SCATES -v- STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA [2011] WASC 319 (23 November 2011)

3 This course of events was sparked by the circumstances under which Mrs Scates was living in a suburban house which was registered in her own name, and where she had been living for many years. In short, the house was dilapidated, in a bad state of repair and, so it was alleged, infested by insects and rodents; so much so that the local government authority had issued orders for the rectification and repair of the building. Estimates had been obtained as to the likely cost of this repair and it was significant, in the order of $60,000 or more. In the early part of February 2010, a social worker at a hospital to which Mrs Scates had been admitted made an initiating application to SAT for the appointment of a representative, and that led to the course of decisions which I have already described.

4 The powers conferred upon the Public Trustee resulted in decisions being made for the house in which Mrs Scates had been living many years, and which she owned, to be demolished and sold. It is not quite clear at the moment what steps were taken or intended to preserve Mrs Scates' personal effects, belongings and furniture and other chattels in the house, but Mrs Scates complains that the effect of the demolition was that all this personal property became dissipated, lost or destroyed.

5 The land, after demolition of the house, was then sold and the proceeds paid to the Public Trustee to the credit of Mrs Scates' estate. Then steps were taken to use a large part, most really, of the proceeds of the sale to purchase for Mrs Scates an entitlement to reside in residential accommodation, and to pay a residential bond and other outgoings. Mrs Scates complains, not only about the course of events which I have so far described, but also about the choice of this residence, the need for her to live there, and the use of her money for that purpose. She brings these proceedings in an attempt to set aside some or all of the decisions of SAT which I have been describing.

6 An application for leave to appeal against decisions of SAT is regulated by pt 3 div 3 of the Guardianship and Administration Act, which confers a right of appeal to a single judge of this court by leave from a determination of the State Administrative Tribunal when constituted by three members not including the president. That was the decision of November 2010.

7 An application for leave to appeal is to be made to a judge in chambers of this court under s 20. This matter has been before the court previously when I directed that amended grounds of appeal and other papers be lodged and exchanged. Now I have before me a set of proposed grounds of appeal for which leave is being sought and detailed written submissions by counsel for the applicant and by the second and third respondents.

8 However, an initial objection has been taken by the second and third respondents to the application for leave to appeal based on the submission that, because of orders already made by SAT, Mrs Scates is a 'represented person' who, because of the provisions of O 70 r 1 of the Rules of the Supreme Court, is a person under a disability, and who, by r 2 of that order, may not bring or make a claim in any proceedings except by a next friend. The objection is that in these proceedings Mrs Scates is attempting to obtain leave to appeal on her own behalf without a next friend.

9 When a person is made a represented person by orders under the Guardianship and Administration Act, and the Public Trustee is involved, it is usually the case that the Public Trustee acts as the next friend by whom legal proceedings may be brought where required by O 70. However, it is obviously quite unsuitable for the Public Trustee to be a next friend in the present circumstances, assuming always that a next friend is necessary, because the Public Trustee is a respondent to the application and is a party against whom Mrs Scates seeks relief. There is, therefore, a real and not merely a hypothetical possibility of a conflict of interest.

10 The question, therefore, is whether Mrs Scates requires a next friend for the institution of these proceedings. There is nothing in s 19 or s 20 of the Guardianship and Administration Act to warrant the conclusion that an appointment of a next friend in like circumstances is necessary or essential, although, for reasons canvassed with counsel for the respondents, one can envisage situations where a next friend would be needed in appeals from decisions which do not call into question the correctness of any representation order made against the person seeking leave to appeal.

11 Here Mrs Scates, however, is claiming that there was never an occasion which justified any form of representation order and that she was always sui juris. Despite the endeavours of counsel and recourse to the leading authorities dealing with the parens patriae jurisdiction of the State, I am not satisfied that this is a case in which the parens patriae jurisdiction can or should be invoked Marion's Case [1992] HCA 15; (1992) 175 CLR 218.

12 One starts with the provisions of RSC O 70 r 2(1) which provide that a person under a disability cannot bring or make a claim in any proceedings except by a next friend and cannot defend or intervene in any proceedings or appear in any proceedings except by a guardian ad litem. It was submitted that this rule prevents Mrs Scates from instituting or pursuing this application for leave to appeal unless she does so by a next friend and, in the absence of a next friend, the proceedings would be invalid and for that reason should be stayed. For reasons already mentioned, the Public Trustee could not be appointed as a next friend for Mrs Scates in these proceedings and, for similar reasons, the Public Advocate could not act as her next friend either. This leaves something of a practical impasse because there appears to be no relative or friend available to act as a next friend either. While that may be a severe practical difficulty, if the principle is that the proceedings cannot continue without the appointment of a next friend, then that obstacle must be respected. The question is whether or not that is the principle and, if so, whether it is unyielding. The position of Mrs Scates is that she is not, and never should be, considered to be a person under a disability and that despite her age and the circumstances under which she was living she is, and at all material times was, capable of managing her own affairs.

13 The position of a litigant who, during the course of proceedings, became incompetent in the sense of being unable to manage his own affairs, was examined in Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51. In that case, Meagher, Handley and Tobias JJA each concluded that the absence of a next friend (or tutor in NSW) of a person who became incompetent in the course of litigation by reason of mental disease did not nullify the proceedings or render them void from the commencement, applying Balloqui v Balloqui [1964] 1 WLR 82 and John v John & Goff [1965] P 289. Accordingly, in Murphy v Doman the Court of Appeal set aside the decision and judgment at first instance (which had proceeded in circumstances where the incompetent person had been unable adequately to represent himself and who had, therefore, not received a proper hearing) and instead remitted the matter for rehearing.

