substance of each proceeding.
2. Whilst the proceedings have arrived at this court through various avenues, Mr Lee contends that each of the proceedings currently under review has a connection, to some degree, with the defamation actions he and Kingsfield Holdings Pty Ltd commenced in 2013. Those actions were, essentially, CIV 1106 of 2013, CIV 1146 of 2013 and CIV 1147 of 2013 (which I will refer to as the 2013 Defamation Proceedings). The claims in CIV 1146 of 2013 were resolved before trial, but the remaining actions proceeded to a final trial before Kenneth Martin J: Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117. The proceedings were dismissed and costs orders were made adverse to Mr Lee (and Kingsfield Holdings Pty Ltd).
3. The defamation claims advanced by Mr Lee in 2013 concerned only one verbal publication, consisting of fifteen words, uttered by Mr Rutherford to one person. That person was Mr Duffield, the director of Sullivan Commercial Pty Ltd, which was the leasing agent for the Rottnest Island Authority.[7] In his detailed reasons for decision, Kenneth Martin J found that the words which were the subject of those claims were not defamatory of the plaintiff. That finding was made on the basis that the plaintiff was not the object of the words complained of and, further, the imputations alleged to arise from the words did not arise as reasonable meanings from those words.[8] Accordingly, his Honour dismissed the damages claims brought by Mr Lee and his company.
4. Attempting to draw the lines of connection between the current proceedings and the historical defamation claims made by Mr Lee is no easy task. So far as can be deduced from the documents filed by Mr Lee, I understand he essentially asserts as follows:

(a) Mr Rutherford operated businesses on Rottnest Island in 2012 which were in competition with Mr Lee's business. Mr Rutherford made the aforementioned alleged defamatory comment to Mr Duffield, regarding the closure of Mr Lee's business.
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> (b) Mr Lee contends that the true source of the alleged defamatory comment was an officer of the Department of Health. Mr Lee asserts that Mr Rutherford took responsibility for the statements in exchange for receiving benefits from the Department of Health.
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> (c) One of those benefits was the intentional decision by the Department of Health not to enforce large fines against Mr Rutherford's business, Abellio Pty Ltd, which were imposed on that business by a Magistrate, for contraventions of the Food Act 2008 (WA).

5. These allegations concerning the now concluded defamation actions have a degree of similarity to the assertions made by Mr Lee as part of his subsequent tortious conspiracy claim. The conspiracy claims were summarily dismissed as an abuse of process by Allanson J in August 2021: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289 [112], [115] - [118] and [120] (Allanson J).
6. So, as noted above, Mr Lee maintains that each of the current proceedings are actions in respect of the 2013 Defamation Proceedings, which he says justifies his applications for leave to proceed under s 60(4)(a) of the Bankruptcy Act. In each of the four proceedings, Mr Lee seeks to connect the proceedings to the historical defamation dispute in varying ways.
7. For example, the origin of the relief sought in CIV 2011 of 2022 is an access application under the Freedom of Information Act 1992 (WA) (FOI Act) brought by Mr Lee to obtain documents relating to the enforcement and collection of the fines imposed on Mr Rutherford's business. Mr Lee maintains that the Department of Justice failed to take reasonable steps to locate the documents to which he had sought access, in order to conceal the involvement of the Department of Health in the 2013 Defamation Proceedings.[9]
8. By way of further example, I refer to the appeal proceedings from the State Administrative Tribunal (the SAT), which is GDA 7 of 2022. Within that appeal, Mr Lee asserts that a representative of the regulation agency in question, which conducted the proceedings on behalf of the Pharmacy Board of Australia (the Pharmacy Board), was formerly a member of the Department of Health. Mr Lee speculates that the Department of Health had an involvement in the proceedings before the SAT (and presumably this was an improper involvement of some description). This provides a connection, according to Mr Lee, with the 2013 Defamation Proceedings and the deliberate non-enforcement of fines by the Department of Health concerning the former competitor of Mr Lee on Rottnest Island.[10]
9. As will be seen, Mr Lee's attempts to draw so-called connections between the current proceedings and the 2013 Defamation Proceedings are unhelpful. Mr Lee's focus in this regard infects much of the material he has filed with the court in each of the proceedings. The lengthy affidavits sworn by Mr Lee attach swathes of largely irrelevant material, which are duplicated across each proceeding, and which do little to advance his arguments.
10. I will return to the nature of the four proceedings later in these reasons, to further explain the way in which Mr Lee contends each of the proceedings are of the character described in s 60(4)(a) of the Bankruptcy Act. For now, I will set out the issues which arise for determination and then turn to examine the legislative framework and applicable principles.

1. In each of the four proceedings, the issues which arise for determination are as follows:

(a) First, is the proceeding an 'action' for the purposes of s 60(2) of the Bankruptcy Act?
>
> (b) Second, if the answer to the first issue is 'yes', what is the present status of the proceeding in light of the position adopted by the trustee in bankruptcy?
>
> (b) Third, is the proceeding an action in respect of 'any personal injury or wrong done to the bankrupt' for the purposes of s 60(4)(a) of the Bankruptcy Act?

2. Having regard to the submissions filed by the parties, the real battleground for present purposes is the third issue stated above. The first and second issues form part of the analysis required before the third issue is addressed.

D. Legislative framework and principles Legislation

1. I will now examine the relevant provisions of the Bankruptcy Act. Let me start by setting out the terms of s 60 of the Bankruptcy Act, with the key phrases underlined:
   1. Stay of legal proceedings

(1) The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:

(a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or

(b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor:

(i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or

(ii) in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt;

and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody.

(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

(3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

(b) the death of his or her spouse or de facto partner or of a member of his or her family.

Note: See also subsection 5(6).

(4A) Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under a proceeds of crime law.

(5) In this section, action means any civil proceeding, whether at law or in equity.

(underlining added)

1. The purpose of s 60 was explained by Gray J in Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151 as follows:

[18] Section 60 is an adjunct to the scheme of the [Bankruptcy] Act whereby the property of a bankrupt passes to the bankrupt's trustee consequent upon a sequestration order. By s 58 of the [Bankruptcy] Act, the property of a bankrupt vests forthwith in the Official Trustee or a trustee in bankruptcy when a debtor becomes a bankrupt. That section has the effect of vesting in the trustee in bankruptcy all rights of action in pending proceedings commenced by the bankrupt. ...

