Neil James Duckworth as trustee for the Ocean Farm Trust v Water Corporation - [2024] WASC 90

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NEIL JAMES DUCKWORTH as trustee for THE OCEAN FARM TRUST -v- WATER CORPORATION [2024] WASC 90
CORAM:   HOWARD J
HEARD:   15 FEBRUARY 2024
DELIVERED          :   25 MARCH 2024
PUBLISHED           :   25 MARCH 2024
FILE NO/S:   CIV 1457 of 2023
BETWEEN:   NEIL JAMES DUCKWORTH as trustee for THE OCEAN FARM TRUST
Plaintiff
AND
WATER CORPORATION
Defendant

Catchwords:

Procedure - Application for summary judgment - Application to strike out statement of claim - Whether the cause(s) of action are time barred - Whether the defendant owes the plaintiff a fiduciary duty - Relationship between parties was contract at arm's length - Defendant does not owe fiduciary obligations - Whether defendant acted fraudulently or concealed matters - Six year limitation period under s 13(1) of the Limitation Act 2005 applies - Defendant granted summary judgment

Legislation:

Limitation Act 2005 (WA)

Result:

Defendant granted summary judgment

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	K A T Pederson

Solicitors:

Plaintiff	:	In Person
Defendant	:	Clayton Utz

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

Dewar v Ollier [2020] WASCA 25
Duckworth v Water Corporation [2012] WASC 30
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241
.......... CLR 1
Pisano v South Metropolitan Health Service [2023] WASCA 80
Redland City Council v Kozik [2024] HCA 7
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Wright v Lemon [2024] WASCA 19

HOWARD J:

The plaintiff acts for himself, which may explain some of what follows. As will also be apparent, this is by no means the first time that the factual matters raised in these proceedings have been before this Court.[1]
[1] See Neil James Duckworth ATF The Ocean Farm Trust v Water Corporation CIV 3066 of 2010; Karl James Duckworth & Ors v Water Corporation CIV 1795 of 2013.
On 5 May 2023, the plaintiff commenced these proceedings and filed a seven page document which was a writ, statement of claim and then particulars (together 5 May 2023 pleading).
The statement of claim (SOC) said that the plaintiff's claim was for:
…
[3]… monies had and received being: A DEBT OWING TO THE PLAINTIFF.
(a)The amount of $715,680 paid to the defendant in or about September to October 2006 for headwork charges and which were in whole, or alternatively in part, overcharges to which the defendant was and is not entitled;
AND
(b)The amount of $3,000,000 relating to a LAND SERVICING BOND AGREEMENT STANDARD and a WATER CORPORATION LAND DEVELOPMENT AGREEMENT (LDA) SIGNED ON THE 20^th September 2006
(c)On or about 20th January 2008 the defendant wrongly drew down the $3,000,000 and has refused to repay in whole or in part. (emphasis in the original)
The relief sought includes repayment of the monies, declarations which support the orders sought for repayment, interest, damages including compound interest and punitive damages: SOC [4(a) ‑ (g)].

