TAN (FORMERLY LUKE MINH VU) -v- RACING AND WAGERING WESTERN AUSTRALIA [2026] WASC 204

[2026] WASC 204 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : TAN (FORMERLY LUKE MINH VU) -v- RACING AND WAGERING WESTERN AUSTRALIA [2026] WASC 204 CORAM : HOWARD J HEARD : 8 MAY 2026 AND LAST SUBMISSIONS FILED 26 MAY 2026 DELIVERED : 29 MAY 2026 FILE NO/S : CIV 1327 of 2026 BETWEEN : THIEN TAN (FORMERLY LUKE MINH VU) Applicant AND RACING AND WAGERING WESTERN AUSTRALIA Respondent Catchwords: Administrative Law - Where the applicant was a betting customer of the respondent - Where the respondent decided to terminate the wagering services it had provided - Application for judicial review - Preliminary objection taken by the respondent -Whether the respondent's decision was an exercise of a power derived from the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) such that it was open to judicial review for jurisdictional error - Whether the Court has jurisdiction to review decision - Whether the Application could not succeed at a final hearing - Whether the Application should be determined summarily - Finding that review application could not succeed - -- 1 of 35 -- [2026] WASC 204 Page 2 Respondent's objection upheld and review application summarily determined - Where respondent had filed a conditional appearance under O 12 r 6 of the Rules of the Supreme Court 1971 (WA) - Whether that was an apposite procedure to have been adopted to agitate the respondent's objection Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Anti-Money Laundering and Counter-Terrorism Financing Rules 2025 (Cth) Australian Constitution (Cth) Corporations Law (Vic) Insurance Contracts Act 1984 (Cth) Judiciary Act 1903 (Cth) Jurisdiction of Courts (Cross vesting) Act 1987 (Cth) Property Law Act 1969 (WA) Public Sector Management Act 1994 (WA) Racing and Wagering Western Australia Act 2003 (WA) Racing and Wagering Western Australian Regulations 2003 (WA) Rules of the Supreme Court 1971 (WA) Rules of the Supreme Court 1965 (UK) Trustees Act 1962 (WA) Wheat Marketing Act 1989 (Cth) Result: Respondent's objection upheld Review Application dismissed Category: B Representation: Counsel: Applicant : M Pudovskis Respondent : S B Nadilo Solicitors: Applicant : Ryan & Co Solicitors Pty Ltd Respondent : Allens -- 2 of 35 -- [2026] WASC 204 Page 3 Cases referred to in decision(s): Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Chief Executive Officer of Australian Transaction Reports and Analysis Centre v Crown Melbourne Limited [2023] FCA 782; (2023) 168 ACSR 421 Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited (No 3) [2017] FCA 1296 Chief Executive Officer of Australian Transaction Reports and Analysis Centre v Westpac Banking Corporation [2020] FCA 1538; (2020) 148 ACSR 247 Desfosses v Martinson [2018] WASC 114 Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 Obeid v R [2015] NSWCCA 309; (2015) 91 NSWLR 226 Patole v Child & Adolescent Health Service [2024] WASCA 126 Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79; (2018) 262 FCR 41 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 Régie Nationale des Usines Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 Zurich Insurance Co Limited v Koper [2023] HCA 25; (2023) 277 CLR 164 -- 3 of 35 -- [2026] WASC 204 HOWARD J Page 4 HOWARD J: 1 By an application for judicial review filed on 13 March 2026 under O 56 r 2 of the Rules of the Supreme Court 1971 (WA) (Rules) (Review Application), the applicant seeks a writ of certiorari and a declaration in respect of notices of exclusion issued by the respondent to him: 1. dated 16 September 2025 (September 2025 Notice); and 2. dated 20 January 2026 (January 2026 Notice); (together the Notices). 2 The grounds of the Review Application are: 1. The Respondent committed jurisdictional error and erred in law, in that: (a) the Respondent, in its capacity as a 'reporting entity' under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML-CTF Act), purported to exercise its power under s 92(4) of the AML-CTF to, in effect, prohibit the Applicant from wagering at totalisator agencies in Western Australia, and from having a wagering account (see 'notice of exclusion' issued to the Applicant dated 16 September 2025 and 'updated notice of exclusion' dated 20 January 2026); (b) the exercise of the power under s 92(4) AML-CTF Act was conditioned on the prior giving of written notice pursuant to s 92(2), which could be given only if the Respondent had reasonable grounds within s 92(1)(c); and (c) the Respondent did not, before issuing the 'exclusion notice' in purported exercise of its powers under s 92(4), give written notice as required by s 92(2). 3 On 25 March 2026, the respondent filed a memorandum of conditional appearance. 4 By its chamber summons filed on 8 April 2026 (Respondent's Application), the respondent sought the Review Application be 'set aside and dismissed, or alternatively the proceeding be permanently stayed'. -- 4 of 35 -- [2026] WASC 204 HOWARD J Page 5 5 These reasons concern the Respondent's Application which, in substance, sought to raise a preliminary or threshold objection to the effect that the applicant cannot succeed in his Review Application. This was expressed as a challenge to the Court's jurisdiction to determine the Review Application and was sought to be agitated through its conditional appearance. 6 For reasons I set out below, I consider that the respondent's filing of the conditional appearance and its application thereon was inapposite. I do not wish to be over-technical in this, but it did have some implications for the way that the parties initially submitted the Court should approach the state of the evidence in the Respondent's Application. 7 The applicant fully joined issue with the preliminary or threshold objection, and took no point in his submissions as to the appropriateness of the conditional appearance. In those circumstances, I consider it appropriate to hear and determine the substance of the Respondent's Application if possible. 8 From here, unless I indicate otherwise, where I refer to the Respondent's Application I am referring to the substance of its preliminary or threshold objection. 9 I have approached the substance of the preliminary or threshold objection by considering whether, on the facts not in dispute, the respondent has established that the Review Application is bound to fail and should be determined summarily. 10 I note that O 56 r 5(2)(j) of the Rules would allow the Court to refuse the Review Application if it has no reasonable prospect of succeeding. And, O 56 r 5(k) allows the Court to grant or refuse the Review Application, in any event. 11 I have adopted, in effect, the well-known standard to be applied to a summary judgment application. 12 That is, I consider I should only uphold the respondent's preliminary or threshold objection if I come to the view that it renders the Review Application so clearly untenable that it could not possibly succeed at a final hearing. The applicant submitted that, at this point in the proceeding, he needed only to demonstrate a good, arguable case -- 5 of 35 -- [2026] WASC 204 HOWARD J Page 6 and that bar was not terribly high.1 I have also borne in mind that the Respondent's Application should not be allowed to stultify the development of the law. 13 Further, I consider that the question should be approached at this point as a matter of law without requiring the determination of any contested factual matter. 14 If the Review Application is not disposed of summarily, then it appeared from the hearing that the applicant, at the least, would wish to put on further evidence before any final determination of his application.2 The evidence in the Respondent's Application 15 In support of its application, the respondent relied on two affidavits of its solicitor, Charles Philip Blaxill: 1. made and filed on 8 April 2026 (first Blaxill affidavit); and 2. made and filed on 6 May 2026 (second Blaxill affidavit). 16 In opposition to the Respondent's Application, the applicant relied on: 1. his affidavit made and filed on 29 April 2026; and 2. an affidavit of his solicitor, Louis Lut-Yiu Lee made and filed on 29 April 2026. Matters not in dispute in the Respondent's Application The respondent 17 The respondent was established by s 4(1) of the Racing and Wagering Western Australia Act 2003 (WA) (RW Act).3 18 The RW Act provides that the respondent: 1. is not an agent of the Crown: s 5; and 1 ts 39. 