Albrecht v Commonwealth Bank of Australia

[2015] WASC 167

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ALBRECHT -v- COMMONWEALTH BANK OF AUSTRALIA [2015] WASC 167

CORAM:   ACTING MASTER GETHING

HEARD:   24 APRIL 2015

DELIVERED          :   15 MAY 2015

FILE NO/S:   CIV 2610 of 2014

BETWEEN:   AMANDA JANE ALBRECHT

Plaintiff

AND

COMMONWEALTH BANK OF AUSTRALIA
Defendant

Catchwords:

Summary judgment - Application by defendant - Privity of contract - Defamation - Deceit - Conspiracy

Legislation:

Rules of the Supreme Court 1971 (WA), O 16

Result:

Summary judgment awarded

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     Mr J D MacLaurin

Solicitors:

Plaintiff:     No appearance

Defendant:     Clayton Utz

Case(s) referred to in judgment(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209

Anderson v Effexseven (1999) 10 ANZ Ins Cas 61‑424

Bank of Western Australia v Stein [2005] WASC 43

Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186

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

Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205

Derry v Peek (1889) 14 App Cas 337

Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575

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

Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)

Foss v Harbottle (1843) 2 Hare 461; (1843) 67 ER 189

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

GEL Custodians Pty Ltd v Dewar [2014] WASC 177

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Hancock Family Memorial Foundation v Porteous (Unreported, WASCA, Library No 970320, 20 June 1997)

Henderson v Fenwick [2014] WASC 176

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)

Johnson v Hallam [2015] WASC 149

Koh v Tay [1999] WASC 197

Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75

Macura v Northern Assurance Co Ltd [1925] AC 619

Magill v Magill [2006] HCA 51; (2006) 226 CLR 551

Mc Kernan v Fraser [1931] HCA 54; (1931) 46 CLR 343

Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509

Peek v Gurney (1873) LR 6 HL 377

Prefumo v Sutton [2011] WASC 151

Re Attorney‑General; Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321

RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297

Smart v Prisoner Review Board (WA) [2012] WASC 48

SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138

Snarski & Snarski v Barbarich [1969] WAR 46

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Tay v Koh [2000] WASCA 356

The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

Tobin v Dodd [2004] WASCA 288

Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107

Van Den Esschert v Chappell [1960] WAR 114

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30

WMC Resources Ltd v Roche Mining Pty Ltd [2004] WASC 76

1. ACTING MASTER GETHING:  Amanda Jane Albrecht and her husband (from whom she is separated) Kent Mills operate a business trading as 'WA Ropes and Hardware' (Business).  The Business is owned by KMIS Pty Ltd (KMIS) as trustee for the K S & A J Mills Family Trust.  Ms Albrecht is also referred to in the evidence before me by her married name, Amanda Mills.  Ms Albrecht and Mr Mills appear to be involved in an ongoing dispute about the future of the Business consequent upon their separation.

2. KMIS holds two accounts with the Commonwealth Bank of Australia (CBA), a Premium Business Cheque Account (Cheque Account) and a Business Online Saver Account (Saver Account).  These accounts were each set up as 'either to operate' which meant that either Ms Albrecht or Mr Mills could operate the account.  On or about 1 or 2 September 2014, Mr Mills instructed CBA to place a hold on $1 million in the Saver Account, leaving a balance of just over $20,000.  A 'hold' still allows certain transactions to take place such as the receipt of deposits and payment of regular direct debits.  On 5 September 2014, CBA placed a 'stop' on the Cheque Account and the Saver Account.  Once a 'stop' is placed on an account, nothing can be transacted.  CBA's written policy for dealing with disputes between signatories to an account provides that when notice of a dispute is received from one or two signatories, it will place a 'stop' on the account.  The stop will only be removed when all signatories provide a new authority to operate signed by them or a court order.[1]

   [1] Affidavit of Paul Robert Lincoln sworn 9 March 2015 (52 ‑ 53).