[19] Section 60 is not the provision that vests the right of action in the trustee in bankruptcy. It has a different, and in some respects wider, role. It operates to stay pending proceedings unless the trustee elects to prosecute or discontinue them. It also provides the machinery for a defendant or other party to a pending proceeding to force the making of an election. It is directed towards the protection of the bankrupt's creditors, by preventing the unnecessary dissipation of the assets of the estate in fruitless litigation. In my view, s 60 also has the purpose of protecting a defendant or other party to a pending proceeding. A defendant or other party to a pending proceeding suffers an immediate detriment upon the plaintiff becoming a bankrupt. The detriment is that if the defendant or other party should be successful in the proceeding, and should obtain an order that the plaintiff pay the costs of the proceeding, the order will be effectively unenforceable because of the bankruptcy. The rationale behind s 60(2) and s 60(3) is therefore, at least in part, to protect those whom the bankrupt has been suing. ...

[20] In my view, s 60 has been enacted deliberately as a broad provision, so as to encompass any proceeding brought by a bankrupt before bankruptcy. The exceptions have been expressed quite narrowly. The intention is that, once a bankruptcy occurs, no further costs should be incurred in a proceeding unless the trustee in bankruptcy makes an election to continue the proceeding. If such an election is made, the trustee in bankruptcy will ordinarily become substituted as plaintiff in the pending proceeding, in the capacity of trustee in bankruptcy for the former plaintiff. The trustee in bankruptcy will thereby become liable for the costs of the proceeding in the event that it is unsuccessful and a costs order is made in favour of the defendant in the proceeding or some other party to it.

1. There are some features of the statutory regime which should be noted. Section 60(2) operates to stay all 'actions' commenced by a person who subsequently becomes a bankrupt. As defined in s 60(5), the term 'action' means 'any civil proceeding, whether at law or in equity'.
2. Further, s 60(3) provides for the deemed abandonment of an action if a trustee does not make an election (as contemplated by s 60(2)) within 28 days after notice of an action is served upon him or her.
3. Section 60(4) provides that a bankrupt may continue an action commenced by him or her before he or she became a bankrupt in respect of 'any personal injury or wrong done to the bankrupt'. The words 'personal injury' and 'wrong' have the same connotation and derivation.[11] This provision requires a brief discussion of ss 58 and 116 in order to understand the scheme of the legislation. The following matters should be observed in this regard:

(a) Section 58 provides that when a debtor becomes bankrupt, the 'property of the bankrupt' vests in the Official Trustee. The term 'property' is defined to include the property which is divisible among the bankrupt's creditors, and is defined in a manner that includes a chose in action.[12]
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> (b) Section 116 deals with the property that is divisible among the creditors of the bankrupt. Section 116(1) provides that all property that belonged to the bankrupt at the commencement of the bankruptcy, and the capacity to bring proceedings for exercising all powers over the property of the bankrupt, are divisible among the bankrupt's creditors.
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> (c) Section 116(2) sets out various categories of property that are not divisible amongst the creditors. In particular, s 116(2)(g) excludes from the property which is divisible amongst a bankrupt's creditors: > > > (g) any right of the bankrupt to recover damages or compensation: > > > > > (i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; or
> > >
> > > (ii) in respect of the death of the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt;

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person; (underlining added)

1. Accordingly, it can be seen that s 60(4)(a) preserves the right of a bankrupt to continue with an action in respect of the rights specified in s 116(2)(g).

1. The operation of ss 60 and 116 of the Bankruptcy Act were considered in some detail by Tottle J in Berryman v Zurich Australia Ltd [2016] WASC 196. His Honour reviewed the key authorities of relevance to these statutory provisions, and helpfully explained the origins and purposes of the provisions and the manner in which they harmoniously interact.
2. I respectfully agree with the observations expressed by Tottle J in Berryman and the correctness of the principles set out in his reasons. I draw the following principles from his Honour's reasons.
3. Section 60(4) and s 116(2)(g) are complementary provisions. Context and statutory purpose require that they be construed in a way that ensures they operate harmoniously. That being so, in the phrase 'in respect of' in s 60(4), the word 'for' in s 116(2)(g)(i), and the phrase 'in respect of' in s 116(2)(g)(ii) have the same meaning, and 'in respect of' does not have an ambit that is wider than 'for'.[13]
4. The phrase 'in respect of' and the word 'for' convey the requirement of a relationship between two subject matters and are of 'broad import'. They are words, however, which take their meaning from the context in which they are used. In the present context, the words serve to identify the nature of the loss to which the damages or compensation in s 116(2)(g), and the action in s 60(4), relate. In the absence of any textual or contextual warrant restricting its ambit, the relationship may be direct or indirect.[14]
5. The purpose of these sections is to protect a bankrupt's right to compensation for personal injury or wrong from his or her creditors. It is important to appreciate the underlying principle as developed by the common law of bankruptcy, that is, that it was considered harsh and unjust to give the solace for the hurt to the person or personal feelings of the bankrupt to general creditors: Moss v Eaglestone [2011] NSWCA 404 at [55] and [64].[15]
6. Both s 60(4) and s 116(2)(g) focus on the substance of the claim in question, not the form of the action. There is nothing in the text of the provisions or in their context that supports the proposition that the legal basis of a claim is determinative. The focus on the substance of the action reflects the underlying statutory intent.[16] The following passage in Tottle J's reasons further explains the point:

[68] In Moss v Eaglestone Allsop P emphasised the necessity to have regard to the substance of the matter rather than the form of the action. Kiefel J made the same point in Re Dosanjh; Ex parte Duus by drawing attention to the real enquiry, that is, whether the monies were payable as compensation for the injury or wrong done. To focus on whether the amount is payable pursuant to a contract or indeed whether the amount is fixed by the contract distracts from the real enquiry. Provided that there is a relation between the amount of compensation and the nature of the injury, neither the fact that the claim is contractual in nature nor that it is for a fixed amount, negate the essential character of the payment as compensation for injury.

1. The classic expression of the meaning of s 60(4)(a) of the Bankruptcy Act appears in the decision of Dixon J in Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, where his Honour stated:

The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property (footnote omitted).[17]

1. Many years later, in Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115, 119, Lockhart J commented that the 'common thread running through these cases [in which the common law principles have been discussed] is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt'.
2. The foregoing comments were referred to with the approval of the Full Court of the Supreme Court of Western Australia, in Bride v Peat Marwick Mitchell [1989] WAR 383, 391 (Malcolm CJ, with Wallace and Brinsden JJ agreeing). The then Chief Justice described the exception in s 116(2)(g) of the Bankruptcy Act as applying to claims such as motor vehicle accident claims, claims for damages for injury to reputation or feelings such as a claim for damages for slander. Further, the Chief Justice referred to a number of authorities of some antiquity to support the proposition that actions for damages to the property of a bankrupt, whereby the estate coming into the hands of the trustee in bankruptcy is diminished, are vested in the trustee (at 391).

