Civmec Construction & Engineering Pty Ltd v Mann [No 2] - [2023] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CIVMEC CONSTRUCTION & ENGINEERING PTY LTD -v- MANN [No 2] [2023] WASC 99
CORAM:   TOTTLE J
HEARD:   8 MARCH 2023 AND FURTHER SUBMISSIONS ON 23 MARCH 2023
DELIVERED          :   29 MARCH 2023
FILE NO/S:   CIV 2777 of 2018
BETWEEN:   CIVMEC CONSTRUCTION & ENGINEERING PTY LTD
Plaintiff
AND
LEANNE THERESE MANN
Defendant

Catchwords:

Practice and procedure - Unrepresented defendants - Consent orders - Whether O 42 r 8 of the Rules of the Supreme Court 1971 (WA) required an unrepresented defendant to be present physically to provide consent - Physical presence in the courtroom not required

Practice and procedure - Positive case flow management principles - Ambit of power conferred by O 4A r 2 of the Rules of the Supreme Court 1971 (WA) to make case management directions - Power extends to making case management direction permitting unrepresented defendant to attend hearing convened for purposes of O 42 r 8 of the Rules of the Supreme Court 1971 (WA) by audio link

Contract - Incapacity to contract - Mental disorder - Whether existence of mental impairment sufficient to render party incapable of consenting to final orders - Incapacity not established - Turns on own facts

Practice and procedure - Application to set aside consent orders on grounds of mental disorder - Application should be made by commencing fresh proceedings

Practice and procedure - Suppression orders - Where reasons for granting interlocutory injunctive relief was suppressed - Whether the suppression order should be set aside - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 121
Interpretation Act 1984 (WA), s 8
Rules of the Supreme Court 1971 (WA), O1 r 4B, O 4A r 2, O 4A r 4, O 42 r 7, O 42 r 8

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr E Fearis
Defendant	:	In person

Solicitors:

Plaintiff	:	Minter Ellison
Defendant	:	In person

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

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115
Copping v ANZ McCaughan Ltd (1995) 63 SASR 523
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235
Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435
Klein v Minister for Education [2007] HCA 2; (2007) 232 ALR 306
Lewandowski v Lovell [2006] WASCA 54
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Swancross Corporation Pty Ltd v Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259
The Council of the Shire of Lake Macquarie v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327

TOTTLE J:

Summary

The primary issue addressed in these reasons is whether orders made by consent granting the plaintiff final injunctive relief should be set aside. The orders were made on 27 February 2019. The defendant contends the orders should be set aside on separate but related grounds, namely:
(a)There was no compliance with O 42 r 8 of the Rules of the Supreme Court 1971 (WA). Relevantly, this rule provides that a self‑represented defendant must attend before a judge and give his or her consent 'in person' to an order entering final judgment. The non-compliance alleged by the defendant is that, at her request and with my leave, she attended the hearing by telephone as distinct from being physically present in the court room.
(b)The defendant was suffering from a mental impairment and lacked capacity to consent to the orders.
A second issue is whether an order made on 14 November 2018 suppressing the reasons for granting interlocutory injunctive relief should be set aside.
The defendant raised a further issue concerning an order within the 27 February 2019 orders that restricted third party access to certain documents filed by the plaintiff. I will touch upon this later but it appears that the defendant has understood the order to be a suppression order when that is not the case.
These issues are brought before the court by the defendant's chambers summons filed on 3 February 2023.
In summary, I have concluded that:
(a)On its proper construction, O 42 r 8 did not require a self‑represented defendant to be physically present in the court room to give their consent in person.
(b)If the conclusion in (a) is incorrect, O 4A r 2 of the Rules of the Supreme Court confers power on the court to make a case management direction that a defendant be permitted to communicate their consent for the purposes of O 42 r 8 by an audio or an audio‑visual link and such a direction was made in this case.
(c)Any challenge to the consent orders should be made in fresh proceedings commenced for that purpose.
(d)The evidence adduced by the defendant in support of her present application neither establishes that she lacked the requisite capacity to consent to the orders nor that such a lack of capacity was known to the plaintiff or its lawyers.
(e)The suppression order in respect of the reasons for granting interlocutory injunctive relief should not be vacated. The justification for the suppression order not only remains but is reinforced by the granting of the final injunctive relief.
It follows from these conclusions that the defendant's application must be dismissed.

