Smith (a pseudonym) v Jones (a pseudonym) - [2025] WADC 22

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SMITH (a pseudonym) -v- JONES (a pseudonym) [2025] WADC 22
CORAM:   REGISTRAR NAIRN
HEARD:   6 FEBRUARY 2025
DELIVERED          :   9 APRIL 2025
FILE NO/S:   CIV 761 of 2024
BETWEEN:   JASON SMITH (a pseudonym)
Plaintiff
AND
EMMA JONES (a pseudonym)
First Defendant
JANE JONES (a pseudonym)
Second Defendant

Catchwords:

Practice and procedure - Application for summary judgment pursuant to O 16 r 1 Rules of the Supreme Court 1971 (WA) (RSC) - Strike-out application pursuant to O 20 r 19(1) RSC - Pleading claims involving fraud - Application for extension of a limitation period pursuant to s 38 Limitation Act 2005 (WA) - Turns on its own facts

Legislation:

Limitation Act 2005 (WA), s 38
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19(1)

Result:

The second defendant is granted summary judgment against the plaintiff
The first defendant is granted summary judgment in respect of the plaintiff's contractual claim only
The statement of claim be struck out in its entirety, with limited leave to replead

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Ms A G Barcock
Second Defendant	:	Ms A G Barcock

Solicitors:

Plaintiff	:	In person
First Defendant	:	Oswald Legal
Second Defendant	:	Oswald Legal

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

Allianz Australia Insurance Limited v Yu [2024] NSWSC 31
Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88
Bozic v Billis [2021] WASC 88
G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 4) [2021] NSWSC 1052
Girgis v Poliwka [No 6] [2019] WASC 230
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 3] [2021] WASC 260
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Latchman v Maybo Limited [2023] WADC 17
Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166
McGavin v McGavin [2024] WASC 408
Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221
Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2024] WASCA 123
Neil James Duckworth as trustee for The Ocean Farm Trust v Water Corporation [2024] WASC 90
Pisano v South Metropolitan Health Service [2023] WASCA 80
Trackem Pty Ltd (ACN 168 532 269) v Revenue Partners (A Partnership) [2021] WASC 245
Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214

REGISTRAR NAIRN:

Consistent with orders made in the proceedings on 1 April 2025, the parties' names in these reasons are pseudonyms.
For clarity and ease of reference, I shall refer to the parties by their first names.
Jason (the plaintiff) and Emma (the first defendant) were previously married, and had children together.
Jane (the second defendant) is Emma's mother, and Jason's former mother-in-law.
A settlement agreement between at least Jason and Emma was reached in or about 2015 in the context of a family court dispute.
In this court, Jason sues Emma and Jane for their conduct following that settlement agreement. Jason in effect says that Emma and Jane dishonoured that agreement and caused him loss.
These reasons concern whether Jason's claim should be summarily dismissed or struck-out.

The applications the subject of these reasons

By chamber summons dated 14 October 2024, and as subsequently amended, Emma and Jane applied to summarily dismiss or strike out Jason's claim in its entirety on the various grounds, including that Jason's claim is barred by the Limitation Act 2005 (WA) (Limitation Act), and is an abuse of process.
In the meantime, by chamber summons dated 22 October 2024, Jason brought an application for discovery and for extension of the limitation period.
In these reasons, I do not address Jason's application insofar as it seeks discovery, because I determined at the hearing on 6 February 2025 that it was appropriate to defer consideration of the discovery application pending the outcome of these reasons.

The issues arising

The issues which I rule upon in these reasons are as follows:
(a)preliminary procedural issues, namely whether Emma and Jane ought to be given leave to:
(i)amend the scope of their application dated 14 October 2024; and
(ii)bring that application outside the time limits set by the Rules of the Supreme Court 1971 (WA) (RSC);
(b)the nature of Jason's claims the subject of the writ; and
(c)whether any part of Jason's claims before this court should be dismissed summarily or otherwise struck out in whole or part and, as part of this issue:
(i)whether Jason has commenced this action outside the applicable time limit; and
(ii)if so, whether Jason ought to be granted an extension of the limitation period pursuant to s 38 of the Limitation Act.

Summary of my findings

For the reasons set out below, I have found that:
(a)Emma and Jane ought to be granted leave to amend the scope of their application and to bring the application outside the time limits prescribed under the RSC;
(b)Jason seeks to advance his money claims in the writ on two bases:
(i)breach of contract; alternatively; and
(ii)misrepresentation (involving fraud);
(c)Jason's primary claim based on breach of contract is untenable in that:
(i)Jason commenced his action in this court after the expiration of the limitation period applicable to Jason's contractual claim under the Limitation Act; and
(ii)Jason has not shown any arguable basis to justify the extension of that limitation period under s 38 of the Limitation Act;
(d)for that reason, Emma and Jane are entitled to summary judgment dismissing Jason's contractual claim;
(e)as for Jason's alternative claim based on misrepresentation, the statement of claim fails to disclose a reasonable cause of action known to the law;
(f)while Jason's statement of claim should be struck out in its entirety, it is inappropriate to summarily dismiss Jason's action in its entirety;
(g)rather it is appropriate that Jason be granted a further opportunity to replead a viable cause of action based on misrepresentation.

Finally, I have found that it is appropriate that Jason's unresolved discovery application remain adjourned for the time being.

How did the parties get to this point?

