RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE RUBA [2020] WASC 237 (24 June 2020)

1. This application is supported by three affidavits sworn by Ms Ruba: the first and second affidavits filed on 6 September 2019 and the third affidavit filed on 20 November 2019. The second affidavit annexes a copy of the proposed writ of summons, the subject of this application. The application is also supported by an affidavit of Ms Ruba's husband, Manraj Singh Khosa, filed 28 November 2019.
2. Ms Ruba is a self‑represented litigant who describes herself in her affidavits as a 'Consultant and Mediator'. While her husband was previously a practising lawyer in Western Australia, I understand that the applicant has no formal legal training. For this reason, it is necessary to approach the proposed notice of originating motion with some flexibility to assess whether it discloses a viable cause of action which, with appropriate amendment, could be put into proper form.[1]
3. Even after having given Ms Ruba due allowance as a self‑represented litigant, I am satisfied that the proposed writ would be an abuse of the process of the court and would be a frivolous and vexatious proceeding. For the reasons set out below, I refuse the application seeking leave to file and issue the proposed writ of summons.

1. The applicant first sought to file a writ of summons in the Supreme Court in July 2018. The writ of summons was rejected for filing on the basis that it appeared to the Registrar to be an abuse of process, further and alternatively, vexatious or frivolous.
2. The applicant subsequently submitted a further writ of summons which was also rejected by the Court for filing. On 12 December 2018, the applicant filed an application for leave to file and serve that proposed writ of summons. This application came on for hearing before Acting Justice Strk on 21 March 2019.
3. At the conclusion of this hearing, Acting Justice Strk delivered ex‑tempore reasons dismissing the application.[2] On that occasion, the proposed defendant was the State of Western Australia, although the proposed writ raised detailed allegations against the LPBWA and its Committees.
4. Many of these allegations raised in the application before her Honour have been replicated by the applicant in the proposed writ of summons that is the subject of the application before me. The applicant contends that the current proceedings are not a re‑litigation of the matter that came before Acting Justice Strk. As was noted by Acting Justice Strk in her reasons for decision, if the applicant decided to seek to file another writ, which she has, it would be necessary for the court to assess it.
5. On this occasion, the applicant did not seek to file the proposed writ of summons and the proposed writ has not been rejected for filing. Rather, the applicant brought an application for leave to issue the writ. Given the history of the matter, I consider this was an appropriate course.
6. I turn now to consider the proposed writ of summons.

1. The applicant's affidavits in support of her application for leave are voluminous, running to almost 2,000 pages. They contain numerous and serious allegations of misconduct and unfair treatment by the LPBWA and its committees as well as a number of individuals.
2. The proposed defendant in the writ of summons in the current application is the LPBWA. In considering and determining this application, I do not consider it is necessary for me to name any of the individuals against whom these allegations are made. These individuals are not before the court and are not able to answer the allegations made by Ms Ruba. In my view, it would be unfair and unjust to name these individuals.
3. The allegations raised by the applicant relate to the prosecution by the LPBWA of Mr Khosa, the applicant's husband, over a period of what the applicant contended was 'six, coming seven years'.[3] The applicant alleges the conduct by the LPBWA and its committees during this time was in breach of 'the presumption of innocence and burden of proof, procedural fairness, the right to silence, and the right against self‑incrimination'.[4]
4. The background to these allegations was summarised by Acting Justice Strk in Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba as follows:[5]

Mr Khosa was admitted to practice law in Western Australia in 2000 and was later employed as a director of two legal practices. The applicant says that she was the consultant practice manager to the law practice named Angove Law, and was later employed as practice manager by the practice named Law on Newcastle.

Proceedings were commenced by the Legal Profession Complaints Committee (LPCC) against Mr Khosa in the State Administrative Tribunal. In those proceedings it was alleged that Mr Khosa, on or about 1 March 2013, engaged in professional misconduct pursuant to the Legal Profession Act 2008 (WA) s 403 and s 438. The allegations in those proceedings related to a personal undertaking made by Mr Khosa to a fellow legal practitioner in circumstances where, it was alleged, that Mr Khosa knowingly breached that undertaking.

