Neil James Duckworth as trustee for the Ocean Farm Trust v Water Corporation [No 3] - [2024] WASC 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NEIL JAMES DUCKWORTH AS TRUSTEE FOR THE OCEAN FARM TRUST -v- WATER CORPORATION [No 3] [2024] WASC 129
CORAM:   HOWARD J
HEARD:   5 APRIL 2024
DELIVERED          :   17 APRIL 2024
FILE NO/S:   CIV 3066 of 2010
BETWEEN:   NEIL JAMES DUCKWORTH AS TRUSTEE FOR THE OCEAN FARM TRUST
Plaintiff
NEIL JAMES DUCKWORTH
Second Plaintiff
AND
WATER CORPORATION
Defendant

Catchwords:

Application to reinstate matter - Three previous applications in this matter had been dismissed - This was the first of three actions brought by the plaintiff or his closely related parties against the defendant on the same facts - Whether granting application would be an abuse of process - Abuse arises from plaintiff's standing by when earlier (second) action was settled - Delay in this application not satisfactorily explained - Application dismissed

Legislation:

Bankruptcy Act 1966 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Second Plaintiff	:	In person
Defendant	:	K A T Pedersen

Solicitors:

Plaintiff	:	In person
Second Plaintiff	:	In person
Defendant	:	Clayton Utz

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Duckworth v Field [2023] FCA 801
Duckworth v Water Corporation [2012] WASC 30
Duckworth v Water Corporation [2024] WASC 90
Duckworth v Water Corporation [No 2] [2012] WASC 163
Duckworth v Water Corporation [No 2] [2015] WASC 411
Duckworth v Water Corporation [No 3] [2016] WASC 24
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
UBS AG v Tyne (2018) 265 CLR 77
Water Corporation v Duckworth [2017] FCCA 2216

HOWARD J:

Introduction

These proceedings (defined below as the 2010 Action), were discontinued by order of Edelman J (then in this Court) on 22 March 2012.
Separate applications to reinstate this, the 2010 Action, were refused on:
1.18 May 2012 by Edelman J (then of this Court);[1]
2.13 January 2016 by Mitchell J (as he then was);[2] and
3.27 February 2017 by Le Miere J (as he then was).[3]
[1] Duckworth v Water Corporation [No 2] [2012] WASC 163 (Edelman J).
[2] Duckworth v Water Corporation [No 3] [2016] WASC 24 (Mitchell J).
[3] Orders of Le Miere J dated 27 February 2017.
The second plaintiff applied again by letter dated 10 January 2024, to reinstate this, the 2010 Action (this application).
Before turning to this application, it is necessary to set out the history of three proceedings brought in this Court by Mr Duckworth, or where he was an effective litigant with other related parties, against the Water Corporation:
1.      CIV 3066 of 2010 (2010 Action);
2.      CIV 1795 of 2013 (2013 Action); and
3.      CIV 1457 of 2023 (2023 Action).
As will be seen, in this, the 2010 Action, no step was taken by Mr Duckworth between 27 February 2017 (Orders of Le Miere J) and 10 January 2024 (this application).