Sketching out the parties' history of dealings assists in understanding the nature of Jason's claim.
What I set out below is uncontroversial.
Jason and Emma purchased a matrimonial home in 2006 (home), with the assistance of $100,000 funding provided by Jane and her husband, John Jones.

Jason and Emma's marriage broke down, leading to a separation in about 2011 and subsequently a family law property settlement dispute in the Family Court of Western Australia (Family Court Proceedings).
In the meantime, the home was sold but the proceeds of sale were not sufficient to repay the full amount of Jane's and John's funding towards the home purchase. There was a claimed shortfall of $54,092.
A contributing factor to the shortfall was that, before Jason and Emma separated, a further loan of $50,000 had been taken out against the security of the home. The parties do not agree as the purpose of this further loan (Jason says it was for the joint household benefit of himself and Emma; Emma and Jane say it was for Jason's own business purposes).
Jane and John considered that Jason alone was responsible for the shortfall, to the point where they sued Jason in the Magistrates Court (Jones Repayment Claim).
On 7 April 2014, Jane and John obtained a default judgment against Jason in respect of the Jones Repayment Claim[1] in the sum of $54,092 plus interests and costs.[2]
[1] First defendant's affidavit filed 14 October 2024, page 8.
[2] I note that this value differs from the value of the Jones Repayment Claim set out in the statement of claim (namely $50,492). However, I note that Jason's affidavit filed 22 October 2024 (in support of his discovery application) indicates (at par 16) that the value of the Jones Repayment Claim was $54,092.
Jason does not accept that he was liable for the Jones Repayment Claim, but the default judgment has never been set aside.
After the default judgment was obtained, the Family Court Proceedings remained unresolved, but the parties took steps towards resolving those proceedings by consent.
This is apparent from the transcript of a hearing in the Family Court before an Acting Magistrate on 20 October 2014, at which the following occurred:
1.The Acting Magistrate observed that he had proposed consent orders before him, by which the only order sought was that Jason rollover the full amount of his superannuation funds to Emma's account.[3]
[3] First defendant's affidavit filed 14 October 2024, page 11.
2.The Acting Magistrate asked Jason to confirm he was in fact consenting to such an order. Jason expressed a concern that, even if he rolled over his superannuation to Emma, he would still be pursued by Jane and John for the Jones Repayment Claim.
3.Emma confirmed to the court that there were separate legal Magistrates Court proceedings on foot relating to the Jones Repayment Claim. Jason denied having received any paperwork in relation to those proceedings but indicated that he had learned via his bank that his credit rating had been adversely impacted.[4]
4.The Acting Magistrate asked Emma whether, if the consent orders for the superannuation rollover were granted, she would either:
(a)on the one hand, indemnify Jason in respect of the Jones Repayment Claim (or else arrange with her parents to waive that claim); or
(b)on the other hand, leave the Jones Repayment Claim out of the equation (that is, leave her parents free to pursue that claim against Jason).[5]
5.The Acting Magistrate stood the matter down to enable the parties to confer as to how they wished to proceed.[6]
6.Upon resumption, there was an exchange about what Jason was agreeing to.[7]
7.The Acting Magistrate stated his understanding was that the parties had agreed 'to finalise the property settlement matters' on the basis that Jason's superannuation funds would be transferred to Emma. Further, 'the parties have agreed that there will be no indemnity from [Emma] to [Jason] in relation to the outstanding debts allegedly owed to the [Emma's parents]'.[8]
8.Jason did not object at this point and the hearing concluded shortly thereafter on the basis that more detailed consent orders would need to be drawn up to facilitate the machinery of the superannuation rollover.
[4] First defendant's affidavit filed 14 October 2024, page 13.
[5] First defendant's affidavit filed 14 October 2024, page 14.
[6] First defendant's affidavit filed 14 October 2024, pages 15 - 16.
[7] First defendant's affidavit filed 14 October 2024, pages 16 - 17.
[8] First defendant's affidavit filed 14 October 2024, page 17.
By letter dated 10 November 2024, the Principal Registrar of the Family Court wrote to the parties in effect confirming the terms as outlined by the Acting Magistrate.[9]
[9] First defendant's affidavit filed 14 October 2024, page 21.
Formal detailed consent orders were made on 8 April 2015.[10] These orders related to the machinery of the superannuation rollover only, and did not expressly touch upon the Jones Repayment Claim.
[10] First defendant's affidavit filed 14 October 2024, pages 22 - 24.
Following this settlement agreement, Jason transferred $57,982.60 of his superannuation funds to Emma.
Despite Jason claiming that the superannuation rollover had extinguished his child support liabilities, Services Australia (the government authority which administers child support) continued to pursue Jason for child support.
According to Jason, this included Services Australia garnishing Jason's bank accounts and imposing a prohibition order on Jason on 6 July 2015 that prevented him from leaving Australia and taking up job opportunities overseas.
Jason continued to press his claim with Services Australia that he was not liable for child support (because of the settlement agreement leading to the superannuation rollover).
Evidently Jason's view of the settlement agreement was not accepted by Emma and ultimately the parties argued the matter via the administrative processes of Services Australia.
This culminated in Emma taking action in the Administrative Appeals Tribunal (AAT), which led to a decision of the AAT dated 8 June 2023.[11] The effect of that decision was that the AAT decided that, contrary to Jason's assertions, $45,982.50 of the superannuation funds that he transferred to Emma were not to be treated as extinguishing any of Jason's child support liabilities.[12]
[11] First defendant's affidavit filed 14 October 2024, pages 25 - 42.
[12] It was not in dispute that the balance of Jason's superannuation rollover (namely $12,000) did operate as a credit against Jason's child support liabilities.
By writ issued 12 February 2024, Jason commenced proceedings in this court against Emma and Jane seeking, according to the indorsement on the writ:
(a)'repayment of $57,982.60 superannuation rollover pursuant to contractual breach and misleading and deceptive conduct'; and
(b)$487,500 'for loss of wages and superannuation from 6 July 2015 to May 2020 … pursuant [to a] loss of opportunity due to contractual breach, misleading and deceptive conduct resulting in loss of chance …'.