The Tribunal found that on or about 1 March 2013, Mr Khosa engaged in professional misconduct pursuant to the Legal Profession Act, in that he released an executed withdrawal of caveat form to Silver Force Pty Ltd and/or Ms Stephanie Douglas (clients) for lodgment at Landgate in circumstances where:

(i) Mr Khosa undertook to Mr Gough and Minter Ellison that the executed withdrawal of caveat form would not be lodged at Landgate and further, that he would not (it being necessarily implicit) release the caveat withdrawal to the clients until such time as the issue of costs relating to the claim by Roderick Gordon Murchison (the first plaintiff) in District Court proceedings No. CIV 2122 of 2011 relating to a loan of $150,000 by the first plaintiff to the clients had been resolved;

(ii) The issue of costs relating to the first plaintiff's claim had not been resolved as of 1 March 2013, when Mr Khosa released the caveat withdrawal to his clients for the purpose of the caveat withdrawal being lodged with Landgate; and

(iii) Mr Khosa released the caveat withdrawal to the clients for lodgment at Landgate.

The Tribunal found that Mr Khosa released the caveat withdrawal to the clients for lodgment at Landgate in the knowledge that it was in breach of the undertaking referred to above.

On 23 September 2015 the State Administrative Tribunal found Mr Khosa guilty of professional misconduct and subsequently suspended Mr Khosa from legal practice for a period of six months. Both the finding of guilt and the penalty imposed were appealed to the Court of Appeal.

The plurality of the Court of Appeal dismissed the appeal against the primary finding of guilt made by the Tribunal. The plurality went on to find that the imposition of a six month period of suspension demonstrated an implied error on behalf of the Tribunal as the decision was unreasonable or plainly unjust. A substituted penalty of two months suspension was imposed. (citations omitted)

1. The applicant alleges that the LPBWA and its committees engaged in misconduct throughout the course of proceedings both before the State Administrative Tribunal and the Court of Appeal. The applicant further asserts that the powers of the LPBWA and its committees were misused either deliberately or inadvertently. The applicant contends that this misconduct caused her loss and damage.[6]
2. Specifically, Ms Ruba says that she has lost her home and only asset, two of her places of work, her capacity to earn a living and secure her future, is now unemployed, and has lost her dependence on her husband's capacity to continue his profession.[7] Ms Ruba says that she has suffered 'financially, emotionally and reputationally', and claims that her health has also been injured.[8]
3. Ms Ruba alleges that the totality of the injustices suffered by Mr Khosa and her have left her homeless, jobless and in poor health.[9]
4. Ms Ruba denies that she is re‑litigating any matter. She contends that she is 'pointing out the prosecutorial misconduct of the LPBWA and their committees that have affected and caused [her] loss and damage.'[10]

Legal principles Leave to file or issue the proposed proceedings

1. Order 67 rule 5 of the Rules provides that:

(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.

(2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.

(3) In all other cases, an application or commission shall be made to a judge in chambers.

(4) Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.

1. There are two main reasons for the requirement for leave to file an originating process which appears to a registrar to be an abuse of process or a frivolous or vexatious proceeding. First, it reinforces the inherent power of the court to protect itself from the unwarranted waste of its time and resources and second, to avoid the loss that would otherwise be suffered by those required to defend actions which lack any substance.[11]
2. Order 67 r 5(1) of the Rules does not set out the criteria I am to apply in determining whether to grant or refuse leave to file or issue the proposed originating motion. However, from the express words used in the Rules, it is clear that I should only refuse leave to file or issue the originating motion if I am satisfied that the originating motion would be an abuse of process or a frivolous or vexatious proceeding.[12] In considering this issue, I adopt the same approach as that used in the exercise of the power of summary dismissal elsewhere in the Rules.[13]
3. What amounts to an abuse of the court's process is not susceptible to a formulation which comprises of closed categories.[14] However, proceedings are likely to constitute an abuse of process if they are clearly doomed to fail,[15] or are plainly unsustainable.[16]
4. Vaughan J in Ex parte Gates undertook a comprehensive review of the meaning of each of the terms 'abuse of process', 'frivolous' and 'vexatious' as follows:[17]

An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted)

1. In exercising the power which denies a potential plaintiff the opportunity to have their matter heard, I am aware that this is a power which should not be exercised lightly. I am particularly aware that a court at first instance should be careful not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[18]

1. In oral submissions, the applicant sought to explain why the draft originating motion was not an abuse of process or vexatious or frivolous. I accept, on the basis of the affidavits filed and the applicant's oral submissions, that she genuinely believes that she has a claim against the proposed defendant and that there is a proper basis upon which to seek redress. However, this does not answer the question that I am required to determine, namely, whether the applicant's proposed writ would be an abuse of process of the court or a frivolous or vexatious proceeding.
2. I have carefully considered the indorsement and supporting affidavits filed by the applicant. It is evident the plaintiff seeks to recover loss and damages which were: (a) a consequence of the conduct of the LPBWA and its Committees; and (b) a consequence of the losses suffered by Mr Khosa on whom the plaintiff depended financially and personally.
3. However, it is not clear from the indorsement of claim in the proposed writ filed by the applicant as to the basis on which the proposed claim is advanced. It appears that the claim is advanced on three separate grounds: breach of statutory duty; abuse of power (or a claim for misfeasance in public office) and breach of professional and ethical standards.
4. Where a writ is proposed to be issued with an indorsement of claim (as opposed to a statement of claim), the indorsement should be a concise summary of the nature of the claim and the relief or remedy required. As was stated by McLure JA in ABB Service Pty Ltd v Hetherington:[19]

The nature and extent of the information necessary to meet the requirement that the endorsement contain a concise statement of the nature of the claim made in the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the endorsement as a whole.

