MANN -v- BANKWEST - A DIVISION OF COMMONWEALTH BANK OF AUSTRALIA [2020] WASCA 35 (26 March 2020)

Except to the extent you have a right of set off granted by law which the Bank cannot exclude by agreement, you must pay all amounts in full without setting off amounts you believe the Bank owes you and without counterclaiming amounts from the Bank.[6]

Except to the extent you have a right of set off granted by law which the Bank cannot exclude by agreement, you must pay the Amount Owing in full without setting off amounts you believe the Bank owes you and without counterclaiming amounts from the Bank.[7]

1. Bankwest relied on the suspension clauses to contend that it was entitled to payment of the outstanding amount the subject of the first home loan without set‑off and irrespective of the counterclaim made by Mr Mann.
2. At all material times, both at first instance and now on appeal, Mr Mann has been a self‑represented litigant. The primary judge recognised that and made appropriate accommodations.[8] For that and other reasons the proceedings have not pursued a standard path. In part that is what informs Mr Mann's complaint the subject of ground 1. Thus it is necessary to understand the history of the proceedings and the various procedural steps taken before the trial of preliminary issues.

1. The proceedings were commenced in August 2014. In December 2014 Bankwest brought an application for summary judgment. The application was made as to the whole of the claim, ie it extended to the guarantee claim, both home loans and the mortgage. Gething AM (as his Honour then was) dismissed the application.[9]
2. The master dismissed the summary judgment application, granting Mr Mann unconditional leave to amend, for four reasons:
   1. The application was brought out of time and the master was not prepared to extend time in the absence of any explanation by Bankwest for the delay.[10]
   2. The evidence relied on by Bankwest did not verify all the facts on which the claim was based as required by O 14 r 2(1) of the Rules of the Supreme Court 1971 (WA), meaning that the jurisdiction to order summary judgment had not been enlivened.[11]
   3. Mr Mann had arguable defences to the guarantee claim based on alleged misleading or deceptive conduct[12] or estoppel.[13] Also, there was an arguable defence to the claims under the guarantee, the two home loans and the mortgage based on alleged unconscionable conduct in contravention of s 21 of the Australian Consumer Law.[14]
   4. The master was satisfied that there ought 'for some other reason' to be a trial - in particular that Bankwest ought to be put to strict proof of its claim and exposed to the full investigation possible at a trial.[15]
3. The master's second reason requires some further explanation. In order to demand full payment under the facility with Prodale, as guaranteed by Mr Mann, Bankwest had to serve a notice on Prodale.[16] The master was not satisfied that Bankwest's evidence verified the fact that notices of demand were served on Prodale.[17] So far as Bankwest relied on a legal authority to prove that it had effected service, the master suggested that it was not appropriate for the issue to be determined in a summary manner, without discovery, and without all the evidence being before the court.[18]
4. As to the third reason, in its written submissions in answer to the appeal Bankwest contended that the determination that Mr Mann had an arguable defence based on alleged unconscionable conduct was confined to the circumstances surrounding the loans to Prodale and the guarantee.[19] That submission cannot be accepted. The master held that, on Mr Mann's evidence, Bankwest's conduct offended against basic notions of good conscience and fair play. The master was satisfied that, if that finding was made at trial, it was 'arguable that an appropriate remedy would be for the court to refuse to enforce ... the First Home Loan ... and the Mortgage'.[20] It was in that context that the master held that Mr Mann had an arguable defence to Bankwest's claim based on unconscionable conduct.
5. Bankwest regrouped after dismissal of its summary judgment application. At a strategic conference on 13 September 2016 it foreshadowed amendment to rely on the suspension clauses.[21] An amended substituted statement of claim was filed on 21 December 2016; it pleaded the suspension clauses.[22] On 18 January 2017 Bankwest sought orders for a preliminary determination of issues based on the default under the first home loan and the suspension clauses.[23] Bankwest sought to justify the application on the basis that the proposed trial of preliminary issues would resolve the proceedings quickly by not determining the merits of all the claims but by separately determining the claim in relation to the first home loan.[24] In the primary reasons, Allanson J explained that there was a common expectation (ie as between the parties) that Mr Mann could not satisfy judgment for the amount that is the subject of the claim in respect of the first home loan.[25]
6. The primary judge refused the application for a separate trial on 3 February 2017.[26] In refusing, at that time, the application for a separate trial, the primary judge observed that:
   1. The issues sought to be determined by Bankwest could not be as readily separated as first contemplated because of amendments made to Mr Mann's defence after the application was foreshadowed.[27]
   2. There may be merit in a strike out application. However, it should not proceed at the same time as any hearing of the preliminary issues. If the proposed hearing of the preliminary issues was to proceed, the strike out application must be decided first.[28]
7. The primary judge concluded:

Bankwest needs to decide whether it wishes to proceed with the strike out application which, should it proceed, would be heard separately. Only were it wholly successful, with Mr Mann denied leave to re-plead, would it be appropriate to determine the proposed preliminary questions ... [29]

1. Bankwest then applied to strike out the portions of Mr Mann's defence that were an obstacle to its preferred course of proceeding by way of a trial of preliminary issues. The strike out application was heard on 27 April 2017. At the conclusion of the hearing the primary judge expressed concern that the entitlement to amend pleadings without leave was affecting the progress of the proceedings. His Honour considered it would be more efficient for the future conduct of the proceedings to require any amendment to be with leave.[30] After hearing from the parties the primary judge made orders that:
   1. Any party wishing to amend a pleading in this matter may only do so by leave of the managing judge.
   2. A party applying for leave is to serve a minute of the proposed amended pleading on the other party and to confer before making an application to the court.
2. On 19 May 2017 the primary judge delivered reasons striking out certain paragraphs of Mr Mann's defence.[31] In effect, his Honour struck out those paragraphs by which Mr Mann challenged the validity of the first home loan and the mortgage and sought orders that the court refuse to enforce the first home loan and the mortgage. The primary judge did not shut the door to further amendment. Nevertheless, in successfully establishing that the pleas as challenged could not be the basis of a defence to the claim on the first home loan and mortgage, Bankwest met one of the primary judge's criteria for proceeding with the proposed trial of preliminary issues.

