Adrian Joel Meeway by his Next Friend the Chief Executive Officer of the Department for Child Protection and Family Support v Rivers
[2024] WADC 79
•11 SEPTEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ADRIAN JOEL MEEWAY by his Next Friend THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT -v- RIVERS [2024] WADC 79
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: ON THE PAPERS
DELIVERED : 11 SEPTEMBER 2024
FILE NO/S: CIV DER 5 of 2017
BETWEEN: ADRIAN JOEL MEEWAY by his Next Friend THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Plaintiff
AND
JOHASHE VINCENT RIVERS
Defendant
Catchwords:
Person under disability - Application to remove next friend and appoint substituted next friend - Where irregularity in naming next friend - Where administrator appointed for plaintiff - When application to substitute next friend must be made - Whether removal required before substitution - Application to approve proposed compromise of action - Principles to be applied
Legislation:
Guardianship and Administration Act 1990 (WA)
Rules of the Supreme Court 1971 (WA), O 2 r 1, O 18 r 7, O 21 r 5, O 21 r 6, O 70 r 1, O 70 r 2, O 70 r 3, O 70 r 7, O 70 r 10, O 70 r 11
Result:
Application allowed in part
Representation:
Counsel:
| Plaintiff | : | Not applicable |
| Defendant | : | Not applicable |
Solicitors:
| Plaintiff | : | Patrick J Cannon Coburn & Associates |
| Defendant | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
A v City of Swan [No 4] [2009] WASC 155
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [No 3] [2009] WASCA 118
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1
Daynes v Public Advocate [2006] VSC 53
Dion Giuseppi Sergi by Next Friend Aileen Solowiej v Sergi [2012] WASC 18
Farrell v Allregal Enterprises Pty Ltd [No 3] [2011] WASCA 247
Geilinger v Gibbs [1897] 1 Ch 479
Layne Carmel Dixon by her Next Friend Andrew Nigel Dixon v Clarke [2017] WASC 310
Meyer v Solomon [2021] WASCA 168
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Re RH; ex parte RH by Next Friend CH [2020] WASC 13
Sitzler Savage Pty Ltd v Northern Mining Holdings Pty Ltd [2012] VSC 104
Sosa v Carter [1978] WAR 123
Trout v Minister for Health [2012] WADC 172
PRINCIPAL REGISTRAR MCGIVERN:
Introduction
The plaintiff in this action is a person under disability within the meaning of O 70 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC).[1]
[1] As to which, see [22] - [24] below. In these reasons, unless stated otherwise, a reference to a provision is a reference to the RSC.
This is an application:
(a)to remove the plaintiff's next friend and to appoint a substituted next friend for the plaintiff; and
(b)for leave to compromise the claim of the plaintiff.
For the reasons that follow, the application is allowed in part.
Relevant procedural background
The action was commenced by a writ of summons filed 7 June 2017, which purports to name The Chief Executive Officer of the Department for Child Protection and Family Support (CEO) as the plaintiff's next friend in the action.
The plaintiff's claim is for damages for personal injuries which are said to have arisen out of a motor vehicle accident on 19 April 2011, in which the defendant was driving and lost control of the vehicle in which the plaintiff was a passenger, causing it to leave the road and roll.
By chamber summons filed 2 July 2024, and amended on 5 September 2024, application is made:
(a)to remove the CEO as the plaintiff's next friend in the action (pursuant to O 70 r 7);
(b)to appoint the Public Trustee as the plaintiff's next friend in the action (pursuant to O 70 r 3(5)) and to amend the name of the plaintiff accordingly (pursuant to O 18 r 7); and
(c)for the approval of the court to compromise the action (pursuant to O 70 r 10) on the basis of a judgment for an agreed sum being entered against the defendant.
Shortly before the application was to be heard, I was asked to deal with the matter on the papers.[2] Because of the issues raised on the application, I acceded to that request on the basis that I would deliver written reasons.
[2] Letter of the plaintiff's solicitor dated 5 September 2024. The application was due to be heard on 6 September 2024.