1. An indorsement on a writ is not a pleading and should not be read narrowly[20] but generously.[21]
2. In determining whether the indorsement is adequate, it is important to bear in mind the three important functions that are served by an indorsement.[22] First, it informs the defendant of the nature of the claim made and the relief sought to enable the defendant to determine whether they should enter an appearance and, if so, whether it should be a conditional or unconditional appearance. Second, it enables the defendant to determine whether a cause of action is contained in the writ, in particular by reference to the relevant Limitation Act. Third, it sets out the limits within which the statement of claim must be framed.

1. All litigants, including self-represented litigants, are bound to comply with the Rules. As stated by Vaughan J in Ex parte Gates:[23]

The Rules of the Supreme Court are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources. The production of a writ with a concise statement of the nature of the claim made, in the sense of disclosing the causes of action relied on, suffices to give notice of the plaintiff's claim and the cause for that claim.

1. The applicant's writ of summons is accompanied by an indorsement of the claim in accordance with O 6 r 1 of the Rules. Order 6 r 1 provides that:

Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.

1. Even allowing for the plaintiff's status as a self-represented litigant, the draft writ does not comply with the Rules as it does not disclose the causes of action relied upon and the basis for that claim.
2. I turn first to consider the claim for breach of statutory duty. As was noted in Byrne v Australian Airlines Ltd:[24]

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v SP Bray Ltd, an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy". One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right.

1. That is, it is necessary to consider the proper construction of the Legal Profession Act to determine whether it is intended to provide a ground for civil liability.
2. The Legal Profession Act regulates legal practice in Western Australia. Part 16 is entitled 'Regulatory Authorities' and establishes both the Legal Practice Board (in Division 1) and the Legal Profession Complaints Committee (in Division 2).
3. The LPBWA may appoint committees of Board members,[25] and may delegate any power or duty of the Board to such a committee.[26] The committee must comply with any direction or requirement of the LPBWA.[27]
4. The Legal Professional Complaints Committee (LPCC) is established under s 555 of the Legal Professional Act. The LPCC is a committee of the LPBWA, although it 'must not direct or impose any requirement' on the LPCC as to the performance of its functions.[28]
5. Having regard to the public aims of the Legal Profession Act, I consider that its scope and purpose is for the regulation of legal practice and does not confer on any class of persons a right of action at common law for breach of its provisions.
6. This construction is supported by the express terms of the Legal Profession Act. Both the LPBWA and the LPCC, together with the members of each of them, are protected from liability under s 591 of the Legal Profession Act.[29] Section 591(2) specifically provides that:

(2) An action in tort does not lie against a protected person for anything that the protected person has done, in good faith, in the performance or purported performance of a function under this Act.

1. At the hearing before me, when this was raised with the applicant, the applicant contended that the proposed defendant has not acted in 'good faith', and that accordingly, was not entitled to the protection from liability this section provides.
2. In my view, s 591(2) of the Legal Profession Act preserves a claimant's ability to bring a claim for damages where there is an absence of good faith or an abuse of power. However, the absence of good faith is not an element of the cause of action for breach of statutory duty. As such, I consider that this provision makes plain that the Legal Profession Act is not intended to provide a basis for civil liability.
3. For these reasons, I consider that on a proper construction of the Legal Profession Act, it does not confer on the applicant (or any other party) the right to bring an action at common law against the proposed defendant for breach of statutory duty.
4. Even if I am wrong on the proper construction of the Legal Profession Act, I would still have considered that the proposed writ did not disclose a cause of action. This is because it is not clear as to the basis upon which the applicant asserts that she belongs to a class which the statute is intended to protect. She is neither a legal practitioner nor a member of the public who has sought legal services. In respect of the claim which is said to arise because of the LPBWA's conduct in relation to her husband on whom she depends financially, it is not clear how it is asserted that any duty of care extends to her. In my view, the indorsement would need to set out how the duty of care was owed to the applicant in order for the indorsement to comply with its functions as summarised above.
5. The second ground on which the applicant advances her claim is abuse of power, which is the tort of misfeasance in public office. The elements of the tort are:[30]

(d) in the purported discharge of his or her public duties; and

1. In considering the tort of misfeasance in public office, the first question is whether the proposed defendants are 'public officers'. In Neilson v City of Swan, Buss JA quoted with approval[31] the statement of Best CJ in Henley v Mayor of Lyme that:[32]

In my opinion, everyone who was appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.