A procedural matter

The application was heard on 8 March 2023. As she has done throughout these proceedings and in the two other proceedings referred to later in these reasons, the defendant has represented herself. At the 8 March 2023 hearing I referred the defendant to various matters with which she may not have been familiar but which in my view were relevant. Further, subsequently my associate sent an email to the defendant drawing her attention to s 8 of the Interpretation Act 1984 (WA) and to the principle that written laws are to be considered as 'always speaking'. The defendant was provided with the opportunity to file and serve further submissions if she wished to do so and she availed herself of that opportunity by filing and serving submissions on 23 March 2023 together with a further minute of orders.

Background

The plaintiff is a listed construction and engineering company. The defendant was employed by the plaintiff as an operations manager in the field of health and safety training. The defendant's employment came to an end on 21 May 2018. There was some controversy as to the precise circumstances in which the employment relationship ended.
Some weeks after the defendant ceased to be employed by the plaintiff she sent a draft of a book she said she was going to publish to the plaintiff's chief executive officer, Mr Patrick Tallon. The subject matter of the book was health and safety in the construction industry with a particular focus on the plaintiff's health and safety record. The draft book contained statements highly critical of the plaintiff's management and of its health and safety record.
The plaintiff commenced proceedings alleging that the statements in the defendant's proposed book constituted injurious falsehoods. The plaintiff applied for interim injunctive relief restraining the defendant from publishing the statements it alleged were false. I granted an interim injunction on an ex parte basis on 11 October 2018.
At an inter partes hearing on 17 October 2018 I extended the injunction until trial or further order. In addition, I made an order that:
Until further order, there be no publication of the evidence given or submissions made in these proceedings at the hearings on 11 and 17 October 2018, or the orders made or reasons given in relation to the hearing on 11 and 17 October 2018, to persons other than the parties to these proceedings or their representatives without the leave of the court.
When making this suppression order I explained that it was 'an interim position'.[1] I explained that I would provide the parties with a written version of the reasons for extending the injunction that I had just delivered orally that would include a confidential annexure containing the section of my reasons dealing with the statements the plaintiff complained were false. Though I did not say so at the time, I was concerned to ensure that the effect of the injunction restraining the defendant from publishing the impugned statements was not undermined by publishing reasons which included those statements.
[1] ts 100.
On 8 November 2018 my associate sent an email to the parties attaching two versions (one redacted and one unredacted) of the reasons for my decision to extend the interim injunction.
At a directions hearing held on 14 November 2018 I heard submissions from the parties in relation to the form of the reasons. The plaintiff's counsel sought further redactions and suggested some textual amendments to the reasons to address issues of syntax arising from the redactions. The defendant's position was that if the redactions sought by the plaintiff were going to be made then she pressed for redactions to other parts of the reasons that were of concern to her.
In exchanges with the plaintiff's counsel and with the defendant I referred to the principle of open justice and expressed a general concern about redacting the reasons but, on the basis that a mediation was scheduled to take place shortly that might lead to a negotiated outcome, I determined that the most expedient course was to suppress the reasons in their entirety. At the hearing I made the following order:
The judgment delivered extemporaneously in this matter on 17 October 2018 and the associated transcript be suppressed.
A mediation took place on 3 December 2018 but it did not result in a compromise.
There was a directions hearing on 30 January 2019 attended by the defendant at which I made an order that the plaintiff file and serve its statement of claim by 15 February 2019. The directions hearing was adjourned to 20 February 2019.
The defendant did not attend the directions hearing on 20 February 2019. At the hearing, I made orders for the filing and service of a defence by 13 March 2019 and certain other procedural orders.
On 21 February 2019 my associate received an email from the defendant in which she wrote:
I am writing to apologise for not attending yesterdays hearing. I did attend the court however I was too early to be allowed entry by the security and then while waiting in the gardens I had a panic attack and was unable to calm myself and with a number of journalists/photographers around the entrance I didn't know what to do and just tried to avoid a scene and got myself away as quickly as I could and was not in any state to attend. I am not sure what caused this as nothing happened while I was waiting and I was feeling fine up until it occurred.
I realise my absence was inexcusable and I apologise for this, my health has not been great for sometime but I have been endeavouring to keep it together as best I could to get through proceedings however in light of yesterdays situation as I am still unable to work I am going to try and dispose of my vehicle and some other assets to try to be able to engage some representation to appear on my behalf and enable me to attend a treatment facility to try and get on top of things before they worsen further.
In the interim I have received the orders made by Justice Tottle and will ensure these are complied with and once I am able to appoint some representation I will make the necessary notification.
Again my sincere apologies for what occurred yesterday.