The evidence
The following materials were filed in support of the application:
(a)affidavits (with annexures) of the plaintiff's solicitor, made 12 August 2024 and 13 August 2024;
(b)an affidavit (with annexures) of a representative of the Public Trustee, made 9 August 2024;
(c)the opinion of senior counsel, dated 2 July 2024; and
(d)a bundle of materials referred to in that opinion.[3]
[3] That bundle being annexed to the affidavit of the plaintiff's solicitor made 13 August 2024. As to the requirement for such a bundle to be filed in support of an application under RSC O 70 r 10 or O 70 r 11, see Trout v Minister for Health [2012] WADC 172 [17].
Issues
In dealing with the application, I need to address the following issues:
(a)whether the plaintiff is a person under disability within the meaning of O 70 r 1 and, if so, in what respect;
(b)whether there is need to appoint a next friend for the plaintiff and, if so, the mechanism for doing so; and
(c)whether the compromise proposed in the application is in the best interests of the plaintiff and should be approved.
Those issues derive from, and are to be determined in accordance with, the relevant legal framework and principles as set out below.
Rules and principles
Disability
It is helpful, in approaching the present application, to identify certain key features of the framework that applies to proceedings involving persons under disability.
A 'person under disability' is relevantly defined in O 70 r 1 to include:
(a)a person who is an infant; or
(b)a 'represented person', being a person in respect of whom a guardian or administrator[4] has been appointed under the Guardianship and Administration Act 1990 (WA) (GAA).
[4] With authority to act as the person's next friend or as guardian ad litem.
Notably, unless a judge orders otherwise, a person under disability cannot engage in legal proceedings except by the person's next friend or guardian ad litem (for convenience, those roles will be referred to collectively in these reasons as a 'litigation friend').[5] In turn, the litigation friend must act by a solicitor.[6] Those requirements cannot be ignored by a court[7] or by the solicitor acting.[8]
[5] O 70 r 2(1) - O 70 r 2(2), O 70 r 2(4).
[6] O 70 r 2(3).
[7] Farrell v Allregal Enterprises Pty Ltd [No 3] [2011] WASCA 247 [7], citing Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 (Murphy) [14], [43], [52].
[8] For example, a solicitor who commences proceedings in the name of a person under disability without the appointment of a next friend may be personally liable for the defendant's costs on an indemnity basis: Geilinger v Gibbs [1897] 1 Ch 479, 483. See also: Sitzler Savage Pty Ltd v Northern Mining Holdings Pty Ltd [2012] VSC 104.
It is evident from the provisions that follow that the requirement to act by solicitor is bolstered by the imposition of steps that a solicitor must take when acting for a person under disability.
Order 70 r 3 has the effect that:
(a)save in limited circumstances,[9] it is 'not necessary' to apply to the court for an order appointing a litigation friend ‑ the litigation friend may just be nominated;[10]
(b)that efficiency is balanced by the requirement to file certain documents (specified documents) before a litigation friend is named in the proceedings. Relevantly:
(i)if the person under disability is a 'represented person' then the relevant order made under the GAA must be filed;[11] and
(ii)if the person under disability is not a 'represented person' then (except if the litigation friend is appointed by the court or is the Public Trustee) the specified documents include the written consent of the nominated litigation friend to act, and an affidavit of the solicitor.[12] The solicitor's affidavit must attest to various matters, including the grounds on which the relevant person is believed to be 'under disability' and that the named litigation friend has no interests adverse to the person under disability;[13]
and
(c)practically, therefore, the latest time for filing the specified documents is at the time of filing any originating process or defence naming a litigation friend for a person under disability.
[9] Specifically, except as provided by: O 70 r 3(5), O 70 r 3(6) (as to which, see [15] below) O 70 r 5 (which applies to proceedings against a person under disability who does not enter an appearance) and O 70 r 3(2).
[10] See, for example: Re RH; ex parte RH by Next Friend CH [2020] WASC 13 (RH) [10].
[11] O 70 r 3(9).
[12] O 70 r 3(7) - O 70 r 3(8).
[13] O 70 r 3(8)(b).
As noted, there are exceptions to the circumstances in which a litigation friend may be named using the process outlined above. Significantly, an application must be made for a court order appointing a litigation friend:
(a)where 'a person has been or is' a litigation friend for a person under disability, before any other person 'is entitled to act' in that role;[14] and
(b)if a person engaged in proceedings later becomes a person under disability, before any person can act as litigation friend on their behalf.[15]
In these circumstances, an application is required but the court cannot compel that step[16] and cannot act on its own motion[17] to appoint a litigation friend.