The decision of the primary judge on the trial of preliminary issues

1. On 23 June 2017 the primary judge made orders that three questions be referred to a hearing of preliminary issues.[32] The questions so referred were:
   1. Does any amount remain outstanding from Mr Mann to Bankwest in respect of the first home loan? If so, how much?
   2. Does any liability on the part of Mr Mann depend on Bankwest making a demand for payment? If the answer is no, is Mr Mann obliged to make payment of the outstanding amount under A21.1 of the first home loan and 3.1 of Mr Mann's mortgage to Bankwest? If the answer is yes, did Bankwest make a valid demand for payment?
   3. Do clauses A15.7 of the first home loan or 9.2(a) of Mr Mann's mortgage (or both) preclude Mr Mann from advancing any of the claims against Bankwest included in his second substituted counterclaim dated 21 October 2016 and the amended substituted defence dated 9 January 2017 until payment is made to Bankwest of the total amount outstanding under the first home loan?
2. As the primary judge observed, while described as preliminary issues, in substance the orders provided for the separate trial and determination of one part of Bankwest's claim against Mr Mann.[33] Such an approach is permitted by O 32 r 4 of the Rules of the Supreme Court. As is apparent from the questions as stated, the separate trial was directed to the first home loan only.
3. Mr Mann initially opposed the listing of the trial of preliminary issues but said that he was 'happy for it [ie the programming of the matter] to go through to the whole claim'.[34] In opposing the listing, in submissions before the primary judge, Mr Mann did not rely on the decision of Gething AM in Bankwest v Mann [No 1]. Rather, while it is difficult to identify the specific ground of opposition, it appears that Mr Mann was concerned that the Bank was saying that the guarantee covered the first home loan.[35] Mr Mann also sought an opportunity to re‑plead his defence.[36]
4. It is apparent, from remarks made by the primary judge on 23 June 2017, that while the primary judge was prepared to make orders for the determination of the three questions at a trial of preliminary issues, his Honour was also prepared to revoke those orders should it become inappropriate to continue with the hearing because of amendments to Mr Mann's defence.[37] Nevertheless, with Mr Mann's apparent consent,[38] the primary judge made orders which provided for the concurrent programming of any application to amend and the trial of preliminary issues.
5. Accordingly, the primary judge made programming orders to bring the trial of preliminary issues to a hearing.[39] At the same time his Honour made orders providing for any application by Mr Mann to amend his defence. Those orders contemplated that Mr Mann would serve a minute of any proposed amended defence by 2 July 2017, the parties would then confer and, if necessary, file submissions, with the primary judge to determine the application on the papers.[40]
6. Mr Mann filed a proposed amendment to his defence on 28 July 2017.[41] The primary judge summarised the effect of the amendments in his primary reasons at [63] to [65]. Mr Mann made various assertions of misleading or deceptive conduct. He also claimed that enforcement of the suspension clause and the first home loan by Bankwest had or was likely to cause him to suffer loss and damage. Mr Mann also gave notice of an intention to seek to further amend. Nothing was filed. In the interim the trial of preliminary issues was listed to be heard on 9 November 2017.[42]

1. On 31 October 2017 Mr Mann applied to vacate the trial of preliminary issues. That application was heard and refused on 2 November 2017.[43] Among other things, Mr Mann informed the primary judge that he had consulted a legal practitioner and intended to amend his pleadings. Mr Mann stated that he had been told the new pleading would take another seven days[44] (ie it would not be available until the day listed for the hearing of the trial of preliminary issues).
2. In the course of the hearing the primary judge informed Mr Mann:[45]
   1. The hearing of the trial of preliminary issues had been programmed in June 2017.
   2. His Honour had deferred determining whether to grant leave to amend in terms of the document dated 28 June 2017 because Mr Mann had earlier foreshadowed a further amendment.
   3. The basis for the adjournment application was the proposal to further amend. That amendment had not been provided. It was not going to come in time for the hearing to proceed.
   4. That was not sufficient reason to adjourn the hearing.
3. The primary judge said, however, that he would allow the amendment sought by the document dated 28 July 2017 and hear the trial of preliminary issues on the basis of that amendment.[46] Mr Mann said that he still wished to proceed with that amendment.[47] On that basis the primary judge granted leave for Mr Mann's proposed amended defence dated 28 July 2017 (together with his existing defence) to stand as his defence.[48] However, the primary judge then stated,[49] and later expressly ordered,[50] that the trial of preliminary issues would proceed on the basis that the defence as so amended was the defence to Bankwest's claim.
4. Neither ground 1 nor ground 2 complain about the primary judge's refusal of the adjournment application. There has been no appeal from that refusal.

