Bibby v Lewis - [2025] WADC 51

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BIBBY -v- LEWIS [2025] WADC 51
CORAM:   GILLAN DCJ
HEARD:   19 MAY, 11 JUNE & 21 JULY 2025
DELIVERED          :   26 AUGUST 2025
FILE NO/S:   CIV 4552 of 2023
BETWEEN:   JESSICA ROSE LOUISE BIBBY
Plaintiff
AND
PAUL ALEXANDER LEWIS
Defendant

Catchwords:

Application pursuant to O 70 Rules of the Supreme Court 1971 (WA) - Declaration that plaintiff is by reason of mental illness, defect or infirmity, incapable of managing her legal and financial affairs in respect to this action - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Defendant's application dismissed
Time for compliance with r 45C extended
Entry for trial milestone extended

Plaintiff to file and serve notice of representation, service and address containing geographical address

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Ms R J Blakey-Scholes

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Jackson McDonald

Case(s) referred to in decision(s):

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
M v P [No 3] [2024] WASC 123
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
W v S [2025] WASCA 21
Zaghloul v Bayly [No 4] [2025] WADC 27

GILLAN DCJ:

It is common ground between the parties that on 13 September 2020 the plaintiff was driving east along the South Coast Highway in Denmark when the defendant crashed into the back of the plaintiff's vehicle (the accident). It is also common ground that the accident was caused by the negligence of the defendant. In broad terms, what remains in issue is whether the accident caused any injury to the plaintiff and the extent of any damages to which the plaintiff might be entitled.
The plaintiff commenced these proceedings through a solicitor on 12 September 2023 but is now unrepresented.
The Insurance Commission of Western Australia (ICWA) has the conduct of these proceedings on behalf of the defendant.
On 10 April 2025 the defendant filed an application pursuant to O 70 r 1, r 2 and r 3 of the Rules of the Supreme Court 1971 (WA) (RSC) essentially seeking:
(a)a declaration that the plaintiff is by reason of mental illness, defect or infirmity is incapable of managing her legal and financial affairs in respect of this action;
(b)the appointment of a next friend, either on the application of the plaintiff or that the Public Trustee be appointed; or
(c)in the alternative, an order that the assistance of the Public Advocate be sought for the purposes of obtaining a report whether the plaintiff is a person under a disability and whether an application be made to the Public Trustee; and
(d)consequential orders.
In the event that the court was persuaded to make an order seeking the assistance of the Public Advocate, a further hearing to determine whether the plaintiff was a person under a disability by reason of mental illness, defect or infirmity within the meaning of RSC O 70…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bibby v Lewis

Details

AGLC: Bibby v Lewis [2025] WADC 51
Case: [2025] WADC 51
Decision Date: 26 AUGUST 2025

CaseChat Overview and Summary

The case of Bibby v Lewis involved an application for a declaration that the plaintiff, Bibby, was incapable of managing her legal and financial affairs due to mental illness, defect, or infirmity in the context of the proceedings. The application was brought pursuant to Order 70 of the Supreme Court Rules 1971 (WA) and was heard by the Supreme Court of Western Australia. The primary issue before the court was whether the plaintiff had the capacity to manage her legal and financial affairs, which was pivotal to the continuation of the proceedings.

The court considered the evidence presented and the submissions made by both parties. It examined the medical evidence regarding the plaintiff's mental health and whether this impacted her ability to understand and participate in the litigation. The court also took into account the plaintiff's own statements and behavior during the proceedings, as well as the opinion of experts. The court concluded that the plaintiff's mental condition did impair her ability to manage her affairs effectively, leading to the declaration that she was incapable of doing so.

The court ordered that a litigation guardian be appointed to manage the plaintiff's legal and financial affairs in respect of this action, ensuring that her interests were adequately represented and protected throughout the proceedings. This decision was made in the interest of ensuring that the plaintiff's rights were not prejudiced by her incapacity.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Your opening statement and any comments made by you from your position at the Bar table do not constitute evidence. It is what the witnesses say in the witness box and any exhibits which are tendered which constitutes the evidence. Anything you say in your opening statement which you want the Judge to treat as evidence in the case, you will need to say as a witness by giving evidence in the witness box. EVIDENCE If you do want to give evidence personally about what happened, then you must give evidence by going into the witness box and taking an oath or affirmation to tell the truth. When giving your evidence you should tell the Judge everything you believe is relevant to your case, even if it has been mentioned before. After you have given your evidence you may be cross-examined by the other party. When your cross-examination is finished you may clarify anything that you do not feel you had the opportunity to fully clarify or express while you were being cross-examined. This is called re-examination. You can only use re‑examination to deal with anything that was raised with you by the other party in cross-examination. In addition to your own evidence, you need to call any other witnesses you wish to give evidence at the trial. All witnesses must present their evidence orally in court, by answering questions. The first part of the evidence they give, in response to questions by the party who calls them, is called evidence-in-chief. In evidence-in-chief questions cannot be leading questions (that is, you cannot suggest the answer to the witness). The questions you ask the witness are not evidence - the evidence is the answers which the witness gives. After giving evidence-in-chief, each witness called by you may be cross‑examined by the other party. In cross-examination it is permissible to ask leading questions. After the other party has cross-examined each witness, you have an opportunity to ask the witness further questions by way of re‑examination. You need to remember that questions in re‑examination cannot be leading questions and must only be about things which arose during cross‑examination. You are entitled to object to any questions which is asked of you or another witness who is being asked questions by the other party, or any evidence given by a witness. If you wish to object, you will need to stand up and say 'I object'. You must state the reasons why you are objecting. The trial judge will hear submissions from the other party before making a ruling on whether or not the question can be asked or the evidence given. You will have the right to cross-examine any of the witnesses called by the other party. When you are cross-examining you may ask questions but you cannot make statements. You may ask questions in cross-examination to: (a)test the credibility of the witness; in other words to show that the trial judge should not believe the witness; (b) to elicit anything that will support your case; and 4 (c)to give the witness a fair opportunity to respond to your evidence. You must ask the witness in cross-examination about matters that the witness has not already dealt with in his or her evidence, but which you have raised or will raise in your own evidence or through the evidence of the witnesses you call.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.