FARRANT -v- WESTPAC BANKING CORPORATION [No 2] [2025] WASCA 53
Catchwords:Appeal – Practice and procedure – Application for stay pending determination of proceedings in High Court of Australia – Special leave to appeal refused by High Court of Australia – Application for stay dismissed [2025] WASCA 53Page 1JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIATITLE OF COURT : THE COURT OF APPEAL (WA)CITATION : FARRANT -v- WESTPAC BANKING CORPORATION [No 2] [2025] WASCA 53CORAM : VAUGHAN JAHEARD : 11 APRIL 2025DELIVERED : 11 APRIL 2025PUBLISHED : 11 APRIL 2025FILE NO/S : CACV 50 of 2024BETWEEN : MEHRZAD FARRANTAppellantANDWESTPAC BANKING CORPORATIONRespondentCatchwords:Appeal – Practice and procedure – Application for stay pending determination of proceedings in High Court of Australia – Special leave to appeal refused by High Court of Australia – Application for stay dismissedLegislation:Nil[2025] WASCA 53Page 2Result:Application for stay dismissedCategory: BRepresentation:Counsel:Appellant:No appearanceRespondent:C M GuySolicitors:Appellant:In personRespondent:TG Legal & TechnologyCase(s) referred to in decision(s):Farrant v Westpac Banking Corporation [2024] WASCA 157Farrant v Westpac Banking Corporation [2025] HCADisp 59Westpac Banking Corporation v Farrant [2024] WASC 300Westpac Banking Corporation v Farrant [2024] WASC 300 (S)[2025] WASCA 53VAUGHAN JAPage 3VAUGHAN JA:(These reasons were delivered orally at the conclusion of the hearingand have been edited to correct matters of grammar and infelicity ofexpression.)1 The court sits to hear the appellant’s application in an appeal dated7 January 2025 to stay the enforcement of orders made in the GeneralDivision of the Supreme Court of Western Australia for the appellant todeliver up vacant possession of the property known as Unit 1, 8 EdnahStreet, Como, Western Australia.2 The appellant says that the property is and has been her home forthe past 26 years.3 The appellant has not appeared at today’s hearing. The appellant’snon-attendance is foreshadowed in an email received yesterday by theCourt of Appeal office at 1.04 pm. That email reads:4 The appellant’s email does not seek an adjournment of today’shearing. To the contrary, by referring to her affidavit and submissionsas filed, the appellant evidently seeks to remind the court of thosepapers in the expectation that the hearing will proceed. If, contrary tomy reading, the email does seek an adjournment of the hearing, it is notin the interests of justice to adjourn the hearing. There is no medicalevidence to substantiate the appellant’s assertion that she is not wellenough to attend the hearing. Accordingly, the appellant has failed toestablish a good reason for an adjournment. The prejudice to the[2025] WASCA 53VAUGHAN JAPage 4respondent in adjournment, and the waste of the public resources of thecourt in adjourning the matter, outweigh any prejudice to the appellant in proceeding with the hearing of the application. Proceeding with the hearing of the application will also better achieve the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).5The papers on the application comprise the following:
THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 2] [2025] WASC 119
Catchwords:Criminal law – Objection to evidence – Admissibility of evidence – Whether evidence has probative value – Whether probative value outweighed by prejudicial effect [2025] WASC 119Page 1JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIAIN CRIMINALCITATION : THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 2] [2025] WASC 119CORAM : MCGRATH JHEARD : 12 MARCH 2025DELIVERED : 13 MARCH 2025PUBLISHED : 11 APRIL 2025FILE NO/S : INS 23 of 2024BETWEEN : THE STATE OF WESTERN AUSTRALIAProsecutionANDLAUREN VIVIAN BROWNAccusedCatchwords:Criminal law – Objection to evidence – Admissibility of evidence – Whether evidence has probative value – Whether probative value outweighed by prejudicial effectLegislation:Criminal Code (WA)[2025] WASC 119Page 2Result:Evidence admissibleCategory: BRepresentation:Counsel:Prosecution:Mr M M Cvetkoski & Ms L G HodsonAccused:Mr A E Eyers & Mr E P FitzpatrickSolicitors:Prosecution:Director of Public Prosecutions (WA)Accused:Equus ChambersCase(s) referred to in decision(s):Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303R v Swaffield [1998] HCA 1; (1998) 192 CLR 159[2025] WASC 119MCGRATH JPage 3MCGRATH J:1The defence objects to evidence proposed to be adduced by the State. The evidence sought to be adduced subject to objection is as follows:
THE STATE OF WESTERN AUSTRALIA -v- BROWN [2025] WASC 117