1. This statement was approved in Northern Territory v Mengel by Brennan J who stated that the tort was not confined to an abuse of office by the exercise of a statutory power.[33]
2. For the purposes of this application, I proceed (without deciding) that it is at least arguable that the proposed defendant is a public office for the purpose of a misfeasance claim. In doing so, I note that the claim of the tort of misfeasance in public office does not lie against the entity but against the relevant officers within that entity,[34] although the proposed defendant can be vicariously liable for the acts of its employees.[35]
3. It is not clear from the documents filed by the applicant what is said to constitute the invalid or unauthorised act of the proposed first defendant or how this has caused the plaintiff loss.
4. The acts of which the applicant complains are acts of the proposed first defendant in respect of the applicant's husband (rather than the applicant). These acts occurred during the conduct of proceedings in the State Administrative Tribunal and the Court of Appeal; that is, the applicant alleges that the LPBWA acted improperly in the prosecution of her husband. Even if this were correct, the duties of the LPBWA in prosecutions in the State Administrative Tribunal and hearings before Court of Appeal are not duties that are directly enforceable by the applicant or her husband; they are duties which are owed to the court.[36]
5. Further, it is not clear how these actions are said to have been done maliciously. The disciplinary complaints that were prosecuted by the LPBWA were successful in the State Administrative Tribunal and were upheld on appeal. Unless the applicant's husband was successful in having the proceedings terminated in his favour, it cannot be said that the proposed defendant acted maliciously.
6. For these reasons, I consider that the claim for the tort of misfeasance in public office has no reasonable prospects of success.
7. I note that, it is unresolved as to whether disciplinary proceedings, even if maliciously instituted without reasonable or probable cause, can give rise to an action for malicious prosecution or the tort of misfeasance.[37] However, given my conclusion, it is not necessary for me to consider this further.
8. I turn to consider the final basis upon which the claim is sought by the applicant, namely that the proposed defendant's conduct was a breach of professional and ethical standards. It appears that this claim is based on negligence. In order to have a claim for negligence, it is necessary for the applicant to set out the basis upon which she asserts that the proposed defendant owed her a duty of care and the content of that duty of care. As set out above at [45], Ms Ruba has not set out the basis upon which she alleges that any duty of care is owed to her by the proposed defendant, upon which this cause of action is based. Without this, the proposed writ does not disclose a cause of action and is, accordingly, frivolous.
9. In addition to Ms Ruba's proposed claims, in the affidavits filed in support of the motion, Ms Ruba takes issue with findings made by the State Administrative Tribunal and the Court of Appeal in the regulatory proceedings concerning her husband.[38]
10. Ms Ruba sets out the evidence which she says establishes that the findings of the State Administrative Tribunal and the Court of Appeal were 'unsafe'[39] and that both the Tribunal and the Court of Appeal were misled.[40] In oral submissions, Ms Ruba asked that the court review the evidence 'with fresh eyes'.
11. It is clear from the affidavits and Ms Ruba's oral submissions that Ms Ruba wishes this court to revisit matters considered and determined by the State Administrative Tribunal and the Court of Appeal, particularly findings of fact made by the State Administrative Tribunal. As was noted by Acting Justice Strk, this may constitute an abuse of the process of the court and issue estoppel may operate to prevent the same questions of fact from being re-litigated in proceedings on a different cause of action between the same parties or their privies.[41]
12. The applicant addressed in oral submissions the point concerning whether the applicant, by these proceedings, is re‑litigating the proceedings before Acting Justice Strk. The applicant asserted that these proceedings were not a re‑litigation of that application because the conduct of which she complains still needs to be addressed.
13. I accept that the reason for the decision of Acting Justice Strk was that the claim in the proposed writ before her was against the State of Western Australia which, for the reasons set out by her Honour, was doomed to failure. Strictly speaking, her Honour's comments in respect of whether the claim made by the applicant was re‑litigating matters raised in the Court of Appeal are obiter dictum and, as such, these proceedings may not constitute a re‑litigation of the matter.
14. The present case is not, in my view, one which the draft writ discloses a viable cause of action which, with appropriate amendment, could be put in a proper form. What is required if the applicant wishes to pursue any claim is a new indorsement that addresses recognised causes of action which may entitle Ms Ruba to relief. It is not for the court to suggest a form of writ which might entitle Ms Ruba to relief. As noted by Vaughan J in Ex Parte Gates, to do so would be to go beyond the proper assistance that the court might offer to a self‑represented litigant.[42]
15. In addition, the applicant has not adduced evidence in admissible form of facts which might give rise to a cause of action against the proposed defendant. Order 67 r 5(4) of the Rules requires that the application for leave to file and serve a draft originating process be supported by affidavit. This requires the applicant to depose to the facts which support the claim made by her. In this case, the affidavits filed by her do not serve this purpose; they are a summary of her argument or submissions as to why she considers she and her husband have been subject to unfair treatment.
16. Allowing the applicant to file the proposed writ in its present form would bring the administration of justice into disrepute. To permit the claim to proceed in these terms would not accord with the expectation that the court's resources will be used efficiently and economically. This requires parties and the court to conduct litigation promptly and efficiently in a manner consistent with the attainment of justice.
17. It follows from these reasons that if, following delivery of these reasons, the applicant seeks to file writ of summons which complies with the Rules, it will be necessary for the Court to assess the matter afresh having regard to the matters raised in these reasons.