The factual background

The facts set out in pars [7] ‑ [30] below are taken (unless otherwise indicated) from Duckworth v Water Corporation [No 2] [2015] WASC 411 (Mitchell J)[4] [8] and following in the 2013 Action.[5]
[4] As noted, there have been three actions in this Court. Before these reasons, there were already five published sets of reasons across the three actions. The convention which appears to have been (inconsistently) followed in the naming and numbering of the reasons is to successively number the reasons in each of the actions, rather than to number them consecutively across the three actions. I have followed that convention.
[5] In those reasons, Mitchell J drew on the parties' amended statement of agreed facts filed 13 October 2015.
On about 16 June 2004, Neil James Duckworth (to whom I will refer to as Mr Duckworth in these reasons, unless otherwise indicated) became the registered proprietor of the whole of the land in Certificate of Title Volume 1553, Folio 661, at Ocean Farm Drive, Nilgen in Western Australia (near Lancelin) (Land).
That followed Mr Duckworth signing an offer to purchase the Land on 7 October 2002, which was accepted on 9 October 2002.
There was nothing in the offer document to indicate Mr Duckworth was purchasing the Land as trustee. However, on the same day he signed a declaration of trust, in which he held the property on trust for his children and his wife.
There was nothing on the certificate of title to indicate that Mr Duckworth held his interest as a trustee.
In 2004, a deed of variation to the trust was executed which named the trust the 'Ocean Farms Trust', and provision was made for Mr Duckworth, as trustee, to develop the Land so that it could be subdivided.
A Customer Constructed Works Agreement (CCWA)[6] and a Bond Agreement[7] were entered into between, effectively, Mr Duckworth and the defendant for the purposes of that development.
[6] Affidavit of Mr Donisi made 10 August 2023, filed in matter CIV 1457 of 2023 and relied upon in this matter pursuant to leave I gave on 15 March 2024 (Mr Donisi's August 2023 Affidavit) at TJD-2, page 11.
[7] Ibid at TJD-3, page 30.
The CCWA was entered into on about 3 March 2006.
The CCWA recited the fact that the Western Australian Planning Commission had approved the subdivision of the Land. A condition of subdivision required certification from a licensed water service provider that arrangements had been made, so that connection to an adequate water service would be available to the subdivided lots.
Clause 2.1 of the CCWA required Mr Duckworth to undertake the design and construction of works specified as:
two bores and transfer pump station at existing Seaview Park Scheme and approx. 9500m of DN 200 supply Main and 1.5ML storage tank at Ocean Farms.
(Works)
The Works were to be completed by 30 May 2007. The Works would vest in the Water Corporation at a date of takeover provided for by cl 2.7 of the CCWA. The CCWA provided for the Water Corporation to reimburse Mr Duckworth for up to 51% of the cost of the Works, as single residential equivalent developments occurred in an area adjacent to the Land.
A 'special condition' to the CCWA was expressed in the following terms:
•Prior to seeking clearance of the first lot release, the Customer shall provide a financial guarantee in a format acceptable to the Corporation and for a value agreed with the corporation. The guarantee will be lodged with the Corporation prior to clearance of any lots within the land and may be called upon by the Corporation for the construction of the works or any part thereof or in the event of any breach of the Agreement.
•The portion of the financial guarantee amount used for the construction of the works will form part of the prefunded amount and will be recouped through the [reimbursement] arrangement detailed in Schedule 4. The unused portion of the financial guarantee amount will be returned to the Customer.
The Bond Agreement was entered into about 20 September 2006, by an authorised agent of, Mr Duckworth as 'Developer'. There was nothing in the terms of the Bond Agreement to indicate that Mr Duckworth was acting as a trustee.
In the Bond Agreement, the Water Corporation agreed to clear the conditions of subdivision of the Land which required completion of water supply headworks infrastructure. Mr Duckworth agreed to install and provide the Works according to the Water Corporation's requirements and the Project Timetable (which required takeover on 31 July 2008). Mr Duckworth also agreed to provide the Water Corporation with 'Financial Security' when entering into the Bond Agreement, and:
C10To indemnify the [Water] Corporation for any loss, cost, claims or liability suffered or incurred by the failure of the Developer to follow and perform any of its duties under this agreement including all costs the [Water] Corporation incurs in completing the works.
The Bond Agreement also provided:
C12The [Water] Corporation may, without notice to the Developer, call on the Financial Security to recover any loss it suffers arising out of the failure by the developer to follow and perform its duties under this agreement. This right does not affect the indemnity under C10.
C13The [Water] Corporation may if the Developer fails to follow and perform its duties under this agreement step in and complete the Works and call on the Financial Security to recover all costs incurred in completing the Works.
The Financial Security provided to the Water Corporation under the Bond Agreement was a Banker's Undertaking (annexed to it) in the amount of $3,000,000 in favour of the Water Corporation, stated to be in lieu of a cash security in accordance with the CCWA (Guarantee). Mr Duckworth secured financing for that undertaking by a second mortgage over the Land.
Headwork charges pursuant to the CCWA were paid by Mr Duckworth, on his case, to the defendant in about September or October 2006. The sum of the headwork charges paid has been somewhat, but not materially, differently stated as: $686,400,[8] $715,680,[9] and $753,000.[10]
[8] Per the Indorsement of Claim filed in this, the 2010 Action, dated 23 December 2010 [1(a)].
[9] Per the Statement of Claim filed in the 2023 Action on 5 May 2023 [3(a)].
[10] Per the Plaintiff's 'Minute of Proposed Additions and Amendments to Statement of Claim as Ordered by Acting Master McDonald: Amendment Dates 2003 - 2023' filed in the 2023 Action on 19 January 2024 [26].
By letters dated 21 December 2007, the defendant wrote to the plaintiff,[11] and asserted breaches of the Bond Agreement and the CCWA respectively and required those defaults to be remedied.
[11] Mr Donisi's August 2023 Affidavit at TJD-4, pages 37 - 38.
The letter asserting defaults under the CCWA stated that if the default was not remedied within 14 days the defendant intended to exercise its rights set out in cl 4.1(a)(B) of the CCWA and continue the Works.[12]
[12] Ibid.
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.[13]
[13] Mr Donisi's August 2023 Affidavit at TJD-4, page 37.
On 21 December 2007, the defendant issued a notice of default under the CCWA and Bond Agreement, requiring rectification of the default, failing which the defendant would carry out the Works, and call upon the Guarantee.[14]
[14] Ibid at TJD-17.
On 15 January 2008, the defendant called upon the Guarantee.[15]
[15] Ibid at TJD-5, page 39; Affidavit of Mr Donisi made 26 September 2023, filed in matter CIV 1457 of 2023 and relied upon in this matter pursuant to I gave on 15 March 2024 (Mr Donisi's September 2023 Affidavit) at TJD-18.
On about 20 January 2008, $3,000,000 was paid to the defendant.[16]
[16] Amended Statement of Claim dated 7 November 2011 [11].
At a hearing on 15 October 2015 before Mitchell J, counsel for both sets of the parties accepted that the Works had never been undertaken, either by Mr Duckworth or the defendant;[17] and the defendant accepted it had, to 15 October 2015, spent only a small amount of the $3,000,000 on preliminary work.[18]