Catchwords:Criminal law – Murder – Admissibility of photographs of injury to deceased – Whether probative value outweighs prejudicial effect [2025] WASC 117Page 1JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIACITATION : THE STATE OF WESTERN AUSTRALIA -v- BROWN [2025] WASC 117CORAM : MCGRATH JHEARD : 6 MARCH 2025DELIVERED : 7 MARCH 2025PUBLISHED : 11 APRIL 2025FILE NO/S : INS 23 of 2024BETWEEN : THE STATE OF WESTERN AUSTRALIAProsecutionANDLAUREN VIVIAN BROWNAccusedCatchwords:Criminal law – Murder – Admissibility of photographs of injury to deceased – Whether probative value outweighs prejudicial effectLegislation:Criminal Code (WA)Result:Evidence admissible[2025] WASC 117Page 2Category: BRepresentation:Counsel:Prosecution:Mr M M Cvetkoski & Ms L G HodsonAccused:Mr A E Eyers & Mr E P FitzpatrickSolicitors:Prosecution:Director of Public Prosecutions (WA)Accused:Equus ChambersCase(s) referred to in decision(s):Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593Hillstead v The Queen [2005] WASCA 116Liyanage v The State of Western Australia [2017] WASCA 112Minhaj v The Queen [2000] WASCA 52Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303R v Swaffield [1998] HCA 1; (1998) 192 CLR 159R v Zammit (1999) 107 A Crim R 489The State of Western Australia v BLM (2009) 40 WAR 414[2025] WASC 117MCGRATH JPage 3MCGRATH J:1Ms Brown has been indicted on one count of murder contrary to s 279 of the Criminal Code (WA). Ms Brown pleaded not guilty and is proceeding at trial in respect to that count.2Ms Brown objects to the State leading evidence of photographs of the deceased in situ and during the postmortem examination.3I determined that the photographs were admissible and that I would provide reasons for that ruling in due course. These are my reasons for my determination that the photographs were admissible.The photographs objection – photographs of injuries to the deceased.4The State proposes to adduce evidence of photographs taken during the postmortem examination of the deceased. The objection is in respect to six photographs of the deceased in situ taken by police forensic officers and three photographs taken during the postmortem examination.5Counsel for the State submitted that the photographs taken during the postmortem examination had been properly considered to remove and edit images of the deceased save those which are necessary to be adduced.6In respect of the photographs of the deceased in situ, the State submits the photographs demonstrate the nature of the assault, the location of the fatal injury and the deployment of a capsicum spray which was located on the head, around the eyes, nose, chin, upper lip and ears of the deceased.7The State submits a diagram would not adequately identify the location of injury number three which is subject to objection, when viewed with photographs four and five. In particular, the State submits the orientation and location of the injury may become a relevant fact at the trial.8The State submits the concentration of capsicum spray to the head and face, and injury to the left eyebrow of the deceased is relevant to show clearly that the deceased was assaulted and affected by capsicum spray when the accused inflicted the stab wound to the chest.9The State submits, in the absence of the photographic evidence taken of the deceased in situ which shows the orange colouration of the[2025] WASC 117MCGRATH JPage 4deceased’s face, the State would only be able to lead general and clinical description of the distribution of the capsicum spray to the head and the face, by Dr Patton.10The photographs capture orange staining on the inner eyelids of the deceased and the surrounding area.11It is not controversial that evidence is not admissible unless it is relevant to an issue at trial. In order for that evidence to be relevant it is necessary that it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.112Relevant evidence may be excluded if its prejudicial effect exceeds its probative value.2 Evidence is prejudicial when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.313There are a number of cases which have considered the exercise of the discretion to exclude photographs that graphically depict injuries of the body of a deceased person.4 Though, each case depends upon the relevant circumstances of that case.14In R v Zammit5 Wood CJ at [156] observed:The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value … should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all.15I consider that the photographs of the deceased’s face are relevant in that the photographs are primary evidence of the extent of orange colouration to the face of the deceased which tend to support the State’s contention concerning the incident being that the accused used the capsicum spray to render the deceased defenceless prior to inflicting the fatal injury.1 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303.2 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 191 – 192.3 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51].4 Liyanage v The State of Western Australia [2017] WASCA 112; Hillstead v The Queen [2005] WASCA 116; Minhaj v The Queen [2000] WASCA 52; The State of Western Australia v BLM (2009) 40 WAR 414 [71]; R v Zammit (1999) 107 A Crim R 489.5 R v Zammit [156].[2025] WASC 117MCGRATH JPage 516The photographs of the deceased’s face are confronting. I accept that the photographs have probative value. The photographs will assist the jury in understanding the evidence of the medical practitioner. A diagram or description would be inferior to the photographs in the determination of the questions that they would be asked to consider.17I do not consider that the probative value is outweighed by the prejudicial effect.