3. In the days that followed there was a significant amount of email and telephone communication between officers of CBA, Ms Albrecht, Mr Mills and Mr Mills' lawyers.  The impasse was resolved by orders made in the Family Court on 25 September 2014.  The orders included an order directing the parties to do anything needed to authorise CBA to rescind any stop or hold on the Cheque Account and the Saver Account.  There was also an injunction restraining Ms Albrecht from withdrawing or transferring or otherwise transacting on the Cheque Account or the Saver Account.

4. On 24 November 2014, Ms Albrecht commenced an action against CBA by filing a writ of summons.  Her action is best described by quoting the indorsement of claim in its entirety:

   The plaintiff's claim is for

   Costs and damages for the actions of Commonwealth Bank employee Paul Lincoln of the WA Small Business Section placing a hold on the Family Trust Business bank accounts of KMIS Pty Ltd ATF KS & AJ Mills Family Trust T/A WA Ropes & Hardware (ABN 40718858286) of $1.5M on 2 September 2014.  This resulted in the business being unable to pay its debts as and when they fell due including the trust distribution to myself of approximately $840,000 for the 2013/14 year.

   Costs to date include $60,000 in lawyer's fees and as the Director/Company Secretary and Accountant of the family trust my fees are estimated at $150,000 to date.

   The rest of my claim is for the denigration of my professional reputation as an accountant that I have built up over the last 27 years and my personal reputation.

   Claim for costs and damages is $1,000,000.

5. Ms Albrecht filed a statement of claim on 23 January 2015.  Then by application dated 21 February 2015 she sought summary judgment against CBA.  She filed an affidavit sworn on 23 February 2015 in support of her application.[2]

   [2] Which I will refer to as the '23 February Albrecht Affidavit'.

6. By application dated 10 March 2015, CBA sought summary judgment against Ms Albrecht.  As the application was commenced more than 21 days after the date on which the appearance was filed, CBA has sought leave to bring the application.  In support of its application, CBA filed an affidavit sworn 9 March 2015 from Paul Robert Lincoln.[3]  Mr Lincoln is a 'Local Business Banker' employed by CBA.  He has been dealing with Ms Albrecht and Mr Mills for approximately five years.  CBA also filed an affidavit sworn on 10 April 2015 by Yvette Louise Fenton, a solicitor employed by its lawyers.[4]

   [3] Which I will refer to as the 'Lincoln Affidavit'.

   [4] Which I will refer to as the 'Fenton Affidavit'.

7. At a case management hearing on 16 March 2015, sitting as the Principal Registrar, I listed the two summary judgment applications for 'hearing before the Master on a date to be fixed'.  I also made orders programming the filing of any further affidavits.  By letter from the court dated 31 March 2015, Ms Albrecht was advised that the summary judgment applications were listed before me on 24 April 2015, sitting as the Acting Master.[5]

   [5] Pursuant to Supreme Court Act 1935 (WA) s 11D.

8. On 23 April 2015, Ms Albrecht sent a facsimile to the court in which she demanded that the summary judgment application be heard by a judge.  Ms Albrecht referred to a comment made by me at the directions hearing on 16 March 2015 to the effect that the summary judgment applications may be heard before a judge.[6]  In the end, as I have already noted, the order made at the directions hearing was for the summary judgment applications to be listed before a master in chambers.  The master has jurisdiction to hear and determine an application for summary judgment.[7] Prior to the hearing on 24 April 2015, Ms Albrecht sent a second facsimile to the court in which she stated: 'I will not be attending this hearing as it is an illegally convened hearing in contravention of the Supreme Court Rules 1971'. She did not attend the hearing on 24 April 2015.

   [6] ts 3.

   [7] Rules of the Supreme Court 1971 (WA) (RSC) O 60 r 1.