2 ts 10. See also applicant's supplementary submissions filed 26 May 2026 (applicant's supplementary submissions) [16]. 3 I note that the respondent has been referred to by the parties and within the Act as RWWA. I have used both terms interchangeably throughout these reasons. -- 6 of 35 -- [2026] WASC 204 HOWARD J Page 7 2. is not a public sector body under the Public Sector Management Act 1994 (WA): s 6(1). 19 Part 3 of the RW Act makes general provision for the functions and powers of the respondent. 20 Division 2 of Part 3 of the RW Act is headed 'General powers and related provisions'. It includes the following: 30. Powers generally (1) RWWA has all the powers it needs to perform its functions. (2) RWWA may for the purpose of performing a function — … (b) enter into any contract or arrangement including a contract or arrangement with any person for the performance of the function by that person on behalf of RWWA; and … (3) Subsection (2) does not limit subsection (1) or any of RWWA's other powers. … 21 Part 5 of the RW Act makes provision for specialised functions of the respondent in relation to gambling. 22 Relevantly, the respondent, as deposed to in the second Blaxill affidavit: 1. as part of its statutory functions, carries on the business of operating an off-course totalisator wagering service and retail network, trading as the TAB;4 2. has a statutory monopoly over providing totalisator services in Western Australia;5 4 Second Blaxill affidavit [7(c)]. 5 Second Blaxill affidavit [7(d)]. -- 7 of 35 -- [2026] WASC 204 HOWARD J Page 8 3. provides both online and in-person wagering services via the following channels: (i) the TABtouch website and mobile application; (ii) self-service terminals and over the counter at TAB retail venues located in Western Australia; and (iii) telephone betting;6 and 4. has a TAB retail network comprising five managed agencies, 296 independent agencies, and 61 race clubs.7 23 For present purposes, I understood that the following matters were not in dispute, namely that the respondent, at all material times: 1. was a reporting entity within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act or the Act) because it provided a 'designated service' within the meaning of s 6 of the AML/CTF Act;8 2. provided designated services (as defined in section 6 of the AML/CTF Act) in the course of its wagering operations and carried out a 'gambling business' at the relevant times;9 3. had the applicant as a customer within the meaning of the AML/CTF Act with respect to the its gambling business;10 4. was enrolled with the Australian Transaction Reports and Analysis Centre (AUSTRAC) and is subject to the obligations imposed by the AML/CTF Act and the Anti-Money Laundering and Counter-Terrorism Financing Rules 2025 (Cth);11 5. was required by the AML/CTF Act to have and comply with an anti-money laundering and counter-terrorism financing program;12 and 6. '… has … adopted and maintained an AML/CTF program … in accordance with sections 81, 82 and 84 of the AML/CTF Act'.13 6 Second Blaxill affidavit [7(e)]. 7 Second Blaxill affidavit [7(f)]. 8 Applicant's submissions filed on 29 April 2026 (applicant's submissions) [11]. 9 Applicant's submissions [11]. 10 Applicant's submissions [13(b)]. 11 Second Blaxill affidavit [7(j)]. 12 Applicant's submissions [11]. -- 8 of 35 -- [2026] WASC 204 HOWARD J Page 9 24 There was no evidence, however, before the Court as to the terms of the contractual (or other) relationship between the respondent and the independent agencies which were offering the services of the respondent. The applicant 25 The following matters were deposed to by the applicant in his affidavit and were not, as I understand it, disputed for the purposes of the Respondent's Application: [3] Between around 2018 and September 2025 I was a full-time professional bettor. I wagered primarily through TABtouch retail outlets across Western Australia, my preference being to place bets in person at TABs. [4] I also held a "TABtouch" electronic account that enabled me to place bets electronically, though my preference was to place bets in-store at TABs, which did not require an account. [5] I placed bets on a variety of sports, but only very rarely on horse races. [6] Throughout this period, I consistently maintained the same betting patterns and practices, with no prior issues or regulatory interventions of any kind.14 26 As noted, it was common ground that the applicant was a betting customer of the respondent. The applicant appeared to accept that their relationship was a contractual one.15 27 There was no evidence before the Court as to the contractual terms governing that relationship (outside of any which may have been provided by statute).16 28 Counsel for the applicant, correctly in my view, accepted that the respondent could choose whether or not to contract with the applicant.17 29 The applicant also accepted that he had no statutory right to any of the betting services from which the Notices purported to exclude him.18 13 Second Blaxill affidavit [8(a)]; applicant's submissions [12]. 14 Applicant's affidavit made and filed on 29 April 2026. 15 ts 35 - 37, 41. 16 ts 15 - 16, 49. 17 ts 37. 18 ts 40. -- 9 of 35 -- [2026] WASC 204 HOWARD J Page 10 The Notices sought to be impugned by the application 30 On 16 September 2025, the respondent issued to the applicant the September 2025 Notice.19 31 The first part of the September 2025 Notice stated: Racing and Wagering Western Australia (RWWA) recently attempted to contact you regarding our anti-money laundering (AML) and counter-terrorism financing (CTF) obligations with a request for additional information. As of the date of this notice, we haven't received a response within the timeframe set out in the letter. In accordance with RWWA's Responsible Wagering and AML/CTF program, RWWA gives notice that from the date of this letter: 1. you, Luke Minh Vu (Excluded Person) do not have consent to enter or remain at, and are excluded from attending, any venue that forms part of the WA TAB Retail Network, which includes Hasler Road in Osborne Park, standalone TABs, hotels, clubs and the Casino; 2. RWWA, trading under any branding (including RWWA, Racing and Wagering WA, TAB, TABtouch) does not wish to transact with you including accepting any wagers from you; and 3. you are no longer permitted to use any account betting facilities and any existing TABtouch accounts will also be closed, (collectively the Exclusions).20 (emphasis in the original) 32 I note that the applicant does not accept that the respondent had sent him a letter prior to the September 2025 Notice.21 33 At the hearing, the respondent accepted that the reference in the second (unnumbered) paragraph quoted above to 'the letter' was in error.22 34 What, if any, non-letter contact there was between the respondent and applicant prior to the September 2025 Notice does not, in my view, need to be resolved for present purposes. 19 First Blaxill affidavit, CPB-1 at page 4. 20 First Blaxill affidavit, CPB-1 at page 4. 21 ts 45. 22 ts 13 - 14. -- 10 of 35 -- [2026] WASC 204 HOWARD J Page 11 35 On 20 January 2026, the respondent issued the January 2026 Notice.23 36 The January 2026 Notice stated, in part: As noted to you in our Exclusion Notice dated 16 September 2025 (the Original Exclusion Notice), Racing and Wagering Western Australia (RWWA) has determined that it is unwilling to continue to allow you the use of or access to our online (TABtouch) and retail (WA TAB) wagering services as a result of your failure to adequately respond to RWWA's request for additional information. This determination is unchanged. The purpose of this letter is to further clarify the venues that are not subject to the Original Exclusion Notice. Clarification RWWA confirms that from 16 September 2025: 1. you, Luke Minh Vu (Excluded Person) do not have consent to enter or remain at any venue that forms part of the WA TAB Retail Network, including RWWA's Head Office located in Osborne Park; 2. you are further not permitted to place wagers, purchase vouchers or have tickets paid at any designated WA TAB service within hotels, clubs, racecourses and the Crown Casino. For the avoidance of doubt, you are permitted to attend those venues outside of these circumstances (eg, for the purpose of accessing non-WA TAB/TABtouch services within hotels, clubs, racecourses and the Casino); 3. RWWA, trading under any brand (including RWWA, Racing and Wagering WA, TAB, TABtouch) does not wish to transact with you including accepting any wagers from you; and 4. you are no longer permitted to use any online betting facilities and your existing TABtouch accounts have been closed, (collectively the Exclusions).24 (emphasis in the original) 37 It may be seen that the Notices purported to: 1. in effect, terminate existing contractual relations with the applicant: see [3] of the September 2025 Notice as quoted in 23 First Blaxill affidavit, CPB-2 at page 6. 