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 r 1(c) would be required.
Accordingly, the issues for determination on the defendant's application are whether the court should:
(a)grant the application and declare that the plaintiff is, by reason of mental illness, defect or infirmity, a person under a disability and is incapable of managing her affairs (legal and financial) in respect of the action, along with consequential orders to effect the appointment of a next friend; or
(b)make a more limited order which seeks the assistance of the Office of Public Advocate (OPA) to investigate whether the plaintiff is a person who by reason of mental illness, defect or infirmity is a person under a disability and is incapable of managing her affairs (legal and financial) in respect of the action and request a report from OPA with respect to that question; or
(c)dismiss the application on the basis that there is an insufficient basis to conclude that the plaintiff lacks capacity so as to justify interfering with the plaintiff's right to have the conduct of her own litigation.
In addition, the plaintiff has sought to keep her geographical address private from the defendant. The issue is whether the plaintiff, who says that she now lives in Queensland and who has given a post office box address for service, has established a sufficient basis on which she granted a dispensation from the usual rule requiring that a geographical address be provided to the court and to the defendant.

Background

After the accident, in 2020, the plaintiff gave notice of claim to ICWA. For the purpose of treatment and at the request of her treating general practitioners and, also, at ICWA's request with respect to the claim made, the plaintiff attended on various specialist medical or medical allied professionals.
One of the medical practitioners was a consultant psychiatrist, Dr Gemma Edwards-Smith, who met with the plaintiff at ICWA's request and prepared a report to ICWA dated 22 September 2021. In that report Dr Edwards‑Smith raised concerns as to the plaintiff's capacity to manage her financial and legal affairs and suggested that the plaintiff be further assessed for capacity before any settlement be reached.
A referral by the plaintiff's general practitioner was made to a clinical Professor of Neurology, Professor Peter Panegyres. In his report dated 15 December 2021, Professor Panegyres described the plaintiff as a fit, cooperative well-spoken woman, noted the absence of neurological symptoms on testing, made the suggestion that she has sustained a post‑traumatic stress disorder following the accident, confirmed that there was no evidence to suggest an emerging neurodegenerative disorder but also said that a neuropsychological report should be obtained to provide reassurance for the plaintiff.
In the past the plaintiff retained solicitors and was subsequently represented by the following solicitors:
(a)Maurice Blackburn from 23 November 2021 to 15 December 2022;
(b)Percy Kakulas Gleeson (PKG) from 13 April 2023 until, at the latest, September 2023;
(c)Perth City Legal, who commenced the proceedings, from 4 September 2023 to January 2024; and
(d)Brand Lawyers from 23 January 2024 to 2 April 2024.
On 7 March 2024 the court issued a notice of default (entry for trial) which gave notice that unless the plaintiff entered this action for trial on or before 22 March 2024 the case would become inactive. Before Brand Lawyers ceased acting, the entry for trial milestone was agreed to be extended to 7 June 2024 by consent orders signed by the parties' respective solicitors.
The plaintiff has been unrepresented in the proceedings since April 2024. On 21 May 2024 the plaintiff filed current details of her then address for service which was a post office box in Victoria but did not include details of her geographical address. I will come back to the issue of the plaintiff's geographical address.
On 10 June 2024 the court issued a notice of default (entry for trial) which gave notice that unless the plaintiff entered this action for trial on or before 25 June 2024 the case would become inactive.
On 11 June 2024 the plaintiff wrote to the court, inter alia, requesting an 8-month extension of time to enable her to find a new lawyer and have that lawyer take action on her behalf.
Jackson McDonald, the defendant's solicitors, wrote to the court on 13 June 2024:
(a)referring, inter alia, to a report of Dr Gemma Edwards-Smith dated 22 September 2021 wherein concerns were raised as to the plaintiff's capacity to manage her financial and legal affairs; and
(b)asking the court to exercise its inherent jurisdiction to consider the question of the plaintiff's capacity, the future conduct of the matter and to deal with the issue of the entry for trial milestone. The defendant sought an early directions hearing.
The court advised the parties by letter dated 19 June 2024, inter alia, that a formal application or consent order would need to be filed for the extension of the date of entry for trial and requested an outline of directions that would be sought before a registrar in chambers.
By letter dated 19 June 2024 but lodged on 25 June 2024, the plaintiff wrote to the court seeking advice on how to proceed. It is not the court's practice or its role to advise parties to litigation.
The action was placed on the inactive cases list on 26 June 2024 and the parties were advised on 27 June 2024 that the action was on the inactive cases list and that the court could not provide legal advice.
The effect of being placed on the inactive cases list is that if orders were not made removing the action from the inactive cases list within a six‑month period (ie by 27 December 2024) then the action would automatically be dismissed.
The plaintiff took no steps to remove the action from the inactive cases list. Instead, the defendant bought an urgent application to remove the case from the inactive cases list. On 18 December 2024 Deputy Registrar Harman made orders, relevantly, that the action be removed from the inactive cases list, that by 28 March 2025 the plaintiff comply with r 45C (ie file her particulars of damages), the action be listed for directions on 9 April 2025 at 10.00 am and the latest date of entry for trial be extended to 24 April 2025.
The date of entry for trial has been further extended and is currently 29 August 2025.
On 19 May 2025 the plaintiff indicated that she would like to appoint a solicitor. Correspondence with the court since 18 December 2024[1] is consistently to the effect that the plaintiff has faced a variety of difficulties in engaging a lawyer. It does seem fair to say that the plaintiff has not been transparent about exactly what she has done to appoint a solicitor, has not approached the task with vigour and appears to hold concerns, possibly valid ones based on her financial position, about the cost of doing so which concerns are holding her back. Most recently the plaintiff said[2] that the current application was an impediment to her obtaining representation.
[1] Folio 22 Letter filed 12 March 2025 seeking an extension while she finds a lawyer; Folio 24 Letter filed 3 April 2025 needs time to pay for a lawyer and will likely now find and pay for a lawyer. Wanted to extend time for direction to 15 December 2025 and entry for trial to 31 January 2026; Folio 25 Letter filed 8 April 2025 and Folio 32 Letter filed 10 April 2025 lawyers want money to read documents, suggest loans to pay for this or they cannot act immediately; Folio 37 Letter filed 26 April 2025 wanted to adjourn chambers hearing/directions hearing from 30 April 2025 to allow her to have time to get a lawyer.
[2] Email dated 18 August 2025.
On 19 May 2025 during a hearing the plaintiff confirmed that she is now living in Queensland, accordingly, her mailing address at a post office box in Victoria is not current. On 11 June 2025 the plaintiff was ordered to file an updated notice of change of representation, service and address. That order was not properly complied with. On 30 June 2025 the plaintiff was ordered to file a new Form 5AA notice of change of representation, service and address including residential address by 7 July 2025.
The plaintiff filed her informal application to dispense with disclosure of her geographical address to the defendant on 6 July 2025.

