RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE GODDARD [2026] WASC 50 (26 February 2026)

Refusal to file or issue proceedings - Order 67 r 5 RSC

1. A Registrar is empowered by O 67 r 5(1) RSC to refuse to file or issue a writ or originating instrument which is 'an abuse of the process of the Court or a frivolous or vexatious proceeding'.
2. In the present case, a Registrar refused leave on 27 January 2026, providing brief reasons for so doing in a letter to the plaintiff, and explaining that if the plaintiff was dissatisfied with the refusal, he might apply for leave from a judge, which he has now done. The principles which are applicable to the determination of an application for leave under O 67 r 5(1) RSC are well-understood and need not be set out in detail.[1]
3. In refusing to accept the proceedings, the Registrar observed that the proposed originating process appeared to rely on the presumption of insolvency arising from a failure to comply with a statutory demand. The Registrar indicated that the supporting materials failed to annex a statutory demand in a form which met the requirements in s 459E of the CA, and was accordingly an abuse of process.
4. In some of the plaintiff's correspondence to the defendant, he had certainly foreshadowed that a statutory demand would be issued. However, on the face of the proposed originating process, the plaintiff was not expressly asserting that he had in fact issued a 'statutory demand', or that he was relying on the presumption of insolvency in this regard.
5. The proposed originating process asserts that it is made under s 459P of the CA (as an aside, that provision clarifies who may apply to wind up a company in insolvency), seeking an order that the defendant be wound up in insolvency and that a liquidator be appointed. In bringing the claim, the plaintiff relies on the non-payment of a debt by the defendant in the amount of A$115,531,908.77 (that is, approximately A$115 million). The plaintiff alleges he served a notice of final demand on the defendant on 13 January 2026, and then a final notice on 19 January 2026. The plaintiff says that this debt remains unpaid.
6. In the course of this application, the plaintiff has indicated that he is not relying on a statutory demand to ground his case. Rather, he seeks to prove 'insolvency in fact' based on the defendant's failure to pay his asserted debt and on the 'forensic evidence of data manipulation' he has assembled. The plaintiff asserts that the defendant is insolvent and unable to pay its debts as and when they fall due.
7. That said, there was some indication during the hearing today that the plaintiff may wish to argue that his written demands constitute 'statutory demands' and that the court should disregard any defects in this regard. The contention that these demands should be taken to be 'statutory demands', such that the presumption of insolvency in s 459C(2) of the CA is engaged, was not firmly pressed, and is weak at best.