On 25 February 2019 the plaintiff's solicitors sent an email to my associate attaching a memorandum of consent judgment signed by them and by the defendant. The plaintiff's solicitors requested that the matter be listed for a hearing pursuant to O 42 r 8. The memorandum of consent judgment provided for final injunctive relief to be granted to the plaintiff.
The parties were notified that there would be a hearing for the purposes of O 42 r 8 at 9.15 am on 27 February 2019. On 26 February 2019, in response to this notification the defendant sent an email to my associate asking whether it was possible for the hearing to take place in her absence.
Later on 26 February 2019 my associate responded to the defendant's email as follows:
Dear Ms Mann
Thank you for your email.
Order 42 rule 8 of the Rules of the Supreme Court requires a defendant to attend a hearing and give consent in person.
In appropriate cases the court may give favourable consideration to allow litigants to attend hearings via telephone.
If you would like to proceed in this way, please email me explaining why this is a course you wish to follow and I will refer your request to the Judge.
In a subsequent email the defendant sought leave to appear at the hearing by telephone and said 'the reason being to avoid any potential for reoccurrence of what happened last week'.
In response to this request my associate sent an email to the defendant as follows:
I have referred your request to attend the hearing tomorrow to the Judge.
On the basis that you fear that there may be a repetition of the episode experienced by you on Wednesday last - as described in your email to me of 9.44 am on 21 February 2019 - the Judge is content for you to appear by telephone tomorrow and will make a formal order to the effect at the hearing tomorrow.
Could you please let me know the telephone number on which I should contact you tomorrow.
At the hearing on 27 February 2019 I had the following exchange with the defendant:[2]
TOTTLE J: Ms Mann, this is really for your benefit … The requirement that there be a hearing when a litigant in person is involved is really to ensure that the litigant who's appearing in person without the benefit of legal advice understands what is taking place and that the consent that is being given to the orders - in this case, orders for judgment - is freely given and given in the knowledge of what it is that is being done. So that's really the purpose of the hearing as I apprehend the rationale the rules that requires a hearing. So perhaps you can tell me what you understand the judgment to be for or what the orders to be for.
MANN, MS: Just for a permanent injunction, basically.
TOTTLE J: Yes. So it's a permanent injunction restraining you from publication of the statements contained in the extract of your book or your - say, in the draft that was attached to your letter to Mr Tallon of 5 October 2018, from making any of those statements or any statements with the same meaning on a permanent basis, and from publishing a book or other material which has the title Civwrecked or any words derived from the word Civmec, and you understand that too?
MANN, Ms: Yes, your Honour.
TOTTLE J: Yes. So it is a permanent and final injunction, as opposed to an interlocutory injunction.
MANN, Ms: Yes, your Honour.
[2] ts 131 - 132.
Following this exchange, and at the plaintiff's counsel's request, I explained to the defendant that a breach of the proposed orders would be a contempt of court and thereafter I pronounced orders in the terms sought. The orders were as follows:
1.The defendant be granted leave to appear at the hearing via telephone.
2.There be judgment entered in favour of the plaintiff in the terms set out below:
(a)The defendant be restrained and an injunction be granted restraining her, whether by herself or by her employees, agents, attorneys, or any of them or otherwise from publishing the statements contained in an attachment (Attachment) to a letter written by the defendant to the plaintiff's Chief Executive Officer, dated 5 October 2018, attachments PJT-1 and Confidential Exhibit PJT-2 to the affidavit of Patrick John Tallon, affirmed on 11 October 2018, including, without limitation, by dissemination or uploading by any electronic means, or causing, or permitting, to be published or disclosed by any means the statements in the Attachment to any person.
(b)The defendant be restrained and an injunction be granted restraining her, whether by herself or by her employees, agents, attorneys, or any of them or otherwise from publishing any statements conveying the same or similar meanings to statements in the Attachment, including, without limitation, by dissemination or uploading by any electronic means, or causing, or permitting, to be published or disclosed by any means any statements conveying the same or similar meanings to statements in the Attachment.
(c)The defendant be restrained and an injunction be granted restraining her, whether by herself or by her employees, agents, attorneys, or any of them or otherwise from publishing a book or other material which has the title 'Civwrecked', or any title deriving from the word 'Civmec'.
(d)There be no inspection of the writ, affidavits, judgments, orders of the Court, transcripts or other material on the court file by any person other than the parties to these proceedings or their representatives without the leave of the court.
(e)Each party bear their own costs of these proceedings.
On 7 April 2022 the defendant commenced proceedings (CIV 1344 of 2022) against the plaintiff in which she sought orders setting aside the 27 February 2019 orders and related relief. The defendant discontinued those proceedings on 14 June 2022.
On 22 August 2022 the plaintiff commenced further proceedings (CIV 1867 of 2022) against the defendant alleging that she had published and intended to publish injurious falsehoods about its business. The subject matter of the plaintiff's claims was similar to the subject matter of its claims in the present proceedings. In CIV 1867 of 2022 the plaintiff applied for, and was granted, interlocutory injunctive relief, and the action was listed for an early trial in December 2022. The December 2022 trial was vacated and the trial was relisted in March 2023. In January 2023 the plaintiff discontinued the proceedings.