[17] Duckworth v Water Corporation [No 2] [2015] WASC 411 [27] (Mitchell J).
[18] [2015] WASC 411 [29] (Mitchell J).
On 7 December 2010, a solicitor wrote to the Water Corporation indicating that he acted for 'the Ocean Farms Trust and am instructed by the current trustee, Neil James Duckworth', and asserted that the $3,000,000 had been wrongfully taken.
Mr Duckworth, as trustee for the Ocean Farms Trust, commenced these proceedings against the defendant on 23 December 2010 (2010 Action).
The writ in the 2010 Action had an indorsement 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.
Mr Duckworth then filed an amended statement of claim on 7 November 2011, pursuant to leave to amend granted by Edelman J on 13 January 2012.
In relation to the headworks charges, the amended statement of claim in the 2010 Action alleged:
1.the defendant did not have any statutory or contractual power or authority to make the charges;[19] and
2.if the defendant did have an entitlement to charge, then it had overcharged the plaintiff.[20]
[19] Amended Statement of Claim dated 7 November 2011 [7].
[20] Ibid at [8].
In relation to the $3,000,000, Mr Duckworth 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;[21]
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;[22] 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.[23]
[21] Ibid at [10(d)].
[22] Ibid at [10(d)(ii)].
[23] Ibid at [10(d)(iii)].
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].
On 27 September 2011, Mr Duckworth was made bankrupt.[24]
[24] Duckworth v Water Corporation [2012] WASC 30 [2] (Edelman J).
By the first day of the scheduled trial in the 2010 Action (30 January 2012), Mr Duckworth's two causes of action, as summarised by Edelman J were:
1.for unjust enrichment and the claim for restitution of two payments;[25] and
2.for unconscionable conduct arising from the same facts ‑ albeit that the claim for unconscionable conduct was not contained in the writ.[26]
[25] Duckworth v Water Corporation [2012] WASC 30 [9] (Edelman J).
[26] [2012] WASC 30 [10] (Edelman J).
On 2 February 2012, in Duckworth v Water Corporation [2012] WASC 30, Edelman J held:
1.the action was stayed pursuant to the provisions of the Bankruptcy Act 1966 (Cth) as it was commenced by a subsequently declared bankrupt, even though the action was commenced and asserts rights which the bankrupt holds in his capacity as trustee for another;[27] and
2.the action was stayed until Mr Duckworth's trustee in bankruptcy made an election to prosecute or discontinue the action.[28]
[27] [2012] WASC 30 [82] (Edelman J).
[28] [2012] WASC 30 [91] (Edelman J).
On 1 March 2012, Mr Duckworth's trustee in bankruptcy elected to discontinue the 2010 Action.[29]
[29] Duckworth v Water Corporation[No 2] [2012] WASC 163 [5] (Edelman J).
On 22 March 2012, following that election, Edelman J discontinued the 2010 Action.[30] Edelman J said:
The effect of discontinuing an action is not to dismiss it. It may be possible for a discontinued action to be reinstated after bankruptcy is discharged, or for fresh proceedings to be brought then. Even if a trustee in bankruptcy does not elect to discontinue proceedings, and is deemed to have abandoned them, a fresh action might still be brought by the bankrupt upon discharge: Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47, 58 (Wheeler J).
[30] [2012] WASC 163 [5] (Edelman J).
On 23 March 2012, Karl James Duckworth (a son of Mr Duckworth) purported to file an amended writ dated 20 January 2012 which added the names of seven other plaintiffs. The proceedings were stayed at that time and no leave had been given to add the additional plaintiffs.[31]
[31] [2012] WASC 163 [11] (Edelman J).
Also on 23 March 2012, Karl Duckworth filed a Minute of Proposed Orders seeking orders that the 2010 Action 'be continued by the new trustee'.
In March or April[32] 2012, Mr Duckworth resigned as trustee of the Ocean Farms Trust and Karl Duckworth was appointed as the new trustee.[33]
[32] See Duckworth v Water Corporation [No 2] [2012] WASC 163 [21] (Edelman J); Duckworth v Water Corporation [No 2] [2015] WASC 411 [33] (Mitchell J).
[33] Affidavit of Mr Duckworth made 9 October 2023 and filed 10 October 2023 titled 'affidavit in reply to confidential affidavit of Timothy James Donisi affirmed on 26 September 2023', filed in matter CIV 1457 of 2023 and relied upon in this matter by the defendant pursuant to leave I gave on 15 March 2024 (Mr Duckworth’s October 2023 Responsive Affidavit) at [8]; see also Mr Duckworth’s October 2023 Responsive Affidavit page 27 onwards.
On 17 April 2012, Mr Duckworth, the plaintiff's trustee in bankruptcy, Karl Duckworth, and other Duckworth children, entered into a deed which provided that, in consideration of the Duckworth children paying $4,000 to the trustee in bankruptcy, the trustee would assign to them absolutely the causes of action which had vested in the trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act. This expressly included any cause of action against any person in respect of Mr Duckworth (in his own capacity, or as a trustee of the Ocean Farms Trust) entering into the agreement relating to the headworks and Banker's Undertaking.[34] Included in the causes of action were the payments of 'approximately $700,00 alleged to have been charged', and the $3,000,000 drawn down, by the defendant.
[34] Duckworth v Water Corporation [No 2] [2015] WASC 411 [34] (Mitchell J).
On 18 May 2012, Edelman J determined two applications in the 2010 Action in (the first) Duckworth v Water Corporation[No 2] [2012] WASC 163, namely:
1.Mr Duckworth's application to reinstate the 2010 Action;[35] and
2.the Water Corporation seeking its costs.[36]
[35] Duckworth v Water Corporation [No 2] [2012] WASC 163 [9] (Edelman J).
[36] [2012] WASC 163 [10] (Edelman J).
Edelman J, although he did not find Mr Duckworth's bases for reinstatement to be entirely clear,[37] summarised Mr Duckworth's reasons for seeking to reinstate the action as follows:[38]
1.unfairness since 'this action has been before the court since 23 December 2011';
2.that the Water Corporation 'has had the bond money since December 2007' and the 'headworks money since September 2006 wrongfully charged';
3.that it is unjust and expensive in terms of interest and fees incurred;
4. that the bond money was 'taken and held wrongfully';
5.that the liability issues in the trial would only take 'say 2 hours' to be heard;
6.that the evidence proves that Mr Duckworth has a claim for unjust enrichment; and
7.that 'his Honour has read all the documents and knows the full contents; to start again would be a waste of court time'.
[37] [2012] WASC 163 [12] (Edelman J).
[38] [2012] WASC 163 [14] (Edelman J).
Edelman J refused Mr Duckworth's reinstatement application for three reasons being:
1.Mr Duckworth had no standing as a plaintiff to bring the action;
2.Mr Duckworth's recently filed evidence raised serious concerns that this Court may have been misled; and
3.there were outstanding costs owed as a result of the discontinuance.[39]
[39] Duckworth v Water Corporation [No 2] [2012] WASC 163 [15] (Edelman J).
Edelman J said he did not need to resolve whether Mr Duckworth held the cause of action on trust because:
1.there was real doubt whether the cause of action was held on trust by him;[40] and
2.even if the cause of action had been held on trust, Mr Duckworth's affidavit evidence suggested he no longer held it on trust.[41]
[40] [2012] WASC 163 [19(1)] (Edelman J).
[41] [2012] WASC 163 [19(2)], [21] (Edelman J).
Mitchell J later noted[42] that Edelman J did not need to resolve a dispute between Mr Duckworth and the Water Corporation as to whether Mr Duckworth was in fact acting as a trustee.
[42] Duckworth v Water Corporation [No 2] [2015] WASC 411 [36] (Mitchell J).