1. At its core, the plaintiff asserts that he entered the lottery draw known as the 'Mega Millions' in the United States of America, which was conducted on 13 October 2017. The plaintiff says he lawfully entered the draw, through the defendant's website, and did do before the advertised cut-off time. He says he successfully nominated all numbers in the draw (referred to as Draw 2129), which thereby entitled him to a share of the US$50 million pool.
2. The plaintiff claims this amount, together with interest, compensation for his lost executive time, costs, reputational injury, and a 'penalty for misfeasance and fraud' which is apparently claimed as exemplary damages. As I have said, the total amount claimed is around A$115m.
3. The plaintiff has previously lodged this grievance with the Northern Territory Racing Commission (the NTRC), pursuant to s 85(2) of the Racing and Betting Act 1983 (NT). That legislation has since been repealed, and replaced by the Racing and Wagering Act 2024 (NT). The defendant company actively participated in the proceedings in that forum, and resisted the claim, contending that the plaintiff placed the bet after the lottery had been drawn, and thus his bet (which was found to be a lawful bet) was placed in the immediately next following draw (being Draw 2130). It is apparent that a lengthy investigation was undertaken in relation to the plaintiff's grievance, involving the gaming regulatory authorities in the Northern Territory.
4. By order made on 21 March 2019, the NTRC declared that the plaintiff's bet was placed in Draw 2130 (not in Draw 2129) and it was a lawful bet, but not a winning one. That order was explained in a set of reasons issued by the NTRC. In essence, that determination was driven by the NTRC's interpretation and application of the terms and conditions which attach to bets made with the defendant by members of the public.
5. Within its reasons, the NTRC summarised the plaintiff's case. In particular, the NTRC noted the plaintiff's concession that his bet was placed after Draw 2129 had in fact been drawn. On its face, that might appear fatal to the plaintiff's aspirations. However, the plaintiff submitted that the bet was nonetheless placed prior to the draw time advertised on the defendant's website for the lottery draw and at no time did the website indicate that the draw was closed or notify the plaintiff that his bet would be placed in a different draw. There is material to indicate that the defendant sent an email to the plaintiff confirming that this bet was accepted in the later draw, being Draw 2130. Whether that email was sent and its timing appears to be a disputed fact.
6. The NTRC placed emphasis in its reasons on cl 12.1 of the terms and conditions governing the contractual relationship between the defendant and the plaintiff. That clause provides that a player is not entitled to claim any winnings or receive a payout from the defendant, and the defendant may at its discretion decide the validity of a bet or the player's entitlement to winnings, or void a bet, if the bet was placed after the relevant deadline, or after the start of the relevant draw. The effect of this clause was regarded by the NTRC as an insurmountable obstacle to the plaintiff's complaint.
7. Having reached this conclusion, the NTRC noted in the reasons that, pursuant to s 85(6) of the Racing and Betting Act 1983 (NT), a determination by the Commission of a dispute was final and conclusive as to the matter in dispute. Whether that provision, in a Northern Territory statute, operates to preclude the plaintiff mounting a challenge in a State superior court need not be further explored within the context of the present application. I will assume, without deciding, that this statutory provision does not preclude the bringing of the present proceedings.
8. Since the determination was made by the NTRC, the plaintiff says he has uncovered far more information which is highly relevant to his complaint. That information concerns the manner in which the timing of the lodgment of his bet was evaluated by the regulatory authorities and the NTRC, which he says was undertaken using a 'Sandbox testing' process, or 'simulated environment', where 'no network latency or human reaction time exists', rather than in a 'live production environment'. The simulated environment employed a '0.000m Delta (0ms latency)' which the plaintiff describes as a 'mathematical marker of a computer-to-computer transaction'.
9. The plaintiff has detailed all of his findings in a lengthy document which is robustly entitled 'The Fortress - The Architecture of Misfeasance'. I have reviewed that document and both the plaintiff and his wife have provided some further explanation of it during today's hearing. There is a wealth of technical information contained in that document, not all of which is comprehensible and not all of which bears a rational relationship to the core complaints.

