BETWEEN : ALLREGAL ENTERPRISES PTY LTD (ACN 071 642 683)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appellant - Guardianship order - Rules of the Supreme Court O 70 - Whether the appellant is a 'person under a disability' - Turns on own facts

1 PULLIN JA: The Registrar has directed that these two appeals be listed for directions before me. The two appeals are CACV 70 of 2008 and CACV 101 of 2008. In CACV 101 of 2008, Carol Elizabeth Farrell (Mrs Farrell) and Allregal Enterprises Pty Ltd are appellants. The appeal notice reveals that the appeal is against orders made by Master Sanderson on 24 September 2008 wherein he extended time to the respondent, Carpaolo Nominees Pty Ltd, to apply for summary judgment.

2 The master then ordered that judgment be entered in favour of the plaintiff, Carpaolo Nominees Pty Ltd, in favour of that company in the sum of $1,027,967.72, dismissed the appellants' counterclaim and ordered that within 28 days after the service of judgment Mrs Farrell deliver up to Carpaolo Nominees Pty Ltd possession of land at 6 Muston Grove, Churchlands, and deliver up possession of all furniture, motor vehicles, goods, chattels, articles, effects, personal items and things of every description which belonged to her as at the date of judgment. No further documents have been filed since the appeal notice.

3 In CACV 70 of 2008 Mrs Farrell is the appellant and Allregal Enterprises Pty Ltd is the respondent. The appeal is against the order of the Chief Justice dated 3 July 2008. The order was made on an application by Mrs Farrell, who had sought an order to extend the operation of a caveat in relation to a property at 32 Buntine Road, Wembley Downs. The order made by the Chief Justice was to dismiss the application.

4 On 21 July 2008 the Court of Appeal registrar wrote to Mrs Farrell in terms that the Court of Appeal could not proceed with the appeal until the provisions of O 70 r 2(1) of the Rules of the Supreme Court 1971 (WA) had been considered. This is because there is a guardianship order dated 3 October 2007 concerning Mrs Farrell. This order of the State Administrative Tribunal amended and replaced an order made on 10 October 2002. The 3 October 2007 order of the State Administrative Tribunal reads:

1. The guardianship order made 10 October 2002 be revoked and a guardianship order in the following terms be substituted for it:

Ronald Charles Waugh of ... Australian Capital Territory, be appointed limited guardian of the represented person with the following functions:

(a) As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and

(b) As the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person except proceedings relating to the estate of the represented person.

5 Under s 3 of the Guardianship and Administration Act 1990 (WA) (the Act), a 'represented person' is defined to include any person in respect of whom a guardianship order is in force. A guardianship order means an order made under s 43 and includes an order so made which is 'amended, continued or replaced under any other provision' of the Act. Section 43 provides that the State Administrative Tribunal, if satisfied that a person in respect of whom the application is made is incapable of looking after his or her own health and safety; or unable to make reasonable judgments in respect of matters relating to his or her person; or in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others and is in need of a guardian, may by order declare the person to be in the need of a guardian and to either appoint a plenary guardian or a limited guardian.

6 I note in passing that under pt 6 of the Act an administrator may be appointed if the State Administrative Tribunal is satisfied that a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his or her estate and is in the need of an administrator, subject to s 4. Section 4(1) of the Act states that in dealing with the proceedings commenced under the Act the State Administrative Tribunal shall observe the principles set out in s 4(2).

7 One of those principles is that every person should be presumed to be capable of looking after his or her own health and safety, making reasonable judgments in respect of matters relating to his person, managing his or her own affairs and making reasonable judgments in respect of matters relating to estate until the contrary is proved to the satisfaction of the tribunal. That corresponds with the common law presumption. Section 4(2)(c) states that a guardianship or administration order shall not be made if the needs of a person in respect of whom an application for such an order is made could, in the opinion of the tribunal, be met by other means less restrictive of the person's freedom of decision and action. Also, under s 4(2)(e), an order appointing a limited guardian or administrator shall be in terms that, in the opinion of the tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

8 I have been informed that the limited guardianship order which was made, either the one in 2007 or the 2002 order, was made to permit the resolution of other litigation that Mrs Farrell had brought in Victoria which did not involve her estate.

9 The fact is that the State Administrative Tribunal must have been satisfied that Mrs Farrell was either incapable of looking after her own health and safety or unable to make reasonable judgments relating to her person or was in the need of care and control for her own health and safety, and that must give rise to some concern about whether she is capable of managing her affairs concerning her estate regarding these appeals.

10 Order 70 of the Rules of the Supreme Court defines a person under a disability as, inter alia, a 'represented person', and a 'represented person' is defined to mean a represented person within the meaning of the Guardianship and Administration Act 1990 (WA). It is arguable that Mrs Farrell is therefore a person under a disability because she is a person in respect of whom a guardianship order, albeit a limited guardianship order, has been made. Order 70 r 2(1) states relevantly:

[A] person under a disability may not bring, or make a claim in, any proceedings except by his next friend and may not defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on him, except by his guardian ad litem.

[A]nything which in the ordinary conduct of any proceedings is required or authorised by a provision of these Rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.

11 Finally, O 70 r 2(3) states that a next friend must act by a solicitor. The only power of exemption from these provisions appears to be in O 70 r 2(4) which authorises a judge to permit an infant to sue or defend without a next friend or a guardian ad litem on being satisfied that it is proper to do so. Thus it is arguable that even though the guardianship order is a limited guardianship order and there is no administration order in force, the prohibition in O 70 r 2(1) applies.

12 If that is so and if steps are taken in the proceedings without the appointment of a next friend, the proceedings may be irregular and cause difficulties to the parties who may wish to settle the proceedings or compromise the proceedings in some way and it can create difficulties for a solicitor acting in circumstances where there is uncertainty about whether the person requires the appointment of a next friend or guardian ad litem.

13 All of this is rather unsatisfactory because the guardianship order which exists does not authorise Mr Waugh to act as next friend in relation to proceedings concerning Mrs Farrell's estate, but O 70 perhaps assumes that he may do so. I am also informed by counsel appearing today for Mrs Farrell that there may be some difference between Mrs Farrell and Mr Waugh, but the reasons for that and the circumstances are not known to me.

14 I note that s 3A of the Guardianship and Administration Act 1990 states that nothing in the act affects the inherent jurisdiction of the court. Whether the solution lies in that area is a matter for consideration and a matter on which the court would like to hear submissions. The interaction between O 70 and the Act is also a matter on which the court would like to hear submissions.

15 As a result of the apparent difficulty confronting the appellant in this case, I propose making an order adjourning this hearing for directions. I note that one of the functions of the Public Advocate under s 97(1)(c) of the Act is to investigate any allegation that a person is in need of a guardian or administrator. That allegation is implicit in the question which has been raised in this case and these reasons will be referred to the Public Advocate.

16 The court will be assisted by the Public Advocate investigating and then reporting to this court as to:

(a) whether Mrs Farrell has the ability to make reasonable judgments about the conduct of these two appeals which relate to her estate; and

(b) whether or not the Public Advocate should make an application under the Act to appoint an administrator.

17 If the Public Advocate considers that Mrs Farrell does have the ability to make reasonable judgments about the conduct of these appeals and considers that no application should be made to appoint an administrator who may conduct these appeals as next friend, then the court would be assisted by any submissions the Public Advocate may make as to whether the prohibition in O 70 r 2(1) has the effect in the present circumstances of preventing Mrs Farrell from representing herself and conducting the proceedings in these appeals.