Edelman J considered a second scenario, which was that Mr Duckworth did not hold the cause of action on trust but held it personally. In that case, the cause of action would have vested in the trustee in bankruptcy who had, by then, assigned it to four of the Duckworth children.[43]
[43] Duckworth v Water Corporation [No 2] [2012] WASC 163 [22] (Edelman J).
Edelman J, also in that decision, expressed concern that Mr Duckworth's evidence, at best, was not reliable and may have misled the Court.[44]
[44] [2012] WASC 163 [20], [24] - [31] (Edelman J).
Edelman J awarded the Water Corporation its costs of the discontinued proceedings in the 2010 Action.[45]
[45] [2012] WASC 163 [39] and [66] (Edelman J).
By certificate dated 6 September 2012, the costs awarded by Edelman J on 18 May 2012 were taxed in the sum of $123,808.66.[46]
[46] Water Corporation v Duckworth [2017] FCCA 2216 [37].
By 19 October 2012, Mr Duckworth's bankruptcy was annulled.[47]
[47] Duckworth v Water Corporation [No 2] [2015] WASC 411 [37] (Mitchell J).
On 16 May 2013, Mr Duckworth's four children commenced the 2013 Action against the defendant by a writ endorsed with a statement of claim.
The 2013 Action sought relief in relation to the headworks charges and the calling upon the Guarantee by the Water Corporation.
The writ was indorsed with a statement of claim which pleaded that the plaintiffs were assigned all of the causes of action that Mr Duckworth's trustee in bankruptcy held against the Water Corporation.[48]
[48] Paragraph 1 of the statement of claim in the 2013 Action was as follows: ‘On or about 17 April 2012, the plaintiffs entered into a deed pursuant to which they were assigned absolutely under section 58 of the Bankruptcy Act 1966 (Cth) by Brett Richard Geoffrey Harrison as trustee of the property of the bankrupt estate of Neil James Duckworth (Assignor) all of the causes of action that the Assignor held against the defendant’.
The plaintiffs pleaded it was an express term of the CCWA that the unused portion of the Financial Security would be returned to Mr Duckworth. It was also pleaded an implied term in the CCWA and the Bond Agreement that the Water Corporation would commence and complete construction of the Works within a reasonable time, which in the circumstances was pleaded as not being more than two years from the drawdown of the Financial Security. It was pleaded that:
The defendant is obliged to account to the plaintiffs with respect to how the $3,000,000 Banker's Undertaking drawn down by the defendant has been used to complete the works described in the CCWA and Bond Agreement.
The plaintiffs ask that the defendant account, and that an inquiry be undertaken in respect thereto.
The plaintiffs then sought in the prayer for relief:
An account for all monies received by the defendant upon drawn down of the $3,000,000 Banker's Undertaking.
An inquiry into how and to what extent the defendant has used the $3,000,000 drawn down under the Banker's Undertaking to complete the works described in the CCWA and the Bond Agreement.
An order that the defendant is liable and a declaration and order that the defendant make payment to the plaintiffs of any sum found to be due and payable to the plaintiffs upon taking such an account and inquiry.
On 15 October 2015, Mitchell J heard the parties on whether the plaintiffs had standing to enforce any rights Mr Duckworth had under the agreements and his Honour determined that question in Duckworth v Water Corporation [No 2] [2015] WASC 411.
Mitchell J concluded that Mr Duckworth held the claimed rights on trust at the time of his bankruptcy, and they did not vest in, and could not have been assigned to the plaintiffs by Mr Duckworth's trustee and bankruptcy.[49]
[49] Duckworth v Water Corporation [No 2] [2015] WASC 411 [4].
Mitchell J said in Duckworth v Water Corporation [No 2] [2015] WASC 411 in the 2013 Action, that:
[41]It appeared that the plaintiffs' claimed right to relief was based on rights held by Neil Duckworth against the Water Corporation being assigned to them by the Assignment Deed. However, it is common ground that, if the rights were held by Neil Duckworth as trustee, they did not vest in, and so could not have been assigned by, the trustee in bankruptcy. The Water Corporation also asserted that, even if the rights were held by Neil Duckworth in his personal capacity, they could not have been assigned to the plaintiffs by reason of the non-assignment clause in the Guarantee.
…
[58]It follows that, at the time of his bankruptcy, Neil Duckworth held the claimed rights under the CCWA and Bond Agreement on trust for the plaintiffs under the Ocean Farms Trust. Those rights did not vest in Mr Duckworth's trustee in bankruptcy, and so could not have been assigned to the plaintiffs by the Assignment Deed. It follows that the plaintiffs' claim, as currently formulated in a way which depends on them taking an assignment of those rights under the Assignment Deed, is untenable. It is unnecessary to determine what the position would have been if Mr Duckworth entered into the CCWA and Bond Agreement in his personal capacity.
[59]This is not necessarily an end to the plaintiffs' case however. One of the plaintiffs, Karl Duckworth, is the current trustee of the Ocean Farms Trust. His appointment may well have involved the transfer to him of rights held by the retiring trustee under s 10(1) of the Trustees Act. In that event, Karl Duckworth in his capacity as trustee could assert a claim for payment of the $3 million under express or implied terms of the agreements. Significant re-pleading would be required to advance such a claim. (emphasis added)
Following the above,[50] on 5 November 2015, Mitchell J ordered the plaintiffs in the 2013 Action to pay the Water Corporation's costs to 5 November 2015 forthwith. That order was not disturbed by Mitchell J subsequently ordering Mr Duckworth, as a 'non‑party', to pay the Water Corporation's costs in the 2013 Action.[51]
[50] Duckworth v Water Corporation [No 3] [2016] WASC 24 [4] (Mitchell J).
[51] [2016] WASC 24 [36] (Mitchell J).
Mitchell J (on 13 January 2016) ordered that Mr Duckworth pay the Water Corporation's then costs in the 2013 Action,[52] which Mr Duckworth did not oppose, despite being a non-party, because:
1.the evidence showed that it was Mr Duckworth's idea for his children to commence the 2013 Action and Mr Duckworth recommended commencing the action as the best way to progress the claims against the Water Corporation relating to the subdivision of the Land;[53]
2.Karl Duckworth indicated that Mr Duckworth had paid the legal fees associated with the 2013 Action until the second half of 2015;[54]
3.Mr Duckworth had commenced proceedings making essentially the same claim against the Water Corporation in 2010 (this, the 2010 Action), which proceedings were stayed, discontinued and ultimately an application to reinstate was unsuccessful;[55] and
4.in many ways Mr Duckworth had been the effective litigant in the case.[56]
[52] [2016] WASC 24 [35] (Mitchell J).
[53] Duckworth v Water Corporation [No 3] [2016] WASC 24 [31] (Mitchell J).
[54] [2016] WASC 24 [31] (Mitchell J).
[55] [2016] WASC 24 [32] (Mitchell J).
[56] [2016] WASC 24 [33] (Mitchell J).
Mitchell J said:[57]
[33]It seems to me that in many ways Neil Duckworth has been the effective litigant in this case. Certainly, he procured the plaintiffs to make the claim and funded their legal representation, at least until mid-2015. I do take into account the fact that the evidence does not establish that Neil Duckworth has any continuing beneficial interest in the subject matter of the current action. On the evidence, he is no longer the trustee of the Ocean Farms Trust, and is not a beneficiary of that Trust.