The evidence

The defendant relies on affidavits affirmed by her on 3 February and 1 March 2023.
The plaintiff relies on an affidavit affirmed by one of its solicitors, Mr Robin Humphreys, on 24 February 2023.
Many paragraphs of the defendant's affidavits consist of submissions rather than evidence. In summary the defendant contends that there was no legal basis for the orders suppressing the publication of the reasons or for restricting access to the court file. Further, the defendant contends that the suppression orders disadvantaged her in other proceedings involving the plaintiff. The defendant contended that the terms of O 42 r 8 were clear and an unrepresented defendant in her position was required to be physically present in court to communicate consent to an order for final judgment.
In addition, the defendant adduced evidence about her mental health in 2019. The defendant annexed to her affidavit a report from a consultant psychiatrist who reviewed and assessed her in October 2019 at the request of solicitors who were then acting for her in other proceedings. I will refer to aspects of the evidence regarding the defendant's mental health in more detail later in these reasons but the effect of the evidence is that the defendant suffered from a mental impairment in 2019 which led to several hospital admissions. It is unnecessary to refer to the nature of the mental impairment. The opinion of the consultant psychiatrist was that the defendant did not have the capacity to represent herself between 11 October 2018 and 27 February 2019. The psychiatrist stated:
It is my view that her issues with concentration and focus and decreased decision making will have impacted on her ability to absorb relevant information from documents and given to her verbally and this is likely to have had a notable negative impact on her ability to conduct her matter in a reasonable and effective way.