1. The first issue to address is whether each of the proceedings is an 'action' for the purposes of s 60(2) of the Bankruptcy Act. Section 60(2) operates to stay all 'actions' commenced by a person who subsequently becomes a bankrupt. As defined in s 60(5), the term 'action' means 'any civil proceeding, whether at law or in equity'.
2. The submissions filed by the parties did not agitate this issue at any length. That is likely because the definition in s 60(5) is of 'great width'.[18]
3. Given the broad definition, there is no doubt that proceedings CIV 2011 of 2022 and CIV 2660 of 2015 are 'actions' within the definition in s 60(5). Further, the definition is wide enough to capture appeal proceedings[19] as well as proceedings in the nature of prerogative relief.[20] The policy of the Bankruptcy Act is that 'after sequestration of the estates of unsuccessful litigants the successful party not be put at the risk of sustaining further costs of appellate litigation'.[21] I therefore consider that the appeal proceedings in GDA 7 of 2022 and GDA 10 of 2022 are also 'actions' within the meaning of s 60(5) of the Bankruptcy Act.

1. The second issue to address is the present status of each proceeding, having regard to the stay effected by operation of s 60(2) of the Bankruptcy Act and the conduct of the trustee in bankruptcy.
2. It is clear that, as each of the proceedings is an 'action' as defined and each had been commenced in this court prior to Mr Lee becoming a bankrupt, each of the proceedings was automatically stayed by operation of s 60(2) of the Bankruptcy Act upon Mr Lee being made subject to sequestration orders on 3 November 2022.
3. To determine the present status of the proceedings, the actions and conduct of the trustee in bankruptcy must next be examined, to understand how the trustee proposes to treat the pending proceedings. The material before the court indicates the proceedings have not been treated consistently:

(a) as to CIV 2011 of 2022[22] and GDA 10 of 2022,[23] Mr Lee's trustee in bankruptcy expressly elected not to continue with those proceedings; and
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> (b) as to CIV 2660 of 2015[24] and GDA 7 of 2022,[25] there has been no express election by the trustee and so the trustee is deemed by s 60(3) of the Bankruptcy Act to have elected to abandon those actions.

4. I will return to this issue under Heading K below, after dealing with the remaining issue which arises on the current applications. That remaining issue, which requires careful analysis, is whether any of the proceedings is an action in respect of 'any personal injury or wrong done to the bankrupt' for the purposes of s 60(4)(a) of the Bankruptcy Act. I will address this issue in relation to each of the four proceedings in turn.

G. Disposition of the third issue - CIV 2011 of 2022 Summary of the proceedings

1. CIV 2011 of 2022 was brought by Mr Lee pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA) (RSC), seeking orders for pre-action discovery against the Department of Justice. The application arises out of an access application made by Mr Lee seeking access to documents under the FOI Act.
2. An amended originating summons was filed by Mr Lee on 24 October 2022 (although the document is dated 20 October 2022). The amended summons seeks orders that the Principal Information Officer at the Department of Justice make and serve on Mr Lee an affidavit of discovery listing all documents as defined in O 26 r 1A RSC that are or have been in the State's possession, custody or power which answer the following description:

13.2 [documents] relied upon by the Department of Justice in [the Principal Information Officer's] decision of 26 October 2018, on an application pursuant to the Freedom of Information Act 1992 (WA) (FOI Act) by the Plaintiff of 14 June 2018 being FOI 18/548, to claim that no request had been made by the prosecuting authority, the Department of Health (DOH), for enforcement and that as a result no documents relating to enforcement of the fine were created by the FER

1. Mr Lee asserts in the summons that he 'may have an action for breach of duty, breach of contract and breach of statutory duty against the Defendant based on documents produced or the failure to produce documents as sought in this application by the Plaintiff'.[26] Those various causes of action are said to arise in respect of the defendant's failure to produce documents to Mr Lee in response to the access application under the FOI Act he made on 14 June 2018. The access application has been the subject of other proceedings in this court and the Court of Appeal: Lee v Department of Justice [2020] WASC 105 (Archer J), which is GDA 11 of 2019, and Lee v Department of Justice [2021] WASCA 152, which is CACV 50 of 2020.
2. The losses which are claimed by Mr Lee are said to arise from costs orders and counsel fees which he apparently suffered or incurred in the other proceedings, namely GDA 11 of 2019, CACV 50 of 2020 and GDA 4 of 2020.[27]
3. Mr Lee's asserted claims have altered since he filed this proceeding. In particular, Mr Lee states that he no longer intends to proceed with claims for breach of contract and negligence, and now seeks to rely on the intentional tort of misfeasance in public office (which is not the subject of the amended originating summons).[28]
4. As already noted, Mr Lee contends that this proceeding is connected with the 2013 Defamation Proceedings. Mr Lee asserts that he initiated the access application under the FOI Act to obtain documents relating to the enforcement and collection of the fines imposed on Mr Rutherford's business. Mr Lee maintains that the Department of Justice failed to take reasonable steps to locate the documents to which he had sought access, in order to conceal the involvement of the Department of Health in the 2013 Defamation Actions. The failure to take these reasonable steps, in the course of dealing with his access application, has given rise to allegedly actionable claims against the State, having regard to the terms of ss 3, 4, 10, 11 and 26 of the FOI Act.