[34]In his most recent affidavit, Neil Duckworth makes a number of assertions as to the trust arrangements. In large part I received those paragraphs of the affidavit not as evidence, but as submissions. In any event, those assertions are inconsistent with the documentary evidence and findings which I have made in these proceedings.
[35]Recognising that Neil Duckworth has no continuing beneficial interest, and taking all of the above considerations into account, I am satisfied that this is one of the exceptional cases where the interests of justice require that Neil Duckworth, as a non-party, should pay the Water Corporation's costs of the current action. I will order that Neil Duckworth pay the Water Corporation's costs of the action to 5 November 2015, and that Neil Duckworth pay the Water Corporation's costs of the application for that order.
…
[37]Neil Duckworth also filed a minute of orders which sought a variety of orders which would effectively reinstate in these proceedings, and expand upon, his claim advanced in his previous action against the Water Corporation. I am not satisfied that it is appropriate to make orders of that kind at this stage in the present proceedings.
…
[39]If Neil Duckworth wishes to again pursue a claim against the Water Corporation, the appropriate course would be to commence fresh proceedings. Nothing in these reasons should be taken as encouraging that course of action. This hearing is not the appropriate forum in which to agitate issues related to such a claim.
[57] [2016] WASC 24 [33] and following (Mitchell J).
The above occurred at a time (13 January 2016) when the plaintiff was noted by Mitchell J to be (then) currently imprisoned.[58] Of some significance to the present application, Mitchell J noted that Mr Duckworth had filed a minute of proposed orders, submissions and an affidavit; and attended the hearing by audio link.[59]
[58] Duckworth v Water Corporation [No 3] [2016] WASC 24 [6] (Mitchell J).
[59] [2016] WASC 24 [6] (Mitchell J).
As noted in [37], [39] from Duckworth v Water Corporation [No 2] [2015] WASC 411,[60] quoted in [66] above, Mitchell J also recognised an attempt by Mr Duckworth to reinstate the 2010 Action (in the 2013 Action), and expand upon his claims. Mitchell J said:
To permit Neil Duckworth to reinstate the claim in these proceedings would be inconsistent with Edelman J's decision that Neil Duckworth lacked standing. It would also be inconsistent with my determination of the preliminary issues between the plaintiffs and the Water Corporation in these proceedings.[61]
[60] Duckworth v Water Corporation [No 2] [2015] WASC 411 (Mitchell J).
[61] Duckworth v Water Corporation [No 3] [2016] WASC 24 [38] ‑ [39] (Mitchell J).
Notwithstanding [59] in Duckworth v Water Corporation [No 2] [2015] WASC 411,[62] quoted in paragraph [63] above, by January 2016 the plaintiffs had not sought leave to amend the writ or statement of claim in the 2013 Action.[63]
[62] Duckworth v Water Corporation [No 2] [2015] WASC 411 (Mitchell J).
[63] Duckworth v Water Corporation [No 3] [2016] WASC 24 [12] (Mitchell J).
Mitchell J said in January 2016:[64]
However, the plaintiffs must make a decision about whether they are going to pursue this action and, if so, the appropriate form of that action.
[64] Duckworth v Water Corporation [No 3] [2016] WASC 24 [14] (Mitchell J).
Mitchell J ordered in January 2016:[65]
Having regard to all of those matters, I am prepared to order that the plaintiffs' time for compliance with the orders made on 5 November 2015 be extended to 29 February 2016.
If the plaintiffs do not apply to amend the writ and statement of claim by that time then, in the absence of a very good reason for non‑compliance, the plaintiffs can anticipate a springing order providing that the action be dismissed unless such an application is filed within a short further period (probably 2 ‑ 3 weeks from the making of the springing order).
[65] [2016] WASC 24 [17] - [18] (Mitchell J).
On 9 February 2017, a Bankruptcy Notice in respect of the taxed costs in the 2010 Action was issued and then served on Mr Duckworth: Water Corporation v Duckworth [2017] FCCA 2216 [41]. Mr Duckworth did not comply with the Bankruptcy Notice and did not seek to have it set aside, and so committed an act of bankruptcy: Water Corporation v Duckworth [2017] FCCA 2216 [43].
On 27 February 2017, Mr Duckworth brought another application to reinstate the 2010 Action. On 9 March 2017, the application was heard and dismissed by Le Miere J.
At the hearing, the following exchanges occurred:
DUCKWORTH, MR: Yes. The - I'm not the trustee of the Ocean Farms Trust any longer, so I would put my son Karl, who is the trustee, in.
LE MIERE J: Well, he would have to apply for that. You can't apply for that.
…
DUCKWORTH, MR: Yes. I'm not the trustee, but I do have a right of action in this.
LE MIERE J: What, in your personal capacity?
DUCKWORTH, MR: In my personal capacity for damages, yes.
LE MIERE J: Mitchell J I think found that he didn't.
DUCKWORTH, MR: Mitchell J found I had no standing at the time because I owed the Water Corporation a costs order which I've now had that settled by the trust.
LE MIERE J: I thought Mitchell J also found that any claim was in your personal capacity, not as - sorry, no, I'm wrong.
DUCKWORTH, MR: No - yes.
LE MIERE J: The other way around. Mitchell J found that any claim was in your capacity as trustee.
DUCKWORTH, MR: Yes, that's how - it was found that I was the trustee at the time. (ts 158)
…
DUCKWORTH, MR: I want to bring the claim - - -
LE MIERE J: You in your personal capacity.
DUCKWORTH, MR: In my personal capacity and on behalf of the trust until my son makes the application to be put on.
LE MIERE J: Well, you can't have an action pending some other action. Just doesn't make sense.
DUCKWORTH, MR: No, no. Okay, then. Well, just forget - leave that out, then. I want to bring this action in my own capacity on behalf of the trust as well, if that's allowed, or just in my own. I will bring a separate action. (ts 160)
…
DUCKWORTH, MR: … I was asking on my own behalf today, your Honour. It would be a new application if I decided to put my son up. (ts 163)
LE MIERE J: Well, which is it? Who has got this cause of action: is it you or - - -
DUCKWORTH, MR: I have, as trustee, but now I'm not the trustee, so I want to - I want - I'm seeking an order that I can run this. (ts 164)
By a trust deed dated 27 March 2017, but not stamped until 8 February 2018,[66] Mr Duckworth says that he was appointed as joint trustee of the Ocean Farms Trust with Karl Duckworth.[67]
[66] Mr Duckworth's October 2023 Responsive Affidavit at page 31 and following.
[67] Ibid.
There is no evidence before this Court that the Water Corporation, or this Court, was aware of the trust deed of 27 March 2017 prior to the entry into Settlement Deed on 27 October 2017 discussed below; nor at the time prior to the filing of Mr Duckworth's Affidavit made 9 October 2023 and filed on 10 October 2023 in the 2023 Action.
On 5 April 2017, the Water Corporation filed a creditor's petition relying on the plaintiff's act of bankruptcy in not complying with the requirements of the Bankruptcy Notice, and the debt owed to it by the plaintiff with respect to the 2010 Action: Water Corporation v Duckworth [2017] FCCA 2216 [44].