[14] O 70 r 3(5).
[15] O 70 r 3(6). Necessarily, this provision can only apply to an adult person because a child is, by definition, always a person under disability.
[16] Murphy [42], [54].
[17] A v City of Swan [No 4] [2009] WASC 155 (City of Swan) [37].
If a litigation friend is to be removed, other than on the court's own motion, then an application to that effect must be made and served on the litigation friend and the person under disability.[18]
[18] O 70 r 7.
Finally, the court exercises a supervisory jurisdiction in relation to the proposed resolution of any claim involving a person under disability - any settlement or compromise between the parties cannot take effect without the approval of the court.[19]
Irregularity
[19] O 70 r 10 applies to the resolution of actions; O 70 r 11 applies to the resolution of claims before proceedings are commenced.
By reason of O 2 r 1, non-compliance with the RSC does not nullify the proceedings, or a step taken or document filed therein, but rather gives rise to an irregularity, as to which the court may:
… set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
The effect of this provision, when read together with the rules outlined above, is that irregularity affecting the proceedings will arise if the solicitor acting for a person under disability:
(a)contrary to O 70 r 2, fails to name a litigation friend for a person under disability;[20]
(b)contrary to O 70 r 3(7) - O 70 r 3(9), names a litigation friend without first (or simultaneously) filing the specified documents;
(c)contrary to O 70 r 3(5), names an alternate litigation friend and/or takes instructions from a person other than the named litigation friend, without first having that person appointed by the court; or
(d)contrary to O 70 r 3(6), names a litigation friend and/or takes instructions from a person purporting to act as litigation friend for a party who has lost capacity during the course of proceedings.
[20] As to the possible consequences for a solicitor in such circumstances, see footnote 8 above.
Unfortunately, as will be outlined further below, these proceedings are attended by a number of the irregularities identified in [19]. These matters require attention in the context of dealing with the present application.
Orders
As will be apparent from the above, there is a distinction under the court rules between:
(a)naming a litigation friend (without any court order) - which can only be done at the first opportunity, in compliance with all the requirements of and subject to the limitations in O 70 r 3;
(b)the appointment of a litigation friend, by court order;
(c)the removal of a litigation friend, by court order; and
(d)an order made to deal with (or avoid) an irregularity in the proceeding, including by:
(i)giving leave to amend a writ or originating summons. Relevantly, such leave is always necessary if the amendment consists of 'the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued'.[21] Notably, there is also a distinction between leave to correct the name of a party and leave to change the capacity in which a party sues or is sued. Further, an order granting leave to amend does not of itself effect the amendment - the applying party must file and serve the amended writ or originating summons; and
(ii)an order to cure an irregularity which does not require the amendment of the writ or originating summons, or the appointment of a litigation friend.
[21] O 21 r 1(1), O 21 r 5, O 21 r 6.
Consideration
The plaintiff is a person under disability
The plaintiff was born on 19 September 2002 and, accordingly:
(a)at the time the action was commenced, he was under the age of 18 and therefore a person under disability by reason of being an 'infant'; and
(b)by reason of attaining the age of 18 years on 19 September 2020, he became an adult presumed to be capable of conducting proceedings (including by instructing solicitors) on his own behalf.[22]
[22] City of Swan [32] ‑ [37]; Daynes v Public Advocate [2006] VSC 53. That general law presumption is also reflected in GAA s 4(3).
By orders of the State Administrative Tribunal (SAT) made on 27 August 2020 the plaintiff was declared to be unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate, and to be in need of an administrator. By those orders, the Public Trustee was appointed as his plenary administrator. That appointment was renewed by a further order of the SAT made on 16 August 2022.
From the time the Public Trustee was appointed as the plaintiff's plenary administrator, the plaintiff became a person under disability by reason of being a 'represented person'.
Appointment of a next friend
The application proposes orders, outlined at [6(a)] - [6(b)] above, to 'remove' the CEO, and to appoint the Public Trustee, as the plaintiff's next friend.