14 There are numerous instances where a litigant who was a minor or infant has brought proceedings in a Supreme Court without a next friend being appointed, resulting in the proceedings being stayed or set aside for want of compliance with that obligation see Cash v Cash (1896) 22 VLR 110 where a judgment in the Magistrates Court was set aside for want of the appointment of a next friend but without prejudice to the infant's right to bring proceedings by a next friend if so desired. In Hines v Phillips [1906] VicLawRp 72; [1906] VLR 417 an infant was entitled to bring proceedings in his own name in a Magistrates Court as an apprentice under the Factories and Shops Act 1900 (Vic). It was held that notwithstanding that right, the infant could not institute an appeal other than by a next friend on an application for an order nisi in the Supreme Court. In the latter case the court directed that the solicitor appearing on the order for review was at liberty to act as next friend and accepted his appointment.

15 It is equally apparent that if a person under a disability commences a proceedings otherwise than by a next friend, the opposing party may apply to have the originating process set aside or for the proceedings to be stayed: Spellson v George (1987) 11 NSWLR 300 but on such an occasion leave to amend by adding the next friend can be given, as already noticed in Hines v Phillips and as done in R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VicRp 55; [1969] VR 445. In the converse case where an action is commenced on behalf of a person alleged to be under a disability by a next friend acting in that capacity, but the plaintiff maintains that he or she is not under any such disability, the plaintiff may apply to have the action dismissed and the next friend ordered to pay costs: Palmer v Walesby (1868) 3 Ch App 732 and Didisheim v London and Westminster Bank [1900] 2 Ch 15 and, in that connection, an inquiry may be directed as to whether the plaintiff is mentally disordered and whether the action is for his or her benefit see Halsbury's Laws of England (4th ed, reissue) vol 30 par 1423 and the authorities mentioned at note 8.

16 It is apparent that the reported cases in which a court has stayed the proceedings, or set aside a judgment and ordered a retrial, or taken similar relief are ones in which it was unequivocally the case that the person concerned was under a disability either because of infancy or because of unchallenged mental incapacity. In those instances, the situation is plainly within the scope of O 70 r 2 or comparable rules and, where the point is taken by an opposing person, or the disabled person, the court must act appropriately.

17 However, the situation is somewhat different in instances, such as the present, where the person alleged to be under a disability directly challenges the contention that he or she is under the alleged disability and claims that she is not a person who requires the appointment of a next friend. In the present case, that very question was agitated in SAT and was determined adversely to Mrs Scates. Now, in pursuit of an uncontested right to apply for leave to appeal, she wishes to have the correctness of that decision reviewed. A determination by this court that she may not do so unless she brings the proceedings by a next friend would prevent her from doing so by relying upon the very conclusion which she desires to contend was wrongly decided and so allow that determination to prevent the judicial review which she is seeking. If, before this application for leave to appeal proceeded any further, the court was to direct that an inquiry be conducted over the question of whether or not Mrs Scates was a person under a disability, that would mean that the inquiry would be required to determine the substantial point which she seeks to have raised by this application for leave to appeal.

18 In Fry v Fry (1889) 15 PD 25 an order had been made under a rule of court appointing a guardian ad litem to a person alleged to be of unsound mind who sought to commence proceedings for a declaration that her marriage with the respondent was null and void on the ground that at the time of the marriage ceremony the applicant was of unsound mind and incapable of entering into the marriage contract. Butt J set aside that order on the application of Mrs Fry and upon medical evidence adduced by her denying the allegation of incapacity on the basis that such an order ought not be made where there is a bona fide and substantial dispute as to the insanity of the party.

19 At least at this initial stage of the application for leave to appeal and where Mrs Scates is appearing by counsel I consider that the question of whether or not she is disabled from bringing proceedings in her own name should be regarded as remaining a contentious issue and that it is the purpose of this application, and of any appeal if leave is granted, to decide whether or not that is so. The decision now under challenge that she is a disabled person should not, therefore, be treated in itself as a basis for obliging her to appear in these proceedings through the appointment of a next friend. If, as the proceedings develop, the situation as to Mrs Scates' alleged disability becomes the subject of further evidence or her conduct at the proceedings leads the court to the conclusion that she is under a disability then, at an appropriate time, it may be necessary to revisit this question. Otherwise, these proceedings should continue in the ordinary way.

20 In this respect the situation can be compared with the position of a person who has been declared a vexatious litigant and then institutes an application for leave to appeal against that decision without seeking or obtaining leave to commence any appeal proceedings under s 6 of the Vexatious Proceedings Restriction Act 2002 (WA). Such a person has been permitted to institute such an appeal notwithstanding the declaration that he or she is a vexatious litigant because it was that very decision which was contended to be wrong - Shaw v McGinty [2006] WASCA 231 and Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225.

21 The approach which the court should take in this instance is to treat this application for leave to appeal in the same way as the original application before SAT under the Act; that is, by treating the question of whether or not Mrs Scates is a person under a disability as still subject to final determination and, for that reason, to allow her to bring the application in her own right. I will allow the proceedings to continue as presently constituted.