24 First Blaxill affidavit, CPB-2 at page 6. -- 11 of 35 -- [2026] WASC 204 HOWARD J Page 12 [31] above, and [4] of the January 2026 Notice as quoted in [36] above; 2. act prospectively to exclude the applicant from certain venues for certain purposes: see [1] of the September 2025 Notice, and [1] and [2] of the January 2026 Notice; and 3. indicate that the respondent would not transact with the applicant after the Notice: see [2] of the September 2025 Notice and [3] of the January 2026 Notice. The relevant provisions of the AML/CTF Act 38 Section 92 (contained in Pt 7) of the AML/CTF Act is central to the Review Application. 39 Section 92 of the AML/CTF Act provided, at the relevant times of the issuing of the September 2025 Notice and the January 2026 Notice,25 as follows: 92 Request to obtain information from a customer Scope (1) This section applies to a reporting entity if: (a) the reporting entity has adopted: (i) a standard anti-money laundering and counter-terrorism financing program; or (ii) a joint anti-money laundering and counter-terrorism financing program; that applies to the reporting entity; and (b) the reporting entity is providing, or has provided, a designated service to a particular customer; and (c) the reporting entity has reasonable grounds to believe that the customer has information that is likely to assist the reporting entity to comply with: (i) Part A of the program; or 25 It was common ground that s 92 of the AML/CTF Act, as it was, at the material time and as quoted, has been subsequently repealed. Neither party placed any reliance on the repeal nor submitted that it had an impact on the determination of the respondent's application; see ts 23. I have referred in these reasons to the Act in the present tense, but I am referring to it as it was at 16 September 2025, which the parties accepted was the relevant form of the legislation. -- 12 of 35 -- [2026] WASC 204 HOWARD J Page 13 (ii) if the program has been varied on one or more occasions—Part A of the program as varied. Request to give information (2) The reporting entity may, by written notice given to the customer, request the customer to give the reporting entity, within the period and in the manner specified in the notice, any such information. (3) The notice must set out the effect of subsection (4). Power to discontinue, restrict or limit provision of designated services (4) If the customer does not comply with the request, the reporting entity may do any or all of following: (a) refuse to continue to provide a designated service to the customer; (b) refuse to commence to provide a designated service to the customer; (c) restrict or limit the provision of a designated service to the customer; until the customer provides the information covered by the request. Protection from liability (5) An action, suit or proceeding (whether criminal or civil) does not lie against: (a) the reporting entity; or (b) an officer, employee or agent of the reporting entity acting in the course of his or her office, employment or agency; in relation to anything done, or omitted to be done, in good faith by the reporting entity, officer, employee or agent in the exercise, or purported exercise, of the power conferred by subsection (4). 40 As noted above, it was common ground that the respondent was, at all material times, a reporting entity and was required to have (and comply with) an anti-money laundering and counter-terrorism financing program under the AML/CTF Act. Further, and again as noted, it was -- 13 of 35 -- [2026] WASC 204 HOWARD J Page 14 common ground that the respondent had such a program at all material times. 41 The scheme of the AML/CTF Act has been considered in a number of Federal Court decisions which were cited to me including: Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited (No 3) [2017] FCA 1296 (TAB (No 3)) (Perram J); Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v Westpac Banking Corporation [2020] FCA 1538; (2020) 148 ACSR 247 (AUSTRAC v Westpac) (Beach J); and Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v Crown Melbourne Limited [2023] FCA 782; (2023) 168 ACSR 421 (Lee J). 42 In TAB (No 3), Perram J said: [3] From a regulatory perspective, there are a number of ways anti-money laundering and counter-terrorism financing ('AML/CTF') measures might be taken. … Another might be by identifying areas of risk within the economy and seeking to manage that risk. In Australia, the Parliament has decided that it will pursue the risk management approach. Upon the introduction of the Bill which became the Act into the House of Representatives, the relevant Minister said this: 'Consistent with the Government's commitment to reducing regulatory burdens on business, the legislative package implements a risk-based approach to regulation. Reporting entities will manage operational risks through AML/CTF programs developed in accordance with operational Rules. AUSTRAC will monitor compliance with these programs and will assess the reasonableness of the entity's risk assessment. The risk-based regulatory approach recognises that reporting entities have the experience and knowledge needed to assess and mitigate risk. It will also help mitigate compliance costs by providing industry with the tools to concentrate their resources on areas where money laundering and terrorism financing risk is higher. Industry has endorsed the risk-based approach. Australia's risked-based approach is similar to that taken in the United States and the United Kingdom.' [4] It will be seen that this regulatory decision by the Parliament put at the heart of the scheme of regulation, the concept of AML/CTF programs, which would be monitored by the -- 14 of 35 -- [2026] WASC 204 HOWARD J Page 15 regulator, the Australian Transaction Reports and Analysis Centre ('AUSTRAC'). In a sense, it involved the reposing in industry of a degree of trust for its operation of the AML/CTF risk management system. The Act deals severely with breaches of that trust. 43 Perhaps unsurprisingly, the AML/CTF Act is complex.26 Relevantly, for present purposes, the AML/CTF Act's simplified outline in s 4 provides the following: • Reporting entities must report the following to the Chief Executive Officer of AUSTRAC (the Australian Transaction Reports and Analysis Centre): (a) suspicious matters; (b) certain transactions above a threshold. … • Reporting entities must have and comply with anti-money laundering and counter-terrorism financing programs. 44 Part 3 of the AML/CTF Act broadly imposes on a reporting entity an obligation to report 'suspicious matters' and then provides, by s 41(2) of the Act, a penalty if the reporting entity fails to do so within the specified period. 45 Part 7 has its own simplified outline in s 80 which is as follows: • A reporting entity must have and comply with an anti-money laundering and counter-terrorism financing program. • An anti-money laundering and counter-terrorism financing program is divided into Part A (general) and Part B (customer identification). • Part A of an anti-money laundering and counter-terrorism financing program is designed to identify, mitigate and manage the risk a reporting entity may reasonably face that the provision by the reporting entity of designated services at or through a permanent establishment of the entity in Australia might (whether inadvertently or otherwise) involve or facilitate: (a) money laundering; or (b) financing of terrorism. 26 TAB (No 3) [5] (Perram J). -- 15 of 35 -- [2026] WASC 204 HOWARD J Page 16 • Part B of an anti-money laundering and counter-terrorism financing program sets out the applicable customer identification procedures for customers of the reporting entity. 