DRYLAND and TANGENT NOMINEES PTY LTD [2025] WASAT 31
Catchwords:Building Services (Complaint Resolution and Administration) Act 2011 (WA) – Home Building Contracts Act 1991 (WA) – Home Building Works Contract complaint – Authority of agent to bind principal – Proposed works not commenced – Breach of contract – Termination of contract – Damages for breach of contract – Doctrine of mitigation of loss – Quantum of compensation [2025] WASAT 31Page 1JURISDICTION : STATE ADMINISTRATIVE TRIBUNALACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)CITATION : DRYLAND and TANGENT NOMINEES PTY LTD [2025] WASAT 31MEMBER : MR E CADE, MEMBERMR R AFFLECK, SENIOR SESSIONAL MEMBERHEARD : 6, 7 AND 8 AUGUST AND 27 NOVEMBER 2024DELIVERED : 11 APRIL 2025FILE NO/S : CC 974 of 2023BETWEEN : GAVIN DRYLANDFirst ApplicantKASEY DRYLANDSecond ApplicantANDTANGENT NOMINEES PTY LTDRespondentCatchwords:Building Services (Complaint Resolution and Administration) Act 2011 (WA) – Home Building Contracts Act 1991 (WA) – Home Building Works Contract complaint – Authority of agent to bind principal – Proposed works not commenced – Breach of contract – Termination of contract – Damages for breach of contract – Doctrine of mitigation of loss – Quantum of compensation[2025] WASAT 31Page 2Legislation:Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 6(3)(b), s 11(1)(d), s 41(2)(d)(i), s 43, s 43(1), s 43(1)(a)Home Building Contracts Act 1991 (WA), s 7, s 7(1), s 17(a)(i), s 27(1)State Administrative Tribunal Act 2004 (WA)State Administrative Tribunal Rules 2004 (WA), r 39B, r 39B(5)Result:Application successfulCategory: BRepresentation:Counsel:First Applicant:Mr S Mintz & Mr W VogtSecond Applicant:Mr S Mintz & Mr W VogtRespondent:Mr C Taylor-BurchSolicitors:First Applicant:Vogt LegalSecond Applicant:Vogt LegalRespondent:Morgan Alteruthemeyer Legal GroupCase(s) referred to in decision(s):Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38Clark v Macourt [2013] HCA 56Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15 Electricity Generation Corporation t/a Verve Energy v Woodside Energy Ltd [2014] HCA 7Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92Luxer Holding Pty Ltd v Glentham Pty Ltd (2007) 35 WAR 254Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451[2025] WASAT 31Page 3REASONS FOR DECISION OF THE TRIBUNAL:Introduction1On 20 July 2020 the first and second applicants (first and second owners, together the owners) bought a lot known as 49B Halls Head Parade, Halls Head, in the City of Mandurah (the site).12Significantly in this proceeding:(a) the site is a vacant ‘battle-axe’ site surrounded by developed lots;(b) the effective site area is situated on a rise elevated above both the nearest access road and surrounding lots;(c) the access leg is approximately 33.5 metres of rising length which is surfaced in concrete;(d) the southern side of the access leg of the site is contiguous with the southern side of the effective site area;(e) the southern side of the access leg is bordered by a lot known as 50A Halls Head Parade, and the southern side of the effective site area is bordered by a lot known as 50B Halls Head Parade; 2(f) a boundary wall built of brick runs along the full length of the southern boundary of the site. This wall, which is built both above and below ground level, separates the southern boundary of the site from the northern boundaries of 50A and 50B Halls Head Parade; and(g) on or shortly after 12 April 2022 Structerre Consulting gave to the owners a report which stated that the southern boundary wall is ‘not considered to be structurally adequate … due to the lack of backing mass behind the wall to support the existing soil loads and vehicle surcharge loads from the proposed driveway …’.33On 24 November 2021 the parties entered into a home building contract in the form of a Housing Industry Association (HIA) standard lump sum home building contract (the building contract) pursuant to1 Hearing Book (HB), page 16.2 HB, page 32.3 HB, page 152.[2025] WASAT 31Page 4which therespondent (the builder) was to build a single storey dwelling on the site (the proposed works) for the price of $425,041.00. 