1. Mr Lee's submission that the substance of the proceeding constituted by CIV 2011 of 2022 is a personal injury or wrong done to him must be rejected. My reasons for this conclusion are as follows:
   1. The proceeding is a pre-action discovery application brought under O 26A r 4 RSC which seeks access to documents. The amended originating summons does not seek any other form of relief such as declarations or damages (and nor could it, given the nature of the procedure facilitated by O 26A).
   2. I accept that the pre-action discovery proceeding is a potential gateway to Mr Lee's prospective, substantive claims, and it would not be correct to confine the present analysis to the four corners of the amended originating summons filed in the proceedings. A broader enquiry is required. The documents which are sought by the application are said by Mr Lee to be required to enable him to make a decision whether to commence substantive proceedings against the State of Western Australia. The substantive claims pressed by Mr Lee have altered over time, but it now appears Mr Lee wishes to commence actions for breach of statutory duty and for misfeasance in public office.
   3. The breach of statutory duty claim is said by Mr Lee to arise from the manner in which his access application for documents under the FOI Act was dealt with.[29] The existence of any such private law claim arising under the FOI Act is highly doubtful. I will assume however for present purposes that such a claim can be mounted.
   4. The misfeasance in public office allegation has arisen only relatively recently, during the course of the present application made by Mr Lee under the Bankruptcy Act. The allegation is vague at best, and appears only in Mr Lee's submissions, not in his sworn affidavits.[30] Mr Lee asserts, without evidence, that document should have been produced by the Department of Justice in response to his access application under the FOI Act, and the failure to produce those documents without proper explanation gives rise to an inference that the documents were concealed or destroyed.
   5. The approach adopted by Mr Lee in this regard, of invoking fresh claims which have not previously been identified in his substantive application, nor deposed to by him in his supporting affidavit material, is to be deplored. Even more so where those fresh claims involve making serious and largely unparticularised allegations.
   6. In any event, the difficulty Mr Lee faces, in seeking to characterise his prospective claims as falling with s 60(4)(a) of the Bankruptcy Act, is that the underling losses claimed by him are the costs orders and counsel fees suffered or incurred in various other proceedings. The proposed actions, as I understand them, will not be seeking damages which are estimated by immediate reference (or any reference) to pain felt by Mr Lee in respect of his mind, body or character. As noted, the pecuniary losses he wishes to pursue concern costs orders and legal fees which he suffered or incurred. The choses in action which may arise in relation to those payments vested in the trustee in bankruptcy as part of Mr Lee's estate, in my view.[31]
   7. Further, to the extent to which Mr Lee contends CIV 2011 of 2022 has a connection with the 2013 Defamation Proceedings, his argument that the present proceeding falls within s 60(4)(a) of the Bankruptcy Act gets no stronger. I say this because the pre‑action discovery proceeding is too remote from, and unconnected with, those earlier proceedings. It is not enough that a party merely asserts a thread which stretches back to certain historical proceedings, commenced a decade ago, which were in the nature of proceedings for a 'personal injury or wrong', in order to attract the same characterisation for the purposes of the present-day proceedings. While the prepositional words 'in respect of' allow for a broad enquiry, and an indirect connection may be sufficient, a tangential connection of this nature is inadequate. The focus must be on the substance of the claim in question, not on artificial constructs.
   8. Further still, as submitted by the defendant on this application, even if the tangential connection to the 2013 Defamation Proceedings relied upon by Mr Lee is adequate for the purposes of s 60(4) (and I am of the view it is not), Mr Lee's application is misconceived for the reason that the historical proceedings were disposed of by this court many years ago, adverse to Mr Lee. Accordingly, this court has already determined there was no injury or wrong to Mr Lee, as had been alleged by him in those proceedings. In those circumstances, I accept the submission of the defendant that it would be an odd, if not absurd result, if a bankrupt was permitted to continue proceedings that are said to be related to an action for personal injury or wrong where the court has already determined the injury or wrong did not arise.[32]
2. The pre-action discovery proceeding brought by Mr Lee by way of the amended originating summons in CIV 2011 of 2022, is thus not an action for personal injury or wrong done to Mr Lee, within the meaning of s 60(4)(a) of the Bankruptcy Act.

H. Disposition of the third issue - CIV 2660 of 2015 Summary of the proceedings

1. This action was commenced by writ and seeks damages for misleading or deceptive conduct and misfeasance against the named defendants. Mr Lee and Kingsfield Holdings are the two plaintiffs. The defendants are the Rottnest Island Authority, the State, Mr Amaranti and Mr Brandis. The latter two persons were officers of the Rottnest Island Authority at the relevant times.
2. The re-amended statement of claim dated 6 May 2020 pleads out a series of representations alleged to have been made by the defendants, as well as allegedly improper conduct on the part of the defendants, concerning the negotiations for, and operation of, the lease obtained by Mr Lee's pharmacy, the Wellness Centre, and the café business on Rottnest Island.
3. More specifically, the plaintiffs allege that the Rottnest Island Authority, through the actions of the named officers, engaged in conduct that was misleading or deceptive, or constituted misfeasance in public office, when it sent a letter to the Chief Pharmacist recommending that the General Store on Rottnest Island should retain a particular licence, enabling it to sell certain pharmaceutical products in competition with Mr Lee's business.[33]
4. The plaintiffs further allege that the officers of the Rottnest Island Authority acted in a manner that was misleading or deceptive, or a misuse of public office, when they swore affidavits in proceedings in the SAT in which the plaintiffs and the Rottnest Island Authority disputed the construction of a rent review clause in a lease agreement for the Wellness Centre. The plaintiffs have claimed damages, including exemplary damages, against the defendants arising out of this conduct.

1. Mr Lee's submission that the substance of the proceeding constituted by CIV 2660 of 2015 is a personal injury or wrong done to him must be rejected. My reasons for this conclusion are as follows:
   1. The manner in which Mr Lee has articulated the relief he seeks for his misfeasance in public office claim, by reference to an asserted diminution in earning capacity,[34] demonstrably shows that the claim is one for loss to the property or the estate of the bankrupt. The plaintiffs' case is based upon a loss of profits. The claim is simply not pleaded as a claim for damages referable to any injury to Mr Lee, or emotional distress, or hurt feelings.
   2. I therefore accept the submission of the defendants that the plaintiffs' action for loss of earnings or additional profits, stemming from the misfeasance claim pleaded in CIV 2660 of 2015, is more properly characterised as loss to the property or estate of the bankrupt than any personal injury to the person or feelings of the bankrupt.[35]
   3. Mr Lee posits a second leg to his application, to justify why the proceeding falls within s 60(4)(a) of the Bankruptcy Act. Mr Lee refers to a 'second personal wrong' in the matter, being the tort of malicious prosecution.[36] No such claim has been pleaded by Mr Lee. Without repeating them, I refer to my earlier criticisms as to Mr Lee's reliance on fresh claims which are unpleaded and unverified. Mr Lee submits that:

...the defence filed by the Defendants [in CIV 2660 of 2015] is an abuse of court and in addition thereto is malicious in that the Defendants are maintaining a defence without foundation for an improper purpose.[37]

1. Mr Lee's further attempt to explain the unpleaded malicious prosecution claim in his reply submissions takes the matter no further.[38] The claim is simply speculative. However, assuming the claim is somehow at least arguable, the loss pleaded by Mr Lee remains profit based and this removes the matter from the purview of s 60(4)(a) of the Bankruptcy Act. Mr Lee's reliance on the malicious prosecution claim is thus not capable of falling within that provision.[39]
2. I observe that Mr Lee also seeks exemplary damages in these proceedings.[40] This claim arises from the conduct alleged to have been undertaken by Mr Brandis and Mr Amaranti in sending the letter and swearing the affidavits, to which I have earlier referred. However, this aspect of the claim cannot be separated from the remainder of the claims advanced by Mr Lee in the proceedings and, indeed, is inherently part of those claims, which fall outcome s 60(4)(a).
3. The action brought by Mr Lee by way of the writ of summons in CIV 2660 of 2015 (which includes the claims for exemplary damages), is thus not an action for personal injury or wrong done to Mr Lee, within the meaning of s 60(4)(a) of the Bankruptcy Act.