46 As noted, s 92 is within Pt 7 of the AML/CTF Act. 47 Also within Pt 7, s 81 of the AML/CTF Act prevents a reporting entity from providing a designated service to a customer if it has not adopted and then maintained an anti-money laundering and counter-terrorism financing program (Program). Breach of that provision carries a civil penalty by s 81(2) of the Act. 48 Further provision is made for a civil penalty offence if the reporting entity does not comply with its Program: s 82 of the AML/CTF Act. 49 It is expressly provided that a Program is not a legislative instrument: s 83(2) of the AML/CTF Act. 50 The significance of such a Program was stated by Beach J in AUSTRAC v Westpac: [139] The AML/CTF program is the principal document for setting out the risk-based systems and controls that are required to ensure compliance with the Act and the Rules. And the requirement to carry out and maintain current ML/TF risk assessments of designated services is central to the AML/CTF program and to the Act. Further, risk assessments are the foundation of the obligation to identify, mitigate and manage the ML/TF risks relating to designated services. And in order to appropriately mitigate and manage its ML/TF risk and have appropriate risk-based controls as required by the Act, Westpac must first identify and assess the ML/TF risks it reasonably faces.27 The threshold or preliminary question to be determined 51 The respondent's submissions in support of its application are, in overview, captured by the following: [14] The notices issued by RWWA were not issued in RWWA's capacity as a reporting entity under the AML/CTF Act. In any event, any decision or conduct by RWWA under the AML/CTF Act is not of a public character and, as such, they are outside the province of administrative law. 27 AUSTRAC v Westpac [139]. -- 16 of 35 -- [2026] WASC 204 HOWARD J Page 17 [15] If, contrary to RWWA's position, this Court considers it arguable that RWWA has made a decision of an administrative character under the AML/CTF Act, State Supreme Courts, such as this Court, are excluded from the field of judicial review of such decisions.28 52 That first paragraph quoted above contains two propositions. 53 The first proposition is that the Notices were not, in effect, issued in exercise of a power derived in or from s 92(4) of the AML/CTF Act. 54 The second proposition is that even if they were issued under s 92(4) of the Act, that was not a decision capable of being judicially reviewed. 55 The second paragraph quoted in [51] above raised, as I understood the respondent's submissions, a question as to the interaction between s 39(2) of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act).29 56 Further, there may be a latent proposition within the argument raised as to the effect of s 92(5) of the AML/CTF Act and whether it had the effect of (permissibly or effectively) excluding or ousting this Court's review jurisdiction.30 57 These appear to raise difficult issues. On the approach I have taken, I do not need to resolve them to resolve the respondent's objection. 58 In opposition, the applicant contended for four propositions to support his contention that this Court has 'jurisdiction' to decide the Review Application, namely: 1. the Review Application concerns a decision (by the Notices) made by the respondent under s 92(4) of the AML/CTF Act, which is amenable to judicial review because it was of an administrative character (Proposition 1);31 2. as a general proposition, the Court has jurisdiction to consider matters arising under federal statutes, pursuant and subject to s 39(2) of the Judiciary Act read with s 76(ii) of the 28 Respondent's submissions filed on 8 April 2026 (respondent's submissions). 29 Respondent's submissions [39] - [40]. 30 ts 24, 29, 38; Respondent's supplementary submissions filed on 15 May 2026 (respondent's supplementary submissions). See also applicant's supplementary submissions [5] - [14]. 31 Applicant's submissions [1(a)]. See also applicant's supplementary submissions [4]. -- 17 of 35 -- [2026] WASC 204 HOWARD J Page 18 Constitution. This includes judicial review of decisions made under federal statutes, including the AML/CTF Act, subject to the terms of that Act and of any other Act, including s 9(1)(a) of the AD(JR) Act (Proposition 2);32 3. section 9(1)(a) of the AD(JR) Act did not disapply s 39(2) of the Judiciary Act in the circumstances of the case, having regard to the nature of the decision made under the AML/CTF Act (Proposition 3);33 and 4. alternatively (if Proposition 3 is wrong), jurisdiction was reinvested in this Court by s 4(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Proposition 4).34 59 At the least, the applicant contended that the Review Application should not be summarily determined. 60 The applicant submitted that the Notices accorded very closely with the terms of s 92 of the AML/CTF Act in support of his argument that the respondent was exercising a power relevantly under s 92.35 61 Entirely properly, counsel for the respondent accepted, for the purposes of its application, that if Proposition 1 were to be accepted as a matter of substance, its threshold objection should be dismissed, and the matter should proceed to a full hearing.36 62 As to Proposition 1, the respondent submitted: [28] … The relationship between a reporting entity and a customer is primarily governed by a private contract. While section 92 provides the reporting entity with the power to obtain information, and with a 'shield' and authority for the entity to act, any decision to stop a service is a commercial one that may be made relying on other rights available to RWWA. Put another way, in issuing the Exclusions the subject of the notices, RWWA is not restricted only to the process and powers conferred on it by section 92 of the AML/CTF Act. Section 92 recognises a decision for which no statutory authority was needed. [29] RWWA's position is that: 32 Applicant's submissions [1(b)]. 33 Applicant's submissions [1(c)]. 34 Applicant's submissions [1(d)]. 35 ts 44 - 45. 36 Respondent's reply submissions filed on 6 May 2026 (respondent's reply) [25]; ts 3. -- 18 of 35 -- [2026] WASC 204 HOWARD J Page 19 29.1 to the extent that RWWA excluded the Applicant from entering onto, or remaining at, RWWA's premises, RWWA did so relying on its common law rights as an occupier of those premises. … [30] In the above premises, the application for judicial review is misconceived insofar as it purports to attack a decision or conduct by [the respondent] pursuant to the AML/CTF Act. There was, in truth, no such decision or conduct.37 (citations omitted) 63 The respondent submitted that the Notices were not in exercise of any power under s 92(4) of the AML/CTF Act, principally because: 1. the Notices were not expressed as being pursuant to s 92(4) of the AML/CTF Act;38 and 2. when considered, it was apparent they did not follow the form of s 92(4) of the AML/CTF Act: principally because the Notices made a 'final' decision, rather than a decision pending the receipt of information as envisaged by s 92(4).39 64 With respect, I consider that there is considerable force in the respondent's second submission referred to immediately above. 65 The Notices on their face did not apply on some pro tem or interim basis until information was supplied by the applicant. Further, the Notices purported to exclude the applicant in the future from certain venues or allowed him to attend a venue but for only a limited purpose, neither of which are expressly provided for in s 92(4). 66 Those matters suggest, from the face of the Notices alone, that the respondent was not exercising a power from s 92(4) of the AML/CTF Act. 67 The respondent submitted, rather, that the Notices were given pursuant to its private contractual rights.40 Further, to the extent that the Notices excluded the applicant from its premises, then the respondent 37 Respondent's submissions. 38 Respondent's submissions [28]. 39 ts 22, 51. 40 Respondent's submissions [28]. -- 19 of 35 -- [2026] WASC 204 HOWARD J Page 20 did so relying on its common law rights as an occupier of those premises.41 68 That last submission was, as the applicant submitted,42 necessarily limited by the respondent's evidence that it only administered five physical agencies.43 That may be compared with '296 independent agencies',44 in respect of which there was no evidence as to the contractual or other relationship between the respondent and the operators of those independent agencies.45 69 Further, the respondent submitted that the Notices - to the extent that they refused to provide the applicant with wagering services - were done pursuant to reg 32(1) of the Racing and Wagering Western Australian Regulations 2003 (WA) in exercise of its general power to contract as a statutory corporation.46 70 The parties devoted some effort in their written submissions to the question of how the Notices should be construed or read. In particular, as to what they revealed as to the respondent's intentions and whether it considered it was exercising powers under s 92 of the AML/CTF Act. 71 I have not sought to resolve that issue because I do not think it affects the respondent's threshold objection. 