1. The trial of preliminary issues proceeded on 9 November 2017. After Bankwest had closed its case, Mr Mann, having dispensed with opening submissions and having given oral evidence, referred to an amended defence that had been filed the previous day.[51] It turned out that the new defence, prepared with the assistance of a legal practitioner, had not been filed at that time (it was filed later on 9 November 2017). The new defence was a 19 page document signed by Mr Mann entitled 'Minute of Proposed Substituted Defence and Set‑Off' which was undated but bore a facsimile imprint of 8 November 2017.[52]
2. Apparently a copy of the new defence was sent to the primary judge's associate, by email, but the email was mis-addressed.[53] The document had not come to the attention of the primary judge before the hearing.
3. Mr Mann asked for leave to amend his defence by substituting it with the new defence.[54] In support of the application for leave, Mr Mann made two submissions:
   1. Mr Mann submitted that the new defence dealt with the whole matter in a completely different way and the questions the subject of the trial of preliminary issues would not arise.[55]
   2. Mr Mann submitted that the new defence put the proper case before the court in circumstances where his case was 'obviously bits and pieces'.[56] In this respect Mr Mann made an oblique reference to his status as a self-represented litigant.[57]
4. After hearing the closing address of senior counsel for Bankwest the primary judge ruled as follows:

Just fairly important for the avoidance of any doubt, the document which was attempted to be filed last night and was not, which is now available to me, I will not have regard to. The hearing was entered on the basis that Mr Mann could rely on the pleading as most recently amended, and that I would permit the amendment that was there as of last week to stand. But it would be completely contrary to all case management principles to allow a further amendment at this stage. So I just want there to be no doubt about that.[58]

1. Ground 2 challenges this ruling and the primary judge's refusal to assess the issues before him at the trial of preliminary issues by reference to the new defence.

1. The primary judge delivered reasons on the trial of preliminary issues on 30 November 2018. His Honour's conclusions set out proposed answers to the questions specified in the order of 23 June 2017.[59] Those answers were later repeated in the formal order of the court made 10 May 2019 as is the subject of Mr Mann's appeal notice.
2. The orders the subject of the appeal are as follows:

The questions referred to a hearing as preliminary issues and heard on 9 November 2017 be answered as follows:

(a) Question 1 - Does an amount remain outstanding from Mr Mann to Bankwest in respect of the First Home Loan? If so, how much? Answer - as at 9 August 2017, the amount of $234,600.99 was outstanding from Mr Mann to the Bank, with interest continuing to accrue at the rate of 5.95% per annum.

(b) Question 2 - Does any liability on the part of Mr Mann depend on Bankwest making a demand for payment? If the answer is no, is Mr Mann obliged to make payment of the outstanding amount under A21.l of the first home loan and 3.1 of Mr Mann's mortgage to Bankwest? If the answer is yes, did BankWest make a valid demand for payment? Answer -

(i) Mr Mann's liability arose immediately on default and without the need for demand; and

(ii) The Bank was required to make demand for the unpaid balance and did so by notice of default on 18 March 2014.

(c) Question 3 - Do clauses Al5.7 of the first home loan or 9.2(a) of Mr Mann's mortgage (or both) preclude Mr Mann from advancing any of the claims against Bankwest including his second substituted counterclaim dated 21 October 2016 and the amended substituted defence dated 9 January 2017 until payment is made to Bankwest of the total amount outstanding under the first home loan? Answer -

(i) Clauses Al5.7 of the first home loan and 9.2(a) of the Mortgage both preclude Mr Mann from advancing any of the claims against the Bank pleaded in his second substituted counterclaim dated 21 October 2016 and the amended substituted defence dated 9 January 2017 until payment is made to the Bank of the total amount outstanding under the First Home Loan;

(ii) Those clauses do not preclude Mr Mann from advancing the defence in his minute of amended defence filed 28 July 2018; and

(iii) The minute of amended defence, filed 28 July 2017, does not disclose an arguable defence to the Bank's claim under the First Home Loan and the Mortgage.

1. The grounds of appeal do not challenge the primary judge's reasons for so answering the three questions stated by way of preliminary issue. Accordingly, it is not necessary to dwell on the primary reasons.
2. In relation to Questions 1 and 2 it suffices to state that the primary judge accepted that:
   1. Based on a statement and certificate verified by an officer of Bankwest, an amount of $234,600.99 was outstanding from Mr Mann to Bankwest under the first home loan, with interest continuing to accrue.[60]
   2. Mr Mann was in default under the first home loan by reason of not paying an amount due by its due date for payment.[61] Liability for the unpaid balance arose immediately on default; but the relevant clause required demand.[62] Bankwest had made valid demand for payment of the unpaid balance.[63]
3. In dealing with Question 3, the primary judge considered the authorities concerning the operation of suspension clauses.[64] His Honour concluded that the question posed required consideration of whether the suspension clauses precluded reliance on the matters pleaded.[65] The primary judge then considered the various matters relied on by Mr Mann by way of defence or counterclaim.[66] His Honour concluded that some of the matters relied on by Mr Mann were subject to the operation of the suspension clauses.[67] However, one was found to challenge the validity of the first home loan[68] and therefore was outside the operation of the suspension clauses. This defence was raised by the 28 July 2017 amendment. It was described by the primary judge as a claim that it was misleading or deceptive for Bankwest not to disclose that the mortgage was intended to secure all money due to Bankwest by Mr Mann and not only the amount of the first home loan.
4. The primary judge went on to determine that the pleaded defence which was outside the operation of the suspension clauses was 'patently bad'.[69] His Honour answered Question 3 by stating that, although the suspension clauses did not preclude Mr Mann advancing the defence, it was not an arguable defence to Bankwest's claim under the first home loan.[70]