Some context

By way of providing some context to the defendant's present application, the following matters appear from the materials before the Court.
A Customer Constructed Works Agreement (CCWA)[2] and a Bond Agreement[3] were entered into between, effectively, the plaintiff and the defendant: Particulars 2, 8 ‑ 11 of the plaintiff's 5 May 2023 pleading.
[2] The CCWA is TJD-2 at page 11 of the affidavit of Mr Donisi made 10 August 2023.
[3] The Bond Agreement is TJD-3 at page 30 of the affidavit of Mr Donisi made 10 August 2023.
Headwork charges of $715,680 were paid by the plaintiff to the defendant in or about September to October 2006: SOC [3(a)] pursuant to the CCWA for a land development (by subdivision) project at Lancelin in this State.
The plaintiff alleges this was an 'overcharge' to which the defendant was not entitled.
By letters dated 21 December 2007, the defendant wrote to the plaintiff,[4] and asserted breaches of the Bond Agreement and the CCWA respectively and required those defaults to be remedied.
[4] TJD-4, pages 37 - 38 to the affidavit of Mr Donisi made 10 August 2023.
The letter asserting defaults under the CCWA[5] stated that if the default was not remedied within 14 days the defendant intended to exercise its rights set out in clause 4.1(a)(B) of the CCWA and continue the Works.
[5] TJD‑4, Page 38 to the affidavit of Mr Donisi made 10 August 2023.
The letter asserting defaults under the Bond Agreement stated that if the breaches were not remedied within 14 days the defendant (without prejudice to its rights under the CCWA) would exercise its rights under the Bond Agreement by calling on the Financial Security which was a Banker's Undertaking dated 4 September 2006.[6]
[6] TJD‑4 Page 37 to the affidavit of Mr Donisi made 10 August 2023.
On 15 January 2008, the defendant called on the Banker's Undertaking[7] provided under the Bond Agreement.
[7] TJD-5, page 39 to the affidavit of Mr Donisi made 10 August 2023.
$3,000,000 was paid to the defendant on about 20 January 2008 pursuant to a claim made on a bond provided by the plaintiff under the Bond Agreement: SOC [3(c)].
From the above summary it may be seen that the matters complained of by the plaintiff in the 5 May 2023 pleading occurred:
1. by no later than October 2006 in respect of the $715,680; and
2.no later than 20 January 2008 when the $3,000,000 was drawn down by the defendant.

The defendant's application

By chamber summons filed 10 August 2023, the defendant seeks:
1.summary judgment on the plaintiff's writ and statement of claim of 5 May 2023; or alternatively
2.that the writ and statement of claim be struck out in its entirety.
In its application the defendant initially relied on two bases; namely:
1.the cause or causes of action is or are time barred by the Limitation Act 2005 (WA) (2005 Act); and, in any event;
2.the proceedings are barred by the terms of a Deed of Settlement dated 27 October 2017.
The defendant initially contended that either of its two bases above was a sufficient basis to grant summary judgment, and relied on two affidavits from its solicitor.
The second of those affidavits was made and filed on 26 September 2023. It is the subject of Orders made under O 67B r 5 made by a Registrar on 4 October 2023. It went to support the second basis asserted by the defendant.
At the hearing of the application, counsel for the defendant properly accepted that there was a contested factual question (raised by an affidavit of the plaintiff) as to whether the Deed of Settlement effectively bound the plaintiff as trustee. In short, the contested factual question arose from the plaintiff asserting that at the time the Deed of Settlement was entered into, he was a joint trustee with the individual who executed the Deed of Settlement as trustee (and who represented within the Deed that he had authority to do so).
That contested factual question gave rise to the possibility that the Deed of Settlement may not effectively bind the plaintiff as trustee if the trustees had not acted unanimously on 27 October 2017.
In all of the circumstances, the defendant, as I said, properly did not press that second basis of its application.
Given the other actions which have been commenced in relation to the same or substantially the same facts, there may be a real question as to whether the present proceedings ought be stayed as an abuse of process. The defendant did not make its application on that basis and given the clear view I have reached on the merits of its application, I have not considered that ground further in these reasons.