72 Further, as I understood it, there was an acceptance on the part of the respondent that what it may have thought it was doing by issuing the Notices was not, and could not, be determinative of its threshold objection.47 73 In any event, there was no evidence before the Court (outside of the terms of the Notices themselves) as to the respondent's thought processes in issuing the Notices, nor as to what its intentions were in so 41 Respondent's submissions [29.1]. 42 ts 34. See also the applicant's supplementary submissions [3]. 43 Second Blaxill affidavit [7(f)]. 44 Second Blaxill affidavit [7(f)]. 45 ts 49 - 50. See also applicant's supplementary submissions [3]. 46 Respondent's reply [16]; also ts 16. At [29.2] and [29.3] of the respondent's submissions, it cited rules 62W and 62X(1) of the Rules of Wagering 2005 made pursuant to the Racing and Wagering Western Australia Act 2003 (WA). By the respondent's reply, it accepted that those rules did not apply: see footnote 16. I have not considered those Rules further. 47 ts 3 - 4. Whether the respondent had purported to exercise a power under s 92(4) of the AML/CTF Act was accepted by counsel for the respondent to have not been relevant to the question of law: ts 13, 21, 37. -- 20 of 35 -- [2026] WASC 204 HOWARD J Page 21 doing (assuming that the respondent's subjective intentions were relevant).48 74 Most favourably to the applicant, I have approached the preliminary or threshold objection on the assumption that the respondent was exercising 'rights' to cease to, and refuse to, trade with the applicant pursuant to, or sourced from, s 92(4) of the AML/CTF Act. That is, notwithstanding my observation at [64] - [65] above as to the considerable force in the respondent's submissions to the contrary. 75 That is, I have not accepted, for the purposes of this application, the submission made by the respondent that it was solely exercising 'other' rights at common law, namely as an occupier or as a contracting party, unaffected by the provisions of s 92(4) of the AML/CTF Act.49 76 As a result of this approach, I have not sought to resolve the question of whether the respondent could pray in aid other general law rights which may have been exercised to the same effect or end result as that provided for in s 92(4) of the AML/CTF Act.50 77 Obviously enough, I am not deciding these questions finally against the respondent. 78 Having made that assumption (in [74] above), I turn now to the question of whether the decision evidenced by the Notices and made, assumedly, under the right or rights given to the respondent by s 92(4) of the AML/CTF Act was a decision reviewable by this Court on an application for judicial review.51 79 The applicant points to: 1. the procedure to be followed in s 92(2) before the power in s 92(4) of the AML/CTF Act could be exercised; 2. the legal effect on a person of making such a decision or giving such a notice; and 48 Notwithstanding that lack of evidence, the respondent submitted that whether there was a decision as alleged by the applicant was a question of fact to be determined on the evidence: Respondent's reply [6]; ts 4 - both its oral and written submissions relied upon the majority decision in Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79; (2018) 262 FCR 41 per Moshinsky & Derrington JJ [152] - [153]; cf the applicant's submission: ts 45 - 46. 49 See, eg, ts 51. See also applicant's supplementary submissions [15]. 50 ts 41. 51 As will be seen below from my consideration of Patole v Child & Adolescent Health Service [2024] WASCA 126 the framing of the question this way is by way of shorthand expression only and is not intended to ignore the approach taken by Quinlan CJ and Mitchell JA therein [12]. -- 21 of 35 -- [2026] WASC 204 HOWARD J Page 22 3. that s 92(5) referred to s 92(4) of the AML/CTF Act as a power, as indicators that what was exercised was a statutory power which was capable of being judicially reviewed.52 80 The respondent submitted that as a 'reporting entity' under the AML/CTF Act it did not exercise any regulatory function of government and did not exercise a public power.53 It relied, in this respect, on its Program not being a legislative instrument by reason of s 83(2) of the AML/CTF Act.54 81 The respondent submitted that when one has regard to s 92(4) of the AML/CTF Act, its terms were not of the type that conferred a public power, because the provision did not say how any of the things in s 92(4) might be done, whether by a notice or otherwise. That is, the provision lacked the features, it was submitted, of an administrative power limited by a statute.55 Consideration 82 I start with the general observations made in Patole v Child & Adolescent Health Service [2024] WASCA 126 (Patole), where Quinlan CJ and Mitchell JA stated: [6] Judicial review for jurisdictional error is fundamentally concerned with enforcing the legal limits on the exercise of administrative power by public bodies. In the case of statutory powers, jurisdictional error will occur where the public body does something which was not authorised by the empowering legislation or fails to do something required by the relevant legislation. The inquiry as to whether there has been jurisdictional error in the exercise of a statutory decision-making authority looks to whether the decision has been made in breach of the express and implied conditions of conferral of that authority so as to lack the legal effect which the statute attributes to the exercise of that authority. (citations omitted) 83 Further, Quinlan CJ and Mitchell JA stated: [12] … Where there is an allegation raised by a person, who has standing to claim relief, that the State or a public authority has acted in excess of power, this court can adjudicate on whether the legal limits on the relevant power have been exceeded. If it 52 ts 49. See also applicant's supplementary submissions [2]. 53 ts 13. 54 ts 27. 55 ts 21. -- 22 of 35 -- [2026] WASC 204 HOWARD J Page 23 determines that the legal limits of executive power have been transgressed, the court has jurisdiction to grant relief by way of a 'prerogative' writ (mandamus, prohibition, certiorari or habeas corpus), a mandatory or prohibitory injunction or a declaration. The question in such cases is not whether the decision is subject to judicial review, but the identification of the legal limits of the relevant power and a determination of whether those limits have been transgressed. [13] The issue in this case, both at first instance and on appeal, was largely framed by the parties as being whether the decision to engage the second respondent was 'not amenable to judicial review because it was not made in the exercise of a public power'. In our respectful view, that is not a helpful way of framing the issue. The impugned decision is the decision of a public officer acting as delegate of a public authority (the board of the first respondent) to enter into an employment contract with an individual (the second respondent) on behalf of the State. That decision is amenable to judicial review in the sense that this court has jurisdiction to determine whether the legal limits on the executive government's power to enter into such a contract have been transgressed. (citations omitted) 84 Those observations of the plurality are, with respect, further borne out by the restatement of principles by the plurality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [2], [5] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). 85 Immediately here questions arise as to whether the respondent is exercising any administrative or public power, and, given that it is not the State (expressly by reference to the RW Act), whether it is a public body or public authority in any relevant sense. 