As to the CEO being the plaintiff's next friend:
(a)contrary to O 70 r 3(7), the CEO was named on the writ (filed on 7 June 2017) as the plaintiff's next friend without any of the specified documents in O 70 r 3(8) being filed before or at the time of filing (or indeed since that time); and
(b)accordingly, insofar as the writ names the CEO as the plaintiff's next friend in the action, it is irregular.
That irregularity gives rise to various complications in connection with the application.
First, it complicates the task of discerning whether the CEO was in substance the plaintiff's next friend in the action - that is, whether the writ is 'merely' irregular by reason of non-compliance with O 70 r 3, or whether the action was in substance commenced other than by a next friend, contrary to O 70 r 2.
That enquiry:
(a)bears upon the need for, and nature of, the orders sought (specifically, to remove the CEO as next friend and to appoint the Public Trustee in that role); and
(b)is muddied by:
(i)the absence of any affidavit evidence of the plaintiff's solicitor in connection with the role of the CEO, addressing the matters contemplated in O 70 r 3(8)(b);
(ii)the presence of affidavit evidence of the plaintiff's solicitor, made on 14 April 2019 in support of an application to remove the action from the inactive cases list, which includes an attestation to the effect that progressing the matter had been 'somewhat complicated by the difficulty in obtaining instructions from the plaintiff' by virtue of his head injury and his frequent moving between regions;[23] and
(iii)additional affidavit evidence of the plaintiff's solicitor, made on 23 November 2020 in support of a further application to remove the action from the inactive cases list, which includes an attestation to the effect that the plaintiff had, been 'in the care of the DCP' prior to the SAT orders made on 27 August 2020.[24]
[23] Affidavit of the plaintiff's solicitor made 14 April 2019, par 4 (emphasis added).
[24] Affidavit of the plaintiff's solicitor made 23 November 2020, par 4.
Despite some lack of clarity, noting that the plaintiff was a child in care at the relevant time, I am content for the purposes of the application to proceed on the basis that the CEO 'has been' the plaintiff's next friend, within the meaning of O 70 r 3(5). That is, I proceed on the basis that the CEO was irregularly named as the plaintiff's next friend, but in substance acted in that role until the Public Trustee was appointed as the plaintiff's administrator.
It follows from that conclusion that I consider O 70 r 3(5) to be engaged and therefore:
(a)any change to the plaintiff's next friend requires the latter to be appointed by the court, even if (as here) the proposed next friend is the Public Trustee and/or has already been appointed as plenary administrator;[25] and
(b)it is unnecessary in the circumstances to make any order removing the CEO under O 70 r 7. That is because, reading O 70 as a whole and construing its provisions in context,[26] I consider that:
(i)O 70 r 7 is directed to the removal, without any, or any immediate, substitution of an alternate litigation friend (for example, if the party no longer needs a litigation friend, or if there is reason to believe that the litigation friend is unable or unwilling to continue in the role or to act in the best interests of the person under disability);[27] and
(ii)the language in O 70 r 3(5) - which refers to the court making 'an order appointing another person … in substitution for the person previously acting in that capacity' - contemplates the substitution of a litigation friend contemporaneously with a new appointment, and without the need for prior removal.
[25] O 70 r 3(4).
[26] The accepted approach to construing written laws is well established and need not be repeated here - see for example: Meyer v Solomon [2021] WASCA 168 [76] ‑ [80] and the authorities cited therein.
[27] See, for example: Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [No 3] [2009] WASCA 118 [4].
I note, for completeness, that if removal were necessary then that order could not presently be made because there is no affidavit evidence before me on which I could be satisfied that the service requirements in O 70 r 7(2) have been met.
As to the appointment of the Public Trustee as the plaintiff's next friend in substitution for the CEO, it is clear from the language of O 70 r 3(5) that such appointment is a precondition to being 'entitled to act' (not just to being named) in that capacity. Application for such appointment ought therefore to have been made immediately following their appointment as plenary administrator in August 2020.
It is plain that the framework created by O 70 is designed to be protective in nature and function. As has been observed:[28]
[T]he purpose of O 70, in particular r 3, is to ensure that the interests of a person under disability (including an infant) who is a party to proceedings are adequately protected, and that the person who seeks to appear as a next friend or guardian has proper standing.
