IN v Office of the Protective Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Guardianship and Administration Act 1995 (Tas), s56(2)(l) and (5).

In re Hodges (1998) 8 Tas R 242; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, referred to.

Dyke v Stephens (1885) 30 Ch D 189; Ex parte Brocklebank (1877) 6 Ch D 358; Smalley v Robey & Co Ltd [1962] 1 All ER 133; Macfoy v United Africa Co Ltd [1961] 3 All ER 1169, followed.

Applicants/Defendants Director of Public Prosecutions

Respondent/Second-named Plaintiff: Abetz Curtis and Worsley

Judgment Number: [2000] TASSC 148

1 On 12 May 1983, Louise Crockett, the second named plaintiff, underwent a leucotomy at the Alfred Hospital in Melbourne. There were post-operative complications. On 20 May 1983, she was admitted to the Launceston General Hospital and transferred from there to the Royal Hobart Hospital on 28 May 1983. The plaintiffs' claim is that the defendants failed to properly diagnose and treat her condition in the two Tasmanian hospitals and, in consequence, she has suffered devastating disabilities.

2 Proceedings to recover damages for negligence were commenced by the issue of a writ on 7 May 1986. The second named plaintiff commenced proceedings by her next friend, her husband, who was also a party to the action on his own behalf as the first named plaintiff. I infer that the second named plaintiff sued by her next friend because she was incapable of managing her own affairs by reason of mental incapacity notwithstanding that when the proceedings were commenced, the second named plaintiff was not a patient within the meaning of the Rules of Court which then defined a patient to mean:

"A person who, by reason of mental disorder within the meaning of the Mental Health Act 1963, is incapable of managing and administering his property and affairs."

3 If there was any irregularity about the commencement of the proceedings on behalf of the second named plaintiff, it was cured by order of this Court made on 7 April 1996, pursuant to the provisions of the Mental Health Act 1963, PtVI. That order provided:

"Under Section 85(1)(h) authorising him [David John Crockett] to conduct legal proceedings on behalf of Louise Mary Crockett in respect of injuries sustained by her as a result of negligent medical and hospital treatment administered to her in May 1983 by the above named Respondents."

4 Earlier, orders had been made in Victoria with respect to the estate of the second named plaintiff. On 15 March 1991, pursuant to the provisions of the Guardianship and Administration Board Act 1986 (Vic), an order was made that State Trustees Ltd be appointed administrator of the estate of the second named plaintiff, with all the powers and duties conferred on the administrator by the State Trust Corporation of Victoria Act 1987 (Vic). Paragraph 2 of the order limited its effect to "the management of the represented person's income".

5 A further order was made under the same Act on 8 June 1994, again appointing State Trustees Ltd of 168 Exhibition Street, Melbourne to be administrator of the estate of the second named plaintiff, this time, without limitation.

6 The Mental Health Act, PtVI, was repealed by the Guardianship and Administration (Miscellaneous Amendments) Act 1996, PtIII, s38 which came into force on 1 September 1997 (Statutory Rule 117/1997), the same day as the Guardianship and Administration Act 1995 ("the Act") came into force. The latter Act, s81, provides for the recognition of orders made in other States pursuant to a corresponding law. By virtue of the provisions of that section, the Tasmanian Guardianship and Administration Board made an order on 26 March 1998 registering the Victorian order and appointing State Trustees Ltd as administrator of the estate of the second named plaintiff. The Tasmanian order went on to provide that the powers and duties of the administrator were those conferred by "Division 4 of Part 7 of the [Guardianship and Administration] Act".

7 Considerable delays have occurred in getting the second named plaintiff's litigation to finality, either by way of trial or settlement. Some time ago, State Trustees Ltd decided that it would take over conduct of the action on behalf of the second named plaintiff. It wished to instruct solicitors other than those then on the record for the plaintiffs to act for the second named plaintiff. The next friend did not agree with the proposed change of solicitors. Accordingly, State Trustees Ltd brought an application for an order pursuant to the now repealed, Rules of Court, O18, r21 for the removal of the next friend. The application was argued and the decision reserved. However, before it was handed down counsel for the next friend stated that he did not resist the making of an order and, on 14 September 1999, an order was made removing the next friend. During the course of this hearing, I was informed from the bar table that the claim by the first named plaintiff (the former next friend) has now been settled. Since the making of the consent order that the next friend be removed, the second named plaintiff has been conducting her litigation without a next friend, or litigation guardian as such person is now called under the new Rules of Court, notwithstanding that she is a person under disability within the meaning of the Rules of Court, r5. In those circumstances, the defendants have brought this application for a stay of proceedings until a litigation guardian is appointed.