The law with respect to O 70 of the Rules of the Supreme Court 1971 (WA)

Order 70 r 1 - r 3 RSC are in the following terms:
1.Terms used
In this Order unless the contrary intention appears -
GAA Act means the Guardianship and Administration Act 1990;
person under disability means -
(a)a person who is an infant; or
(b)a represented person; or
(c)a person not being a person referred to in paragraph (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates;
represented person means a person in respect of whom a guardian or administrator has been appointed under the GAA Act with authority to do either or both of the following -
(a)as the next friend of the represented person, to commence, conduct or settle on behalf of the represented person specified proceedings, some proceedings or all proceedings;
(b)as the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person.
2.Persons under disability suing or defending
(1)Except as provided in subrule (4) a person under disability -
(a)cannot bring, or make a claim in, any proceedings except by the person's next friend; and
(b)cannot defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on the person, except by the person's guardian ad litem.
(2)Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings must or may, if the party is a person under disability, be done by the person's next friend or guardian ad litem.
(3)A next friend or guardian ad litem of a person under disability must act by a solicitor.
…
(5)If a person under disability is a represented person, the next friend or guardian ad litem of the represented person in any proceedings must be -
(a)a guardian or administrator of the represented person authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem, as the case may be, in those proceedings; or
(b)some other person appointed by the Court to be the next friend or guardian ad litem, as the case may be, in those proceedings.
(6)An appointment by the Court under subrule (5)(b) may be -
(a)of its own motion; or
(b)on an application made under rule 5.
(7)For the purposes of subrule (6)(b) the Court may vary the requirements of rule 5 as it considers appropriate in the circumstances.
3.Appointment of next friend or guardian ad litem
(1)This rule does not apply in relation to a probate action.
(2)Save as provided by subrules (5) and (6) or by rule 5, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary for the purpose of a proceeding to which this rule applies.
(3)If a person under disability is a represented person, a guardian or administrator authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem, as the case may be, of the represented person in the proceedings is the next friend or guardian ad litem, as the case may be.
(4)Subrule (3) does not apply, in a case to which subrule (5) or (6) or rule 6 applies, if some other person is appointed by the Court to be the next friend or guardian ad litem, as the case may be, of the represented person in those proceedings.
(5)Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person is entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing another person such friend or guardian in substitution for the person previously acting in that capacity.
(6)Where, after the commencement of any proceedings, a party to the proceedings becomes a person under a disability, an application must be made to the Court for the appointment of a next friend or guardian ad litem, as the case may be, of that party.
(7)Except where the next friend or guardian ad litem of a person under disability has been appointed by the Court, is a guardian or administrator referred to in subrule (3), or is the Public Trustee, the documents specified in subrule (8) must be filed before -
(a)the name of any person can be used in a cause or matter as next friend of the person under disability; and
(b)an appearance can be entered in a cause or matter for the person under disability; and
(c)the person under disability is entitled to appear by the person's guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on the person.
(8)The documents referred to in subrule (7) are as follows -
(a)a written consent to be next friend or guardian ad litem, as the case may be, of the person under disability, signed by the person proposing to act as such friend or guardian; and
(b)an affidavit by the solicitor for the person under disability deposing -
(i)that the solicitor knows or believes, as the case may be, that the person to whom the affidavit relates is an infant or a represented person, stating (in the case of a represented person) the grounds of that knowledge or belief; and
(ii)that the person named in the affidavit as next friend or guardian ad litem, as the case may be, has no interest in the cause or matter in question adverse to that of the person under disability; and
(iii)that in the case of an infant (who is not a represented person) who has attained the age of 14 years, the infant consents to the person named in the affidavit acting as next friend or guardian ad litem, as the case may be.
[(c) deleted]
(9)If the person who is the next friend or guardian ad litem, as the case may be, of a represented person and is authorised under the GAA Act Part 5 or 6 to conduct proceedings in a cause or matter in the name of the represented person or on behalf of the represented person, a copy of the order made under the GAA Act Part 5 or 6 giving the authority must be filed before -
(a)the name of any person can be used in the cause or matter as next friend of the represented person; and
(b)an appearance can be entered in a cause or matter for the represented person; and
(c)the represented person is entitled to appear by the person's guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on the person.