Settlement of the 2013 Action

On 26 May 2017, there was a mediation of the 2013 Action before a Registrar of this Court. Mr Duckworth was aware of the mediation and attended in person. Significantly, it must be remembered that at the time of the mediation and the subsequent events which led to the settlement of the 2013 Action, Mr Duckworth says that he was a joint trustee of Ocean Farms Trust.
Confidentiality orders have been made in relation to evidence and submissions as to this mediation and settlement. I have annexed to these reasons the relevant confidential material which will not form part of the publicly published reasons.
[Confidential Annexure [1]]
Mr Duckworth was, on his evidence, aware of a draft deed of settlement and release being produced following the mediation: he sought to have his children not sign the deed.[68]
[68] Mr Duckworth’s October 2023 Responsive Affidavit at [3].
Further, Mr Duckworth saw a draft of the deed of settlement and release. On or about 30 May 2017 he made comments on it and sent those to his children's solicitors. His suggested changes were rejected by the defendant.[69]
[69] Ibid at [4]; see also NJD-9 to that affidavit.
A comparison of the draft Settlement Deed which Mr Duckworth saw and the final Settlement Deed entered into shows that each of the terms and provisions recited in [2], [3] and [4] of the Confidential Annexure was (materially, if not exactly) contained in the draft which Mr Duckworth saw and commented on.
In responding to Mr Duckworth's proposed changes to the draft Settlement Deed, the defendants' then solicitors wrote (on 15 June 2017) in the terms set out in [5] of the Confidential Annexure.
It appears that Mr Duckworth was aware, at about its date, of that response.
On 27 October 2014, the plaintiffs and the defendant entered into the Settlement Deed which settled the 2013 Action (on the material terms set out in the Confidential Annexure).
On 14 November 2017, by consent, the 2013 Action was dismissed by Banks‑Smith J (then of this Court) with no order as to costs.
Between 14 November 2017 and 5 May 2023, it appears there was no relevant action on the part of Mr Duckworth.

2023 Action

On 5 May 2023, Mr Duckworth commenced further proceedings by a writ and statement of claim in the 2023 Action.
The statement of claim in the 2023 Action 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)
On 25 March 2024, I published reasons[70] as to why the defendant ought be granted summary judgment against Mr Duckworth in the 2023 Action. I noted in those reasons that the allegations made by Mr Duckworth in the 2023 Action closely mirrored the allegations made in the 2010 Action,[71] and the 2013 Action.[72]
[70] Duckworth v Water Corporation [2024] WASC 90 (Howard J).
[71] [2024] WASC 90 [83], [92] (Howard J).
[72] [2024] WASC 90 [22] (Howard J).
On 14 July 2023, Banks‑Smith J (now of the Federal Court) ordered, effectively, that Mr Duckworth's bankruptcy cease on that date.[73]
[73] See Duckworth v Field [2023] FCA 801.

The present application in the 2010 Action

While the 2023 Action was on foot, Mr Duckworth by letter to the Principal Registrar dated 10 January 2024, sought to reinstate this, the 2010 Action.
Mr Duckworth's letter stated that:
the above proceedings must be completed for the following reasons.
I have not been heard on this action and must be heard.
•Justice
•The very large public interest in this matter
•Finality
•New evidence that has been concealed that was only just come to light through FOI from the Economic Regulation Authority (ERA) exposing fraud & corruption
•Most of the agreed facts for trial prior to discontinuance have been dealt with by Mitchell J in other proceedings
(emphases and typographic errors in the original)
The present application was programmed on 15 February 2024 at the hearing of the defendant's summary judgment application in the 2023 Action.
In discussion with Mr Duckworth on 15 February 2024, it appeared that the evidence on which he wished to rely in the present application had already been filed in the 2023 Action.

Mr Duckworth's Materials

On 15 February 2024, in this 2010 Action I gave Mr Duckworth leave to refer and rely on the following affidavits from the 2023 Action:
1.affidavit of Mr Duckworth, described as ‘in support of summary judgment and final judgment and attachment verifying evidence’, made 9 August 2023 and filed 26 August 2023;
2.supplementary affidavit of Mr Duckworth, described in the Court records as 'amended supplementary affidavit of Acting Master's orders', made and filed 10 October 2023; and
3.affidavit of Mr Duckworth described as 'in support of writ of summons O 14 r 1 & 2 filed 14 December 2023', made 6 December 2023 and filed 14 December 2023.

Because of the volume of material Mr Duckworth had filed in the 2023 Action,[74] I made orders that no party was to file any other or further document in the matter without leave of the Court (outside of what was permitted to be filed by my orders dated 15 February 2024).
[74] See Duckworth v Water Corporation [2024] WASC 90 including [29] (Howard J).
On 26 March 2024, in correspondence with my Chambers Mr Duckworth sought leave to 'file new evidence and affidavit and sought further submissions'. In response it was indicated that I would allow Mr Duckworth to make an application to rely on further materials provided that they were served on the defendant (and my Chambers) by no later than 12 pm on 2 April 2024.
On 2 April 2024, Mr Duckworth sent a letter to the defendant's solicitor which was copied to my Chambers. It attached a number of documents. I have not considered those documents further, as they were not in a sworn form and Mr Duckworth did not rely on them at the hearing.
Mr Duckworth served what was headed 'plaintiff's list of authorities in support of reinstatement of CIV 3066 of 2010' and I have taken those into account as submissions (Mr Duckworth's Submissions).
Without objection, at the hearing Mr Duckworth also read from some transcript of proceedings before Mitchell J, and transcript from the then Federal Circuit Court in the matter which resulted in the reasons at [2017] FCCA 2216.

The Defendant's Materials

In opposition to the present application, and with leave, the defendant relied on:
1.affidavit of Mr Donisi made and filed on 10 August 2023 in the 2023 Action;
2.confidential affidavit of Mr Donisi made and filed on 26 September 2023 in the 2023 Action (about which confidentiality orders were made in these proceedings on 15 March 2024);
3.affidavit of Mr Donisi made and filed 14 March 2024 in this, the 2010 Action; and
4.affidavit of Mr Duckworth made 9 October 2023 and filed 10 October 2023 titled 'affidavit in reply to confidential affidavit of Timothy James Donisi affirmed on 26 September 2023', filed in the 2023 Action.