9. At the hearing on 24 April 2015, it was clear to me that Ms Albrecht had been given adequate notice of the hearing.  Accordingly, I proceeded to hear CBA's application for summary judgment and reserved my decision.  Ms Albrecht's application for summary judgment stands adjourned.  The reasons which follow relate to CBA's application for summary judgment.

What issues arise for determination?

1. By RSC O 16 r 1(1), the court may enter judgment for a defendant 'if satisfied that the action is frivolous or vexatious [or] that the defendant has a good defence on the merits'. The application is to be supported by affidavit verifying the facts upon which the application is based.[8] The onus is on CBA as the applicant to persuade the court that this is a case in which it is appropriate to award summary judgment pursuant to O 16 r 1.[9]

   [8] RSC O 16 r 1(2).

   [9] Johnson v Hallam [2015] WASC 149 [6] (Gething AM); Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75 [34] (Beech J); WMC Resources Ltd v Roche Mining Pty Ltd [2004] WASC 76 [35] (Newnes M); Anderson v Effexseven (1999) 10 ANZ Ins Cas 61‑424, 74,757 (Parker J, with whom Owen J agreed).

2. On the materials before me, five issues arise for determination:

   •Should CBA be granted leave to bring the application?

   •Does Ms Albrecht have an arguable claim against CBA for breach of contract?

   •Does Ms Albrecht have an arguable claim against CBA for damages for injury to her personal and professional reputation?

   •Does Ms Albrecht assert any other arguable claim against CBA in the present action?

   •What final orders are appropriate?

Should CBA be granted leave to bring the application?

1. An application by a defendant for summary judgment must be brought within 21 days after appearance, or at any later time by leave of the court.[10]  CBA's appearance was filed on 15 December 2014.  The application brought on 10 March 2015, hence leave is required and has been sought.

   [10] RSC O 16 r 1(1).

2. The policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings before unnecessary expense has been incurred.[11]  The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and may be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant.[12]

   [11] Johnson [9]; GEL Custodians Pty Ltd v Dewar [2014] WASC 177 [17] (Gething AM); Prefumo v Sutton [2011] WASC 151 [33] (Corboy J); Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186 [10] (Templeman J); Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992) (Adams M).

   [12] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J); Bank of Western Australia v Stein [2005] WASC 43 [53] (Commissioner Siopis SC); Johnson [9]; GEL Custodians [17].

3. Ms Albrecht did not put before the court any evidence of particular prejudices she has suffered, or will suffer, as a result of the delay in bringing the application.

4. The delay in the present case is a matter of weeks.  There does not appear to me to have been any great expenditure on the litigation in this period.  As will be apparent from the balance of these reasons, Ms Albrecht's claims are so clearly untenable that they cannot possibly succeed.  CBA should have leave to bring the application for summary judgment in relation to Ms Albrecht's claim.

Does Ms Albrecht have an arguable claim against CBA for breach of contract?

1. In addition to the 23 February Albrecht Affidavit, Ms Albrecht filed three further affidavits:

   •'Affidavit of Amanda Jane Albrecht in Response to Defamatory Statements made by the Defendants and their Lawyers that I am Vexatious and Frivolous', sworn 13 March 2015;[13]

   •'Affidavit of Amanda Jane Albrecht in Disclosure of Documentation Filed with the WA Family Law Court', sworn 13 March 2015;[14] and

   •'Affidavit of Amanda Jane Albrecht Notification of Evidence of Fraudulent Behaviour and Criminal Behaviour', sworn 27 March 2015.[15]

   [13] Which I will refer to as the '13 March Albrecht Affidavit'.

   [14] Which I will refer to as the 'Family Court Albrecht Affidavit'.

   [15] Which I will refer to as the '27 March Albrecht Affidavit'.