Justice Seaward in Snook v Magistrate Trevor Darge [No 2][3] and Justice Lundburg in M v P [No 3][4] both considered the principles that apply to determining a declaration application and these principles were reviewed by the Court of Appeal in W v S.[5] I cannot improve on what the Court of Appeal had to say as follows:[6]
[3] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91.
[4] M v P [No 3] [2024] WASC 123.
[5] W v S [2025] WASCA 21.
[6] W v S [41] - [47].
41There is a presumption that every person of full age has the mental capacity to manage their own affairs and the burden of proving to the contrary rests with those asserting incapacity.
42A declaration that a party lacks legal capacity is not to be made lightly. Although there may be cases where the court is able to make an assessment of the capacity of a party from its own observations, the court will usually require the assistance of a medical report before being able to be satisfied that incapacity exists and taking the serious step of declaring a person to be under a disability. As McPherson JA observed in Thomson v Smith:
[I]f the Court is by appointing a litigation guardian, asked to take the conduct of current proceedings out of the control of the person who started them, there should be evidence on which a judge can confidently act that that person is not capable of making the decisions required for conducting that litigation.
43The question raised by the definition in O 70 r 1 of the SC Rules is whether the appellant, by reason of mental illness, defect or infirmity, however occasioned, is incapable of managing his affairs in respect of the current appeal proceedings. This will depend upon whether he is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which consent or decision is likely to be necessary during the proceedings. As Hallen J recognised in Rappard v Williams, albeit in a slightly different statutory context, this may include:
[D]oing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice and engaging in the continuing process of cooperation, interaction and decision making that exists between lawyer and client in running any civil action.
44The question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is issue-specific and relates to the facts and subject-matter of the particular case.
45The court must be mindful of the impact an order under O 70 r 1 of the SC Rules will have on the civil rights of the individual concerned. Importantly, upon the court requiring the appointment of a representative, the person is denied, by O 70, the important rights to freely prosecute, defend, compromise or otherwise participate in the litigation in their own name. However, when put on notice that a person may lack the capacity to manage their own affairs in the litigation, the court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence.
46In circumstances where a litigant is self-represented, the standard with which they are incapable of managing their own affairs has been described as follows:
[T]he level of mental capacity required to be a 'competent' litigant in person ... cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
47Recently, in Snook v Magistrate Trevor Darge [No 2], Seaward J helpfully summarised the relevant principles in the following terms:
(a)the power of the court to appoint a representative to act on behalf of a person under a disability is aimed at ensuring that all parties to the action are afforded the protection of the court's processes and those processes are themselves protected;
(b)it is well-established that there is a presumption that a person of full age is capable of handling their own affairs. The burden of proof rests upon the party asserting present incapacity;
(c)clear evidence that a person has suffered from some form of mental incapacity for a considerable period in the past is not itself determinative, although such evidence may mean that the burden of proof is more easily discharged;
(d)the court, when asked to make an order of this nature, must be mindful of the impact the order will have on the civil rights of the individual concerned;
(e)conscious of the necessary impact on the person's civil rights, the court will be reluctant to order the appointment of a representative without medical evidence of incapacity, although there will be instances where the court will be limited to its own observations, for example, where medical evidence is not forthcoming, or where the person's incapacity is so obvious to the court that the judge is of the view that medical evidence is not required;
(f)when put on notice that a person may lack the capacity to manage their own affairs in the litigation, the court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence;
(g)Order 70 requires the court to consider whether the relevant person is, by reason of mental illness, defect or infirmity, however occasioned, incapable of managing their affairs in respect of the proceedings. There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs. It will fluctuate according to the legal character, complexity and significance of the relevant transaction (also known as an 'issue-specific' approach);
(h)the expression 'incapable of managing her own affairs' must be construed in a common-sense way as a whole. It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation. A person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life. The expression involves a consideration of whether the person has sufficient mental capacity to understand the case and the legal issues involved, to make decisions in relation to the case and (if instructing a solicitor) to give instructions. It has been described as:
The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes …
(i)in circumstances where a litigant is self-represented, the standard has been described as follows:
[T]he level of mental capacity required to be a 'competent' litigant in person ... cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
(citations omitted)