The Contentions

Mr Duckworth contends that the Court has power to reinstate a discontinued action. He submits that the exercise of the Court's discretion would involve a consideration of:
1.the explanation for any delay;
2.any prejudice to the other party caused by the delay, or otherwise; and
3.where there had been no determination of the merits, the demonstration of, at least, an arguable case.
Those propositions may be accepted broadly.
Mr Duckworth sought to explain his delay from May 2012 by reference to nine factors:[75]
[75] Mr Duckworth's Submissions [20(a)-(i)].
1.Mr Duckworth was unable to pay the outstanding costs for the following reasons (preventing him from reinstating the 2010 Action);
2.Mr Duckworth was bankrupt from 2010 until October 2012, and again in September 2017;
3.Mr Duckworth was imprisoned in 2013 for nearly 3 years;
4.in March 2017, Mr Duckworth attempted to reinstate to 2010 Action, but the application was dismissed without being heard on the merits;
5.in 2018 Mr Duckworth received a medical diagnosis, for which he is still receiving medical treatment;
6.Mr Duckworth's marriage broke down;
7.Mr Duckworth suffered financial hardship (including the loss of his family home);
8.the Ocean Farms Trust sustained a loss of approximately $32 million caused by the defendant refusing to connect the water in 2003; and
9.Mr Duckworth is in the process of obtaining legal counsel to take over the proceedings in this Court and in the Federal Court, for which he requires the return of funds to prevent further hardship and injustice.
The defendant opposes the reinstatement of this action on the basis that:
1.Mr Duckworth and the relevant trust have had ample opportunity to bring the claims before the Court;
2.no satisfactory explanation has been given for Mr Duckworth's significant delay; and
3.the grant of the application would give rise to an abuse of process and that there should be, instead, a permanent stay.
The defendant says that it would be an abuse of process because:
1.it would be an attempt to relitigate an issue which has, in substance, been determined in earlier proceedings; and
2.it would be an attempt to litigate a claim on behalf of the Ocean Farms Trust which ought to have been litigated in earlier proceedings.
Mr Duckworth's written material before the hearing did not address, nor engage with, the defendant's abuse argument.
At the hearing, I sought to articulate the propositions and factual matters which supported the abuse of process submission made by the defendant so that Mr Duckworth had an opportunity of responding to it.
In essence, Mr Duckworth said in response to the abuse claim, as I understand it:
1.Mitchell J was wrong to say that he was the effective litigant in the 2013 Action as he was incarcerated and was not in court;
2.he did not sign the Settlement Deed which settled the 2013 Action and had told his children not to sign it;
3.he was under no obligation to tell anyone that he was a co‑trustee at the time that the 2013 Action settled; and
4.because trustees have to act unanimously, and he did not agree, the Settlement Deed settling the 2013 Action was of no relevant effect.

Applicable Principles

In UBS AG v Tyne[76] Gordon J said in 2018:
[76] UBS AG v Tyne (2018) 265 CLR 77.
Over the last 20 years there has been 'a culture shift' in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil dispute. Costs and delay are long-standing challenges. Courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law.[77] (footnote omitted)
[77] UBS AG v Tyne (2018) 265 CLR 77 [125].
Further, Gordon J said:
The power granted to stay a proceedings exists to enable a court to 'protect itself from abuse of its processes thereby safeguarding the administration of justice'.[78] (footnote omitted)
[78] (2018) 265 CLR 77 [126].
With respect, her Honour's observations are not exceptional. They form part of consistent contemporary observations as to the public interest in the proper application of the court's finite resources. For example, and significantly, Kiefel CJ, Bell and Keane JJ in the same case,[79] approving of the joint reasons in Aon Risk Services Australia Ltd v Australian National University,[80] spoke of the just resolution of a dispute in terms of the parties having a sufficient opportunity to prosecute their case. That is, like life itself, a party's 'right' or opportunity to present its case is not unlimited.
[79] (2018) 265 CLR 77 [38].
[80] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [98].
I have approached the application to reinstate this, the 2010 Action, by first considering whether its reinstatement would lead to an abuse of process. I have proceeded on the basis that if the reinstatement of the 2010 Action would be an abuse, then Mr Duckworth's application should be refused.
I have proceeded on the basis that the relevant applicable principles as to whether there is an abuse may be summarised as follows:
1.when the use of court processes will amount to an abuse cannot be stated exhaustively;[81]
[81] UBS AG v Tyne (2018) 265 CLR 77 [1], (Kiefel CJ, Bell and Keane JJ); [72] (Gageler J); [126] (Gordon J).
2.whether there is an abuse, is to be determined after a consideration of all the circumstances;[82]
[82] (2018) 265 CLR 77 [7], (Kiefel CJ, Bell and Keane JJ); [110] (Nettle and Edelman JJ); [128] (Gordon J).
3.there may be an abuse in any circumstances in which the use of the court's procedures would be unjustifiably oppressive to a party, or would bring the administration of justice into disrepute;[83]
[83] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 [25] (French CJ, Bell, Gageler and Keane JJ).
4.there may be an abuse notwithstanding that the factual merits of the underlying claim have not been determined and any delay has not made a fair trial impossible;[84]
[84] UBS AG v Tyne (2018) 265 CLR 77 [1], [41], [44] (Kiefel CJ, Bell and Keane JJ).
5.there may be an abuse even if the moving party (for the stay) is a large commercial corporation;[85]
[85] (2018) 265 CLR 77 [58] (Kiefel CJ, Bell and Keane JJ).
6.the timely, cost effective and efficient conduct of modern civil litigation takes into account public interests wider than those of the parties to the dispute;[86]
[86] (2018) 265 CLR 77 [38] (Kiefel CJ, Bell and Keane JJ); [70], [75] (Gageler J); [128] (Gordon J).
7.there may be oppression, leading to an abuse occasioned by repeated attempts at re-litigation by closely related parties of substantially the same claims based upon a common substratum of facts;[87] and
[87] (2018) 265 CLR 77 [35], [46] (Kiefel CJ, Bell and Keane JJ); see also [66] (Gageler J).
8.making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably have been made or raised for the determination of the earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not give rise to an estoppel.[88]
[88] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 [26] (French CJ, Bell, Gageler and Keane JJ).
Gageler J (as he then was) in UBS AG v Tyne remarked on the 'close division of opinion in the Federal Court and in [the High] Court'.[89] I take from that closeness that whether there is an abuse is a matter on which reasonable (indeed eminent) minds may differ.
[89] UBS AG v Tyne (2018) 265 CLR 77 [61].
Consequently, I have proceeded on the basis that I ought not refuse the reinstatement on the basis of an abuse unless I am clearly satisfied that would be the case.