1. In support of ground 1 Mr Mann relied on the decision of Gething AM in Bankwest v Mann [No 1]. Mr Mann contended that the process adopted by the primary judge, in proceeding with the trial of preliminary issues and answering the questions as stated:
   1. was to seek review of the decision of the master without an appeal; and
   2. brought the administration of justice into disrepute by obtaining a summary determination of Bankwest's claims notwithstanding the master's decision that the claims should not be summarily determined.
2. In oral submissions Mr Mann informed the court that the contention of abuse of process was at the heart of his appeal. He contended that Bankwest's strategy was to obtain a determination on the three preliminary issues to finalise the whole matter. However, the master - in his decision on the summary judgment application - had said that the matter should go to trial and the issues should be tested. Mr Mann submitted that, as a matter of natural justice, Bankwest should not be allowed to circumvent the dismissal of the summary judgment application. Mr Mann likened the situation to one where Bankwest had not been permitted entry through the front door but had now 'snuck around' and was trying to get in the back door.[71]
3. No submissions were directed to ground 1's contention that the proceedings by way of the separate trial were incompetent (as opposed to being an abuse of process). That contention is without merit. There is no doubt as to the court's power to conduct a separate trial of particular issues. That power is commonly exercised and is expressly contemplated by O 32 r 4 of the Rules of the Supreme Court. The suggestion that the proceedings were incompetent should be rejected.
4. As to ground 2, Mr Mann submitted that the ruling to exclude consideration of the new defence was wrong in law as:
   1. No prejudice to Bankwest was identified should there be a short adjournment (if one was required).
   2. The action had not proceeded with any urgency at all.
   3. The decision to proceed on a pleading which had been prepared by Mr Mann without the benefit of legal advice was not conducive to the proper exercise of the court's powers and was likely to result in increased costs and time.
   4. Nothing was going to be achieved by deciding the trial of preliminary issues on the basis of a pleading Mr Mann was entitled to amend and which he had sought to amend.
   5. The decision paid no regard to the requirements of O 1 r 4A and r 4B of the Rules of the Supreme Court.
5. In oral submissions Mr Mann contended that the new defence was 'so completely different' that, had the primary judge referred to it, there may have been a difference in the outcome to the answers to the three preliminary questions.[72] However, when asked, Mr Mann was unable to explain how the new defence might have led to different answers to the preliminary questions.[73]
6. Bankwest opposed leave to appeal (leave being required as the order the subject of Mr Mann's appeal notice was strictly interlocutory). Bankwest also contended that, in reality, Mr Mann was challenging two interlocutory case management decisions:
   1. The order made on 23 June 2017 to proceed with the trial of preliminary issues.
   2. The order made on 2 November 2017 not to adjourn the trial of preliminary issues as then listed for 9 November 2017.
7. In written submissions Bankwest said that both challenges required an extension of time and, as the delay was unexplained, there should be no extension.[74] That preliminary objection was misconceived. The application for leave to appeal was made in relation to the orders made 10 May 2019 and was filed within the prescribed time after those orders. In seeking to appeal the order made 10 May 2019, Mr Mann could challenge other interlocutory determinations affecting the final result. At the hearing of the appeal, correctly recognising the basis on which the appeal was brought and argued by Mr Mann, senior counsel for Bankwest did not press the contention that Mr Mann's application for leave to appeal required an extension of time.[75]
8. As to ground 1, Bankwest said there was no abuse of process. Bankwest said that ground 1 misunderstood the process adopted. Bankwest denied that the questions answered through the trial of preliminary issues, and the trial itself, were an impermissible second attempt to go behind the decision of Gething AM in Bankwest v Mann [No 1]. Bankwest relied on the whole of the history of the proceedings to support the proposition that the trial of preliminary issues was not a rehearing of its summary judgment application.
9. In further answer to ground 1, Bankwest submitted that:
   1. So far as leave to appeal was required, it was important that the decision to proceed by way of a trial of preliminary issues was a case management decision on a matter of practice and procedure.
   2. Cases involving the operation of suspension clauses were suited to determination by way of a trial of preliminary issues as a matter of utility, economy and fairness to the parties.
   3. The decision to proceed by way of a trial of preliminary issues was a prudent case management decision.
   4. Even if the application was a second summary judgment application - which was denied - second applications could be made where the interests of justice required.
10. Bankwest's submissions on ground 2 were mis-directed. They answered ground 2 on the mistaken premise that Mr Mann challenged the primary judge's refusal of the adjournment on 2 November 2019. That is not the gravamen of ground 2. Rather, ground 2 attacks the primary judge's refusal to assess the issues by reference to the new defence: it contends that Mr Mann should have been granted leave to amend. For that reason there is little to be gained by referring to Bankwest's submissions in answer to ground 2.

Application to admit additional affidavit evidence

1. Mr Mann filed an application for leave to file an affidavit sworn 2 September 2019 as additional evidence in the appeal. The application was referred to the hearing of the appeal. At the hearing of the appeal, Mr Mann made brief submissions in support of the affidavit being received as additional evidence, saying in relation to ground 2 that:
   1. The affidavit included a copy of his new defence.
   2. The affidavit referred to a mid-October 2019 conversation between Mr Mann and a solicitor acting for BankWest, in which Mr Mann informed the solicitor that the new defence was being prepared and that he, Mr Mann, might need to apply to adjourn the hearing listed for 9 November 2017.[76]
2. The new defence is already before the court.[77] In terms of the adjournment application, the material date is the date on which the application was made (31 October 2017) rather than the day on which the application was foreshadowed as a possibility. We are satisfied that the other material in the affidavit is either already before the court or is irrelevant to any issue in the appeal. Mr Mann's application to file the affidavit sworn 2 September 2019 as additional evidence in the appeal should be refused.