4 54It is not in dispute in this proceeding that the builder did not commence the proposed works and that the contract came to an end on or about 7 March 2023.5For the reasons we will now give, we find that the builder is in breach of the building contract by not commencing the proposed works, that the owners did suffer a loss due to the breach and we will order the builder is to pay $179,132.00 as compensation to the owners.The owners’ position6The owners contend:(a) the building contract is amended by four documents, being a contract variation, dated 23 November 2021, a contract variation dated 8 December 2021, a contract variation dated 6 October 2022 and an amendment to the addenda dated 6 October 2022;(b) the builder, by not commencing the proposed works, is in breach of the building contract;(c) on 7 March 2023, the owners in reliance of the breach by the builder lawfully terminated the building contract; and(d) the owners have suffered loss due to the builder’s breach of the building contract and they ought to be compensated for this by payment of ‘loss of bargain’ damages in the amount of $225,931.92 and ‘delay’ damages in the amount of their rental payments from the expected completion date of the proposed works to the date of this decision at the rate of $340.00 per week.7The owners seek orders from the Tribunal, under s 43(1)(a) and s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), that the builder pay compensation to the owners.The builder’s position8The builder contends:4 HB, pages 35 – 67.5 HB, pages 35 – 79.[2025] WASAT 31Page 5(a) the owners were required under the building contract to provide access to the effective site area by way of a structurally sound driveway on the access leg, as well as to ensure that the effective site area would support the proposed works;(b) the southern boundary wall of the site was at all material times not structurally sound with the consequence that the driveway
PHARMACY BOARD OF AUSTRALIA and TEH [2025] WASAT 30
Catchwords:Vocational regulation – Pharmacist – Disciplinary proceedings – Professional misconduct over a seven-year period – Pharmacist made false declarations about recency of practice when he renewed his registration – Whether Pharmacist made false declaration about having done a CPD plan because his plan was not written – No requirement for CPD plan to be in writing – Factors relevant to penalty – Disciplinary sanction imposed [2025] WASAT 30Page 1JURISDICTION : STATE ADMINISTRATIVE TRIBUNALACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)CITATION : PHARMACY BOARD OF AUSTRALIA and TEH [2025] WASAT 30MEMBER : PRESIDENT GLANCYDR M EVANS-BONNER, SENIOR MEMBERMS E PERRELLA, SESSIONAL MEMBERHEARD : 11 OCTOBER 2024DELIVERED : 11 APRIL 2025FILE NO/S : VR 69 of 2023BETWEEN : PHARMACY BOARD OF AUSTRALIAApplicantANDZHI-REN TEHRespondentCatchwords:Vocational regulation – Pharmacist – Disciplinary proceedings – Professional misconduct over a seven-year period – Pharmacist made false declarations about recency of practice when he renewed his registration – Whether Pharmacist made false declaration about having done a CPD plan because his plan was not written – No requirement for CPD plan to be in writing – Factors relevant to penalty – Disciplinary sanction imposed[2025] WASAT 30Page 2Legislation:Health Practitioner Regulation National Law (WA) Act 2010 (WA) (repealed), SchHealth Practitioner Regulation National Law Act 2009 (Qld)Health Practitioner Regulation National Law Application Act 2024 (WA), s 5(1), s 5(2), s 38, s 42, s 42(2), s 42(3)Health Practitioner Regulation National Law, s 3(2)(a), s 3A(1), s 5, s 12(1), s 35(1)(c), s 38, s 38(1)(e), s 39, s 40(1), s 41, s 109(1), s 109(1)(a)(ii), s 109(1)(a)(iii), s 193(1)(a)(i), s 196(1)(b)(ii), s 196(1)(iii), s 196(2), s 196(3), s 196(4), s 207Pharmacy Act 2010 (WA), s 4, s 46(1)(c)(i), s 46(2), s 46(3), s 53, s 54, s 54(1)(a), s 54(1)(c), s 54(2)Result:Practitioner reprimandedPractitioner’s registration as a pharmacist cancelledPractitioner disqualified from applying for registration as a pharmacist for eighteen (18) monthsCategory: BRepresentation:Counsel:Applicant:Mr EM Heenan SC & Mr T de BesRespondent:Ms R Young SC & Mr J BirchSolicitors:Applicant:Perth Legal Pty LtdRespondent:Meridian Lawyers (Perth)Case(s) referred to in decision(s):Health Ombudsman v