The plaintiff's further documents

On 29 August 2023, the Acting Master gave the plaintiff leave to file an amended statement of claim by 12 September 2023.
On 11 September 2023, the plaintiff filed a 'Minute of Proposed Additions and Amendments to Statement of Claim' (Minute). That document was amended by a further Minute filed 19 January 2024 which made some immaterial changes to two dates (Amended Minute). For present purposes, I will deal with the Amended Minute as though it was filed with the Court on 11 September 2023 and within the Acting Master's leave. As will be seen, these are not the only documents which the plaintiff has filed since 5 May 2023.
The Amended Minute is a 20 page document. It is not easy to follow and its intended relationship with the 5 May 2023 pleading is not clear.
The most significant differences from the 5 May 2023 pleading appear to be to be that the Amended Minute asserts:
1.that the defendant is a fiduciary which owed the plaintiff 'an obligation of undivided loyalty';
2.the defendant as fiduciary became a constructive trustee of the monies received with sufficient knowledge of fraud; and
3.the defendant acted fraudulently and not honestly.
The principal claims made by the plaintiff in the Amended Minute remain:
1.the $3,000,000 paid under the Bond Agreement: see, for example, Amended Minute [44], [48], [49], [60], [61]; and
2.the $753,000 paid under the CCWA: see, for example, Amended Minute [26], [61].
There are other 'claims' made for damages in the Amended Minute such as:
E.DAMAGES BY WAY OF LOSS OF PROFIT
F.DAMAGES BY WAY OF LOST OPPORTUNITY
G.DAMAGES BY WAY OF INTEREST PAID TO FINANCIAL LENDERS
H.DAMAGES BY LYING IN ITS AFFIDAVIT TO BANKRUPT THE PLAINTIFF CAUSING PAIN AND PERSONAL SUFFERING TO THE Trustee DUCKWORTH, PLAINTIFF
I.COMPOUND INTEREST as awarded against defendants making profit with Clients appropriated money Breaching Obligations of undivided LOYALTY owed by FIDUCIARY OBLIGATION OF UNDIVIDED LOYALTY (all emphases in the original)
Since his 5 May 2023 pleading, the plaintiff has also filed the following documents:
1.a document dated 25 August 2023 (filed on 26 August 2023) entitled 'minute confirming list of evidence';
2.a document dated 23 August 2023 (filed on 26 August 2023) entitled 'Plaintiff's proposed minute of orders';
3.a document dated 22 August 2023 (filed on 26 August 2023) entitled 'Further and better particulars of Plaintiff Statement of Claim';
4.a document dated 22 August 2023 (filed 26 August 2023) entitled 'Chamber Summons for Summary Judgment pursuant to order 14 rule 1 of the Supreme Court Rules 1971 WA and opposing any strike out action, and final judgment for restitution of money $300,000,000 wrongfully taken by the defendant and restitution of $700,000 wrongfully charged' (the Plaintiff's Application for Summary Judgment);
5.a document dated 9 August 2023 (filed on 26 August 2023) entitled 'Affidavit of Neil James Duckworth sworn on 9th day of August 2023 in support of summary judgment and final judgment and attachment verifying evidence';
6.submissions dated August 2023 (filed on 28 August 2023), but later removed from the eCourts file) entitled 'plaintiff's submissions in support of judgment for return of appropriated money';
7.submissions dated and filed on 28 August 2023 (but later removed from the eCourts file) entitled 'Plaintiff's further submissions (2)';
8.submissions dated and filed on 28 August 2023 (but later removed from the eCourts file) entitled 'Plaintiff's further submissions (3)';
9.the Minute (dated 6 September 2023 and filed 11 September 2023);
10.a document dated 9 October 2023 and stamped 10 October 2023 entitled 'Affidavit in Reply to Confidential Affidavit of Timothy James Donisi affirmed on 26 September 2023';
11.a document dated and filed on 10 October 2023 entitled 'Supplementary Affidavit to the Affidavit of Neil James Duckworth sworn on the 23rd August 2023 this affidavit sworn on the 10th day of October 2023';
12.a document dated and filed on 11 October 2023 (but later removed from the eCourts file) entitled 'Plaintiff's Application by Chamber Summons for Orders for a separate trial of the Banker's Undertaking $3,000,000 taken by the Defendant and $735,000 mistakenly paid by the plaintiff to the defendant … ' (the Separate Trial Application); and
13.a document headed 'Outline of Submissions in support of plaintiff's opposition to defendant's submissions and strike out claims dated 24th October 2023' which was dated and filed 7 November 2023.
It may be seen that within the above documents filed, the plaintiff seeks summary judgment on his claim or, presumably, a separate trial in relation to the two sums claimed.
At the hearing, I said I would determine the defendant's application first and return, if necessary, to the plaintiff's applications made in these proceedings.

