W -v- S [No 2] [2025] WASCA 134 | Case summary

Court of Appeal (WA)|2025-09-04|Before: Mitchell JA

On 24 January 2025, we made orders which, subject to further order, had the effect of staying prosecution of this appeal until a next friend was joined as the appellant under Order 70 of the Rules of the Supreme Court 1971 (WA). We also referred the question of whether an application should be made to the State Administrative Tribunal for the appointment of a guardian or administrator to act as the appellant's next friend in this appeal to the Public Advocate for investigation under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act). We published written reasons for making those orders: W v S [2025] WASCA 21. The relevant background is set out in that decision, with which these reasons should be read.
On 17 April 2025, the Public Advocate applied to the Tribunal for the appointment of a limited administrator under s 40 of the GA Act. On 1 July 2025, after some difficulty in serving the appellant, the Tribunal constituted by Senior Member Marillier heard the Public Advocate's application. The appellant did not appear at that hearing, which was attended by a representative of the Public Advocate. Dr Richard Magtengaard, the appellant's treating psychiatrist, also attended the hearing and provided information to the Tribunal.
Dr Magtengaard informed the Tribunal that the appellant suffers from a non-psychotic depressive disorder which stems from an adjustment disorder associated with a workplace stressor. The appellant also suffers from post-traumatic stress disorder from the tragic and unexpected death of his young son and has persistent difficulties with insomnia and anxiety. He was not suffering from an intellectual disability, acquired brain injury, dementia, bipolar affective disorder, or any primary psychotic disorder such as schizophrenia or schizoaffective disorder. Dr Magtengaard said:

You could contend there is some overvalued ideation in a paranoid space, as I spoke to last time, regarding what I best formulate as protest against the authority of the court which he feels is targeting him, but I see that more as within the framework of his personality and past experiences of feeling disempowered through the loss of his son, by life, the catastrophe of life, by being unable to work and feeling that the current Family Court matter for which he perceives as threatening his estate continues.

But I think that's more a psychodynamic consequence of what he has been through in life, rather than the downstream consequence of becoming psychotic and then developing paranoid persecutory delusions.

In relation to the appellant's capacity to understand court proceedings, Dr Magtengaard expressed the opinion that:[3]

I don't think he's burdening under any inability to understand his obligations to instruct legal counsel and to follow and comply with the requirements of filing documentation. I can't understand why he doesn't do it, other than potentially a refusal to comply. He certainly has the intellectual capacity to do that, as evidenced by other activities of his life, which he runs without incident.

The following exchange occurred between the Senior Member and Dr Magtengaard:[4]

MARILLIER MS: ...[D]oes he understand what his options are to comply or not to comply, and therefore what the consequences are of the risk-benefit analysis of a decision to comply or not comply?

MAGTENGAARD, DR: The answer to that is yes, and I can speak to that because of our most recent clinical review, where I delivered the documentation as requested by the court, and I said to him - we did cover this area of competence in a broad and ranging discussion. He was aware that by not engaging - well, he communicated to me satisfactorily that he was aware that by choosing to engage or choosing not to engage with the court - by not engaging, as has been requested, will potentiate a situation that increases the length of time, increases the administrative burden, may lead to a worse outcome for himself and supplementary costs delivered upon him by the court for not doing that.

And that sat with him, I wouldn't say comfortably, but he appreciates that possibility. So he does understand his options and the consequences if he chooses to go either way.

MARILLIER MS: Yes. Does he understand that if he doesn't comply, the Supreme Court may just dismiss his case? He may lose any option of appealing the Family Court decision through the Supreme Court?

MAGTENGAARD, DR: Yes. I believe he does.

On 22 July 2025, the Senior Member dismissed the Public Advocate's application for the appointment of a limited administrator and published written reasons for making that decision: Re W [2025] WASAT 75. After referring to the evidence of Dr Magtengaard and the relevant principles, the Senior Member ultimately concluded that:[5]

I am satisfied, and I find (as the Family Court and the Court of Appeal have), that [the appellant] is not making reasonable judgments in relation to his legal proceedings. However, on the balance of the evidence before me at this point in time, the cause of that is a choice being made by [the appellant] as a person with capacity, who understands the potential negative consequences for him. As such, [the appellant] does not come within the protective jurisdiction of the GA Act, and he is not currently a person for whom I can appoint an administrator. As a result, I must dismiss this application.