1. To summarise, the principal component of the plaintiff's debt claim (in the order of A$55 million) is a contractual claim, it would seem, arising from the non-payment by the defendant of the winnings to which the plaintiff says he is entitled as a result of the bet he made in October 2017. The plaintiff submits that his proposed proceeding is not an abuse of process and is not frivolous or vexatious, and he wishes to ventilate the contention that the alleged debt is owed and that the defendant is insolvent as a matter of fact. The plaintiff also wishes to rely on the Australian Consumer Law to challenge the legal effectiveness of the terms and conditions which the defendant has used to resist the claim in the proceedings in the NTRC.
2. In considering the plaintiff's application for leave, which is brought by a litigant who acts in person, it is important for the court to bear in mind that an ill-expressed claim could be put into proper form with appropriate amendment and some assistance from the court.
3. More generally, quite apart from the plaintiff's status as an unrepresented litigant, the court must be mindful that it is considering the peremptory termination of litigation. The court should approach cautiously the exercise of a power which would in effect bring about the summary dismissal of proceedings.
4. Further, the onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised only in the most exceptional or extreme case.
5. I have given consideration to the balancing, evaluative process required by the plaintiff's application, recognising that there is a public consideration which underlies the power to refuse the filing of proceedings. That power exists to protect the court from the unwarranted waste of its time and resources, a consideration which resonates with the objects in this court's rules, including the object of 'maximising the efficient use of available judicial and administrative resources'.
6. An immediate difficulty with the proposed proceedings is that the use of the originating process procedure to ventilate a dispute concerning a highly contested claim for a large sum, which potentially requires detailed expert evidence, would be exceedingly inefficient. The originating process procedure is ill-suited for this purpose. I explained this difficulty to the plaintiff and his wife during the hearing this morning. But it may be accepted that this is not, on its own, sufficient to refuse the plaintiff leave. There are more fundamental concerns with the application, in my view. Having reviewed the materials and heard the plaintiff and his wife this morning, it seems to me there are seven reasons which, when taken in combination, demonstrate why this application must fail.
7. First, the plaintiff's claim will need to overcome the natural and ordinary meaning of the terms and conditions which govern the contractual relationship between the parties. The plaintiff also wishes to assert these terms and conditions should be treated as void, the basis for which is not readily apparent on the affidavit materials.
8. Second, the plaintiff's claim has already been heard, and rejected, in another forum in which both parties had an opportunity to participate and present arguments. As I have said, I do not proceed on the basis that this is fatal to the application for leave per-se - but it is nonetheless a relevant factor in the evaluative exercise which is required by this application.
9. Third, the plaintiff's claim will be subject to a challenge that it is now statute barred, given the claim appears to be one brought in contract for which the limitation period is six years, and yet the cause of action appears to have accrued eight years ago. Again, I do not suggest this is fatal on its own, and there may well be arguments to the contrary including arguments as to whether information was concealed from the plaintiffs.
10. Fourth, it is evident that a large part of the claim is based on speculative claims for compensation and an exorbitant claim for interest calculated in the amount of A$48 million. The plaintiff has calculated that interest at the rate of 8% p.a., and appears to have calculated the final amount by compounding it annually. The other components of the alleged debt, representing an amount in the order of A$12 million, appear to be highly doubtful and speculative in nature, particularly in the context of a contract claim.
11. Fifth, the foregoing matters demonstrate that the plaintiff's underlying claim that it is owed a debt payable by the defendant is seriously contested and will require detailed lay and expert evidence to be adduced as part of the proceedings. The final hearing of that claim would likely require some days, if not weeks, of hearing time.
12. Sixth, the nature of the process the plaintiff wishes to deploy to ventilate the claim is a winding up application under pt 5.4 of the CA - the plaintiff has noticeably chosen not to file an action in this court to first secure judgment against the defendant. The fundamental concern which emerges here is that the plaintiff wishes to take advantage of the procedure in s 459A of the CA to obtain an order to wind up the defendant company on the ground of insolvency, and to do so based on the non-payment of a highly disputed debt. The insolvency contention rests heavily, if not exclusively, on the success of the plaintiff's debt claim, rather than on any holistic assessment of the financial position of the defendant and its ability to pay its debts as and when they fall due. There is no material before the court to support a wider contention that the defendant has solvency issues, and the plaintiff accepted as much during the hearing.
13. To allow the defendant to be subjected to a proceeding alleging that it is insolvent, in such circumstances, would, in my view, allow the processes of the court to be abused and converted into instruments of injustice or unfairness. Put another way, the use of the court's procedures in this way would be unjustifiably oppressive to the defendant and would likely bring the administration of justice into disrepute.
14. It should be remembered that proceedings to wind up a company, brought under pt 5.4 of the CA, are serious matters which have significant consequences for the subject company. The prospect of attempted subversion of the statutory scheme provided under pt 5.4 must be guarded against. That includes those circumstances in which a genuinely disputed debt is employed to ground an application under s 459A of the CA, whether on the basis of a statutory demand or not. Some years ago, the former Chief Justice of this court observed in the statutory demand context that the purpose of the legislative regime was not:[2]

... to provide a means whereby those claiming a genuinely disputed debt can avoid the obligation of establishing their entitlement to that debt in a court of appropriate jurisdiction by placing commercial pressure on the party resisting payment.

1. That observation has force in the current context.
2. Seventh, and finally, it is also of significance, in assessing the plaintiff's application for leave, to appreciate that, while the plaintiff foreshadowed serving a statutory demand, he did not do so. Had the plaintiff served a compliant statutory demand, under div 2 pt 5.4 of the CA, the defendant company would have had the ability to bring an application to set aside that demand under div 3 pt 5.4 of the CA within the statutory period.
3. The plaintiff's decision not to serve a compliant statutory demand, but to nonetheless make written demands following by a proposed proceeding under s 459A of the CA, foreclosed this option. I consider these circumstances are relevant to the question whether the proposed proceeding is an abuse of this court's processes.

1. For the foregoing reasons, when viewed in combination, I formed the view that leave should not be granted to the plaintiff to file the proposed originating process.
2. I accordingly ordered that the application be dismissed, with no order as to costs.

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

[1] Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [25] (Vaughan J, as his Honour then was); and Re Rules of the Supreme Court 1971 (WA); Ex parte Kiefer [2025] WASC 45 [15] - [22] (Lundberg J).

[2] Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85 [2] (Martin CJ, Owen & Miler JJA agreeing).