2. The Family Court Albrecht Affidavit comprises a single sentence of text and two archive boxes of attachments, without an index.  The text provides: 'That the attachments are the documentation that I have filed or tried to file in the WA Family Law Court as a self‑represented person and that none of these have been heard by the WA Family law Court'.  Ms Albrecht sought to file the one affidavit in each of four separate Supreme Court actions, including the present one.

3. RSC O 37 r 7 provides:

   7.       Scandalous matter

   The Court may order to be struck out from an affidavit any matter which is scandalous, irrelevant or otherwise oppressive, or may order that the affidavit containing such matter be taken off the file.

4. In my view, the entirety of the Family Court Albrecht Affidavit is oppressive as it does not contain any attempt to set out any facts which are said to be relevant to the determination of the present application.  It is oppressive to require the CBA to attempt to discern from the two archive boxes of annexures what facts are relied on.  It is not an answer for Ms Albrecht to say:  'all of them'.  I order that the Family Court Albrecht Affidavit be taken off the present court file (CIV 2610 of 2014).

5. Having reviewed all the affidavit evidence before me, as well as the statement of claim, it is clear that the bank account referred to in the indorsement of claim, being the account which I have defined as the Saver Account, is an account in the name of KMIS.  The relevant contract is between KMIS and CBA.  Subject to some limited exceptions which are not relevant on the present facts, a person who is not a party to a contract is not permitted to commence litigation to enforce it.[16]  Ms Albrecht cannot sue CBA for breach of its contract with KMIS.

   [16] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 115 (Mason CJ & Wilson J), 127 ‑ 128 (Brennan J), 163 ‑ 164 (Toohey J).

6. Ms Albrecht's only formal role in KMIS is as the holder of one of the two issued shares.  She is no longer a director.  Her position appears to be that she has standing because KMIS and the Trust owe her money which has not been paid because of the hold placed on the Saver Account by the CBA.[17]  I will assume that, if there was a trial, Ms Albrecht would be able to establish that she is owed money by KMIS, that she is a beneficiary of the Trust and that as a result of the hold being placed on the Saver Account she was not paid what she was due as a creditor and beneficiary.[18]  However, the assets of KMIS are its assets, and neither as a creditor or a shareholder does Ms Albrecht have any legal or equitable interest in the assets of KMIS.[19]  In an action in which a wrong is alleged to have been done to a corporation, the proper plaintiff is the corporation itself, and not a shareholder or creditor.[20]  There are limited general law and statutory exceptions to this rule, none of which have been utilised, or are applicable, to the present claim.[21]  Ms Albrecht cannot sue CBA for any wrongdoing done to KMIS by CBA or loss suffered by KMIS through the wrongdoing of CBA.

   [17] 23 February Albrecht Affidavit [7].

   [18] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ); RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297 [28] (Chaney J).

   [19] Macura v Northern Assurance Co Ltd [1925] AC 619, 626 ‑ 627 (Lord Buckmaster), 630 (Lord Sumner), 633 (Lord Wrenbury), (Lords Atkinson & Phillimore concurring).

   [20] The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 [9644] (Owen J); Foss v Harbottle (1843) 2 Hare 461; (1843) 67 ER 189.

   [21] For example:  Corporations Act 2001 (Cth) pt 2F.1A.

7. Ms Albrecht also has a concern that CBA has paid out amounts in breach of the orders of the Family Court. [22]  This concern is one which should be addressed in the Family Court.  The concern does not give rise to a cause of action which Ms Albrecht can maintain in the Supreme Court against CBA.

   [22] 23 February Albrecht Affidavit [3].

8. It does appear that Ms Albrecht has accounts with CBA, and there is thus a contract between them in relation to those accounts.  However, the facts set out in the indorsement of claim relate to a stop placed on the account of KMIS, not any account in her own name.

9. On the material before me, I do not consider that Ms Albrecht has any claim, let alone any arguable or viable claim, against CBA for breach of contract in relation to the issues set out in the indorsement of claim.

Does Ms Albrecht have an arguable claim against CBA for damages for injury to her personal and professional reputation?