86 As Vaughan JA said in Patole, relevantly distinguishing between a 'public power' and a 'private power' is not always simple.56 87 In light of their Honours' observations as to the framing of the appropriate question as quoted from [13] in [83] above,57 in this case I understand the parties (and accordingly these reasons) to be asking whether the respondent's decisions behind the Notices were: 1. of a character in respect of which this Court would grant a prerogative writ or other 'administrative' remedy; and 56 Patole [121] (Vaughan JA). 57 That is, whether the Act or decision was authorised or conditioned by the empowering legislation. -- 23 of 35 -- [2026] WASC 204 HOWARD J Page 24 2. as part of that, conditioned by legal limits which had been transgressed. 88 In Patole, the impugned decision was of a public officer acting as delegate of a public authority to enter into an employment contract on behalf of the State after a selection process had occurred.58 The disappointed applicant for the position sought judicial review of the decision on the basis that it was attended with a reasonable apprehension of bias.59 89 It was held that the relevant contract of employment was entered into by the exercise of a non-statutory executive power of the State.60 That non-statutory executive power of the State allowed the entering into contracts of employment with persons to perform ordinary governmental functions, including the provision of health services.61 90 It was held that the outcome of the case was not dependent on whether the State's power to enter into the contract was statutory or non-statutory,62 as in either case there was not a statutory (or other) condition on the valid exercise of the power which compelled compliance with the rules of procedural fairness.63 91 By a process of statutory construction, the Court concluded that the relevant legislation did not intend to condition the entry into the relevant employment contract with an obligation to accord procedural fairness;64 rather the relevant legislation provided for other consequences of such a breach. 92 As quoted in [83] above, the plurality said that the decision in that case was 'amenable to judicial review' in the sense that the Court could determine whether the legal limits on the power to enter into the impugned contract had been transgressed.65 Because of this observation, care needs to be taken in framing the question in terms of whether the particular decision was 'amenable to judicial review' (and whether the Court has jurisdiction to hear the Review Application). This has informed my determination of the objection by reference to the principles applied to a summary judgment application. 58 Patole [13] (Quinlan CJ & Mitchell JA); [67] (Vaughan JA). 59 Patole [2] (Quinlan CJ & Mitchell JA); [64] (Vaughan JA). 60 Patole [16] and [19], [23] (Quinlan CJ & Mitchell JA); [76] - [77] and [124] (Vaughan JA). 61 Patole [16] (Quinlan CJ & Mitchell JA); [76] and [119] (Vaughan JA). 62 Patole [25] (Quinlan CJ & Mitchell JA); [113] and [162] (Vaughan JA). 63 Patole [25] (Quinlan CJ & Mitchell JA); see also [122] (Vaughan JA). 64 Patole [39] - [41] (Quinlan CJ & Mitchell JA); [156] - [161] (Vaughan JA). 65 Patole [13] (Quinlan CJ and Mitchell JA). -- 24 of 35 -- [2026] WASC 204 HOWARD J Page 25 93 While the respondent was created by the RW Act, it is specifically not an agent of the Crown, nor a public sector body, as noted in [18] above. 94 Part 5 of the RW Act provides for the respondent to have the function of carrying on the business of gambling or wagering.66 But, where it does, it does so, in my view, as a contracting party with customers or betters pursuant to contracts (the terms of which may be effected by statutory provisions); not as the State or a public authority. 95 The applicant has no common law or statutory right to gamble per se, and certainly no right to be provided with gambling and wagering services by the respondent. 96 While I may accept for present purposes the applicant's evidence that the Notices have had a considerable impact upon him, they have not infringed any general law or statutory right or entitlement. That is most obviously the case in respect of the Notices' prospective effect. 97 I accept that is not determinative of whether a court will grant an applicant relief by way of, say, a declaration: see, for example, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 and Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319). Nonetheless, there being no infringement of any general or statutory right is of some assistance in considering the character of the decision made and evidenced by the Notices. 98 Nor, most significantly in my view, was there anything in the RW Act that conditioned, relevantly, the making of its decision reflected in the Notices. 99 The fact that a person or entity exercises a power from a statute does not (necessarily) mean that the exercise of that power relevantly answers the description of an administrative power amenable to review for jurisdictional error. 100 There are many statutes which confer or give a power to do something in a contractual or other relationship. 101 For example, s 17 of the Trustees Act 1962 (WA) provides a power of investment of trust funds by a trustee which they may not otherwise have. Further examples may be seen in provisions such as 66 Section 50 of the RW Act. -- 25 of 35 -- [2026] WASC 204 HOWARD J Page 26 s 11(2) of the Property Law Act 1969 (WA) and s 48 of the Insurance Contracts Act 1984 (Cth), which may be said to give certain individuals rights which they may not have had at general law. 102 The exercise of such powers provided by statute, in those cases, would not, obviously enough, be reviewable for jurisdictional error. While it may be that the 'power' in the statute only operates in certain circumstances that is, in my assessment, different from such a power being 'impliedly constrained or conditioned by administrative law principles'.67 103 As Doyle J (as he then was) stated in King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 at [93]: … the fact that a power takes a statutory form, whilst a relevant consideration, does not necessarily mean that it is impliedly constrained by the administrative law principles that commonly condition the exercise of statutory powers. It is relevant to have regard to the nature of the power, and not simply its statutory form, when considering whether any jurisdictional prerequisites to its exercise should be implied. For example, where the power is, or is closely analogous to, a power possessed in common with natural persons (such as the power to contract, to undertake non-coercive investigations or to hold and transfer property and information), this may be an indicator that it is not subject to implied statutory constraints.68 (citations omitted) 104 Here, I consider that the respondent has decided (as reflected in the Notices) to effectively terminate, and then not further enter, a contractual relationship with the applicant. Even if it has done so under a power in s 92 of the AML/CTF Act, that was grafted onto its contract or supplemented its 'powers' at general law. The decision to do so is not, in my view, conditioned in the way suggested by the applicant such that the Court would review the decision for jurisdictional error. 105 Whether or not, as a matter of contract, the respondent validly or lawfully terminated its contract with the applicant was not raised by the Review Application and is not presently before the Court. 106 Further, the prospective operation of the Notices essentially reflects a decision made not to contract with the applicant further which, even if it had been made by the State, is not ordinarily a 67 Patole [122] (Vaughan JA). 68 This passage was approved of by the Court of Appeal in Patole [27] (Quinlan CJ & Mitchell JA); footnote 71 to [126] (Vaughan JA). -- 26 of 35 -- [2026] WASC 204 HOWARD J Page 27 decision amenable to review for jurisdictional error in the relevant sense.69 107 I was referred to a number of decisions concerning judicial review under the AD(JR) Act. In considering those, I have been mindful of what Vaughan JA said in Patole [137] as to the limited assistance he found in such cases because of the different definition in the differing statutory regime. 108 Having said that, albeit from a different statutory context, I have found some assistance from the decision in NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 (NEAT). There, AWBI, a company incorporated under the then Corporations Law (Vic), was given a power under a Commonwealth statute70 to approve or not approve applications made (by others) to the Wheat Export Authority (Authority) to export grain. 