After the Tribunal made this decision, this court obtained a transcript of the hearing before the Tribunal (including the information provided to the Tribunal by Dr Magtengaard as the appellant's treating psychiatrist) and provided it to the parties. On 23 July 2025, the court made programming orders for the parties to file affidavits and submissions in relation to the question of:

(a) whether this court should discharge orders 1 and 2 of the orders made by the court on 24 January 2025; and

(b) the directions which should be made in relation to the filing of an appellant's case if those orders are discharged.

Pursuant to r 5A and r 7(1)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoA Rules), we ordered that this court decide this question on the basis of the documents filed and without listing the matter for a hearing.

The first respondent filed written submissions in which she accepted that the orders should be discharged. She also submitted that:

If the Court of Appeal discharges the said Orders, the First Respondent seeks that the Court of Appeal look to progress matters and have a summary consideration of whether the Appeal should have permission to proceed or be the subject of summary submission which the First Respondent asserts should lead to the Court of Appeal dismissing the Appeal and awarding costs in favour of the First Respondent.

The appellant also filed written submissions which substantially address matters going to the merits of the appeal. As, in this respect, the appellant's submissions did not address the matters provided for in the programming orders made by the court on 23 July 2025, it is not necessary to say anything further about the appellant's submissions.
In light of the evidence of Dr Magtengaard before the Tribunal on 1 July 2025, we are no longer satisfied that the appellant, by reason of mental illness, defect or infirmity, is incapable of managing his affairs in respect of these appeal proceedings. Dr Magtengaard's evidence indicates that the appellant is capable of understanding, with the assistance of such proper explanation from legal advisors, the issues on which consent or decision is likely to be necessary during the appeal proceedings.
It follows that we would now discharge orders 1 and 2 of the orders made on 24 January 2025, which:

(a) declared the appellant to be incapable, by reason of mental illness, defect or infirmity, of managing his affairs in respect of these appeal proceedings; and

(b) subject to further order, stayed the proceedings until a next friend is appointed.

With these orders discharged, it is then appropriate to extend the time for the appellant to file and serve his appellant's case in the appeal. The filing and service of an appellant's case, which sets out his grounds of appeal and submissions in support of each ground, is an essential step to enable this court to fairly determine the appeal. The most recent evidence of Dr Magtengaard indicates that the appellant has the capacity to make the choice as to whether to comply with the court's process and understand the consequences of failing to do so. The appellant's past failure to comply with the court's procedural requirements cannot now be excused by mental illness, defect or infirmity. If the appellant does not file and serve an appellant's case that complies with the CoA Rules, then he faces a real prospect of the appeal being dismissed for failure to comply with the requirement.
Conformably with r 31B(2)(b) of the CoA Rules we will allow five weeks to file and serve the appellant's case.
We are not satisfied that it is appropriate to proceed to summarily determine the appeal, as suggested by the first respondent, at this stage. The merits of the appeal can only be properly assessed after the appellant has filed an appellant's case which sets out his grounds of appeal. It cannot be said that the appeal is without any reasonable prospect of succeeding at this stage. That is particularly so where the material before this court does not indicate that the Public Trustee filed the affidavit required by r 109(1)(d) of the Family Court Rules 2021 (WA) before obtaining the consent orders which are the subject of this appeal.
The first respondent also seeks this court's leave to provide the Family Court of Western Australia with a copy of the Tribunal's reasons published on 22 July 2025 and the transcript of proceedings before the Tribunal on 1 July 2025. As the Tribunal's reasons are published by the Tribunal on the publicly accessible eCourts portal, leave to provide the reasons to the Family Court would not seem to be necessary. As the transcript is of Tribunal proceedings, it would be appropriate for any required leave to provide the Family Court with the transcript to be sought from the Tribunal rather than this court.
We therefore make the following orders:
1. Orders 1 and 2 of the orders made by this court on 24 January 2025 are discharged.
2. The time for the appellant to file and serve an appellant's case is extended to 4 pm on 10 October 2025, and the appellant must file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) by that time.
3. The costs of and associated with the questions referred by the Court of Appeal registrar on 27 November 2024, including the costs of complying with the orders made by the court on 23 July 2025, are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Administration Act 1990

Court (Court of Appeal) Rules 2005

W -v- S [No 2] [2025] WASCA 134 (4 September 2025)

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