I. Disposition of the third issue - GDA 7 of 2022 Summary of the proceedings

1. This proceeding is an appeal from costs orders made in the SAT.[41]
2. The proceedings in the SAT, like the appeal proceedings themselves, were between Mr Lee and the Pharmacy Board. The proceedings were brought by Mr Lee under the Health Practitioner Regulation National Law (WA) Act 2010, seeking a review of a decision made by the Pharmacy Board to impose conditions on his registration as a pharmacist.
3. In a decision delivered on 13 August 2021, and published on 28 September 2021, the SAT upheld Mr Lee's review application and set aside the Pharmacy Board's decision: Lee v Pharmacy Board of Australia [2021] WASAT 132. These substantive orders are not the subject of the present appeal to this court.
4. Subsequently, Mr Lee filed two applications with the SAT.
5. First, Mr Lee sought an order (albeit out of time) that the Pharmacy Board pay his costs of the proceedings. The SAT declined to grant Mr Lee an extension to seek those costs. Mr Lee's application for costs against the Pharmacy Board was quantified by him in the sum of $193,550.[42] This amount included the sum of $50,000 for embarrassment and inconvenience caused to him, which appears to be a sum assessed by Mr Lee without reference to any particular benchmarks, akin to an amount representing general damages. Mr Lee submitted that he should be compensated for the embarrassment and inconvenience of the conditions being maintained on his licence as a pharmacist, asserting that the Pharmacy Board and AHPRA acted unreasonably and in bad faith in maintaining the conditions. In advancing his application for costs, Mr Lee highlighted the inclusion within s 87(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) of a power to award costs to a party which is referable to matters of inconvenience or embarrassment, as well as expenses and loss etc. In terms, s 87(3) provides that the power to award costs (in s 87(2)) includes the power to make an order for the payment of:

...an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

1. Second, Mr Lee lodged an interim application seeking an order that the State Manager of the Australian Health Practitioner Regulation Agency (AHPRA) file an affidavit setting out her involvement in the proceedings and provide copies of any communications that she or AHPRA had with the Department of Health. The interim application was also dismissed by the SAT.
2. In response, the Pharmacy Board sought costs orders against Mr Lee in respect of the two failed applications he had filed. On 4 May 2022, the SAT made orders that:

(a) Mr Lee's application for an extension of time to make a costs application was dismissed; and
>
> (b) within 28 days, Mr Lee was ordered to pay costs in the sum of $6,688 to the Pharmacy Board, in respect of two applications which Mr Lee had made.

3. Detailed reasons were published by the SAT in support of the orders made: Lee v Pharmacy Board of Australia [2021] WASAT 132 (S).
4. The appeal notice to this court was filed on 31 May 2022, pursuant to O 65 r 10 RSC. The appeal is brought against the refusal by the SAT to grant the extension of time and against the costs orders imposed by the SAT against Mr Lee. In his appeal notice, Mr Lee has raised nine broad grounds of appeal touching on matters of bias on the part of the Pharmacy Board, whether relevant considerations were not taken into account, whether irrelevant considerations were taken into account, and an asserted lack of evidence.[43]
5. Mr Lee has submitted that the proceedings in the SAT were in effect conducted by AHPRA on behalf of the Pharmacy Board. He notes that the State Manager of AHPRA was Ms Banks (who was later replaced by Mr Smerk) and that Ms Banks was connected to the Department of Health during the course of the proceedings.[44]
6. Mr Lee had been advised in writing by the lawyers for the Pharmacy Board, in response to a query he made, that Ms Banks had no involvement in the matter.[45] Nonetheless, Mr Lee sought an order, which the SAT declined to make, that Ms Banks swear an affidavit as to her involvement. Ms Banks was not a party to the proceedings in the SAT. Mr Lee submits as follows:[46]

It is submitted that an inference can be drawn that the only reason that the involvement of Ms Banks and Mr Smerk was denied was to conceal their involvement in the conduct of the proceedings and thereby the involvement of the [Department of Health].

1. Mr Lee further submits that 'the conduct of the proceedings [before the SAT] was a personal injury or wrong done to me which damaged my capacity to earn income'.[47]