Preliminary issues for determination

Are Emma and Jane entitled to amend the grounds of the application?

At the hearing of the application on 6 February 2025, Emma's and Jane's counsel applied by oral motion to amend the application to invoke O 20 r 19 of the RSC in addition to O 16 r 1 of the RSC, on the basis that O 20 r 19 of the RSC was not included in the application by way of oversight.[13]
[13] ts 7 - ts 8.
I find it is appropriate to grant the application to amend in the following circumstances:
(a)Emma's and Jane's written submissions expressly relied on O 20 r 19 of the RSC;
(b)it was not apparent to me that there was any material prejudice to Jason in granting the application to amend; and
(c)in any event it is desirable, in order that I might do justice between the parties, that I also have at my disposal the option of striking out all or part of Jason's claim, rather than be restricted to the relatively blunt instrument of summary judgment.

Are Emma and Jane entitled to bring the application outside the prescribed time limits?

An application under O 16 r 1 of the RSC must be brought within 21 days after appearance or at any later time by leave of the court.
An application under O 20 r 19 of the RSC must be brought within 21 days after service of the relevant writ or pleading the subject of attack.
Plainly, Emma and Jane's applications under each of these rules have been brought out of time.
The principles governing whether to permit such applications are well settled.[14]
[14] For O 16 r 1 of the RSC, see HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [9]. For O 21 r 19 of the RSC, see Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 [154].
In my view it is appropriate to grant leave for each of the applications to be brought out of time because:
(a)the delay is explained by the fact that Emma and Jane were unrepresented at the time the writ and statement of claim were filed, and upon appointing solicitors I am satisfied those solicitors acted reasonably promptly to bring the application (following conferral);[15]
(b)the defects in Jason's claim alleged by Emma and Jane, at least in the context of the statute of limitations and the pleading of Jason's alternative misrepresentation claim, are meritorious;[16]
(c)the gravity of those alleged defects is substantial, and if a summary judgment or strike-out application succeeds I accept that it is likely to result in a significant saving in the resources of the parties and the court (in that time will not be wasted on untenable or obscure claims); and
(d)while there is a level of prejudice to parties wherever there are procedural delays, I am satisfied that Jason has not be unduly prejudiced by the delay in bringing of the application.
[15] See first defendant's affidavit filed 14 October 2024, under the heading 'Leave to make Application'.
[16] As to the relevance of the merits of an O 21 r 19 application to an application to bring such an application out of time, see the Red Book [20.19.3] and the authorities cited therein.
I accordingly will grant leave for Emma's and Jane's application dated 14 October 2024 to be brought outside of the time limits applicable under O 16 r 1 and O 20 r 19 of the RSC.

What is the nature of each of Jason's claims the subject of the writ?

Jason's primary claim is a contractual one

An obvious defect with Jason's statement of claim is that it does not set out the relief that Jason claims.
It is necessary to return to Jason's writ (set out above at [33]), and the history of the parties that I have set out above, to understand what Jason seeks.
Reading the writ and statement of claim together, it is apparent that Jason's claim is primarily advanced on the basis of a breach of contract.
I say 'primarily' because it appears from the writ that Jason also intends to advance a secondary basis for his claim, based on 'misleading and deceptive conduct'. He also raises certain collateral claims in the statement of claim. I shall discuss these secondary and collateral claims later.
The essence of Jason's contractual claim is as follows:
1.Jason, Emma and Jane were parties to a settlement agreement which was implemented in or about February 2015 in the course of the Family Court Proceedings.
2.The key terms of that agreement were that Jason agreed to transfer his superannuation funds to Emma, such transfer being in satisfaction of Jason's past and future child support liabilities. In addition, Jason agreed to accept a liability in respect of the Jones Repayment Claim (which had been the subject of the judgment against Jason) and agreed to pay down that debt over time, in return for which Emma was to lift or remove the default judgment (so as not to tarnish Jason's credit rating).[17]
3.Emma repudiated the agreement by failing to inform Services Australia that Jason's child support liabilities had been extinguished by operation of the agreement, further and alternatively by representing to Services Australia that those liabilities had not been extinguished.
4.Jane repudiated the agreement by failing to take action to remove the default judgment or lift the default judgment.
5.Emma's and Jane's repudiations of the settlement agreement caused Jason loss and damage, namely the value of the superannuation funds that Jason rolled over, and also consequential losses stemming from both the actions of Services Australia and the impact of adverse credit ratings.
[17] Jason's statement of claim in this context refers to the default judgment as a 'caveat' - see statement of claim pars 14 and 17. It is clear to me that he means to refer to the default judgment that had been obtained by Christine and John.
So, in short, Jason says that there was a contract between Jason, Emma and Jane, which contract was breached by the conduct of Emma and Jane, causing Jason loss and damage.
During the course of the hearing, I articulated my understanding of Jason's claim, and Jason expressly indicated that my understanding was correct.[18]

Jason's alternative claim based on misrepresentations

[18] For my articulation of my understanding of Jason's claim, see ts 6, ts 11 - ts 13, ts 15, ts 21. For Jason's acceptance of the correctness of this understanding, see ts 36, ts 45. See also the exchanges with Jason at ts 39 - ts 41, ts 44.