Disposition of the appeal Ground 1: Abuse of process in determination by way of trial of preliminary issues

1. What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories.[78] It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.[79] Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[80] However, the onus of satisfying the court that there is an abuse of process is a heavy one.[81] The power to dismiss proceedings as an abuse of process should be exercised with caution[82] and only in the most exceptional or extreme case.[83]
2. In support of his proposition that the trial of preliminary issues, and consequently the order answering the questions posed by way of the preliminary issues, were an abuse of process, Mr Mann referred to what was stated by French CJ, Gummow, Hayne and Crennan JJ in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd:

It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed. In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be 'manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right‑thinking people'. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.[84]

1. While not referred to by Mr Mann, earlier their Honours had mentioned, as an example of one of the categories giving rise to an abuse of process, proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way.[85] In the present case Mr Mann was suggesting, in substance, that the process afforded by the trial of preliminary issues had not been fairly or honestly employed given the history of the proceedings as a whole.
2. More recently, in UBS AG v Tyne,[86] three members of the High Court confirmed that the varied circumstances in which the use of the court's process will amount to an abuse of process do not tend to a complete statement. Kiefel CJ, Bell and Keane JJ also confirmed that:

Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.[87]

1. The other member of the majority, Gageler J, also mentioned the concepts of unjustifiable oppression and bringing the administration of justice into disrepute. [88] So too did the dissentients in UBS AG v Tyne, who evidently accepted the plurality's statement that either condition enlivened the court's power to deal with an abuse of its process.[89] However, in the context of the application of the doctrine of abuse of process to the bringing of successive proceedings Gageler J considered the relevant public interest to be ordinarily appropriately identified as the timely and efficient administration of civil justice.[90]
2. The doctrine of abuse of process is informed in part by considerations of finality and fairness.[91] Thus abuse of process may (and often will) exist where a person seeks to re-litigate or otherwise mount a collateral attack in relation to an issue that has already been decided. There is a general public interest in the same issue not being litigated over again.[92] The underlying public interest is twofold: there should be finality in litigation and a party should not be twice vexed in the same matter.[93]
3. Factors relevant to determining whether an attempt to re-litigate is an abuse of process were discussed in State Bank of New South Wales Ltd v Stenhouse Ltd.[94] Those factors have been reproduced with apparent approval in a number of intermediate appellate court decisions.[95] The task necessitates an evaluative judgment sensitive to all the facts and circumstances and informed by the public interest in preventing re-litigation of disputes.[96] The court conducts an 'overall balancing of justice' having regard, among other things, to the extent of the oppression and unfairness to the other party if the issue was re‑litigated and the impact of the re-litigation on the principle of finality and public confidence in the administration of justice.[97]
4. Among other things:

... the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like ...[98]