109 An applicant was repeatedly refused an export licence by the Authority because AWBI refused to give consent. The applicant sought declarations, relevantly, that AWBI's refusal to approve were decisions of an administrative character able to be reviewed.71 110 In the Full Court of the Federal Court Heerey J concluded that AWBI's decisions were 'outside the province of administrative law',72 but neither Mansfield J nor Gyles J considered it necessary to decide whether AWBI's decisions were beyond the reach of administrative law.73 111 The plurality (McHugh, Hayne and Callinan JJ) examined whether AWBI's decisions were of an administrative character made under an enactment.74 In doing so, they proceeded on the following basis: 1. AWBI did not owe its existence to the Wheat Marketing Act;75 2. to a very great extent, AWBI's powers were regulated by the applicable company's legislation and judge-made law affecting directors' duties;76 69 Patole [125] - [126] (Vaughan JA). 70 Wheat Marketing Act 1989 (Cth). 71 NEAT [35] (McHugh, Hayne and Callinan JJ). 72 NEAT [37] (McHugh, Hayne and Callinan JJ). 73 NEAT [38] (McHugh, Hayne and Callinan JJ). 74 NEAT [46] (McHugh, Hayne and Callinan JJ). 75 NEAT [47] and [57] (McHugh, Hayne and Callinan JJ). 76 NEAT [47] and [51] (McHugh, Hayne and Callinan JJ). -- 27 of 35 -- [2026] WASC 204 HOWARD J Page 28 3. AWBI as a private corporation was given a role in a scheme of public regulation;77 4. AWBI needed no statutory power to give it capacity to provide an approval or dis-approval in writing as that derived from its incorporation and the applicable company's legislation;78 5. the Wheat Marketing Act did not expressly or impliedly require or authorise AWBI to decide whether to approve the application and it was under no statutory or other obligation to consider that question;79 6. the provisions of the Wheat Marketing Act were not to be read as imposing on AWBI a duty to consider 'public' considerations when deciding whether or not to grant the approval;80 and 7. the determination to approve or disapprove was not a decision 'under an enactment' for the purposes of the AD(JR) Act.81 112 By reference to NEAT, Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 said: … the statutory condition precedent was a decision made dehors the federal statute, although, once made, it had a critical effect for the operation of the federal statute.82 (emphasis in the original) 113 Here, the respondent's giving of the Notices did not derive from the AML/CTF Act in the same sense that AWBI's approval or dis-approval did not derive from the Wheat Marketing Act. 114 Here, the respondent's giving of the Notices was an incident of its right to contract (derived from the RW Act and its contractual rights at general law and via applicable statutes). That is, notwithstanding that the power, on the assumptions I have made, was grafted onto its contract from and by the AML/CTF Act. 77 NEAT [49] (McHugh, Hayne and Callinan JJ). 78 NEAT [54] (McHugh, Hayne and Callinan JJ). 79 NEAT [58] (McHugh, Hayne and Callinan JJ). 80 NEAT [59] (McHugh, Hayne and Callinan JJ). 81 NEAT [55] (McHugh, Hayne and Callinan JJ). 82 Griffith University v Tang [87] (Gummow, Callinan and Heydon JJ). By reference to NEAT, the 'federal statute' referred to was the Wheat Marketing Act, and the 'statutory condition precedent' was the need for AWBI's consent under the Wheat Marketing Act. -- 28 of 35 -- [2026] WASC 204 HOWARD J Page 29 115 While the power given to AWBI did not become part of any contractual terms, nonetheless I consider there is something of an analogy with the power given by s 92(4) of the AML/CTF Act. 116 It is also the case here, like in NEAT,83 that the AML/CTF Act did not expressly or impliedly require or authorise the respondent to decide whether to take any of the steps contained in s 92(4) of the AML/CTF Act. 117 In this case, and analogously in NEAT, what the respondent (and AWBI) did was relevantly open to it as a party separately from the AML/CTF Act (or the Wheat Marketing Act) - even if the power came from that other statute. 118 For the above reasons, I consider the making of the decision and issuing of the Notices is not reviewable by this Court for jurisdictional error. I do not consider that the applicant could be ultimately successful. I therefore would uphold the respondent's preliminary objection. The conditional appearance 119 On the basis of its application being brought on a conditional appearance, the respondent had made submissions as to the 'evidential standard' that it had to satisfy.84 120 As properly accepted by the respondent's counsel,85 some of the difficulties it had identified fell away once it was appreciated that its application is not to be properly brought on a conditional appearance. 121 To explain why I consider that the filing of the conditional appearance (and then moving on it) was inapposite, I start by re-stating some principles. 122 The word 'jurisdiction', at the least: … may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject-matter of those actions entertained by 83 NEAT [58] (McHugh, Hayne & Callinan JJ). 84 See footnote 12 to the respondent's submissions; and see also [4] and [5] of the respondent's reply. 85 ts 5 - 6. -- 29 of 35 -- [2026] WASC 204 HOWARD J Page 30 a particular court, or, finally (iii) to locate a particular territorial or "law area" or "law district".86 (citations omitted) 123 From here, I refer: 1. to the first sense used in the quotation above as 'personal jurisdiction'; and 2. to the second sense used in the quotation above as 'subject-matter jurisdiction'.87 124 'Personal jurisdiction' has been described as: [34] … the amenability of a person to the service of process as a precondition to the making of a binding adjudication in a legal proceeding to which that person is a party. The amenability of a person to the service of process is a standard, albeit not invariable, procedural precondition to the exercise by a court of authority to adjudicate on a subject matter within federal jurisdiction or State jurisdiction.88 (citations omitted) 125 The respondent, in filing its conditional appearance, did not seek to challenge the proper service of the Review Application on it89 and so did not seek to challenge this Court's 'personal' jurisdiction over it. 126 Rather, by its conditional appearance the respondent sought to challenge this Court's 'subject-matter' jurisdiction over the Review Application. As noted, I have approached this as an application for summary determination, which of course, the Court has jurisdiction to hear and determine. In truth, the respondent was not really challenging the Court's subject-matter jurisdiction. It was really saying that the Review Application would inevitably fail. 127 In my view, the orthodox position is that a conditional appearance is available to a putative defendant who seeks to dispute the Court's personal jurisdiction over them, and is not to be used to agitate the question of the Court's subject-matter jurisdiction.90 86 Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 [79] (Gaudron, Gummow & Hayne JJ); as adopted in Régie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 [7] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); see also Zurich Insurance Co Limited v Koper [2023] HCA 25; (2023) 277 CLR 164 [34] (Kiefel CJ, Gageler, Gleeson & Jagot JJ). 87 Obeid v R [2015] NSWCCA 309; (2015) 91 NSWLR 226 [10] (Bathurst CJ, Beazley P & Leeming JA). 88 Zurich Insurance Co Ltd v Koper [34] (Kiefel CJ, Gageler, Gleeson & Jagot JJ). 89 ts 2, 5. 90 The learned authors of the commentary in Civil Procedure Western Australia at [12.6.1] and following uses 'jurisdiction' without obviously differentiating between personal and subject-matter jurisdiction. -- 30 of 35 -- [2026] WASC 204 HOWARD J Page 31 128 The language of O 12 r 6(1) of the Rules and the effect of a conditional appearance becoming unconditional both support, in my view, this conclusion. 129 The wording of the sub-rule allows the filing of a conditional appearance where the putative defendant wishes, amongst other things, to deny the jurisdiction of the Court 'on the ground of any informality or irregularity which renders the originating process or the service thereof invalid…'.91 130 Order 12 r 6(2) of the Rules has the effect that if an application is not made following a conditional appearance, or if the application is brought and dismissed, the conditional appearance becomes and operates as an unconditional appearance. 