What is meant by incapable of managing [her] own affairs in respect of the proceedings

I also adopt what Bowden DCJ said in Zaghloul v Bayly [No 4]:[7]
[7] Zaghloul v Bayly [No 4] [2025] WADC 27 [42] - [50] (Zaghloul).
42There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing the proceedings they are involved in.
43The expression 'incapable of managing his own affairs in respect of the proceedings' must be construed in a commonsense way as a whole. The question is whether the party is by reason of mental illness, defect, or infirmity, however occasioned, incapable of managing his affairs in respect of the current proceedings. This will depend upon whether he is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in such other disciplines as a case may require, the issues in which consent or decision are likely to be necessary during the proceedings.
44It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation.
45The standard applicable to a self‑represented litigant in respect of questions of whether they are incapable of managing their own affairs in respect of the proceedings they are involved in has been described in W v S at [46]:
[T]he level of mental capacity required to be a 'competent' litigant in person ... cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
46It involves more than what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks of costs: W v S; Snook v Magistrate Trevor Darge [No 2]; M v P [No 3].
47To have that capacity requires first the insight and understanding of the fact that the person has a problem in respect of which advice is needed. Secondly, having identified the problem, it will be necessary for the person to seek an appropriate adviser and to instruct that advisor with sufficient clarity to enable the advisor to understand the problem and to advise appropriately. Finally, the person needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as they may receive: Masterman-Lister v Brutton & Co (Nos 1 and 2).
48In Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160 [32] (Slaveski), Justice Kyrou observed that where a plaintiff is self‑represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of the Victorian equivalent of O 70 of the RSC:
…
(a)Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b)Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
(c)Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
(d)Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
(e)Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?
(f)Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?
(g)Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
(h)Is the plaintiff able to control his or her emotions and behave in a non-abusive and non‑threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
(i)Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
(j)Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
(k)If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
(l)Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made?
(m)If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health?
49His honour observed at [33]:
A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding.
(citation omitted)
50In dealing with applications of this type the personal attributes of the party to whom the application relates and the character of the proceedings they are involved in are so unique that little can be gained by specific results, as opposed to the principles applied, in past cases.
(citations omitted)