"(1) A person under disability, by litigation guardian, may -

(2) A person under disability is not to file a notice of appearance otherwise than by litigation guardian.

(3) An order for the appointment of a litigation guardian for a person under disability is not necessary.

(4) Subject to any order of the Court or a judge, a person authorised under the Guardian and Administration Act 1995 to conduct proceedings in the name, or on behalf, of a represented person, is entitled to be litigation guardian of the patient in any proceeding to which the authority extends."

9 This rule owes its origin to Chancery practice prior to the enactment of the Judicature Acts. See Daniell's Chancery Practice (8th Edn - 1914) 19 et seq. In the case of a lunatic so found by inquisition, the practice was to commence proceedings, either by the committee of the lunatic or by a next friend. In the case of proceedings commenced by the committee of the lunatic, proper practice required that the lunatic be added as a party to the action. See Fuller v Lance [1663] EngR 6; (1663) 1 Ch Cas 18; In re Lord Townshend's Settlement [1908] 1 Ch 201; Theobald, The Law Relating to Lunacy, 278 et seq.

10 In the case of proceedings commenced by a lunatic in the name of his or her next friend, it has been held that the next friend is not a party to the action. See Dyke v Stephens (1885) 30 Ch D 189; Pink v J A Sharwood & Co Limited [1913] 2 Ch 286. The liability of the next friend is to the defendants for the costs of the action and of all motions and proceedings in that action. In Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541 - 542, Scrutton LJ approved of the following passage taken from Daniell's Chancery Practice (8th Edn) at 100 - 101:

"On account of an infant's supposed want of discretion, and his inability to bind himself and make himself liable to the costs, he is incapable of bringing an action without the assistance of some other person, who may be responsible to the Court for the propriety of the suit in its institution and progress. Such person is called the next friend of the infant; and if an action is commenced on behalf of an infant without a next friend, the defendant may apply to have it dismissed with costs, to be paid by the solicitor, even though the solicitor was unaware of the infancy ... The next friend is liable to the defendants for the costs of the action and all motions and proceedings therein; and if he has been ordered to pay any costs in the action, he will not, in the absence of any reservation in the order directing the payment, be allowed such costs out of the estate."

11 See also O'Brien v The Herald and Weekly Times Limited [1937] VicLawRp 25; [1937] VLR 135; Steeden v Walden [1910] 2 Ch 393; Huxley v Wootton (1912) 29 TLR 132 - an interesting case of a profligate father with a successful son.

12 With respect to the conduct of the proceedings, the next friend has full power and authority and may give any necessary consent, see Knatchbull v Fowle (1876) 1 Ch D 604. In Rhodes v Swithenbank (1889) 22 QBD 577, Bowen LJ said at 579:

"The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is an officer of the Court to take all measures for the benefit of the infant in the litigation in which he appears as the next friend."

13 All that the next friend does must be done for the benefit of the person under disability, otherwise it is done without authority. See Rhodes v Swithenbank (supra).

14 Thus, it seems to me, that primarily, a next friend is appointed for the benefit of the defendant. A successful defendant is entitled to look to the next friend to satisfy an order for costs which it would not be able to enforce against an infant or person otherwise under disability.

15 Mr C Gunson, who appeared for the administrator of the plaintiff's estate, submitted that:

* the making of the order sought involved an exercise of the jurisdiction of the Court conferred by the Charter of Justice, cl 22;

* the Court had a discretion whether or not to exercise this jurisdiction; and

* having regard to the provisions of the Act, s56(5), it was neither necessary nor desirable to do so.

16 The Full Court in In re Hodges (1998) 8 Tas R 242, held that where an administration order had been made with respect to the estate of a person under disability, the administrator and the Guardianship and Administration Board had jurisdiction over that person's property and estate as provided by the Act. The Court also held that the enactment of the Act did not oust the jurisdiction over such a person's property and estate conferred upon the Court by the Charter of Justice, cl 22, but that the Court had a discretion to determine whether it was in any particular case desirable to exercise that jurisdiction.

17 Mr Gunson's submission is that I should not exercise the jurisdiction conferred by the Charter of Justice, cl 22, because of the provisions of the Act, s56(2)(l) and (5):

"(2) Without limiting sub-section (1), an administrator may, in the name and on behalf of the represented person and so far as may be specified in the administration order -

(l) bring and defend actions and other legal proceedings in the name of the represented person; and

(5) Where a decision, action, consent or act is made, taken, given or done by an administrator under an order made by the Board or under any power or authority given by this Act, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so."