The principles to be applied

As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24], the principles to be applied on an application for summary judgment are well established:[8]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care. 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. (case citations omitted)
[8] See also Pisano v South Metropolitan Health Service [2023] WASCA 80 [52].
Summary determination based on the expiry of limitation periods should only be made in the clearest of cases: Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 at 533; Wright v Lemon [2024] WASCA 19 [1116] (Buss P for the Court).
Under the 2005 Act, every cause of action is subject to some limitation period: Dewar v Ollier [2020] WASCA 25 at [164], [165] (Beech JA, Vaughan JA and Archer J):
Under the Limitation Act 2005, it is clear that every cause of action, even an equitable one, is subject to some limitation period.

Time bars

The defendant contends that the plaintiff's claims are each barred under the 2005 Act: it relies on the general limitation period in s 13 or that in s 27.

Headworks under CCWA

In relation to the claim for monies paid under CCWA for the headworks, the defendant primarily contends that s 13 of the 2005 Act provides a six year limitation period which it says started to run by no later than October 2006 and, so, expired in October 2012.
In the alternative, the defendant contends the same period applies by s 27(1)(a) of the 2005 Act (presumably if one treats the claim in relation to the CCWA as an equitable action to which equity would not apply the statutory limitation period by analogy).
In the further alternative, the defendant contends that if s 27(1)(b) of the 2005 Act applies (which appears may be agitated by the plaintiff), then it says the plaintiff relevantly 'knew' by the time he commenced the action against the defendant in this Court in CIV 2066 of 2010 in December 2010 and so the limitation period expired in December 2013. I will return to this under the heading of 'Defendant's conduct' below.
In relation to the headwork charges, as noted above, the claim made by the plaintiff in the 5 May 2023 pleading is for monies had and received; i.e. the amount was in whole, or in part, an overcharge to which the defendant was not entitled. There is not a plea, as such, for a breach of contract.
I have proceeded on the basis that the plaintiff's claim for monies had and received in relation to the CCWA and the headwork charges is a claim at common law (and so not in equity): Redland City Council v Kozik [2024] HCA 7 [60], [65] ‑ [66], [70] (Gageler CJ and Jagot J); [179] (Gordon, Edelman and Steward JJ).
Accordingly I accept that s 13(1) of the 2005 Act provides a limitation period of six years and expired, as the defendant contends, no later than October 2012.
Accordingly, I do not consider that s 27(1)(a) applies.
As I understand it, (from papers filed after the defendant's application was made), the plaintiff seeks to avoid the limitation point by asserting that the defendant owed and breached fiduciary obligations and, then, secondly, fraudulently concealed those breaches until an FOI process in 2023. Presumably, the plaintiff then seeks to rely on s 27(1)(b) or possibly s 38(2) of the 2005 Act. I will return to these below.

$3 million Bond payment

In relation to the plaintiff's claim for the Bond payment as monies had and received, the defendant repeats its three arguments set out above. The difference being that the $3 million bond was paid on about 20 January 2008, so that the six years would expire in January 2014.
For the reasons given above, I hold that the cause of action on the Bond payment expired in January 2014 pursuant to s 13(1) of the 2005 Act.
As with the claimed headworks monies, the plaintiff claims that the defendant owed him fiduciary obligations and fraudulently concealed some relevant matters. Again, I will return to these below.