1. Mr Lee's submission that the substance of the appeal constituted by GDA 7 of 2022 is a personal injury or wrong done to him must be rejected. My reasons for this conclusion are as follows:
   1. The appeal to this court is properly characterised as narrow in nature. It is an appeal against a refusal by the SAT of an extension of time which would have permitted Mr Lee to seek costs against the Pharmacy Board, and an appeal against costs orders made in favour of the Pharmacy Board in respect of two failed interlocutory applications. One of those applications concerned the extension of time application itself, and the other concerned an application to require a third party to file an affidavit.
   2. The primary relief sought in the SAT proceedings (which had been initiated by Mr Lee, not the Pharmacy Board) was to set aside a decision to impose conditions on Mr Lee's registration as a pharmacist. These matters may well have been capable of falling within the terms of s 60(4)(a) of the Bankruptcy Act, by analogy with cases such as Griffiths v Civil Aviation Authority [1996] FCA 1502; (1996) 67 FCR 301.
   3. However, the residue of the SAT proceedings (and the matters which form the basis of this appeal) is confined to questions of cost. The general power of the SAT to award costs is found in s 87 of the SAT Act. I have earlier referred to the terms of s 87(3) which permits an order for the payment of an amount to compensate the other party for any inconvenience or embarrassment, among other matters.
   4. The inclusion within s 87(3) of a power to award costs referable to matters of inconvenience or embarrassment, as well as expenses and loss etc, was highlighted by Mr Lee in his application to the SAT, as I have earlier noted. A consideration of the scope of s 87(3), and the nature of Mr Lee's claim for costs before the SAT, is thus required in analysing the present appeal insofar as it relates to the refusal by the SAT to grant Mr Lee an extension of time which would have permitted him to seek costs against the Pharmacy Board.
   5. In this regard, it should be observed that the power in s 87(3) of the SAT Act is conferred on the SAT in relation to the exercise of its statutory jurisdiction, and the SAT has no jurisdiction to adjudicate upon general law causes of action or to award damages for breach of duty: Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2023] WASCA 60 [33] (Murphy and Vaughan JJA). I recognise the Court of Appeal did not attempt a definitive construction of the scope of s 87(3) in that decision. Nonetheless, it is evident that the scope of the power is not so broad as to permit a party to claim compensation in the nature of damages from a decision-maker on the basis that the decision-maker's conduct fell short of acceptable standards. Indeed, this is the basis on which the SAT itself has construed the provision: Springmist Pty Ltd and Shire of Augusta‑Margaret River [2005] WASAT 143 [51] - [65].
   6. Fundamentally, the power of the SAT to award costs to parties before it is confined to compensation for expenses etc resulting from either the proceeding, or from the matter because of which the proceeding was brought. This follows from the concluding words of s 87(3). The relevant proceeding in this case is the SAT proceeding itself and the relevant matter is the decision of the Pharmacy Board to impose conditions on Mr Lee's registration as a pharmacist.
   7. Once these limitations on the costs power are understood, it follows in my view that the possibility that Mr Lee's out-of-time costs claim may have included a component to reflect embarrassment and inconvenience does not transform or elevate the appeal proceedings (or part of the appeal proceedings) into an action in respect of a personal injury or wrong done to Mr Lee. I reach this conclusion because the primary and substantial right of action would nonetheless remain a direct pecuniary loss to the property or estate of Mr Lee. The fact there may be some incidental personal inconvenience to Mr Lee does not change this.[48] Further, even if the inconvenience to Mr Lee is regarded as extending beyond incidental personal inconvenience, it would not in and of itself form the basis of a separate cause of action.[49] In those circumstances, the right of action vests in the trustee.
   8. In any event, Mr Lee does not place s 87(3) at the forefront of his arguments on this application. Rather, Mr Lee asserts that the personal wrong is the malicious prosecution by AHPRA and the Pharmacy Board, and misfeasance in public office.
   9. The attempts by Mr Lee to characterise the proceedings in the SAT or this appeal as involving misfeasance in public office, or some form of malicious prosecution, are baseless and simply devoid of legal merit.[50] These contentions need not be considered any further.
   10. Further, Mr Lee's attempt to connect the SAT proceedings and the appeal in GDA 7 of 2022 with the conduct of the Department of Health, involves enormous levels of conjecture and speculation on his part and, even if those aspects of conjecture and speculation were to be accepted by this court, Mr Lee would be no closer to satisfying the requirement in s 60(4)(a) of the Bankruptcy Act. There is simply no nexus between these matters.
   11. I turn to the second part of the appeal in GDA 7 of 2022, namely the appeal against the costs orders in favour of the Pharmacy Board. The costs awarded to the Pharmacy Board were calculated by reference to the legal work undertaken by the Board's solicitors.[51] Naturally enough, those costs orders do not concern any matters connected with Mr Lee's inconvenience or embarrassment, nor his feelings in any way. Thus the aspect of the present appeal which is concerned with challenging the costs awarded to the Pharmacy Board cannot, on any view, be characterised as being in respect of any personal injury or wrong done to Mr Lee.[52]
2. The appeal against the costs orders in the SAT brought by Mr Lee by way of the appeal notice in GDA 7 of 2022, is thus not an action for personal injury or wrong done to Mr Lee, within the meaning of s 60(4)(a) of the Bankruptcy Act.

J. Disposition of the third issue - GDA 10 of 2022 Summary of the proceedings

1. GDA 10 of 2022 is an appeal against a decision of the Information Commissioner to dismiss the appellant's complaint on the basis that it lacked substance. The appeal notice was filed on 19 September 2022, pursuant to O 65 r 10 RSC. The appeal arises out of an access application made by Mr Lee on 26 May 2020, wherein he applied to the Department of Health for access to documents. Mr Lee sought:

Documents (including metadata) concerning, relating to or referring to the searches, investigations and recovery of emails pursuant to requests to the email support team on 12 April 2018, 9 July 2018 and 28 August 2018 as referred to in the attached email from Mr Van Lamoen to Ms Kathy Clark dated 1 March 2019.

The requests to the email support team being Health Support Services (HSS) related to 3 FOI Act applications made by the Appellant on 3 April 2018 (2018-20), 10 May 2018 (2018-28) and 27 July 2018 (2018-54).[53]

1. The details included in the appeal notice indicate that Mr Lee's access applications under the FOI Act led to certain documents being produced to him by the agencies, but he nonetheless sought internal reviews of those outcomes on the basis that he contended further material should have been made available. Ultimately, in August 2020, Mr Lee initiated an external review under the FOI Act, to the Information Commissioner. The Information Commissioner concluded that the complaints made by Mr Lee had no substance and determined that she would cease dealing with the complaint.
2. Within the appeal notice, Mr Lee raises four questions of law for the purposes of the appeal, being:

Did the Freedom of Information Commissioner (Commissioner) err in law by finding that the Appellant's complaint was lacking in substance pursuant to section 67(1)(b) of the Freedom of Information Act 1992 (WA) (FOI Act) and thereby fail to discharge her obligations according to law?

Did the Commissioner err in law by failing to publish her decision according to section 76(8) of the FOI Act?

Did the Commissioner err in law by failing to take into account relevant considerations?

Did the Commissioner fail to give adequate reasons for her decision?

1. Mr Lee asserts that the errors of law made by the Information Commissioner:

[3] ...resulted in part or whole from the conduct of officers of the Environmental Health Directorate (EHD) or the Department of Health (DOH) and Health Support Services (HSS) who were complicit in a failure to conduct reasonable searches in order to protect the DOH and relevant officers from legal claims in respect of defamation actions involving [Mr Lee].[54]

1. Once again, there can be seen a desire on the part of Mr Lee to trace his present litigation back to the 2013 Defamation Proceedings. Mr Lee makes the following submissions, which refer to the now concluded defamation actions, in support of his contention that GDA 10 of 2022 is an action which fits within the language of s 60(4)(a) of the Bankruptcy Act:[55]

[36] It is submitted that reasonable searches were not conducted in order to conceal the involvement of the DOH in the Defamation proceedings.

[37] As such this Appeal is in respect of a personal wrong. It is submitted that the personal wrong being the alleged defamation in the Defamation proceedings. It is submitted that the original source must have been [the identified government officer] for the reasons below. The Defamation proceedings would not have fallen into my estate and that there is no reason why this Appeal should do so as it is in respect of the defamation. It is submitted it is far more serious for a business to be closed by the DOH than for a passerby to allegedly see it closed and that is why the DOH and Mr Rutherford agreed that he would take responsibility for the [allegedly defamatory statement].