As I have said, Jason's writ advances his money claims on two bases.
The alternative basis of claim is 'misleading and deceptive conduct'.
The terminology of 'misleading and deceptive conduct' is not deployed in the statement of claim itself.
However, I infer that Jason's complaint of misleading and deceptive conduct is directed to certain representations that were made by Emma to Services Australia and the Administrative Appeals Tribunal following the 2015 settlement agreement.
Thus paragraph 21 of the statement of claim states:
In February of 2021 I contacted Services Australia and was informed that they had a voice recording of [Emma] from a phone call in 2015 after the court hearing, admitting that the money transferred to her from my superannuation fund was in lieu of child support. CSA informed her that as a result of this statement she could receive a bill from Centrelink due to the large amount that was transferred. Emma then retracted this statement.
The statement of claim goes on to allege, that, following Jason learning of Emma's recorded phone call in February 2021:
(a)Jason made a freedom of information request;
(b)subsequent to that request, Services Australia carried out an investigation which led to the prohibition order against him being lifted and Services Australia applying certain credits in his favour in respect of child support; and
(c)following that, 'Emma agreed the superannuation rollover was in lieu of child support but again retracted her statement and lodged a dispute with the [AAT] …'.[19]
[19] Statement of claim filed 23 April 2024, pars 21 - 24.
The specific dates on which these events occurred is not clear from the statement of claim.
The statement of claim continues to allege that, in the context of the hearing before the AAT, Emma 'admitted that the superannuation rollover was in lieu of child support and that [Jane and John] did receive the money from their investment and lodged a Caveat against me to gain more out of their investment'.
Thus, Jason alleges that:
(a)before the AAT hearing, there were two instances in which Emma retracted a prior admission she had made to Services Australia to the effect that Jason's superannuation rollover had extinguished Jason's child support liabilities; and
(b)at the AAT hearing, Emma made certain representations to the AAT which led to a decision being made adverse to Jason.

Jason intends to allege that the misrepresentations were fraudulent

Jason's perception is that this conduct on Emma's part constituted fraudulent conduct.
Jason's intention to allege fraud is confirmed by Jason's affidavits, although there are discrepancies (compared to the pleaded claim) with dates.
Thus, in Jason's affidavits filed 22 October 2024 and 6 November 2024, Jason says that:
(a)Jason first learned of Emma's first retraction in April 2022 in a conversation with Services Australia (contrast par 21 of the statement of claim which dates this as February 2021);[20]
(b)Jason says that Emma's second retraction occurred at some time shortly after 30 August 2022, at around the time she lodged her objection with the AAT;[21] and
(c)Jason says that the AAT made a decision in Emma's favour based on 'Emma's false and misleading documents' in the AAT proceedings.[22]
[20] Jason's affidavit filed 22 October 2024, par 24; Jason's affidavit filed 6 November 2024, par 24.
[21] Jason's affidavit filed 22 October 2024, par 30 (read in context); Jason's affidavit filed 6 November 2024, par 30 (read in context).
[22] Jason's affidavit filed 22 October 2024, par 31 and par 33; Jason's affidavit filed 6 November 2024, par 31 and par 33.
Jason's affidavit filed 3 January 2025 relevantly states that:
(a)he is a victim of fraud by reason of false and fraudulent claims made as to the purposes of his superannuation rollover, those statements being made in 2015 and in 2022;[23] and
(b)he has obtained voice recordings which 'unequivocally prove that the money paid via [his] superannuation rollover was in lieu of child support and that the claims [to the contrary] were fraudulent …'[24]
[23] Jason's affidavit filed 3 January 2025, par 1.
[24] Jason's affidavit filed 3 January 2025, par 6.
Although fraud is not specifically asserted in the statement of claim in the context of Emma's dealings with Services Australia and the AAT, I find that Jason intends to advance a case at trial that Emma acted fraudulently in those dealings.
I shall say more about the significance of this later.

Jason's collateral claims of misappropriated funds

Other aspects of Jason's statement of claim stray beyond the scope of the writ.
In particular, there are allegations to the effect that:
(a)pre-separation, Emma diverted more than $50,000 from Jason's business accounts to Emma's parents,[25] and this continued post‑separation to the tune of a further $28,000;[26]
(b)post-separation, Emma withdrew an unspecified amount from the 'equity loan' (which I understand to refer to the $50,000 second loan that had been secured against the home); and
(c)post-separation, Emma and Jane diverted payments of more than $12,000 from Jason's business customers to Emma's and Jane's own benefit.[27]
[25] Statement of claim, par 6.
[26] Statement of claim, par 7.
[27] Statement of claim, par 8.
At the hearing, I referred Jason to these collateral claims. Jason confirmed that:
(a)he accepted these allegations went beyond the scope of the claims indorsed on the writ; and
(b)these allegations were only invoked by him as a form of evidentiary bolster of the claims the subject of the writ (in effect by attacking the character of Emma and Jane), and that he was not seeking recovery of a specific amount for these allegations.[28]
[28] ts 38 - ts 39.
Given that confirmation, these allegations are liable to be struck out on the grounds that they are irrelevant to Jason's claims as advanced in the writ.[29]
[29] Given their scandalous and irrelevant character, the striking out would be pursuant to O 19 r 19(1)(b): see Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 3] [2021] WASC 260 [62].