1. Mr Mann's core complaint in invoking the doctrine of abuse of process was not one of re-litigation per se. Rather, Mr Mann argued that, despite Bankwest not appealing Gething AM's dismissal of its summary judgment application, Bankwest had sought to circumvent the master's ruling by obtaining summary determination of the action through the trial of preliminary issues. In that sense the trial of preliminary issues might - on Mr Mann's argument - be seen as a form of re-litigation. In further support of his overall complaint Mr Mann contended that, as the master found some other reason for a trial, the whole of Bankwest's claims should proceed to trial.
2. The absence of an appeal from the dismissal of the summary judgment application ought to be put aside. No appeal lies from an order giving unconditional leave to defend.[99] The real issue is whether in pursuing the trial of preliminary issues Bankwest was attempting to impugn, re-litigate or somehow otherwise circumvent the decision of Gething AM on the summary judgment application in a way that was unjustifiably oppressive to Mr Mann or brought the administration of justice into disrepute.
3. There are two main reasons why it cannot be accepted that the trial of preliminary issues and the primary judge's answers by par 1 of the orders made 10 May 2019 are tainted by such an abuse of process on the part of Bankwest.
4. First, proceeding by way of a trial of preliminary issues, confined to the dispute between the parties as to the first home loan, was not inconsistent with the determination of Gething AM on the summary judgment application. Moreover, the two processes (the summary judgment application and the trial of preliminary issues) were different in nature. The trial of preliminary issues as conducted by the primary judge was in no way a summary determination of Bankwest's claim in relation to the first home loan.
5. Second, summary determination of the whole of Bankwest's claim having been refused, there was reasonable justification for proceeding by way of a trial of preliminary issues confined to questions arising in relation to the first home loan. That course was of benefit to the parties in terms of costs and consistent with the public interest in the due administration of justice as evinced in the goal and objects enunciated in O 1 r 4A and r 4B of the Rules of the Supreme Court. Accordingly, even if - contrary to our view - the trial of preliminary issues provided for a form of summary determination, it was justified and could not in all the circumstances amount to an abuse of process.
6. The first answer to Mr Mann's contention of abuse of process requires a little further elaboration. As is suggested by the nomenclature employed in O 14, an application for summary judgment involves a summary determination. The power to enter summary judgement will not be exercised unless it is clear that there is no real question to be tried.[100] It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted.[101] So understood, summary judgment is a procedure designed to deal with cases that are not fit for trial at all.[102] By contrast, while a trial of preliminary issues of the kind conducted by the primary judge does not involve a trial to resolve all of the matters in contest in the action at a single hearing, it is nevertheless a form of trial. The trial of preliminary issues in the present case (more correctly described as a separate trial and determination of one part of Bankwest's claim against Mr Mann) involved a final determination on the merits, following the cross‑examination of witnesses, rather than a summary determination on affidavit evidence alone.
7. It is well-established that, in applying the principles of abuse of process, the focus is on matters of substance rather than form.[103] In the present case, both as a matter of form and substance, the trial of preliminary issues was not a process of summary determination - meaning that it cannot be characterised as an attempt to re-litigate the summary judgment application and was consistent with the outcome on the summary judgment application.
8. Insofar as the master refused summary judgment, holding, in part, that there ought to be a trial of Bankwest's claim, it is the case that: (1) the order setting down the trial of preliminary issues provided for a trial of the issues relevant to Bankwest's claim in relation to the first home loan; (2) there has now been a trial of the issues relevant to Bankwest's claim in relation to the first home loan. It was never suggested in Bankwest v Mann [No 1], nor in the grant of unconditional leave to defend, that there must be a trial of all of the issues between the parties at the same hearing in the one trial. At the most the master determined that the various claims were not susceptible to summary determination and instead should be determined following trial.
9. In determining whether the bringing or continuance of proceedings is an abuse of the court's process it is necessary to take into account the procedural law administered by the court.[104] In the Supreme Court of Western Australia the relevant procedural law is found in the Rules of the Supreme Court. The rules permit an action to proceed by way of the separate trial of particular issues. That is not determinative of whether there is an abuse of process. The use of the court's process may amount to an abuse notwithstanding that the use is consistent with the literal application of the rules. Nevertheless, the availability of such a form of trial is relevant insofar as Mr Mann relied on the master's decision as requiring that there be a trial. The master's finding was made in a procedural context where a trial of preliminary issues was an available option by way of final determination following the grant of unconditional leave to defend.
10. Accordingly, this was not a case where Bankwest invoked the court's process in an attempt to circumvent the master's decision in Bankwest v Mann [No 1]. Proceeding with a separate trial on discrete issues was consistent with the master's determination on the summary judgment application. All the more so it is not a case where Bankwest sought to re-litigate or impugn an issue already decided. There is no infringement of the principle of finality. The controversies between Bankwest and Mr Mann as comprised in the subject matter of the questions that formed the preliminary issues had not been resolved. Those questions were left undecided by the dismissal of the summary judgment application. The effect of the dismissal of the summary judgment application was that the merits of Bankwest's claims had to be determined at trial. That is what occurred - the merits of part of Bankwest's claim were determined by the trial of preliminary issues. By proceeding with the trial of preliminary issues Bankwest was not seeking to re-open an issue that had previously been determined adversely to it. Nor, for the same reasons, was Mr Mann being twice vexed in the same matter.
11. The first answer is alone sufficient reason to dismiss ground 1. However, the dismissal of ground 1 is reinforced by the second reason mentioned in [67] above. Ground 1 should be dismissed.

Ground 2: Refusal to have regard to minute of proposed amended defence

1. In substance ground 2 challenged the primary judge's refusal of Mr Mann's oral application at the hearing of the trial of preliminary issues for leave to amend his defence. The primary judge's decision involved the exercise of a judicial discretion on a matter of practice and procedure. Accordingly, so far as Mr Mann seeks to challenge the decision on appeal it is necessary to consider that challenge by reference to the principles in House v The King[105] and to apply the added appellate restraint that is ordinarily recognised where challenge is made to a decision concerning practice and procedure.[106]
2. When ground 2 and Mr Mann's submissions in support of the ground are considered in that legal framework the burden of the contention appears to be threefold:
   1. The primary judge did not take into account some material considerations.[107]
   2. His Honour acted on some wrong principle by erring in holding that leave to amend was required, when Mr Mann was entitled to amend his defence.[108]
   3. The result was unreasonable or plainly unjust.
3. It is convenient to start with the second matter. In that respect Mr Mann is incorrect so far as he suggests that he was entitled to amend his defence as of right.[109] Amendment required leave for two reasons. First, because of the primary judge's order of 27 April 2017 as set out at [20] above. Second, because (absent such an order) amendment without leave is only permitted where the amendment is made seven weeks before the day fixed[110]r trial.110 Here the amendment was sought in the course of the trial. The primary judge was correct to approach the application on the basis that leave to amend was required.
4. Order 21 r 5 of the Rules of the Supreme Court provides that the court may allow the amendment of a writ or pleading on such terms as to costs or otherwise as may be just and in such manner as the court may direct.
5. The principles concerning whether an amendment should be allowed are not prescribed by O 21 r 5. They involve the exercise of discretion in the interests of justice. The overarching principles concerning amendment of pleadings were considered by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University.[111] In the joint judgment of the plurality, their Honours said:

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.[112]