1. In her statement of claim, Ms Albrecht does not refer to the basis for her claim for damages for injury to her personal and professional reputation.  She noted that these damages are 'TBA' (presumably, 'to be advised').

2. To the extent that Ms Albrecht claims damages for loss of income or injury to her personal and professional reputation flowing from a breach of contract with the CBA, for the reasons I have outlined above, this claim must fail as the stop complained of was on the account of KMIS.

3. The other cause of action referred to by Ms Albrecht by which she could claim for damages for injury to her personal and professional reputation appears to be defamation.

4. The issue of defamation is touched on in the 27 March Albrecht Affidavit.  The annexures to this affidavit include a copy of the Lincoln Affidavit which Ms Albrecht has annotated.[23]  In his affidavit, Mr Lincoln states:[24]

   During either the 1 or 2 September 2014 telephone call (I cannot recall which), Kent Mills told me words to the effect that he was worried about Amanda Albrecht removing money from the Saver Account and he asked the Bank to place a hold on $1 million in the account.  He told me that Amanda Albrecht was a 'vexatious litigant.'  I didn't know what 'vexatious litigant' meant.  Kent Mills did not say anything about Amanda Albrecht's mental health.

   [23] 27 March 2015 Albrecht Affidavit (24ff).

   [24] Lincoln Affidavit [14].

5. Ms Albrecht's annotation is:  'defamatory and what proof did he have of this allegation'.[25]

   [25] 27 March 2015 Albrecht Affidavit (28).

6. Mr Lincoln also deposed to the following about the allegation of defamation:[26]

   [26] Lincoln Affidavit [61] ‑ [64] (original emphasis).

   Allegation of defamation

   61.Paragraph 3 of the indorsement in the writ contains a claim for denigration of Amanda Albrecht's professional reputation as an accountant.  I understand this to be a claim for defamation.

   62.By letter dated 3 February 2015 to Amanda Albrecht, Clayton Utz set out issues with the claim and in particular enquired what the defamatory statement was.  I annex hereto and mark 'PRL40' a true copy of the letter.

   63.Amanda Albrecht replied by email on 9 February 2015:

   Just noticed this email.

   You have 14 days from when I filed my statement of claim to file your defense [sic] or summary judgment.

   I have the evidence to support my statement of claim in the form of other writs, accounts and correspondence.

   In regards to my professional reputation.  I am a qualified accountant of 30 years and have managed our Family Business for 20 years.  Throughout my 30 years I have acted ethically in the best interest of my clients.  This is the reputation I am talking about.

   I annex hereto and mark 'PRL41' a true copy of the email.

   64.Neither I, nor anyone else at the Bank to my knowledge, has ever made or broadcast any defamatory remarks about Amanda Albrecht.

   65.I believe that there is no serious question to be tried on any of the causes of action in the indorsement on the writ and swear this affidavit in support of an application for summary judgment, alternatively in support of an application to strike out the Plaintiff's claim in its entirety.

1. In response to [61], Ms Albrecht's annotation is:  'Yes'.[27]

   [27] 27 March 2015 Albrecht Affidavit (40).

2. In response to [62], Ms Albrecht's annotation is:[28]

   Paul Lincoln accepted and acted on Kent Mills verbal allegation that I was a vexatious litigant and that I was going to remove money from the business bank accounts.  That is fraud and I am a qualified accountant since 1993!!

   [28] 27 March 2015 Albrecht Affidavit (40).

3. In response to [63], Ms Albrecht's annotation is:  'Quite true'.[29]

   [29] 27 March 2015 Albrecht Affidavit (40).

4. In response to [64], Ms Albrecht's annotation is:  'Your actions speak louder than words'.[30]

   [30] 27 March 2015 Albrecht Affidavit (41).

5. In response to [65], Ms Albrecht's annotation is:  'An affidavit with false statements'.[31]

   [31] 27 March 2015 Albrecht Affidavit (41).