Consideration

In the following consideration I have proceeded on the basis (which I consider to be most favourable to Mr Duckworth) that:
1.from 27 March 2017, Mr Duckworth was a joint trustee of the Ocean Farms Trust with Karl Duckworth; and
2.the claims in the 2010 Action are arguable.
In all of the circumstances, I have reached a level of clear satisfaction that to reinstate this, the 2010 Action, would result in an abuse of process.
The three actions in this Court answer the description of: 'repeated attempts at re-litigation by closely related parties of substantially the same claims based upon a common substratum of facts'.[90]
[90] UBS AG v Tyne (2018) 265 CLR 77 [35], [46] (Kiefel CJ, Bell and Keane JJ); see also [66] (Gageler J).
As identified by Gageler J in UBS AG v Tyne,[91] by reference to earlier cases, such successive proceedings are against the principles that there should be finality in litigation and that a party ought not be twice (or thrice) vexed in the same manner. To allows this action to be reinstated would to allow issues to be raised which had been resolved by settlement previously.
[91] (2018) 265 CLR 77 [66].
That repeated vexing would be an operative prejudice to that defendant party.
The 2023 Action was resolved by my reasons on the basis that the claims were statute barred and not on the basis that its prosecution would be an abuse.[92]
[92] Duckworth v Water Corporation [2024] WASC 90 [22].
Notwithstanding Mr Duckworth's submissions that Mitchell J was wrong in the conclusion he reached as to Mr Duckworth's role in the 2013 Action, his Honour's conclusions set out relevantly in [65] - [67] above are most significant. I do not see a basis to go behind them (assuming it was permissible for me to do so on some basis). And, I do not consider there is any substance in Mr Duckworth's submissions that his Honour was 'wrong'.
Coupled with my findings (largely taken from Mr Duckworth's own evidence) as to Mr Duckworth's knowledge of the Settlement Deed in draft, I conclude that at least up to Mr Duckworth receiving the deed in draft, the plaintiffs in the 2013 Action were 'closely related' to Mr Duckworth, in the sense that they were effectively doing his bidding in commencing and prosecuting that Action.
Also of real significance is that the 2013 Action was resolved by a negotiated settlement involving the plaintiffs and the defendants compromising their positions.
In that compromise, Karl Duckworth expressly entered into the Settlement Deed on behalf of the Oceans Farm Trust.
I do not accept Mr Duckworth's submissions that the Settlement Deed can be put to one side as being of no effect because he, Mr Duckworth, did not agree with its execution. It must be remembered this was a compromise of an action in which on the findings summarised [65] ‑ [67] above, Mr Duckworth had extensive involvement and control.
From the matters I have set out in [78] - [86] above, which come materially from Mr Duckworth's own evidence, the following is apparent and I find, that Mr Duckworth:
1.was aware of the mediation in the 2013 Action between the plaintiffs and the defendant;
2.was aware of the terms of the Settlement Deed in draft well before the Settlement Deed was executed and at a time when he says he was a co-trustee of the Ocean Farms Trust;
3.viewed the draft Settlement Deed, which was in materially the same terms as the final Settlement Deed, including as to Karl Duckworth expressly representing that he was entering into the Settlement Deed as trustee (in addition to in his own personal capacity); and
4.knew that Mitchell J had allowed the 2013 Action to continue on the basis that Karl Duckworth could reformulate the case and prosecute it on behalf on the Ocean Farms Trust.
In all of those circumstances, Mr Duckworth did not make it known that he was a co-trustee of the Ocean Farms Trust and took no steps in this Court to prevent Karl Duckworth entering into the Settlement Deed on behalf of the Ocean Farms Trust. Nor, did Mr Duckworth take any steps to make his position as co-trustee and his opposition to the Settlement Deed known to the defendant at any material time.[93]
[93] As accepted by Mr Duckworth at the hearing on 4 April 2024 in the following exchange (ts 47 ‑ 48): DUCKWORTH, MR: No. You – you're struggling here, but I'm
That is, on the face of the Settlement Deed, the trustee of the Ocean Farms Trust compromised and brought to an end the allegations which Mr Duckworth wishes to reagitate in this action.
Mr Duckworth knew all of the material facts and took no steps to, at the least, apprise the Water Corporation of what he now says the true position: that is, that the settlement contained in the Settlement Deed was worthless.
If this, the 2010 Action, is reinstated, then the defendant will have achieved nothing by compromising its position in the 2013 Action, and will be defending the same allegations from the same substratum of facts.
In all of these circumstances, in my judgment, that would be an abuse.

Delay

If I am wrong that the reinstatement would result in an abuse, I would refuse the reinstatement on the basis of Mr Duckworth's delay between:
1.27 February 2017 or 27 March 2017, and 10 January 2024: see paragraphs [73] - [75] above; or
2.14 November 2017 and 10 January 2024: see paragraph [87] above.
In considering the delay (from any of the above start dates), I have also proceeded on the bases as set out in paragraphs [119] and [123] above.
In all of the circumstances, where previous attempts at reinstatement had been made and failed, Mr Duckworth had to act promptly. He did not. The nine factors Mr Duckworth put forward (see paragraph [106] above) do not provide an adequate explanation for his delay in any of the identified time periods.
The prejudice to the defendant as identified in paragraph [123] above remains, and the defendant would suffer the additional prejudice of having settled the 2013 Action on a false (and on Mr Duckworth's position, only partial) basis.
The delay only magnifies the prejudice to the defendant, rather than overwhelming it.

Disposition

I will dismiss Mr Duckworth's application made 10 January 2024.
I will hear parties as to the final orders to be made, including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
17 APRIL 2024

correct. The signing of the deed - - -
HOWARD J: Just telling me you're correct doesn't help me.
…
HOWARD J: …You knew what Karl Duckworth was doing and you knew that those proceedings were going to be settled. You stood by, it might be said, and let that occur. Whereas, you could have agitated your co-trusteeship at the time, but you didn't.
DUCKWORTH, MR: I don't have to, your Honour. There's no law to say I have to and I told my son not to sign it at all.