The parties' submissions

The defendant relies on the affidavits of Ms Rosemarie Jean Blakey‑Scholes sworn 10 April 2025 and 18 June 2025 and the voluminous attachments.
The defendant's submissions, as outlined in written submissions dated 9 June 2025 and 18 June 2025, can be briefly summarised as follows:
1.The court is on notice[8] that the plaintiff may lack capacity to manage her own affairs in these proceedings and so is bound to consider whether she had the requisite capacity based on the available evidence.
2.The plaintiff has been incapable of retaining and sustaining legal representation throughout the history of the action largely due to a preoccupation with the costs associated with doing so. Further, by the plaintiff's conduct, including, correspondence with the court and the defendant's solicitors, she has demonstrated that she does not have the necessary capacity to understand the issues that have arisen in the proceedings or to adhere to the court's procedures and processes or the rules of evidence as they relate to these proceedings.
[8] Affidavit of Rosemarie Jean Blakey-Scholes sworn 10 April 2025 at pars 3 - 31 and RBS-12 report dated 22 September 2021 of Dr Gemma Edwards-Smith.
The plaintiff prepared written submissions annexed to an email dated 9 June 2025 and updated it later that day.[9] Those submissions do not adequately address the defendant's application and deal with a great many peripheral issues.
[9] Affidavit of Rosemarie Jean Blakey-Scholes sworn 18 June 2025 at pars 23 - 24 and RBS‑81 and RBS‑82.
The plaintiff, however, said in oral submissions that there was a period of time when she was unwell, including with working memory deficits following the accident but that she is now much more well, has returned to work, can follow along with the aid of notes and makes lists to ensure that she does what she needs to do. Further, the plaintiff admits that she does need the assistance of a lawyer in order to progress the matter properly and that she has been intending and continues to wish to obtain legal representation.

Evidence as to the plaintiff's capacity

The medical evidence able to be adduced by the defendant is limited. The defendant relies on:
(a)a report of a speech pathology report dated 16 August 2021[10] to whom the plaintiff self-referred who after finding a minor deficit in working memory recommended that a full psychological evaluation to determine if there is any underlying disorder that might impact working memory; and
(b)a letter dated 22 September 2021 from Dr Gemma Edwards‑Smith, a psychiatrist, who examined the plaintiff for the purpose of these proceedings in September 2021. In that letter, Dr Edwards‑Smith said that at present she was not convinced that the plaintiff has the capacity to manage her legal and financial affairs and suggested this be reviewed prior to any settlement. That review has not occurred.
[10] Affidavit of Rosemarie Jean Blakey-Scholes sworn 18 June 2025 and RBS‑77.
In addition, the defendant relies on a number of matters which, he submits, when taken together are sufficient to displace the presumption that the plaintiff has the mental capacity to manage her own affairs.
A non-exhaustive list of those matters includes:
1.The plaintiff has been represented by four different firms of solicitors since November 2021 and has been self-represented since May 2024 despite indicating to the court, by the Form 5AA notice of change of representation, service details or address filed 21 May 2024 confirmed that the plaintiff intended to seek new legal representation. That intention was confirmed orally to the court more than once but the plaintiff has made no progress in that regard.
2.The matter was in peril of being dismissed for want of entry for trial in December 2024 and was only removed from the inactive cases list on the application of the defendant.
3.The plaintiff shows signs in written material of focusing on the peripheral issues relating to this application and not on the substantive issue of her mental capacity to instruct lawyers or conduct the proceedings.
4.The plaintiff does not comply with the usual processes relating to the conduct of proceedings, for example, copying the defendant's solicitors into correspondence, not complying properly with court orders such as the order to provide her address and not complying with the requirements to file documents such as her particulars of damages but instead filing voluminous documents that may ultimately be by way of informal discovery in this matter but which the defendant considers are of only peripheral relevance to the proceedings. Further, the plaintiff does not argue her position well or at all.
5.There is evidence of poor memory, an inability to reason, a misunderstanding of financial matters, a lack of understanding of the substance of the claim and an inability to make informed decisions. The defendant points to the plaintiff's belief that her accident caused post-concussion injury, one symptom of which may be memory impairment, despite there being no medical evidence in support of this belief.