6. In a letter dated 3 February 2015, CBA's lawyers requested from Ms Albrecht full details of her claim for denigration of her personal and professional reputation including 'exactly what the publication or statement you complain about is, who published it, to whom it was published etc'.  Her response by email of 9 February 2015 does not address these issues.[32]

   [32] Lincoln Affidavit (224 ‑ 226). This email is quoted at [30].

7. The tort of defamation focusses on 'publications causing damage to reputation'.[33]  As best as I can discern, the statement which Ms Albrecht alleges is defamatory is the statement that she is vexatious litigant and may remove money from the business bank accounts.  However, this statement was made by Mr Mills to Mr Lincoln.  There is no evidence before me that CBA either made or published this statement, or indeed any other potentially defamatory statement.  Mr Lincoln acting on this statement by Mr Mills does not constitute publication for the purposes of the tort of defamation.

   [33] Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 [25] (Gleeson CJ, Mc Hugh, Gummow & Hayne JJ).

8. I do not consider that Ms Albrecht has an arguable or viable cause of action for defamation against CBA.

Does Ms Albrecht assert any other arguable claim against CBA in the present action?

1. In general terms, in assessing a claim for summary judgment by a defendant, a plaintiff is bound by his or her pleaded case.  In Forsayth NL v Northern Gold NL Franklyn J stated: ^[34]

   It is for the plaintiff to determine what is his cause of action. The defendant then knows what is the case he has to meet. It is not for the Court, on an O 16 application, to identify or accept some other cause of action, not pleaded, which the evidence before it might arguably support and which, possibly for good reason, was not relied on by the plaintiff in his Statement of Claim and to then allow the Statement of Claim to remain on foot in reliance on a possible subsequent amendment.

   [34] Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994) 7 (Franklyn J, with whom Wallwork J agreed); Anderson (74,757); Johnson [24].

2. However, Ms Albrecht is a litigant in person.  Accordingly, it is appropriate that I approach the documents in which she articulates her claims with some flexibility.[35] She may require, and be given, some leniency in relation to compliance with the rules set out in the RSC.[36]  I need to be astute to ensure that, in a poorly expressed or unstructured document setting out her claim, there 'is no viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form'.[37]  A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[38]  In Re Attorney‑General; Ex parte Skyring Kirby J stated:[39]

   [I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit.  Vigilance, and not impatience, are specially required where that person is not legally represented.

   [35] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P, with whom Hope & Samuels JJ agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).

   [36] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (Reasons of the Court).

   [37] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed); Wentworth (536 ‑ 537).

   [38] Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509, 510 [5] (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14].

   [39] Re Attorney‑General; Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, 323.

3. It is thus appropriate that I review the evidence before the court to discern whether there is any 'viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form'.[40]

   [40] Ibrahim [21]; Tobin [15]; Wentworth (536 ‑ 537).

4. In her affidavit sworn 27 March 2015, Ms Albrecht sets out a wide allegation of fraud against, among others, the CBA.  Specifically, it provides:

   That the evidence provided in Attachment 'A', affidavit filed with the Supreme Court on 13 Mar, 2015 and all other filings with the Supreme Court in my legal action prove that the following people have engaged in Fraudulent Activity to defraud myself Amanda Jane Albrecht of my money:

   1.Kent Steven Mills Director/Company Secretary KMIS Pty Ltd of 12 Jacaranda Dve, Ballajura WA 6066 (Ex‑husband)

   2.Ann Elizabeth Korzenieka Director Platinum Legal (WA) Pty Ltd Barristers and Solicitors 883 Beaufort St, Inglewood WA 6052 (Kent Mills Family Lawyer)

   3.WA Family Law Court

   i)The Hon. Justice Simon Moncreiff

   ii)Magistrate Laura De Maoi (Acting)

   4.Jatin Cholera Director/Secretary Nexiacorp Holdings Pty Ltd Unit 7, 11 Exchange Road, Malaga WA 6090 (Accountants for KMIS Pty Ltd)

   5.Tim Galic of TGC Lawyers, Ground Floor 64 Fitzgerald St, Northbridge WA 6003 (lawyer for Nexiacorp Holdings).