What are the relevant principles governing Emma's and Jane's applications?

As earlier indicated, Emma and Jane seek either summary judgment, alternatively that Jason's claim be struck out.
Before moving further, it is important to identify the legal principles applicable to Emma's and Jane's applications.

What are the relevant legal principles governing an application under O 16 of the Rules of the Supreme Court 1971 (WA)?

The relevant legal principles informing an application for summary judgment under O 16 r 1(1) of the RSC are set out in Pisano v South Metropolitan Health Service.[30] For the sake of brevity I will not restate those principles in full here, though I note that the Court of Appeal considered that a defendant relying on O 16 essentially needs to establish that the 'plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way'.[31]
[30] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Pisano) [48] - [52] (Buss P, Vaughan & Hall JJA).
[31] Pisano [50].
I also accept that summary judgment based on the expiration of a limitation period is only to be granted in the clearest of cases.[32]
[32] Neil James Duckworth as trustee for The Ocean Farm Trust v Water Corporation [2024] WASC 90 [33] (Howard J).
I also note that it is open to me to grant summary judgment of part of a claim in an appropriate case.[33]

What are the relevant legal principles governing an application under O 20 r 19 of the Rules of the Supreme Court 1971 (WA)?

[33] See the Red Book [16.0.3] and the authorities cited therein.

The relevant legal principles informing a strike-out application under O 20 r 19(1) of the RSC are well established.
As will be seen from what follows, most pertinent here is O 20 r 19(1)(a), concerning whether a pleading discloses a reasonable course of action, on which the decision of Lee v Lawfirst Pty Ltd [No 2] offers specific guidance.[34]
[34] Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166 [80] - [82].

Should Jason's primary contractual claim be summarily dismissed or struck out?

I have identified above that Jason advances alternative claims.
I shall address the legal defensibility of each in turn.
Dealing first with Jason's primary contractual claim, for reasons that follow below, I have found that summary judgment ought to be granted dismissing that claim.
As will be seen below, I was able to make that finding by reference to a single ground, namely that Jason's writ was issued outside of the limitation period applicable to Jason's contractual claim, and Jason has not made out a case justifying an extension of that period under s 38 of the Limitation Act. The contractual claim is therefore legally untenable.

Did Jason commence these proceedings before the applicable limitation period expired?

Jason did not commence these proceedings before the limitation period applicable to his contractual claim expired.
The reasons for this are as follows:
1.The settlement agreement upon which Jason's contractual claim is based was entered at some point in 2015.
2.The essence of Jason's complaint against Emma and Jane is that they dishonoured that settlement agreement.
3.In the case of Emma, this dishonouring occurred as early as about mid‑2015, since Jason makes it clear that Services Australia was continuing to pursue him and made a prohibition order against him on 6 July 2015. On Jason's case, this was a result of Emma reneging on her commitment to advise Services Australia that she had agreed to accept the superannuation rollover in lieu of child support.
4.In the case of Jane, Jason says she was obliged to take steps to lift or withdraw the default judgment. If that was her obligation, it was an obligation that would have been due to be performed within a reasonable period after the settlement agreement was reached. Plainly it would have been breached by the end of 2015 (if not before).
5.Therefore, and accepting for present purposes that Jason is correct and that Emma and Jane breached the settlement agreement in the manner he alleges, those breaches have occurred at some point in 2015.
6.Jason did not commence these proceedings until 12 February 2024.
7.This is well outside the applicable limitation period. In particular, Jason had six years from the date of breach to bring his contractual claim.[35]
8.I do not consider that Jason's claims against Emma and Jane are claims of 'continuing breach' such that the commencement of the applicable limitation period is pushed out beyond 2015. Rather the breaches alleged are breaches of 'once and for all' obligations. On Jason's case, both Emma and Jane had a reasonable period of time to act in accordance with the settlement agreement, and this would have expired by the end of 2015.

Is Jason nevertheless to be granted an extension of the limitation period under s 38 of the Limitation Act 2015 (WA)?

The nature of Jason's extension application

[35] The limitation period for claim under a contract is generally 6 years: s 13(1) Limitation Act. As to when a cause of action based on breach of contract accrues, see Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460 [69] (Trans Petroleum) (Smith J).

At this point it is necessary to consider Jason's application dated 22 October 2024 for an extension of a limitation period pursuant to s 38 of the Limitation Act (extension application).
Reading Jason's application and its supporting affidavit literally it might be thought that the extension application was seeking to extend the limitation period in order that Jason might advance the collateral misappropriation claims discussed at [65] above.
However, given the matters set out at [66] above, and given that there was no application before me for the amendment of the writ, I have treated Jason's extension application as an application to extend the limitation period in respect Jason's contractual claim as identified in [46] and [47].