Whether a declaration of incapacity should be made in this case

There is no doubt that the plaintiff has not approached this matter as a lawyer would do. Personal injury matters are usually dealt with, procedurally, in a standard way. The plaintiff does not have experience in how matters of this type are regularly undertaken by practitioners versed in the practices of the court. I have no doubt that this makes her matter difficult to deal with and resolve.
The plaintiff's lack of knowledge extends to the District Court Rules 2005 (WA) (DCR) which set out what documents are required to be filed by a plaintiff, what time limits must be complied with and how those documents will commonly be organised, by way of example pertinent to this case, by provision of proper details of service, continual and updated discovery of documents by way of list, entry for trial documents or the provision of particulars of damage as was ordered on 18 December 2024.
The plaintiff appears to only have a limited idea about how evidence in support of her claim will need to be gathered and discovered. In the first instance, an injured plaintiff will usually undergo medical review in order to obtain and exchange medical reports. Some of this has already happened but as the obligation to prove her case will rest on the plaintiff, existing reports may need to be updated to give a current picture of the sequalae of her alleged injury.
The plaintiff will also be obliged to compile and exchange by way of a discovery list and inspection pf any documents that will be relevant to the proof of any economic loss she asserts she has sustained.
There is also no doubt that since April 2024 the plaintiff has not been doing herself a good service by acting on her own behalf. The glaring example is that she did not respond appropriately to the notice that her proceedings would be placed on the inactive cases list and almost lost the opportunity to continue with the proceedings as a consequence.
Equally as important is that the plaintiff has not progressed the proceedings with the aim of seeking a resolution even though the accident occurred in 2020.
Further, the plaintiff does not always follow the usual and necessary protocols of copying all of her correspondence with the court to the defendant and she lodges what would appear to be evidentiary material with the court rather than providing a discovery list and allowing the defendant inspection of the documents listed.
Finally, her submissions to the court on this issue do show a preoccupation with the overall proceedings rather than with the issue of whether she has the mental capacity to instruct a lawyer or to conduct the proceedings. This is notwithstanding that the application has been before me on 19 May 2025, 11 June 2025 and by consent orders extending time were made on 30 June 2025. This is not entirely the plaintiff's fault because the materials filed in respect to the application have been voluminous.
All of those criticisms can validly be made about the plaintiff but it is insufficient that the plaintiff has not proven herself capable of managing her action in the way expected of a litigant professionally represented and in accordance with the rules of court.
In order for me to make any order, the plaintiff must be incapable of managing her own affairs in respect to the proceedings by reason of mental illness, defect or infirmity, however occasioned.
The plaintiff, while unfocused on the issues live in this application, has so far seemed capable of following the argument put against her in a general sense. Further, regardless of her mental state in 2021, the plaintiff has said that she has returned to work and is managing her affairs more broadly.
The plaintiff did not present in court as having intrusive or disordered or paranoid thoughts. There were no obvious symptoms of an active mental illness. She had not been rude or disruptive during the proceedings.
There is some written material that suggests the plaintiff was, in the period following the accident, sensitive to her medical treatment or allied treatment being kept private or to assumptions being made about the nature of her condition and that she may well have reacted angrily or inappropriately when she considered that her privacy had been breached, or the wrong conclusion reached.
As for the plaintiff's beliefs that she suffered post-concussion syndrome which led to problems with her memory and an inability to work for some time, it may currently be the opinion of medical practitioners who have reviewed the plaintiff and prepared reports that is an unlikely result of the accident, but, that is one of the central questions which will be addressed at trial. The plaintiff will bear the onus of proving through her own and expert evidence that the accident was the cause of her difficulties should the matter come to trial.
I am not prepared to reach any conclusion about the plaintiff's chances at trial other than to say that the medical reports currently available and annexed to the affidavit material would suggest that the plaintiff has not currently compiled medical evidence strongly in support of her position.
I have reviewed the speech pathologist's report of 16 August 2021 which sets out the testing undertaken of the plaintiff and concluded that the plaintiff had mild working memory difficulties but did not present with a significant expressive or receptive language impairment as her language skills were functional and age appropriate. The recommendation that the plaintiff receive a full psychological evaluation to determine if there was any underlying disorder that may impact on working memory simply suggests another avenue to investigate the plaintiff's demonstrated mild working memory difficulties and does not appear on its face intended nor should it be read as a questioning of the plaintiff's mental capacity.
This is similar to Professor Panegyres' comment in December 2021, that the plaintiff required reassurance by a neuropsychological report that her cognitive functioning is normal in order to return to work.
The starting point is the presumption that the plaintiff, like every other adult person of full age has the mental capacity to manage her own affairs and the burden of proving the contrary rests on the person asserting incapacity.
As his Honour Bowden DCJ said in Zaghloul 'this matter must be approached in a commonsense way'. The question of whether the plaintiff has the mental capacity to manage her affairs in respect of these proceedings must be considered in light of the court's experience in dealing with litigation conducted by self‑represented parties who may experience difficulties arising out of their inexperience in court proceedings.
I am not satisfied that the plaintiff does not understand that she will have to prove that the accident has caused her injury, caused her loss and the type of evidence required to succeed. The pleadings are closed, although proper and up to date particulars of loss are still to be provided. I accept that the plaintiff has issues understanding what is relevant to these proceedings, but this is not uncommon with represented and unrepresented litigants and can be trial‑managed.
The court has an obligation, albeit limited, to provide some explanation of its processes to unrepresented litigants and with that assistance the plaintiff should be able to understand the court process and the rules for conducting her case and the roles of witnesses.
I am not satisfied that the plaintiff is not capable of assessing the impact of particular evidence on her case. I am not satisfied that the plaintiff is incapable of forming the view that a layperson of reasonable intelligence and commonsense would form if the cumulative effect of the evidence was such that her claim would fail.
There is nothing that demonstrates the plaintiff is incapable of assessing her interests during any settlement process or that indicates a trial of this relatively straightforward matter would result in stress and pressure that would be harmful to her physical or mental health.
Further, I have no doubt that the plaintiff is currently capable of instructing a solicitor. She has said that she wants to appoint a solicitor and I cannot encourage her more strongly to do so. Her failure to do so may in the end result in the failure of her claim if her grasp of the court processes remains insufficient.
In any event, unless I am satisfied that the plaintiff's failure to have a sufficient grasp of the court's processes is by reason of mental illness, defect or infirmity, however occasioned the court has no power to make the declaration sought.