   6.Commonwealth Bank of Australia (Business and Personal Bankers)

   i)Paul Robert Lincoln Relationship Manager Level 1, 150 St Georges Tce, Perth WA 6000

   ii)Jennifer Siddiqui Customer Experience Specialist Level 19, Colonial Tower, 150 George Street, Parramatta NSW 2150

   iii)Brian Moseley General Manager, Retail Sales Support, Credit Card and Personal Loan Services PO Box 9823 Parramatta NSW 2124

   iv)The member of the Legal team at the Commonwealth Bank of Australia who placed a hold on the Business Cheque Account 5 Sep, 2014.

   7.Clayton Utz (lawyer for Commonwealth Bank of Australia)

   v)Kate McNally, Senior Associate Clayton Utz, Level 27, QVl, 250 St  Georges Tce, Perth WA 6000

   vi)Cameron Belyea, Partner, Clayton Utz

   vii)Yvette Fenton, Lawyer Clayton Utz

   I request that these people be arrested and charged under the following sections of the WA Criminal Code S536 Aiding etc.  Chapter LV offences within or outside WA and S537 Liability of director etc. acting without authority and S82 Fraud by deception under the Australian Criminal Code.

5. Ms Albrecht is obliged to provide particulars of any allegation of fraud in her statement of claim.[41]  A bald allegation in an affidavit such as that set out in the preceding paragraph is manifestly deficient.

   [41] RSC O 20 r 13(1)(a).

6. Further, even if the allegations were fully particularised, they could not be raised in the present action. This is because the allegations are outside the scope of the facts set out in the indorsement of claim (set out at [4] above). By RSC O 20 r 2(2), the statement of claim 'must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned'.

7. The court may, however, amend an indorsement of claim.[42]  If I were prepared to allow the indorsement in the writ to be amended, even giving Ms Albrecht the latitude she is entitled to as a litigant in person, there are only perhaps two further possible causes of action against CBA which appear from the evidence before me:  deceit and conspiracy.

   [42] RSC O 21 r 5.

8. As to the former, in Magill v Magill[43]  Gleeson CJ summarised the elements of the tort of deceit by reference to the statement of Viscount Maugham, in Bradford Third Equitable Benefit Building Society v Borders,[44] as follows:

   First, there must be a representation of fact made by words, or, it may be, by conduct.  The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person.  On the other hand, mere silence, however morally wrong, will not support an action of deceit.  Secondly, the representation must be made with a knowledge that it is false.  It must be wilfully false, or at least made in the absence of any genuine belief that it is true.  Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him.  If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made.  Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing.

   [43] Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 [37]. See generally: Henderson v Fenwick [2014] WASC 176 [12] (Gething AM); Koh v Tay [1999] WASC 197 [60], affirmed in Tay v Koh [2000] WASCA 356; Van Den Esschert v Chappell [1960] WAR 114; Snarski & Snarski v Barbarich [1969] WAR 46; Derry v Peek (1889) 14 App Cas 337, 374; Peek v Gurney (1873) LR 6 HL 377; Sappideen C & Vines P, Fleming's The Law of Torts (10th ed, LawBook Co, 2011) [28.20] ‑ [28.60]; Balkin RP & Davis JLR, Law of Torts (5th ed, LexisNexis Butterworths, 2013) [23.12] ‑ [23.42].

   [44] Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, 211 (citations omitted).