Nature of a s 38 application

Section 38 of the Limitation Act permits a plaintiff to seek an extension of a limitation period where there has been fraudulent or other improper conduct on the part of the defendant.
The relevant legal principles governing a s 38 application are as follows:
(a)the plaintiff bears the onus of demonstrating that the limitation period should be extended;[36]
(b)'other improper conduct' refers to 'a breach of the standards of conduct that would be expected of a person in the defendant's position determine objectively and there is no requirement that the defendant had a consciousness of the impropriety nor an element of moral turpitude';[37]
(c)there must be a causal connection between the fraudulent or improper conduct and the delay in bringing the action; the court needs to be satisfied that the delay in commencing the action was attributable to fraudulent or improper conduct;[38]
(d)it is not necessary that the fraudulent or improper conduct be the sole, dominant, direct, or proximate cause of the delay in brining proceedings - but it must be a cause;[39]
(e)typically, s 38 is concerned with conduct of a defendant party 'that is liable or intended to impede or delay the commencement of an action by the prospective plaintiff', such as conduct that conceals the existence of a claim, or of facts critical to the claim;[40] and
(f)even if the conditions for the exercise of the extension of time power are satisfied, the court retains a broad discretion (guided by the interests of justice) as to whether to grant the extension.[41]

Whether Jason demonstrated grounds for an extension of the limitation period in respect of his contractual claim

[36] Trans Petroleum [83] (Smith J). See also Limitation Act 2005 (WA), s 79(3).

[37] Latchman v Maybo Limited [2023] WADC 17 [22] (Latchman) (Bowden DCJ).

[38] Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2024] WASCA 123 [57]; Latchman [26] (Bowden DCJ).

[39] Latchman [38] (Bowden DCJ); Trans Petroleum [86] (Smith J).

[40] Trans Petroleum [85] (Smith J).

[41] Trans Petroleum [85] (Smith J).

Jason has not persuaded me that he is entitled to an extension of the limitation period for his contractual claim under s 38 of the Limitation Act. The reasons for this are as follows:
1.There is nothing in the evidence before me that indicates even an arguable case that Jason is entitled to an extension of the limitation period on the basis of any fraud or improper conduct on the part of Emma or Jane.
2.I have already commented upon the collateral misappropriation claims that have been included in the statement of claim. Even if I assume for the sake of argument that this conduct occurred and amounts to fraudulent and improper conduct, Jason has not explained how that conduct has caused him to delay the pursuit of his contractual claim. Jason has failed to demonstrate even an arguable causable link between conduct and inaction.
3.Jason submitted that an extension of the limitation period was justified by 'the recent discovery of unauthorised transactions and [Emma's and Jane's] ongoing fraudulent actions in 2022 mirroring the fraudulent actions in 2015 regarding the financial settlement and breach of contract'.[42] I reject that submission having regard to the following:
(a)Jason has not explained or demonstrated how Emma's and Jane's conduct at any time over the period from 2015 to 2022 has caused or contributed to any delay in the bringing of this action.
(b)It must have been apparent to Jason when Services Australia continued to pursue him from about mid‑2015 and onwards that Emma had (on his view) dishonoured the settlement agreement. I cannot see why Jason could not have commenced appropriate proceedings as early mid‑2015 in respect of Emma's (alleged) dishonouring.
(c)As for Jane, the gist of Jason's complaint against her is that she did not revoke the default judgment, or have it removed as a negative mark against his credit rating. It must have been apparent to Jason shortly after the 2015 settlement agreement that Jane had not taken the action he believes she was obliged to take. On the evidence before me, there is nothing in Jane's conduct that could be said to have delayed the commencement of a legal claim against Jane.
[42] Jason's outline of submissions filed 11 January 2025, page 1.
I therefore find that Jason's Limitation Act application ought to be dismissed insofar as it relates to Jason's contractual claim.

Finding on Jason's contractual claim

Having dismissed the extension application, I find that Jason's contractual claim is so clearly untenable that it could not possibly succeed at a trial. Emma and Jane have established a good defence to that claim.
It is appropriate that Jason's contractual claim be dismissed summarily pursuant to O 16 r 1 of the RSC.

A jurisdictional issue?

Jason's contractual claim in effect seeks a remedy for breach of a settlement agreement reached in the context of the Family Court Proceedings.
None of the parties addressed me on whether this court had jurisdiction to deal with a claim of that character. Given I have found the claim is to be dismissed in any event, it is not necessary for me to say anything further on the question of jurisdiction.

Should Jason's alternative claim based on misrepresentation also be summarily dismissed?

I now turn to consider Jason's alternative claim based on misrepresentation.

No cause of action disclosed against Jane

Jason's alternative claim based on misrepresentation arises out of Emma's dealings with Services Australia and the AAT subsequent to the 2015 settlement agreement.
That alternative claim does not sustain any arguable claim against Jane. Jason makes no allegation concerning Jane's dealings with Services Australia and the AAT.
On that ground alone, I find that it is appropriate to grant Jane summary judgment under O 16 r 1 which extends to dismissing Jason's secondary claim based on misrepresentation.
Given that I have also dismissed Jason's primary contractual claim against Jane, this means that Jane is entitled to summary judgment against Jason in respect of the entirety of Jason's claims the subject of the writ.