1. In the circumstances, I am satisfied that Ms Ruba's proposed writ of summons would be an abuse of the process of the court and would be a frivolous and vexatious proceeding and that leave to file the writ should be refused.
2. For these reasons, I refuse the plaintiff's application. The order of the court will be that the application by ex parte originating motion dated 5 September 2019 for leave to file and issue a proposed writ of summons is refused.

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

[1] Wentworth v Rogers (No 5) (1986) 6 NSWLR 536, 536 - 537; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [3].

[2] Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [2019] WASC 92.

[4] Affidavit of Sharin Kaur Ruba sworn 5 September 2020, [36].

[5] Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [10] - [15]; See also Legal Profession Complaints Committee and Khosa [2015] WASAT 107.

[6] Affidavit of Sharin Kaur Ruba filed 6 September 2019 'SKR46'; Affidavit of Sharin Kaur Ruba filed 6 September 2019 [5a] - [5b].

[7] Affidavit of Sharin Kaur Ruba filed 6 September 2019 [6b].

[8] Affidavit of Sharin Kaur Ruba filed 6 September 2019 [6c].

[9] Affidavit of Sharin Kaur Ruba filed 6 September 2019 [6b] - [6c].

[10] Affidavit of Sharin Kaur Ruba filed 6 September 2019 [5a].

[11] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312.

[12] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [23].

[13] Ex parte Gates [20]; Perpetual Trustees Victoria Ltd v Allen [23].

[14] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].

[15] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33 [7].

[16] Perpetual Trustees Victoria Ltd v Allen [23].

[18] Hospitals Contribution Fund of Australia v Hunt [1938] ArgusLawRp 58; (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State Western Australia (1992) 8 WAR 256, 264.

[19] ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [11].

[20] Stone James v Pioneer Concrete (WA) Pty Ltd [1984] WASC 460; [1985] WAR 233, 239 (Burt CJ).

[21] Rayney v State of Western Australia [No 3] [2010] WASC 83 [36] (Martin CJ).

[22] Civil Procedure Western Australia (the Red Book) [6.1.1].

[24] Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 424 (Brennan CJ, Dawson and Toohey JJ).

[25] Legal Profession Act 2008 (WA), s 552.

[26] Legal Profession Act 2008 (WA), s 547.

[27] Legal Profession Act 2008 (WA), s 552(2).

[28] Legal Profession Act 2008 (WA), s 555(2) and s 557(4).

[29] Legal Profession Act 2008 (WA), s 591(b), (c), (e) and (f).

[30] Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307, 370 (Deane J); Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136 [54].

[32] Henley v Mayor of Lyme [1828] EngR 701; (1828) 5 Bing 91, 107 - 108.

[34] Northern Territory v Mengel, 347 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).

[35] Neilson v City of Swan [154] - [157] (Buss JA).

[36] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 665 (Deane J); Neilson v City of Swan [63].

[37] Noye v Robbins [2007] WASC 98 [220]; cf Little v Law Institute of Victoria [No 3] [1990] VicRp 25; [1990] VR 257, 267.

[38] See for example, Affidavit of Sharin Kaur Ruba filed 6 September 2019, [55(y)(ix)], p 35; [55(oo)], p 39; and [55(pp)], p 40.

[39] Affidavit of Sharin Kaur Ruba filed 6 September 2019 [11a].

[40] Affidavit of Sharin Kaur Ruba filed 6 September 2019 [359].