18 It is true, as Mr Gunson submitted, that by virtue of those subsections, the defendants' right to recover costs from a person in respect of whom an administration order has been made in the event of there being a judgment for the defendants, is as secure as it would be if the second named plaintiff was not a person under disability. Also, by virtue of the Act, s56(2)(l) and (5), the second named plaintiff's solicitors can be properly appointed and given binding instructions without the necessity of the appointment of a litigation guardian. It is also true, as Mr Gunson submitted, that those matters are good reasons for not exercising the jurisdiction conferred by the Charter of Justice, cl 22.

19 However, the application for a stay of proceedings does not, in my view, involve an exercise of the jurisdiction conferred by the Charter of Justice, cl 22. In In re Hodges (supra) it was held that by the repeal of the Supreme Court Civil Procedure Act 1932, ss87 - 89 inclusive and 91 - 106 inclusive, (the lunacy provisions) by the Mental Health Act 1963, and by the subsequent repeal of the relevant provisions of the latter Act by the Guardianship and Administration (Miscellaneous Amendments) Act 1996, the Supreme Court lost its statutory powers with respect to persons who are incapable of managing their affairs by reason of mental disorder. It followed therefrom that the provisions of the (now repealed) Rules of Court, O24, r10, had no statutory authority for, as Crawford J said at 248:

It should be observed that the Rules of Court, which are made under the power to make rules conferred by the Supreme Court Civil Procedure Act 1932, PtXIV, are mere rules of procedure for carrying the Act into effect (s187) and do not confer any new jurisdiction on the Court which does not already exist apart from the rules."

20 The Rules of Court, r292 apply to persons who are under disability. Such persons are defined by r5 to mean:

"... an infant or a person who is incapable of managing and administering his or her affairs in relation to proceedings resulting from any absence, loss or abnormality of mental or psychological function;"

21 The loss of the Court's statutory jurisdiction over persons who are under disability by reason of being incapable of managing their affairs due to mental illness, does not automatically result in r292 being ultra vires. That rule is authorised by the provisions of the Supreme Court Civil Procedure Act, s197(1)(b). It is a rule regulating the course of proceedings by or against persons under disability and remains in full force and effect, notwithstanding the removal of the Court's statutory jurisdiction with respect to the property and affairs of such a person. Although it may be said that the second named plaintiff's right to bring the proceedings is a chose in action vested in her and thus, part of her property, the rule is primarily aimed at regulating the Court's procedure and is for that reason a valid exercise of the rule making power. This proposition was acknowledged in Re S (F G) (Mental Health Patient) [1973] 1 All ER 273. In that case, the equivalent of the jurisdiction vested in the second named plaintiff's administrator by virtue of the administration order made under the Act, was vested in the Court of Protection. With respect to the coexistence of a rule of court requiring the appointment of a next friend, Ungoed-Thomas J said at 276:

"Insofar as 'patient' or 'person under disability' within the meaning of the rules applies to patients within the meaning of the 1959 Act, the rules make provisions for the appointment as next friend or guardian ad litem of the person authorised under s 103 of the Mental Health Act 1959 to conduct the proceedings for the patient. It is arguable however that difficulties might arise because the Court of Protection might, under s 103, make orders or give directions or authorities for the conduct of legal proceedings by a person for a patient; and the court in which those proceedings take place might, under its rules and as master of its own procedure, recognise or appoint some other person to be next friend or guardian ad litem." [Emphasis added.]

22 His Lordship went on to state that such difficulties were unlikely to arise because "the objects of both courts would be to ensure the proper and effective conduct of the litigation". Such difficulties did in fact arise in this case following the application made by the second named plaintiff's administrator to remove the next friend but, as I have said, the difficulties were resolved by the next friend eventually consenting to the order sought. However, that is by the way, for the point is that the Rules of Court, r292, remains in full force and effect with respect to this action and recourse to the jurisdiction conferred by the Charter of Justice, cl 22, does not arise.

23 If the order sought is made, there is a grave risk that the second named plaintiff will suffer an injustice. At the time of the application by the second named plaintiff's administrator to remove the next friend, the next friend was in receipt of a grant of legal aid for the prosecution of the second named plaintiff's action. That grant was withdrawn and the withdrawal was probably the reason for the next friend consenting to an order that he be removed. The second named plaintiff's administrator is a statutory corporation in Victoria and, understandably, is not prepared to consent to act as next friend as it would thereby expose all its assets, not just those that it holds in trust for the second named plaintiff, to the risk of execution to satisfy an order for costs. There appears to be no other person who is willing to act as next friend, and if this remains as the position and the order sought is made, the second named plaintiff will be denied the opportunity of pursuing her very substantial claim for damages.