No cause of action disclosed against Emma either

I now turn to Jason's alternative claim based on misrepresentation insofar as it concerns Emma.
For the following reasons, Jason's statement of claim does not disclose a reasonable cause of action based on misrepresentation.
The mere fact that one party may make a misrepresentation concerning another party does not necessarily give that other party an actionable legal claim.
Jason's obligation under O 20 of the RSC is to plead out the material facts of a cause of action known to the law.
While it is clear enough that Jason contends that Emma misled Services Australian and the AAT by her conduct, I am not able to discern from the pleading an actionable legal claim against Emma.
I cannot see how contractual misrepresentation arises. This is not a case where Jason is alleging that Emma made pre‑contractual misrepresentations to him which induced him into a contract. Rather, Jason says that Emma made misrepresentations to third parties after the contract was entered.
I cannot see how the tort of negligent misstatement arises on the face of the pleading because:
1.To establish a negligent misstatement case, a plaintiff must establish a relevant duty of care in respect of the misstatement, that the duty has been breached, and that the breach of the duty has caused the plaintiff loss.[43] Generally that causation is established by proof that the plaintiff relied on the truth of the impugned representation to the plaintiff's detriment.[44]
2.Here, there is no pleading of material facts that support a duty of care, nor any attempt to define the content of such a duty, and it is not apparent from the pleading that Jason has himself relied on the negligent misstatement (nor even that the recipients of the misstatement, namely Services Australia and the AAT, have so relied).
3.The statement of claim also suffers from not including any claim to relief and fails to make clear what losses Jason says he suffered because of each of the alleged misstatements. This is in a context where there is a very large time gap between the alleged misstatements (some are said to have been made in 2015, others much later in or about 2021). The losses presumably differ depending on when the misstatement was made, but this is not made plain.
[43] A summary of the relevant principles is contained in Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221 [383] - [390] (Refshauge J) (Meredith). For a more recent decision addressing when a duty of care arises in a negligent misstatement case, see Girgis v Poliwka [No 6] [2019] WASC 230 [888] ‑ [889] (Vaughan J, as his Honour then was).
[44] Meredith [387]. See also Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88 [375] ‑ [384].

I cannot see how statutory misleading and deceptive conduct arises on the pleading. Given that individuals are involved, the relevant provision would be s 18 of the Australian Consumer Law (WA), as applicable via s 19 of the Fair Trading Act 2010 (WA).[45] The statement of claim does not on its face sustain such a statutory claim. In particular:
1.Jason does not plead material facts which indicate that Emma was engaged in trade or commerce when she made the alleged misrepresentations. On the contrary, the pleaded facts indicate that Emma was engaging with Services Australia and the AAT about her ex-husband's child support liabilities in the context of a dispute arising out of the settlement a family law dispute.
2.As I have indicated above in the context of negligent misstatement, Jason does not plead out a causal connection between the conduct complained of (the alleged misrepresentations) and the losses that he suffered. There is no plea of reliance on the conduct by either Jason or a third party, and no attempt to identify the specific losses attributable to each misstatement, and no claim for statutory relief.
[45] Section 18(1) of the Australian Consumer Law (WA) provides that 'A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive'.
I found at [62] above that Jason's subjective intention is to contend that Emma's misrepresentations amount to fraud. In making that finding I had regard to Jason's affidavits - it is not made plain on the statement of claim itself.
This is significant because, in considering whether a reasonable cause of action is disclosed under O 20 r 19(1)(a) of the RSC, no evidence is admissible by reason of O 20 r 19(2). That being the case, Jason cannot rely on anything in his affidavits in order to cure a failure to disclose a reasonable cause of action in his statement of claim.
Even if I could treat Jason's misrepresentation case as being one involving an element of fraud, the pleading of it is manifestly inadequate. This is for the following reasons:
(a)the authorities are emphatic that where an allegation of fraud is sought to be raised, the allegation must be pleaded with clarity and specificity;[46]
(b)because there are many different species of 'fraud' known to the law, the elements of the particular cause of action relied on by the plaintiff ought to be clearly supported in the pleading;[47]
(c)the material facts supporting a conclusion of fraud must be pleaded;[48] and
(d)here, contrary to these authorities, Jason's statement of claim does not explicitly mention fraud and his pleading does not set out the material facts which could justify an allegation of fraud, nor does it identify with any clarity the particular cause of action being advanced.
[46] G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 4) [2021] NSWSC 1052 [41] - [43] (Williams J); Trackem Pty Ltd (ACN 168 532 269) v Revenue Partners (A Partnership) [2021] WASC 245 [32] - [33] (Archer J).
[47] Bozic v Billis [2021] WASC 88 [24] - [26] (Allanson J).
[48] Bozic v Billis [31] (Allanson J).
If, for example, the tort of deceit was relied on, the pleading would need to plead material facts to satisfy each of the elements of the tort.[49] This statement of claim falls well short of doing so.

Should summary judgment be granted dismissing the misrepresentation claim against Emma?

[49] As to those elements and the need for a precise pleading against them, see Allianz Australia Insurance Limited v Yu [2024] NSWSC 31 [14] - [22], [30] - [31] (Weinstein J).