Further with respect to the alternative application to request the assistance of the OPA in an examination and report of the plaintiff's capacity, an assessment must be made as to whether the declaration application has a reasonable basis of success as a referral should only be made to the OPA if the court is satisfied that the declaration application has a reasonable basis of succeeding. Absent such a conclusion it would be appropriate to finally determine the chamber summons without delay.[11]
[11] M v P [No 3].
The defendant has legitimately held concerns in respect to this matter and I acknowledge that the plaintiff's matter has proven to be more difficult to deal with than usual. I am, however, unable to find that the plaintiff's demonstrated departure from the usual court processes and insufficiency of understanding of those processes, even taken together and in conjunction with the opinion of Dr Gemma Edwards-Smith, is by reason of mental illness, defect or infirmity.
I would also decline that alternative because I am not sufficiently satisfied that the plaintiff's demonstrated shortcomings in managing the litigation are a possible consequence of mental illness, defect or infirmity rather than a lack of knowledge of the requirement that she prove her claim and of the proper processes and procedures of the court.
The right of a litigant to appear in person is a fundamental right.[12]
[12] Cachia v Hanes[1994] HCA 14; (1994) 179 CLR 403, 415.
The plaintiff is entitled to run her own action. If she does not appoint a solicitor, remains self-represented and does not adequately inform herself of her obligations to run the action properly, then, she remains entitled to run her action even if she does so badly.
The plaintiff is not, however, entitled to run her action other than in accordance with the DCR. Those rules are available online and it is the plaintiff's obligation to make herself familiar with those rules.
Registrar Harman ordered the plaintiff to comply with r 45C, in other words to file her particulars of damage, by 28 March 2025. That order has not been complied with. It will be necessary for the plaintiff to comply in the near future and to list the action for trial.
Rule 45C sets out the specific requirements of particulars of damages in a personal injury action by reference to headings of loss. Entry for trial is dealt with in pt 3 div 3 of the DCR r 37 and is effected by completing, filing and serving Form 1.
To further assist the plaintiff, attached to these reasons and marked Attachment A is a handout for self‑represented litigants as to Trial Procedure.
I am prepared to extend the time for compliance with the order to comply with r 45C and to further extend the time for entry for trial. I will hear the parties as to the appropriate timetable to be followed in this matter.

Plaintiff's application with respect to her residential address

I have considered the plaintiff's application to advise the court of her residential address but to keep it confidential from the defendant. The reasons the plaintiff gave in an email dated 23 June 2025 at 2.30 pm to the Associate are:
(a)she has a post office box where documents can be sent;
(b)she requests to keep her residential address private from the defendant and his lawyers and the defendant's solicitor Ms Blakey-Scholes has photographs of her outside of her car and a photograph of an 'interim' car purchased to replace that car. That makes the plaintiff feel vulnerable and concerned for her privacy; and
(c)even if Ms Blakey-Scholes is bound by ethical considerations from misusing the plaintiff's address, she is concerned that the defendant may personally come into receipt of her address.
Rule 22C(1) of the DCR provides that the court may order that a party is not required to state his or her geographical address in a document. By r 22C(2) an order to that effect is not to be made unless the party is an individual, has provided their geographical address to the court on a confidential basis and is represented by a practitioner. The pre‑conditions for such an order are not made out as the plaintiff is not represented.
In any case, the starting point is that a defendant is entitled to know the geographical address of the plaintiff. It is the plaintiff who has chosen to start the proceedings. The plaintiff may be liable for costs in the event that those proceedings fail and the defendant will have to know how to recover those costs.
There is no basis revealed for the plaintiff's concerns. There is no suggestion that the defendant's solicitors would misuse the plaintiff's geographical address nor that the defendant would himself do so.
Ms Blakey-Scholes said in her affidavit dated 18 June 2025 that the photographs were provided to ICWA by the plaintiff. There is no reason to think that is incorrect.
The plaintiff must file and serve an updated notice of change of representation, service and address including her geographical address within 28 days. In the event that her geographical address changes then the plaintiff must file and serve an accurate and updated notice of change of representation, service and address including her geographical address within 28 days after any change.