1. Mr Lee's submission that the substance of the appeal constituted by GDA 10 of 2022 is a personal injury or wrong done to him must be rejected. My reasons for this conclusion are as follows:
   1. The appeal is against an adverse decision made by the Information Commissioner, arising out of Mr Lee's access applications under the FOI Act. The appeal is necessarily confined to questions of law. The appeal is focused on securing relief which might enable Mr Lee to further pursue his complaints regarding access to documents held by government agencies.
   2. There is nothing apparent from the nature or substance of these proceedings which remotely suggests the matter falls within the concept of a 'personal injury or wrong done to the bankrupt'.[56]
   3. Mr Lee has therefore been driven to construct a connection to the 2013 Defamation Proceedings. That connection is remote and speculative. It cannot be deployed by Mr Lee to support a conclusion that GDA 10 of 2022 is an action 'in respect of' the historical defamation proceedings. As I have indicated in these reasons, I accept this prepositional phrase is broad in nature. The same is also true for the preposition 'for' in s 116(2)(g)(i) and the phrase 'in respect of' in that same provision.[57] But even these broad phrases cannot bear the weight Mr Lee seeks to place upon them.
2. The appeal against the decision of the Information Commissioner brought by Mr Lee by way of the appeal notice in GDA 10 of 2022, is thus not an action for personal injury or wrong done to Mr Lee, within the meaning of s 60(4)(a) of the Bankruptcy Act.

1. I will therefore order, in each of the proceedings, that the application filed by Mr Lee for leave to proceed be refused.
2. As to the appropriate costs orders to be made, I have had regard to the observations as to costs of the Court of Appeal in Moran v Minco Holdings Pty Ltd (in liq) [2022] WASCA 93 [18] (Buss P and Mitchell JA) and the Full Federal Court in Cole v Challenge Bank Limited [2002] FCAFC 200 [16] - [17] (Gray J), [20] (RD Nicholson J), and [22] (Emmett J). In the circumstances, I am of the view that Mr Lee must pay the costs of the unsuccessful applications. I will order accordingly.
3. The effect of a refusal of Mr Lee's applications is that each of the proceedings remain stayed. The decision of the trustee in bankruptcy not to continue with two of the actions, and the deemed abandonment of the other two actions, does not mean that the proceedings are thereby dismissed, nor that an order for dismissal must now be made. The Court of Appeal in Moran v Minco Holdings Pty Ltd (in liq) [2022] WASCA 93 observed that:

[12] The deemed abandonment of a proceeding by a trustee in bankruptcy does not itself extinguish the cause of action asserted in the proceedings. The deemed abandonment of proceedings effected by s 60(3) does not mean, of itself, that proceedings should be dismissed. It is a separate question in any particular case whether there ought to be a dismissal and what order as to costs may be made consequent upon the abandonment effected by the statute.

[13] Given the appellant's attitude, it is appropriate that this court give effect to the deemed abandonment of the appeal pursuant to s 60(3) of the Bankruptcy Act by an order that the appeal be dismissed. There are no circumstances to warrant keeping this appeal on foot.

1. Further, in Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2023] WASCA 60, the Court of Appeal stated as follows (footnotes omitted):

[35] The deemed abandonment of proceedings in respect of a cause of action does not itself extinguish the underlying cause of action asserted in the proceedings. Accordingly, the courts have shown some reluctance to dismiss an action at first instance once it has been abandoned under a provision such as s 60(3) of the Bankruptcy Act, out of a concern that the dismissal might create unnecessary res judicata estoppels against the bankrupt. However, there was no suggestion by Mr Lee in this case that this was an issue of concern in the appeal. Mr Lee's appeal did not seek to vindicate any underlying cause of action vested in him.

[36] In the circumstances, no purpose would be served in leaving the appeal on foot.

1. In my view, a similar approach is warranted in the present circumstances, in relation to CIV 2011 of 2022, GDA 7 of 2022 and GDA 10 of 2022, there being no suggestion that a dismissal of those proceedings might create unnecessary res judicata estoppel concerns (and nor do I consider that any such issues are likely to emerge, given the inherent nature of those actions). Indeed, in GDA 7 of 2022, the Pharmacy Board had itself filed an application to dismiss the appeal based on the trustee in bankruptcy's deemed abandonment of the proceedings.[58]
2. However, as to CIV 2660 of 2015, 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.[59]
3. The orders set out below will now be made. If further costs orders are sought by any of the parties in CIV 2011 of 2022, GDA 7 of 2022 or GDA 10 of 2022, those proceedings can be listed for directions hearings for that limited purpose.

1. The plaintiff's application for leave to proceed, pursuant to s 60(4)(a) of the Bankruptcy Act 1966 (Cth), is dismissed.
2. The plaintiff is to pay the defendant's costs of the application, to be taxed if not agreed.
3. The proceeding is hereby dismissed.

1. The second plaintiff's application for leave to proceed, pursuant to s 60(4)(a) of the Bankruptcy Act 1966 (Cth), is dismissed.
2. The second plaintiff is to pay the defendant's costs of the application, to be taxed if not agreed.
3. The action will be listed for further directions to hear submissions from the parties as to whether action should be dismissed.
4. 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).

1. The appellant's application for leave to proceed, pursuant to s 60(4)(a) of the Bankruptcy Act 1966 (Cth), is dismissed.
2. The appellant is to pay the respondent's costs of the summons dated 13 April 2023 and the respondent's costs of the application, to be taxed if not agreed.
3. The appeal is hereby dismissed.

1. The appellant's application for leave to proceed, pursuant to s 60(4)(a) of the Bankruptcy Act 1966 (Cth), is dismissed.
2. The appellant is to pay the respondent's costs of the application, to be taxed if not agreed.
3. The appeal is hereby dismissed.

Proceeding commenced by an originating summons pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA) seeking pre-action discovery.

Proceeding commenced by a writ of summons seeking declarations and damages.

The pleaded claims are misleading or deceptive conduct contrary to s 10 of the Fair Trading Act 1987 (WA) and tortious misfeasance in public office.

Appeal pursuant to O 65 r 10 of the Rules of the Supreme Court 1971 (WA) against orders made in the State Administrative Tribunal, exercising jurisdiction under the Health Practitioner Regulation National Law (WA) Act 2010 (WA).

The orders appealed against consist of a refusal to grant Mr Lee an extension of time to seek costs, and costs orders made against Mr Lee in favour of the Pharmacy Board.

Appeal pursuant to O 65 r 10 of the Rules of the Supreme Court 1971 (WA) against a decision of the Information Commissioner under the Freedom of Information Act 1992 (WA).

The Information Commissioner had dismissed complaints made by Mr Lee in respect of his access applications under the legislation.

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

[1] CIV 2660 of 2015: Affidavit of Stephen John Olynyk sworn 27 April 2023, [4]. GDA 7 of 2022: Affidavit of Jenny Maree McKenzie sworn 29 March 2023, [4] - [5].