9. On the materials before me, I am not able to discern a representation made by Mr Lincoln which is arguably wilfully false.  Nor am I able to identify any representation, either by words or conduct, by another other employee or agent of CBA which is arguably wilfully false.  As I have mentioned, the particular statement complained of by Ms Albrecht appears to be one made by Mr Mills, and not Mr Lincoln nor any other CBA employee.

10. I do not consider that Ms Albrecht has an arguable or viable cause of action in deceit against CBA.

11. The second is the tort of conspiracy.  It has two broad limbs:  conspiring to cause an injury and conspiring to pursue a lawful purpose by an unlawful means.[45]  There are three common elements of liability:  (1) an agreement between two or more persons; (2) which was carried into execution; and (3) which caused damage.[46]  An agreement to commit a crime is actionable under this tort.[47]

    [45] See generally:  Sappideen C & Vines P, Fleming's The Law of Torts (10th ed, LawBook Co, 2011) [30.170] ‑ [30.220]; Balkin RP & Davis JLR, Law of Torts (5th ed, LexisNexis Butterworths, 2013) [21.43] ‑ [21.60]. Mc Kernan v Fraser [1931] HCA 54; (1931) 46 CLR 343; Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30.

    [46] Balkin RP & Davis JLR, Law of Torts (5th ed, LexisNexis Butterworths, 2013) [21.46].

    [47] Williams (109) (Taylor J), (125) (Menzies J).

12. In relation to the first limb, the conspiracy need not involve unlawfulness in the overt acts relied on.[48]  Rather, as Parker J stated in Hancock Family Memorial Foundation v Porteous:[49]

    The object and purpose of those acting in concert is critical in this tort it being necessary for the plaintiff to show that the predominant or sole purpose of those conspiring was to cause injury rather than to advance an interest of their own:  Crofter Hand Woven  Harris Tweed Co Ltd v Veitch [1942] AC 43, McKernan v Fraser (1931) 46 CLR 34. The tort consists not of agreement, but of concerted action taken pursuant to agreement with the purpose of causing injury, and it is an essential element that damage actually be caused: Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173 at 188, Crofter Hand Woven Harris Tweed Co v Veitals at 468.  The damage must be caused by the performance of the overt acts:  Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119.

    [48] Hancock Family Memorial Foundation v Porteous (Unreported, WASCA, Library No 970320, 20 June 1997) (7) (Parker J, with whom Pidgeon & White JJ agreed).

    [49] Hancock (7).

13. Unlawfulness is, however, necessary, for the second limb of the tort, 'the essence of which is an agreement to pursue what otherwise might be a lawful object but to do so by unlawful means'.[50]

    [50] Hancock (7 ‑ 8).

14. There is no evidence before me of any agreement between Mr Mills and CBA, or any of its employees, to cause injury to Ms Albrecht.  Nor is there any evidence of any agreement to commit a crime, nor pursue some lawful object by unlawful means.  Nor is there any evidence of any wider agreement among the people set out in the quoted in [42] above to this effect.

15. I do not consider that Ms Albrecht has an arguable or viable cause of action in conspiracy against CBA.

What final orders are appropriate?

1. The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[51]  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.[52] In the present case, Ms Albrecht's claim is so clearly untenable that it cannot possibly succeed, and is thereby frivolous or vexatious as required by RSC O 16 r 1.[53]  I have the high degree of certainty required as to the ultimate outcome of the action to make it appropriate to order summary judgment in favour of CBA in relation to the claim brought by Ms Albrecht.

   [51] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane & Dawson JJ); SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20] (Judgment of the Court).

   [52] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & and Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ); Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J), [54] ‑ [57] (Hayne, Crennan, Kiefel & Bell JJ); SMEC [20]; Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 [113] (Le Miere J).

   [53] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 ‑ 130 (Barwick CJ); Spencer [54] ‑ [57] (Hayne, Crennan, Kiefel & Bell JJ); Anderson (74,756) (Wallwork J), (74,757) (Owen J); Alcoa [113].

2. The claim ought to be dismissed costs to be taxed.