[28] RH [21]. See also: Layne Carmel Dixon by her Next Friend Andrew Nigel Dixon v Clarke [2017] WASC 310 [7] (Dixon).
The requirements in O 70 r 3 - notably, for these purposes, subrules (5) and (8) - are plainly directed to requiring solicitors to satisfy themselves and the court of various matters (including the need for a next friend to act and the suitability of the proposed next friend) before taking and acting on instructions from a proposed next friend in proceedings affecting the interests of a person under disability.
It is of concern that in this case those requirements have not been met:
(a)in naming (and, as appears likely, taking instructions from) the CEO as the plaintiff's next friend; and
(b)in making an application to appoint the Public Trustee as substituted next friend:
(i)some two years after their appointment as the plaintiff's plenary administrator; and
(ii)in the context of an application to compromise the action, where it is clear that instructions have been taken in connection with the action and its resolution.[29]
[29] Affidavits of the plaintiff's solicitor made 23 November 2020 (pars 4 ‑ 8) and 12 August 2024 (pars 4 ‑ 7); affidavit of Shaun William Conlin made 9 August 2024 (pars 4 ‑ 8).
It may also be observed that the court could and perhaps should have taken steps to require compliance with O 70 r 3 when dealing with action in chambers at an earlier stage,[30] for example as a condition of removing the action from the inactive cases list.
[30] As to which, see [12] above.
In the event, however, the application must now be dealt with. I am satisfied that it is appropriate to appoint the Public Trustee as the plaintiff's next friend in the action, in substitution for the CEO, and I will make an order to that effect.
I now turn to consider the substance of the proposed compromise of the plaintiff's claim.
Proposed compromise
The principles relevant to approving a proposed compromise are well settled and have usefully been summarised as follows:[31]
[31] Dixon [7] - [8], citing Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [61]; Sosa v Carter [1978] WAR 123 (Sosa); Dion Giuseppi Sergi by Next Friend Aileen Solowiej v Sergi [2012] WASC 18 [39].
7The approval of a settlement under O 70 r 10 requires the resolution of issues by the exercise of judicial power … The basic question for the court is whether the compromise will be for the benefit of the person under the disability ... In summary, the court must satisfy itself that:
(1)the proposed settlement will be for the plaintiff's benefit;
(2)all the facts relevant to the matter have been brought together and considered by the plaintiff's legal advisers;
(3)the proposed settlement is supported by the opinion of an independent counsel who has given proper consideration to all aspects of the case, and
(4)the independent counsel's opinion has been considered, understood and approved by the next friend of the person under disability.
8The court should give proper weight to the fact that the next friend wishes to accept the settlement. The wishes of the next friend will be taken into account but are not decisive.
I do not, for these purposes, need to set out the particulars of the proposed compromise. Rather, I note that the opinion of senior counsel, filed in support of the application, identifies the basis upon which negotiations between the parties proceeded, and addresses the salient features of the claim relative to the proposed compromise.
I am mindful that the court should be slow to disagree with a settlement which is supported by independent counsel, particularly as regards the assessment of damages, having regard to the risk of litigation.[32]
[32] Sosa (124).
I note in particular that:
(a)counsel has provided a detailed opinion on quantum which sets out the basis for the assessments it contains, including as to causation and the plaintiff's pre-accident morbidities, and has recommended the proposed settlement;
(b)there is affidavit evidence to the effect that the Public Trustee has been provided with and has considered counsel's opinion, and considers the proposed settlement to be in the best interests of the plaintiff; and
(c)the Public Trustee is proposed to administer the settlement sum, and has provided an estimate of its fees in that regard which amount is included in the proposed judgment sum.
I have considered the opinion of counsel and the reasons for it. On all the material before the court, I am satisfied that independent counsel has given proper consideration to the relevant aspects of the case, including the risks inherent in litigation, and that the next friend approves the settlement proposed. I consider it is in the best interests of the plaintiff that the matter be settled as proposed. Accordingly, the proposed compromise is approved in substance.
Conclusion
There are some elements of the orders proposed in the chamber summons that require attention, and I will hear submissions as to the precise terms of the orders that should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ER
Associate to Principal Registrar
11 SEPTEMBER 2024
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