[2] The Court of Appeal has recently examined the effect of Mr Lee's bankruptcy on two other proceedings commenced by him, concerning (a) claims against his former lawyers (Lee v Lawfirst Pty Ltd [2023] WASCA 59); and (b) proceedings in the nature of judicial review against orders made by the State Administrative Tribunal (Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2023] WASCA 60).

[3] In CIV 2011 of 2022, see the orders of Justice Tottle dated 23 February 2023 (par 3) and the orders of Justice Lundberg dated 24 May 2023 (par 3), together with the listing email from the court to the parties sent on 28 April 2023 (point 1). In CIV 2660 of 2015, see the orders of Justice Vandongen dated 6 April 2023 in CIV 2660 of 2015 (par 7). In GDA 7 of 2022, see the listing email from the court dated 19 April 2023 (par 2) and the orders of Justice Lundberg made on 27 April 2023. In GDA 10 of 2022, see the orders of Justice Vandongen dated 6 April 2023 (par 2).

[4] Meriton Apartments Pty Limited v Industrial Court of New South Wales [2008] FCAFC 172; (2008) 171 FCR 380 [8] and [18] (Branson J), [117] (Greenwood J), and [172] (Perram J, dissenting on other issues).

[5] The legislation extends this provision to the spouse or de facto partner of the bankrupt, or a member of the family of the bankrupt.

[6] Fletcher v Westpac [2010] WASC 154 [10] (Newnes JA).

[7] The relevant words were: 'Quokka Joe's Café had been closed following a health inspection of the café last week.'

[8] [2016] WASC 117 [134] - [142], [290] and [297].

[9] CIV 2011 of 2022: Plaintiff's submissions dated 5 April 2023, [39]

[10] GDA 7 of 2022: Appellant's submissions dated 8 May 2023, [41].

[11] Lee v Lawfirst Pty Ltd [2023] WASCA 59 [26] (Murphy and Vaughan JJA), citing Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185 [85] (Edelman J).

[12] Bankruptcy Act, s 5.

[17] Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, 721 (Dixon J).

[18] Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151 [16] (Gray J).

[19] Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 130 (Brennan CJ, Gaudron and McHugh JJ), and 142 (Dawson and Toohey JJ); Fletcher v Westpac [2012] WASCA 154 [10] (Newnes JA, with whom Pullin and Murphy JJA agreed); Garrett v Commissioner of Taxation [2015] FCA 665 [35] (Kenny J); and Lee v Lawfirst Pty Ltd [2023] WASCA 59 [23] (Murphy and Vaughan JJA).

[20] Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45.

[21] Cummings (131) (Brennan CJ, Gaudron and McHugh JJ), endorsing the comments of the majority of the Full Federal Court in that case, reported as Fuller v Beach Petroleum NL; Cummings v Beach Petroleum NL (1993) 43 FCR 60, 68 (Gummow and Whitlam JJ).

[22] CIV 2011 of 2022: Affidavit of Mr Lee sworn 30 March 2023, [4] and Attachment JL-1.

[23] GDA 10 of 2022: Affidavit of Mr Lee sworn 13 March 2023, [4] and Attachment JL-1

[24] CIV 2660 of 2015: Affidavit of Stephen John Olynyk sworn 27 April 2023, [7] - [9] and defendant's submissions dated 11 May 2023, [17].

[25] GDA 7 of 2022: Affidavit of Kenny Maree McKenzie sworn 29 March 2023, [9].

[26] CIV 2011 of 2022: Amended Originating Summons, [1(g)].

[27] CIV 2011 of 2022: Amended Originating Summons, [9].

[28] CIV 2011 of 2022: Plaintiff's Submissions dated 5 April 2023, [87].

[29] CIV 2011 of 2022: Plaintiff's Submissions dated 5 April 2023, [94] - [103].

[30] CIV 2011 of 2022: Plaintiff's submissions dated 5 April 2023, [87] - [93].

[31] See Lee v Lawfirst Pty Ltd [2023] WASCA 59 [41] (Murphy and Vaughan JJA), where their Honours similarly characterised claims at common law and in equity for financial loss, including costs incurred in legal proceedings, as claims in respect of the diminution of the bankrupt's assets, not claims in respect of any personal injury or wrong done to the bankrupt.

[32] CIV 2011 of 2022: Defendant's submissions dated 12 April 2023, [32] - [35].

[33] CIV 2660 of 2015: Defendants' submissions dated 11 May 2023, [1] - [2]

[34] CIV 2660 of 2015: Re-amended statement of claim dated 6 May 2020, [97(d)(i)].

[35] Consistently with the principles summarised at [25] - [33] above.

[36] CIV 2660 of 2015: Second plaintiff's submissions dated 29 March 2023, [31] - [36].

[37] CIV 2660 of 2015: Second plaintiff's submissions dated 29 March 2023, [36].

[38] CIV 2660 of 2015: Second plaintiff's reply submissions dated 18 May 2023, [10].

[39] Consistently with the principles summarised at [25] - [33] above.

[40] CIV 2660 of 2015: Re-amended statement of claim dated 6 May 2020, [100] and [101].

[42] GDA 7 of 2022: Affidavit of Mr Lee sworn 22 May 2023, Attachment JL-4 (in particular pages 49 - 53 of the affidavit).

[43] GDA 7 of 2022: Appeal notice dated 31 May 2022.

[44] GDA 7 of 2022: Appellant's submissions dated 8 May 2022, [37] - [41].

[45] GDA 7 of 2022: Appellant's submissions dated 22 May 2023, [5].

[46] GDA 7 of 2022: Appellant's submissions dated 22 May 2023, [11].

[47] GDA 7 of 2022: Appellant's submissions dated 22 May 2023, [12]

[48] I rely in this respect on the analysis in Sheehan v Brett-Young (No 3) [2016] VSC 39 [62] (John Dixon J); Faulkner v Bluett (119) (Lockhart J); and Berryman [57] (Tottle J).

[49] Sheehan v Brett-Young (No 3) [62] (John Dixon J).

[50] GDA 7 of 2022: Appellant's submissions dated 8 May 2023, [42] - [45] and [46] - [51].

[51] Lee v Pharmacy Board of Australia [2021] WASAT 132 (S) [203] and [225].

[52] Consistently with the principles summarised at [25] - [33] above.

[53] GDA 10 of 2022: Appeal notice filed 19 September 2022.

[54] GDA 10 of 2022: Appellant's submissions dated 21 March 2023, [3].

[55] GDA 10 of 2022: Appellant's submissions dated 21 March 2023, [36] - [37].

[56] Consistently with the principles summarised at [25] - [33] above.

[58] GDA 7 of 2022: Summons filed by the respondent dated 13 April 2023.