1. The point may be reached where a party has had a sufficient opportunity to plead his or her case such that it is too late for further amendment so as to do justice to the other party and other litigants.[113] Much depends on the point the litigation has reached relative to the trial.[114] In this court it has been recognised that when an application is made late in the day, and requires that dates set down for trial be vacated, the applicant bears a heavy burden to show why leave should be granted. In such a case the public interest in the timely and efficient resolution of legal proceedings and the effective use of court resources is a relevant consideration.[115]
2. For present purposes it is not necessary to catalogue all the relevant considerations on an application for leave to amend.[116] Any attempt at a list cannot be exhaustive and in a given case it will be necessary to consider the individual circumstances before the court. It is, however, worth emphasising that the relevant considerations on an application for leave to amend will include that:
   1. The goal of the practice, procedure and interlocutory processes of the court is the elimination of delay beyond that reasonably required for activities essential to the fair and just determination of the matters genuinely in contention and the presentation of the case for trial (O 1 r 4A).
   2. Actions are to be managed and supervised in accordance with a system of positive case flow management with the objects of: (1) the just determination of litigation; and (2) the efficient disposition of the court's business, the efficient use of judicial resources, the timely disposal of business and proportionality (which are all aspects of the just determination of litigation) (O 1 r 4B).
3. Mr Mann's submissions in support of ground 2 are essentially directed at re-arguing whether the primary judge should have granted leave to amend. However, given the nature of the appeal, the matters referred to could only disclose error by the primary judge if they were material considerations that his Honour failed to take into account. For the following reasons there was no such express error.
4. A number of the matters now relied on by Mr Mann on appeal were not raised before the primary judge. Whether there is a House v The King type error in not taking into account some material consideration must be assessed by reference to the factual material which was before, and the matters which were agitated before, the primary judge.[117]
5. The following matters were not raised before the primary judge and cannot give rise to appellable error:
   1. Mr Mann's submission that no prejudice to Bankwest was identified should there be a short adjournment, assuming one was required. Two further things should be noted as to this matter. First, an adjournment was inevitable if the primary judge granted leave to amend. The application, made in the course of the trial, was to substitute an entirely new defence that, according to Mr Mann, would mean that the questions being tried would not arise. Second, the implicit premise that there was no prejudice to Bankwest is without merit. There is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.[118]
   2. Mr Mann's submission that the action had not proceeded with any urgency at all. In any case, given O 1 r 4A, the primary judge was required to consider the application on the basis that the goal was to eliminate delay where not reasonably required for the fair and just determination of the dispute. Further, in addressing the amendment application the primary judge observed that the action had progressed very slowly since 2014 with constant re-amendment.[119] His Honour did take the slow progress on the action into account, but saw it as militating against the amendment application. That view was reasonably open to the primary judge.
6. Mr Mann also argued that:

[T]he decision to proceed on a pleading which had been prepared by the appellant without the benefit of legal advice was not conducive to the proper exercise of the Court's powers and more likely to increase the time and costs to revisit issues in the light of a better formulated pleading.[120]

1. The argument as to increasing time and costs through revisiting issues was not raised before the primary judge. It can be put aside. In any case there is no obvious evidentiary foundation for the suggestion that there may be a revisitation of issues with a consequential increase in time and costs. However, in seeking leave to amend before the primary judge, Mr Mann did advance the proposition that the new defence, prepared with the benefit of assistance from a legal practitioner, put his 'proper case' before the court in circumstances where his defence was otherwise 'bits and pieces'. That said, we are unable to accept that the primary judge failed to take this matter into account in refusing the application for leave to amend.
2. In assessing the amendment application his Honour referred to the adjournment application, and the amendment then permitted, as had been heard and determined just seven days earlier.[121] In refusing the adjournment application on 2 November 2017 the primary judge acknowledged that Mr Mann was belatedly obtaining legal assistance,[122] enquired whether - as the adjournment application was to be refused - Mr Mann still wanted to rely on the 28 July 2017 amendment to his defence,[123] and expressly ruled that the trial of preliminary issues would proceed on the basis of Mr Mann's defence as amended that day.[124] Given the proximity of the two hearings, and the primary judge's reference to the earlier ruling in refusing leave to amend, it is plain that his Honour was well aware and took account of the fact that the defence before him for the purpose of the trial of the preliminary issues was that as prepared by Mr Mann as a self‑represented litigant rather than that as prepared with the benefit of legal assistance.
3. The final matter raised in Mr Mann's submissions was that the primary judge's decision paid no regard to the requirements of O 1 r 4A and r 4B. However, in refusing the application the primary judge expressly stated that allowing a further amendment would be completely contrary to all case management principles. In so doing it is self-evident that his Honour had regard to the principles evinced in O 1 r 4A and r 4B.
4. Nor, so far as Mr Mann argues that the primary judge was wrong in law to refuse the adjournment application, can it be concluded that the decision was unreasonable or plainly unjust. There were compelling reasons to refuse the application for leave to amend. The application came very late and well outside the regime for amendment as had been provided for by the primary judge's 23 June 2017 orders. Mr Mann had been afforded a sufficient opportunity to plead his defence in answer to the questions raised by the trial of preliminary issues. Amendment in terms of the new defence would have necessitated an adjournment of the trial of preliminary issues to the prejudice of Bankwest and other litigants. The application was made in a context where frequent re-amendments had already caused the primary judge to make orders requiring that amendment be by leave. The action had progressed slowly and would be further delayed if the amendment were permitted. The earlier application for adjournment had been refused and Mr Mann had not sought to appeal the primary judge's dismissal of his application to adjourn. Permitting amendment would have been incompatible with the goal in O 1 r 4A and achieving the objects of case flow management in O 1 r 4B.
5. In those circumstances it cannot be concluded that the primary judge's decision to refuse the application for leave to amend was vitiated by implied error.
6. Ground 2 is without merit. It should be dismissed.
7. The conclusion that ground 2 should be dismissed means that it is not necessary to examine whether, had amendment been allowed in terms of the new defence, it would have affected the final result. In circumstances where Mr Mann did not develop the proposition that there would (as opposed to may) have been a different outcome that question ought not be further examined. That is all the more so when Bankwest made no submissions on the point.