Park [2021] QCAT 309Hegde v Pharmacy Board of Australia [2020] WASC 383Hegde v Pharmacy Board of Australia [2023] WASAT 109Hegde v Pharmacy Board of Australia [No 2] [2020] WASC 384[2025] WASAT 30Page 3Medical Board of Australia and Lal [2017] WASAT 23Medical Board of Australia and Singh [2017] WASAT 33 (S)Medical Board of Australia v Putha [2014] QCAT 159Medical Board of Australia v Win (Review and Regulation) (Amended) [2015] VCAT 1289Medical Board of Western Australia and Bham [2006] WASAT 190Nursing and Midwifery Board of Australia v Joy Jones VR 1 of 2019Nursing and Midwifery Board v Kindl (Review and Regulation) [2023] VCAT 981Pharmacy Board of Australia and Hegde [2020] WASAT 89Psychologists Registration Board of Victoria v Ferriere (2000) PRBD (Vic) 3Psychology Board of Australia and Fawcett [2023] WASAT 86Psychology Board of Australia v Elzo (Review and Regulation) [2020] VCAT 345[2025] WASAT 30Page 4REASONS FOR DECISION OF THE TRIBUNAL:Introduction1The Pharmacy Board of Australia (variously the Applicant or the Board) referred this matter to the Tribunal pursuant to s 193(1)(a)(i) of the now repealed Health Practitioner Regulation National Law (National Law) which was contained in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (2010 Act). It did so on the basis that it reasonably believed that the practitioner, Zhi-Ren Teh (Practitioner), behaved in a way that constitutes professional misconduct.2The Practitioner accepts that he has engaged in conduct which can be characterised as professional misconduct; that conduct being, in effect, lying on his applications for renewal of his registration (Renewal Applications) for the years 2011 to 2017 when he declared that he met the recency of practice requirements despite knowing, on each occasion, that he did not meet those requirements (Agreed Misconduct).3The Applicant also alleges that the Practitioner engaged in conduct which can be characterised as professional misconduct when, on his applications for registration for the registration periods ending December 2018 and December 2019, he declared that he had planned his continuing professional development (CPD) in relation to his scope of practice, as required by the Board’s CPD Standard: Pharmacy Board of Australia, Registration Standard: Continuing Professional Development dated 1 December 2015 (CPD Standard).1 The Applicant says this was a false declaration because, although the Practitioner completed the CPD which was required for each of the CPD years, he did not prepare a written CPD plan. The Practitioner accepts that he did not prepare a written CPD plan but does not accept that the CPD Standard required him to prepare a written CPD plan. The Practitioner says that as he had prepared a plan, albeit unwritten, his declaration was not false. For convenience, we will refer to this as the Disputed Misconduct.4The parties agree that whether the CPD Standard required the formation of a written CPD plan and whether the declaration provided by the Practitioner about that issue was false will not make a difference to the penalty which is to be imposed on the Practitioner. That is, even1 Exhibit 1.6, Applicant’s Documents for Hearing dated 17 September 2024 (AD), page 67.[2025] WASAT 30Page 5if we find that he did make a false declaration about meeting the CPDStandard, it will not increase the penalty to be imposed on the Practitioner beyond that which is to be imposed as a result of the Agreed Misconduct. Nevertheless, whether the Practitioner committed two further instances of professional misconduct is an issue between the parties that we must determine.5The parties both agree that the Practitioner’s Agreed Misconduct is serious but do not agree as to the penalty which should be imposed. The Applicant submits that the Practitioner should be reprimanded, that his registration must be cancelled, and that he must be disqualified from reapplying for registration for a period of time. The Applicant asserts a period of two years disqualification is appropriate having regard to the penalties imposed in other cases and considering the Practitioner’s personal circumstances. The Applicant also seeks an order that the Practitioner pay its costs.6The Practitioner submits that a penalty