24 On the other side of the coin, the defendants will suffer no prejudice if the order sought is not made, for the combined effect of the Act, s56(2)(l) and (5), puts the second named plaintiff in exactly the same position as a plaintiff who is not under disability with respect to the conduct of this litigation and the recovery of any order for costs that might be made against the second named plaintiff.

25 Proceedings that have been commenced without a next friend are not void, they are merely irregular. See Ex parte Brocklebank (1877) 6 Ch D 358. Indeed, it is possible for a defendant to waive this irregularity. See Darke v Eltherington [1963] Qd R 375; Mewburn v Mewburn (1934) 51 WN (NSW) 170.

26 In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, Latham CJ expressed the view at 83 that compliance with the rule was mandatory because an infant was incapable of giving an authority to institute proceedings so as to bind himself or herself. In the same case, Dixon J (as he then was) said at 100, that the requirement for a next friend was necessary because "infants are under a disability depriving them of the power of employing an attorney or other friend". In Myers v Nominal Defendant [1966] 1 NSWR 659 Isaacs J examined old authority on the point and concluded, at 668:

"It is abundantly clear from these authorities that the common law position always has been and still is that an infant cannot make any application to a court without the intervention of a next friend."

27 In X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 164 ALR 583, North J referred to Myers and said that the common law requirement for a next friend was not universal, but with great respect, as I read the passage in the judgment in Myers to which North J referred for that proposition it states that although there are proceedings in the court in which a next friend is not appointed, such cases are in breach of the common law requirement. There is ample authority for the proposition that a person under disability cannot bring proceedings without a next friend. See eg, Wettig v Langdon [1885] VicLawRp 103; (1885) 11 VLR 530; Cash v Cash (1896) 22 VLR 110; Ex parte Davis (1901) 1 SR (NSW) 187. The rationale for the rule is clearly that a person under disability cannot bind himself or herself for costs, nor does he or she have the capacity to appoint and instruct an agent.

28 Although I have been unable to find any authority where the court has waived the requirement that proceedings by a person under disability must be conducted by a next friend or guardian ad litem, it does not mean that there is no discretion to waive the requirement. Given that the authorities are clear that the failure to appoint a next friend or guardian is an irregularity which does not render the proceedings void, the provisions of the Rules of Court, r14, are applicable. The rule provides:

"14 - (1) The Court or a judge may order that any proceedings that do not comply with these rules -

(b) be amended or otherwise dealt with in any manner and on any terms the Court or judge considers fit.

(2) An application to set aside any proceedings on the ground that they do not comply with these rules is to state each irregularity complained of in detail.

(3) On an application, the Court or judge must not make an order setting aside the proceedings unless -

(a) the application was made within a reasonable time; and

(b) the applicant has taken no fresh step in the proceedings after becoming aware of an irregularity complained of."

29 The rule clearly confers an unfettered discretion on the court. See Smalley v Robey & Co Ltd [1962] 1 All ER 133; Macfoy v United Africa Co Ltd [1961] 3 All ER 1169; Chapman v Chapman [1985] 1 All ER 757. The defendants' application is brought pursuant to r14 or the inherent jurisdiction of the Court, and the order sought is that the proceedings be stayed until a litigation guardian is appointed.

30 I have been unable to find any case, and none has been cited to me, where the court has waived the requirement for the appointment of a next friend or litigation guardian. However, I am in no doubt that in the absence of some statutory provisions, such as those contained in the Act, s56(2)(l) and (5), the proper exercise of the discretion would call for the setting aside or the stay of proceedings which were irregular because one party was under disability and no litigation guardian had been appointed. In such a case, the prejudice to the other party would be incurable.

31 For the reasons that I have advanced, no such prejudice arises in this case. The statutory provisions in the Act to which I have referred, make the appointment of a litigation guardian otiose. The only concern I have about refusing to make the order sought is that the second named plaintiff's administrator may, at some future time, decide not to continue to bring the proceedings in the name of the represented person and the defendants may be unaware of that decision. If such a decision were made in the future then, of course, an application to set aside the proceedings or stay their further prosecution, would no doubt be viewed entirely differently. In order to remove this doubt, the following order is made:

"Upon the second named plaintiff's administrator by its solicitor giving an undertaking to notify the solicitor for the defendants in writing of any future decision to cease to bring the second named plaintiff's action in the name of the second named plaintiff immediately after the making of such decision, the application to stay the second named plaintiff's action is dismissed."