1. In terms of the application for leave to appeal, it is questionable whether substantial injustice will be done by leaving the orders of 10 May 2019 unreversed. Mr Mann did not challenge the primary judge's reasons that led to those answers. More significantly, Mr Mann did not challenge the correctness of the answers to the three preliminary issues. Nor, for the reasons given, has Mr Mann demonstrated that:
   1. In terms of ground 1, the primary judge was wrong to answer the preliminary issues.
   2. In terms of ground 2, the primary judge was wrong to assess the questions posed for the trial of preliminary issues by reference to the existing defence.
2. In neither respect has Mr Mann demonstrated sufficient doubt as to the correctness of the primary judge's decision so as to warrant the grant of leave to appeal.
3. For these reasons we would refuse leave to appeal. We would propose orders that:
   1. The appellant's application in an appeal filed 13 September 2019 is dismissed.
   2. The appellant's application for leave to appeal is refused and the appeal is dismissed.
4. The parties should be heard on costs.

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

[1] See Bankwest v Mann [No 4] [2018] WASC 370 (primary reasons).

[5] Primary reasons [40], [43] - [44].

[6] First home loan cl A 15.7 (reproduced in the primary reasons at [96]).

[7] Mortgage cl 9.2(a) (reproduced in the primary reasons at [97]).

[8] See eg Bankwest v Mann [No 3] [2017] WASC 135 [8]; Primary reasons [55] - [56].

[9] Bankwest v Mann [2015] WASC 187 (Bankwest v Mann [No 1]).

[10] Bankwest v Mann [No 1] [12], [82(a)].

[11] Bankwest v Mann [No 1] [45], [82(b)].

[12] Bankwest v Mann [No 1] [60] - [62], [82(c)].

[13] Bankwest v Mann [No 1] [74] - [75], [82(c)].

[14] Bankwest v Mann [No 1] [81], [82(c)].

[19] Respondent's submissions par 25 WAB 24.

[22] BAB 50 (par 39(f), 52 (par 42(f), 57 (par 50(h)).

[24] Bankwest v Mann [No 2] [2017] WASC 23 [5], [11].

[39] Order 23 June 2017 pars 9 - 11 BAB 34.

[40] Order 23 June 2017 pars 3 - 7 BAB 33 - 34.

[48] Order 2 November 2017 par 2 BAB 3.

[50] Order 2 November 2017 par 2 BAB 3.

[59] Primary reasons [125] - [127].

[63] Primary reasons [77] - [80], [94] - [95].

[66] Primary reasons [107] - [124].

[67] See eg: Primary reasons [107] - [111] (a claim of breach of fiduciary duty); Primary reasons [112] - [113] (a claim of misleading or deceptive conduct); Primary reasons [122] - [123] (the appointment and conduct of receivers).

[74] Respondent's submissions pars 8 - 9 WAB 21.

[78] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9]; Michael Wilson & Partners Ltd v Nicolls [2011] HCA 48; (2011) 244 CLR 427 [89]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25].

[79] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393.

[80] Tomlinson v Ramsey Food Processing Pty Ltd [25]; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 [69].

[81] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529.

[82] Moore v Inglis (1976) 9 ALR 509, 516.

[84] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [28].

[85] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [27(b)].

[86] UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968.

[89] UBS AG v Tyne [83], [92], [121] - [122] (Nettle & Edelman JJ); [126], [136] (Gordon J).

[91] Tomlinson v Ramsey Food Processing Pty Ltd [24].

[92] Arthur JS Hall & Co v Simons [2000] UKHL 38; [2002] 1 AC 615, 701.

[93] Johnson v Gore Wood & Co [2000] UKHL 65; [2002] 2 AC 1, 31.

[94] State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81‑423, 64,089.

[95] See eg Macchia v The Public Trustee [2008] WASCA 241; (2008) 251 ALR 385 [33]; Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [97(14)]; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [134]; Angeleska v State of Victoria [2015] VSCA 140; (2015) 49 VR 131 [158].

[96] Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [62] (see generally at [59] ‑ [70]).

[97] Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 [32]; Kermani v Westpac Banking Corporation [97(14)(f) - (g)].

[98] Kermani v Westpac Banking Corporation [97(13)] (quoted with approval in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [134]).

[99] Supreme Court Act 1935 (WA) s 60(1)(b).

[100] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.

[101] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [46].

[102] Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 [95]

[103] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [20], [122]; Angeleska v State of Victoria [156].

[105] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[106] See eg Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177. For a recent recognition of the principle in this court see Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [49].

[107] See [46.1] - [46.3], [46.5] above.

[108] See [46.4] above.

[109] cf Appellant's submissions par 39.3 WAB 15.

[110] Rules of the Supreme Court 1971 (WA) O 21 r 3(1).

[111] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

[112] Aon Risk Services Australia Ltd v Australian National University [111].

[113] Aon Risk Services Australia Ltd v Australian National University [94], [102], [112].

[114] Aon Risk Services Australia Ltd v Australian National University [102].

[115] Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 [21].

[116] Although see eg High Time Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 [50] - [54].

[117] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [23].

[118] Aon Risk Services Australia Ltd v Australian National University [5]. See also [99].

[120] Appellant's submissions par 39.2 WAB 15.

[124] ts 212. See also Order 2 November 2017 par 2 BAB 3.