Defendant as a fiduciary

The plaintiff's claims that the defendant owed him fiduciary obligations appear in the Amended Minute and not the 5 May 2023 pleading (the latter being the stated target of the defendant's application).
In the plaintiff's Outline of Submissions filed and dated 7 November 2023, he asserted that: 'there are no time bars in Western Australia to [sic] Fiduciary or fraud': [9]. As noted above, that proposition is not correct.
Nonetheless, I have considered the further matters asserted by the plaintiff in the Amended Minute in considering whether these proceedings ought be summarily determined.
Although it is not clear how the plaintiff makes his contention, I have considered whether the defendant was a fiduciary arising either out of the CCWA or Bond Agreement, or on some other basis from the plaintiff's material, and if so, whether it is arguable that some different limitation period applies.
It may be that the plaintiff's assertion that the defendant is in a fiduciary position reveals a confusion between an idea that the defendant on receipt of monies (it was not entitled to) holds them on trust for the plaintiff (a theme that runs through the Amended Minute), and the idea that fiduciary obligations were owed prior to the receipt of that money.
As noted above, the dealings between the plaintiff and the defendant which are at the heart of these proceedings are the CCWA and the Bond Agreement.
I do not consider it necessary to set out the terms of the CCWA or the Bond Agreement in detail. There is nothing in those agreements which puts the plaintiff and defendant into an established category of fiduciary relationships.
On my reading, there is nothing in either instrument which suggests that the parties were to operate other than at arm's length, and nothing to suggest that the defendant was in any way to act on behalf of, or in the interests of the plaintiff.
In my view, this is a case where there is a transaction which falls outside of any accepted category of fiduciary relationship and does not give rise to fiduciary duties. That is not because the relationship is contractual or commercial, but because it does not meet the criteria for characterisation as fiduciary in nature: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 [90] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
In his classical statement in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 97 Mason J (as he then was) stated:
That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract intended to have according to its true construction.[9]
[9] See also John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 [91]: (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

It appears to me that without any foundation the plaintiff has sought to superimpose fiduciary obligations onto what were otherwise contractual relationships at arm's length.
The imposition of a fiduciary relationship would, in my view, alter the two contracts' operation impermissibly.
I note that in none of the voluminous material filed by the plaintiff in these proceedings has there been any statement of what underlies or supports the plaintiff's contention now made that the defendant owed the plaintiff fiduciary obligations prior to receipt of the monies claimed.
Outside of the CCWA and the Bond Agreement dealt with above, I cannot discern any basis on which it might be viably asserted that the defendant owed fiduciary obligations to the plaintiff.
I find that it is not arguable that the defendant owed fiduciary obligations, and so the plaintiff's claim for a different applicable limitation period fails at the first hurdle.
In any event, and without more, even if a fiduciary relationship or obligation could be viably argued for, that would not assist the plaintiff.
In my view, if there was a viable claim for the breach of a fiduciary obligation, it could only arise out of the CCWA or the Bond Agreement, or the claims for monies had and received. In those circumstances, equity would have applied the ordinary six year limitation period by analogy: see by parity of reasoning Dewar v Ollier[167] – [169] (Beech and Vaughan JJA, Archer J).
The Court of Appeal in Wright v Lemon [2024] WASCA 19, recently reviewed the doctrine of applying statutory limitation periods by analogy: see [1096] and following (Buss P for the Court). I do not repeat that analysis here. I consider that analysis supports the conclusion I have reached that equity would have applied the statutory six years by analogy to any fiduciary claim which could be asserted here.
The consequence would be that the six years under s 13(1) of the 2005 Act would still be applied if there was some viable fiduciary claim.