It is appropriate that the entirety of the statement of claim be struck out pursuant to O 20 r 19(1)(a) of the RSC because:
(a)the statement of claim does not disclose a reasonable cause of action based on misrepresentation against either Emma or Jane;
(b)while the statement of claim discloses a cause of action based on breach of contract, that contractual claim is being summarily dismissed (and hence cannot sustain the pleading); and
(c)I have also found that Jason's extraneous collateral allegations ought to be struck out (see [67] above).
This means that no part of the statement of claim has survived Emma's and Jane's attack.
However, should summary judgment be granted pursuant to O 16 r 1 of the RSC on Jason's misrepresentation claim against Emma?
Emma says that summary judgment ought to be granted based on her having a good defence pursuant to the Limitations Act.
In addition, a major ground of complaint raised was that Jason's writ was vexatious alternatively an abuse of process, particularly in light of the decision made in the AAT (which was said to give rise to res judicata defence). The essence of that complaint was that Jason was re‑agitating the same claim in different forums in a manner that was either vexatious or constituting an abuse of the court's processes.
The difficulty I have in addressing these grounds of complaint is that I have been unable to discern a legal basis for Jason's alternative claim against Emma based on misrepresentation. In those circumstances:
1.I cannot confidently say how the Limitation Act may operate with respect to Jason's alternative claim. A cause of action based on misrepresentation may accrue on a different date to a contractual breach claim. I am also mindful that Jason alleges that he only recently became aware of certain representations that Emma made to Services Australia in 2015. This may have implications for whether Jason has an arguable basis for an extension of the limitation period.
2.I cannot confidently say that Jason's alternative claim based on misrepresentation is a re-agitation of a claim put before or ruled upon another court or tribunal, let alone a vexatious or abusive re‑agitation.
This means that, in the specific context of Jason's alternative misrepresentation claim, I am not presently in a position to rule on the other complaints raised by Emma and Jane. I first need to understand what the underlying legal claim actually is.
Also, I am conscious that Jason is self-represented, and his ability to craft a proper pleading is hampered by that fact.
In McGavin v McGavin, Lundberg J advocated the following approach:
(a)the court needs to be mindful that ordinarily self‑represented litigants will not be across the pleading rules, and should consider their pleadings in that light; and
(b)the court should be prepared to be flexible in approaching a self‑represented litigant's pleadings and cautious not to summarily terminate a claim based on the manner of its expression in a pleading.[50]
[50] McGavin v McGavin [2024] WASC 408 [10] - [11].
It is conceivable that Jason may be able to re-plead a statement of claim that meets the pleading rules and which discloses a reasonable cause of action.
If Jason is able to successfully replead his claim based on misrepresentation, the court will be able to understand the cause of action upon which he relies, which in turn will enable an assessment to be made as to whether that claim is liable to be summarily dismissed along with Jason's other claims.
In these circumstances I find it is in the interests of justice to proceed cautiously and to give Jason a further opportunity to re-plead his alternative misrepresentation claim, rather than to summarily dismiss it.
I therefore decline at this time to grant summary judgment in respect of Jason's misrepresentation claim insofar as it concerns Emma.
It remains to be seen whether Jason will be able to successfully craft an amended statement of claim that:
(a)properly pleads a viable cause of action which is not manifestly barred by the Limitation Act; and
(b)which otherwise answers the complaints raised by Emma here.

The orders to be made

Given the findings I have made at [35] and [40] above, an order should follow granting leave to Emma and Jane to:
(a)amend their application dated 14 October 2024 so that the application be read as to also include application to strike‑out the entirety of the statement of claim under O 20 r 19(1) of the RSC; and
(b)bring the said application (as amended) outside the time limits prescribed by O 16 r 1(1) and O 20 r 19(3)(a) of the RSC.
Given the finding I have made at [87] above, an order should follow dismissing Jason's application dated 22 October 2024 pursuant to s 38 of the Limitation Act, at least insofar as that application concerns Jason's contractual claim as identified in [46] and [47] of these reasons.
Given the finding I have made at [88] above, there should be summary judgment for Emma against Jason in respect of Jason's contractual claim against her pursuant to O 16 r 1 of the RSC (this being the claim as identified in [46] and [47] of these reasons).
Given the findings I have made at [88], [95] and [96] above, there should be summary judgment for Jane against Jason pursuant to O 16 r 1 of the RSC. This disposes of the entirety of Jason's action against Jane.
Given the findings I have made at [109] and [120] above, there should be orders to the effect that:
(a)paragraphs 6, 7 and 8 of the statement of claim be struck‑out pursuant to O 20 r 19(1)(b);
(b)the balance of the statement of claim be struck out pursuant O 20 r 19(1)(a) of the RSC;
(c)Jason have leave to replead the statement of claim, such leave being limited to repleading a claim based on misrepresentation; and
(d)Jason to file and serve an amended statement of claim consistent with these orders within a reasonable time frame.
Further, given the matters discussed at [119] to [122] above, an order should be made to the effect of adjourning the balance of the application dated 14 October 2024 (insofar as it seeks summary judgment). If Jason is able to successfully re-plead his misrepresentation claim, Emma should have a further opportunity to pursue summary judgment under O 16 r 1 of the RSC against that claim.
Finally, given the matters referred to in [10] above, Jason's application dated 22 October 2024, insofar as it seeks discovery orders, should remain adjourned for the time being (that is, it should be adjourned sine die). Questions of discovery ought to await the closure of pleadings.
I will hear from the parties as to the precise orders to be made (including as to costs).

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DP
Associate
9 APRIL 2025