ATTACHMENT A

TRIAL PROCEDURE

1 (a) The plaintiff has the onus of proving his claim.
(b)The defendant has the onus of proving the facts set out in his defence/his counterclaim.
(c)The standard of proof is on the balance of probabilities - that is, what is the more probable.

The trial Judge's decision can only be based upon evidence produced during the trial.

3 Evidence is given by: -
(a)Witnesses giving oral evidence in the witness box, after taking either an oath or an affirmation to tell the truth;
(b)Documents or objects which are relevant to this case being tendered into evidence as exhibits.

PLEADINGS
4 The pleadings have two functions:
(a) To inform the Judge the nature of the dispute.
(b)To set limits to what can be argued at the trial - in other words the dispute at trial is limited to the dispute as defined in the pleadings.

5 The pleadings can be amended at trial but only with leave of the Judge.
ORDER OF GIVING EVIDENCE

The plaintiff will begin by calling evidence first, by calling all his witnesses and tendering any exhibits. When the plaintiff is finished he will be asked if he is closing his case.

After the plaintiff has closed his case, the defendant will then be invited to call all his witnesses and tender any exhibits. When the defendant is finished, he will also be asked if he closes his case.
OPENING ADDRESSES

Before you call your witnesses and produce any exhibits, you may make an opening statement to tell the Judge what the case is about and what evidence you will be calling. It is up to you to the extent you may wish to make an opening statement, but it would be helpful for you to inform the Judge:
(a) What witnesses you propose to call;
(b)What arrangements you have made as to when they are to be in attendance.

You should let the Judge know if you have any questions concerning the procedure at the trial. You should also ensure you have pencil and paper to ensure you can take notes.

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.

It is not a proper ground of objection simply to say that you disagree with the evidence. You may object only on legal grounds. An objection can be made to a question or evidence on the grounds that it is not relevant to the issues in dispute or is inadmissible according to the rules of evidence.

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.

If you disagree with any of the evidence given by a witness, you should challenge it when you cross-examine. If you do not challenge the evidence then the trial judge may be more likely to accept that evidence.
Often, a simple way to challenge evidence of a witness is to say "I suggest that what you said about this is wrong" and then put to the witness your version to give the witness a chance to comment.

If you wish to rely upon a document as a part of the evidence as part of your case, then the document should be tendered (that is, produced and handed up to the trial judge with the words 'I tender this document') and it becomes an exhibit.

When a document is being tendered by a party, if the other party wishes to object to the tendering of a document as a part of the evidence then an objection must be raised immediately.
An objection can be made to a document becoming a part of the evidence on the grounds that it is irrelevant or that it is inadmissible according to the rules of evidence.
CLOSING ADDRESSES

After all the evidence has been given, both parties have the opportunity to make a closing address to the trial Judge.
27 The defendant gives his closing address first, followed by the plaintiff.

In your closing address you are entitled to comment on the evidence that has been given by you and your witnesses and also comment on the evidence which has been given by the other party. You may indicate to the Judge what findings of fact you want the Judge to make and the reasons why you say the Judge should make those findings. If there is any legal submission you wish to make, you should do so in your closing address.

However, what you say in your closing address about the facts is not evidence. Comments made from the Bar table are only meant to provide assistance to the trial Judge. The Judge can only act on something that you say as evidence if you have said it in the witness box.

Each party is entitled to address the trial judge without interruption or comment from the other party.

THE JUDGE'S ROLE

The trial Judge must decide the facts and the law which applies in this case, and must be completely neutral between the parties.

The Judge is not able to give legal advice to either party. The judge's role is limited to informing you of your basic rights and what steps are open to you. The Judge cannot tell you what questions to ask witnesses and cannot make legal submissions for you.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MH
Associate to the Judge
25 AUGUST 2025