Defendant's conduct

Again, I consider the plaintiff's contentions as to the defendant's alleged fraudulent conduct and then alleged concealment of the same for the purposes of considering whether it is arguable that a different limitation period ought to be applied and so these proceedings ought not to be summarily determined.
The plaintiff's Outline of Submissions filed and dated 7 November 2023, relevantly asserted:
…
2.This action is a damages claim, restitution loss of opportunity and it's the acts below that were done without conscience and FRAUDUENTLY CONCEALED which must go to trial.
3.All new-fresh evidence must be tabled and examined before any strikeout action could possibly be taken.
4.The Defendant deliberately withheld the water licences.
i.The Ground Well Licence 63819(2) which has now been accessed through Freedom of Information DWERVT11569 through Department of Water and Environmental Regulation (an affiliate of the Water Corporation) and evidenced in NJD-17 in the third affidavit Supplementary affidavit of 23rd August 2023
ii.The Defendant also withheld the Operating Area Licence IL/8 which has been obtained from Economic Regulation Authority Freedom of Information in early 2023.
…
The defendant has breached its Fiduciary Obligations CONTINUOUSLY (ERA FOI evidence)
8.The new evidence obtained through Freedom Of Information process must be tabled prior to trial.
9.There are no time bars in Western Australia to Fiduciary or fraud.
10.On the Limitations Question this action is not out of time, or Statute barred as PEG 190 of 2017 saves that. There is no evidence in s27 of the Statutory Limitations Act limiting FIDUCIARY or concealed fraud, the fact giving rise to the claim
11.Concealed fraud time will not commence to run on limitation period until the claimant learns of the relevant fact or should of come to know of the relevant fact if it could have been discovered with reasonable diligence (emphases and typographical errors as per the original).
The plaintiff further said at the hearing that:
1.he had only received a full set of documents in 2023 after FOI requests and that there had been concealment on the part of the defendant; and
2.all of the new documents he was relying upon for this submission were in the affidavits he had filed in this action.
The Supplementary Affidavit of the plaintiff made and filed 10 October 2023 stated:
[1]I am relying on the Plaintiff's Breach of Fiduciary Obligations in these proceeding and new evidence that was obtained through FOI 'inter alia' between 2000 and 2003
…
[8]The Defendant caused Damage and Loss by withholding the water well licence GWL 63819-2, seen at annexure of NJD-17 of this document, (which is also new evidence coming from FOI DWER) issued to NILGIN Service Company SPECIFICALLY to supply Stage 2 land subdivision with water and lied about its existence. JDA report p3@25 refers to document 12A (emphases in the original)
'NJD-17' to that affidavit is a copy of a Licence to Take Water (instrument No. GWL63819(2)) issued to Nilgin Service Company Ltd.[10]
[10] That may be a typographical error and the name of the company may be 'Nilgen' which is the place name around the land development.
In that affidavit, the plaintiff also annexes a witness statement by a consultant hydrologist, Dr Davies, dated 20 May 2022 as 'NJD-12'.
At [25] of that report,[11] Dr Davies refers to the licence which is attached as 'NJD-17'.
[11] Page 10 of the plaintiff's Supplementary Affidavit filed 10 October 2023.
Dr Davies then also sets out documents which the plaintiff was aware of contemporaneously: see [27], [28].[12]
[12] Page 11 of the plaintiff's Supplementary Affidavit filed 10 October 2023.
Dr Davies at [39][13] notes on 30 November 2006 a further Licence - instrument No. GWL 63819 (3) was issued. At [53][14] Dr Davies notes the issuing of GWL 63819 (4) and at [56][15] notes on 10 June 2014 the issuing of GWL 63819 (5).
[13] Page 12 of the plaintiff's Supplementary Affidavit filed 10 October 2023.
[14] Page 13 of the plaintiff's Supplementary Affidavit filed 10 October 2023.
[15] Page 13 of the plaintiff's Supplementary Affidavit filed 10 October 2023.
That is, it appears that the plaintiff had, at least, copies of the water licences which were granted subsequently to 'NJD-17'. Hence, one may be sceptical as to whether there is anything of substance in the allegations that there had been some concealment on the part of the defendant.