131 That reflects the position that a defendant may waive any irregularity in service and so, in effect, subject themselves to the personal jurisdiction of the Court. However, parties cannot confer subject-matter on the Court which it does not already have. That is, if a conditional appearance was appropriately able to challenge the Court's subject-matter jurisdiction, when it became unconditional, the question of the Court's subject-matter jurisdiction would still be able to be agitated. 132 When a conditional appearance may be entered was considered by the 1979 edition of the Supreme Court Practice (White Book) when the English Rules92 were still closely analogous to O 12 r 6 and O 12 r 7 of the Rules. There it is said: Its effect is to enable a defendant to prevent a judgment in default being entered against him, while at the same time remaining entitled to object to any irregularity in the issue or service of the writ or to the jurisdiction of the Court. The term "conditional appearance" means an appearance in qualified terms, reserving to the appearing defendant the right to apply to the Court to set aside the writ, or service thereof, for an alleged informality or irregularity which renders either the writ or service invalid or for a lack of jurisdiction.93 91 O 12 r 6(1) of the Rules. 92 Rules of the Supreme Court 1965 (UK). 93 White Book 1979, [12/7/1]. -- 31 of 35 -- [2026] WASC 204 HOWARD J Page 32 133 Where a putative defendant has been served overseas pursuant to a grant of leave,94 the question of the Court's subject-matter jurisdiction may have a role to play in that putative defendant's application to set aside the service. The putative defendant may submit that a lack of subject-matter jurisdiction (or doubts about it) should have had the effect that the exercise of the discretion to grant leave to serve out had miscarried. That is not this case, obviously enough. 134 In deference to the respondent's arguments advanced, I will consider the two cases particularly relied on by the respondent. 135 Firstly, the respondent cited Desfosses v Martinson [2018] WASC 114 (Desfosses) to support its challenge to the Court's subject-matter jurisdiction via its conditional appearance. 136 In Desfosses, the plaintiff had commenced a defamation action in this Court against his sister who was a resident of the United States of America. She was served in the US and filed a conditional appearance in which she denied the jurisdiction of the Court. 137 It appears that the putative defendant was unrepresented and it appears, although it is not entirely clear, that the primary basis of her 'challenge' to the Court's subject-matter jurisdiction was that this Court was a clearly inappropriate forum.95 138 It may be noted in passing that an application made on forum non-conveniens grounds is that the court should not exercise jurisdiction because it is a clearly inappropriate forum. The application pre-supposes that the court has both personal and subject-matter jurisdiction, but that it should refrain from exercising it. 139 Le Miere J in Desfosses, on the papers, said it was 'arguable' that on the defendant's application the Court could do one or some of the following: 1. set aside the writ of summons; 2. set aside service of the writ of summons on the defendant; 94 I note that the Rules were significantly amended as and from 9 April 2024 on the necessity of prior leave being granted 95 See Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 at 564 (Mason CJ, Deane, Dawson & Gaudron JJ). -- 32 of 35 -- [2026] WASC 204 HOWARD J Page 33 3. discharge the order of the Master of 10 October 2017 which granted leave to serve the writ on the defendant outside Australia; 4. permanently stay the action; or 5. dismiss the defendant's applications as a result of which the defendant's appearance would become unconditional.96 140 His Honour referred to the Court having jurisdiction in a civil action either because the defendant had been served within the Court's territorial jurisdiction or because the applicable 'long arm provisions' of the Rules had been invoked: see [22]. 141 Plainly, Le Miere J was considering the Court's 'personal' jurisdiction over a defendant being established by proper service and was not considering 'jurisdiction' in the sense of subject-matter jurisdiction. The case does not, accordingly, assist the respondent in my view. 142 His Honour held that this Court was not a clearly inappropriate forum at [28] and then stated: [29] The defendant has foreshadowed a number of affirmative defences. This is not the time for the court to determine the merits of the plaintiff's claim. The plaintiff has not filed a statement of claim. At this time the court is only concerned whether the court has jurisdiction to hear the case, whether it should dismiss or stay the case on the ground that it is a clearly inappropriate forum or, arguably, that the court should set aside service of the writ on the grounds that the claim has insufficient prospects of success.97 143 As to the last of those, at [31] his Honour cited the decision of Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [55] and [60] (Gaudron, McHugh, Gummow and Hayne JJ) to the effect that service may be set aside if 'the claim has insufficient prospects of success to warrant an overseas defendant being put to the time, expense and trouble of the litigation'.98 144 Le Miere J considered it was not appropriate to analyse the merits of the case, save to determine whether there was such a sufficiently high degree of certainty that the defendant would ultimately be 96 Desfosses [15]. 97 Desfosses [29]. 98 Desfosses [31]. -- 33 of 35 -- [2026] WASC 204 HOWARD J Page 34 successful to warrant the dismissal of the proceedings at that early stage. 145 Those observations were made in the context where the Court (under the then Rules) had given the plaintiff leave to serve out of the (territorial) jurisdiction of the Court. That may be contrasted with this case, where respondent has been served 'regularly' within the Court's (territorial) jurisdiction. 146 The respondent also cited Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [23]. There, McLure JA (as she then was, and with whom Steytler P agreed) said: [23] … The term jurisdiction in O 12 r 6 is used in the sense of "authority to decide". A court's jurisdiction, in the sense of authority to decide, derives from the fact of service of the originating process: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 521 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Laurie v Carroll (1958) 98 CLR 310 at 323, 324. … In the absence of voluntary submission to jurisdiction or waiver, a court has no jurisdiction over a defendant unless and until the originating process is served.99 (emphasis in the original) 147 It is clear that her Honour was dealing with the Court's 'personal' jurisdiction over a defendant established by valid service. The proper service of a writ or an originating process, in and of itself, however says nothing about the Court's subject-matter jurisdiction. As noted, it is trite to say that even if a defendant or respondent unconditionally accepts that service on them was proper and unconditionally appears, that does not confer on the Court any subject-matter jurisdiction which the Court otherwise does not have. 148 In short, a conditional appearance, in my view, is not to be filed and relied upon to challenge this Court's subject-matter jurisdiction. It is only appropriate to file a conditional appearance and then move on it when the defendant seeks to challenge this Court's personal jurisdiction over them. 149 In those circumstances, if I had reached a different conclusion on the respondent's preliminary or threshold objection, I would have dismissed the Respondent's Application so far as it invoked O 12 r 6(2) of the Rules, and the conditional appearance would then have become and operated as an unconditional appearance. 99 Monteleone v The Owners of the Old Soap Factory [23]. -- 34 of 35 -- [2026] WASC 204 HOWARD J Page 35 150 I will hear the parties, as needs be, on the question of the final form of the orders to be made and on the question of costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IF Associate to the Hon Justice Howard 29 MAY 2026 -- 35 of 35 --