At its highest, it appears the plaintiff claims that the Licence (GWL 63819 (2)) was withheld by the defendant who lied by representing there was no water allocation: see (ii) and (iii) at pages 2 and 3 of the Amended Minute. The plaintiff also claims the defendant knew that the relevant land was capable of being supplied water from an existing infrastructure and, presumably, ought to have been supplied: see (v) at page 3 of the Amended Minute.
In any event, it appears that the plaintiff relies on the licence 'NJD‑17' as evidence to support his claims made concerning the CCWA and the Bond payment.
That is, most significantly, it appears that there is no separate or new cause of action based on the licence 'NJD‑17'.
The defendant has not made an application pursuant to s 38(2) of the 2005 Act.
If the plaintiff did, I consider it sufficiently clear that the Court would not grant such an application.
As I have set out above, it appears to me that the 'concealed' document is, at its highest, a matter of evidence rather than founding a new or separate cause of action.
Further, the plaintiff was in a position to, and did, commence proceedings against the defendant on 23 December 2010 in CIV 3066 of 2010 (2010 Action).
The facts put in the Amended Minute closely mirror the allegations made in the original statement of claim in the 2010 Action.
The result is that no document which the plaintiff says he received for the first time in 2023 gives rise to a new, or different, claim from those previously made in the 2010 Action.
The 2010 Action has its own convoluted history and is presently subject to a separate application on the part of the plaintiff which is to be heard on 5 April 2024.
For present purposes, the significance of the 2010 Action is what the plaintiff knew, as a matter of substance, at the time of its commencement through to 2 February 2012, when Edelman J (then of this Court) ordered it to be stayed: Duckworth v Water Corporation [2012] WASC 30.
The writ in the 2010 Action had an endorsement in which the plaintiff claimed monies had and received being:
(a)the amount of $686,400 paid to the defendant in or about September to October 2006 for headwork charges and which were in whole, or alternatively in part, overcharges to which the defendant was and is not entitled; and
(b)the amount of $3,000,000 relating to a Customer Constructed Works Agreement of on or about 3 March 2006 and a Land Servicing Bond Agreement of on or about 20 September 2006 which the defendant wrongly drew upon and has refused to repay in whole or part.
The plaintiff, then, filed a statement of claim on 25 February 2011.
In relation to the headworks charges in the statement of claim in the 2010 Action, the plaintiff alleged:
1.the defendant did not have any statutory or contractual power or authority to make the charges: 2010 Action SOC [7]; and
2.if the defendant did have an entitlement to charge, then it had overcharged the plaintiff: 2010 Action SOC [8].
In relation to the $3,000,000 the plaintiff alleged that:
1.the defendant took or appropriated the $3,000,000 or some part of it without the plaintiff's permission and without any basis, right or entitlement to do so: 2010 Action SOC [10(C)];
2.if there had been any breach by the plaintiff of the terms of the CCWA or the Bond Agreement, that breach was caused by the defendant: 2010 Action SOC [10(d)]; and
3.to the extent the defendant purported to call upon the Bank Guarantee and retain the $3,000,000, it had only expended $26,000: 2010 Action SOC [10(E)].
That last plea was expanded upon by the plaintiff in its amended statement of claim filed 7 November 2011: see, for example, [3(e)] and [3A], [4A].
The fact that materially indistinguishable allegations were made in the 2010 Action to those made in the present proceedings demonstrates that a court would be most unlikely to be satisfied that the failure to commence these proceedings before 5 May 2023 was in any way attributable to the conduct of the defendant, let alone any fraudulent or other improper conduct on the part of the defendant.

Conclusion

In my view, this is one of those 'clearest of cases' where by reason of the limitation periods the defendant ought have summary judgment.
The 5 May 2023 pleading is subject to the period in s 13(1) of the 2005 Act.
There is nothing in the Amended Minute and nothing in the plaintiff's claims that the defendant was a fiduciary, acted fraudulently or concealed matters which leads (even arguably) to a different limitation period being applied.
In the circumstances, I do not need to consider the plaintiff's application for summary judgment or a separate trial. They will both be dismissed.
I will hear the parties as to the appropriate orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
25 MARCH 2024