The defendant annexed to her affidavit an email she received from Mr Humphreys on 22 February 2019 in which he advised that the plaintiff's Employee Assistance Program, a program which provides psychological counselling services, was available to the defendant.
Mr Humphreys annexed to his affidavit various documents relevant to the history that I have outlined earlier in these reasons. He also deposed that neither he nor the employee instructing him on behalf of the plaintiff knew that the defendant did not understand the nature of the orders to which she was consenting in February 2019.

No failure to comply with O 42 r 8

Giving consent 'in person' does not require physical presence

Order 42 r 8 must be read with O 42 r 7. The rules state:
7.In any cause or matter where the defendant has appeared by a solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by the defendant's solicitor.
8.Where the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister or solicitor acting on his behalf, except in cases, where the defendant is a barrister, or solicitor.
In Newcrest Mining Ltd v Thornton,[3] French CJ referred to O 42 r 7 and r 8 and stated:[4]
Those rules are calculated to ensure that an informed consent is given by the defendant. They do not require any assessment by the court of the merits of the compromise underlying the order.
[3] Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555.
[4] Newcrest Mining Ltd v Thornton [15] (French CJ).
As recorded earlier the defendant contended that the term 'in person' in the second clause of the rule meant 'physically present in person'.
The plaintiff contended that:
(a)the term 'in person' in the second clause should be understood as describing the status of the defendant to whom the rule related;
(b)given the purpose of the rule as explained by French CJ, there was no reason to suppose that the rule required a litigant to be present in the courtroom when a consent judgment is pronounced;
(c)had the intention been that a defendant to whom the second clause O 42 r 8 related is required to be physically present, the words 'in person' would have followed the word 'attends' so that the clause read 'no such order shall be made unless the defendant attends in person before a judge and gives his consent'; and
(d)its construction accommodated the current practice of counsel and litigants in person appearing at hearings by way of audio or audio-visual link.
In the course of argument at the hearing on 8 March 2023 I found the defendant's argument that the term 'in person' in the second clause of O 42 r 8 meant physically present persuasive. On reflection, however, I have concluded that a person may give their consent 'in person' by signifying their consent by words spoken over an audio or an audio‑visual link. My reasoning to this conclusion is as follows:
(a)The Rules of the Supreme Court are subsidiary legislation that constitute a written law for the purpose of the Interpretation Act 1984 (WA). Section 8 of the Interpretation Act provides:
A written law shall be considered as always speaking and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its true spirit, intent, and meaning.
(b)Section 8 of the Interpretation Act is a statutory expression of the common law principle of statutory construction that draws the distinction between the concepts of connotation and denotation.[5] The connotation of a word used in a statute is its essential attributes determined at the time of enactment and the denotation is the class of things that from time to time may be seen to possess those attributes sufficiently to justify the application of the word to them.[6]
[5] See The Council of the Shire of Lake Macquarie v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327, 331 (Barwick CJ); Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 [245] - [249] (Kirby J); Klein v Minister for Education [2007] HCA 2; (2007) 232 ALR 306 (Gummow, Hayne & Heydon JJ).
[6] Herzfeld P and Prince T, Statutory Interpretation Principles: The Laws of Australia (2014) [2.25].
(c)The notion that statutes are to be construed as 'always speaking' has been explained by employing a nautical metaphor:[7]
[7] Bailey D and Norbury L, Bennion, Bailey and Norbury on Statutory Interpretation (8^th ed, 2020) 503.
Each generation lives under the law it inherits. Constant formal updating is not practicable, so an Act takes on a life of its own. Although the language originally used endures as law, its current subjects may find that law more and more ill-fitting. Viewed like this, an Act resembles a vessel launched on some one-way voyage from the old world to the new. The vessel is not going to return; nor are its passengers. Having only what they set out with, they cope as best they can. On arrival in the present, they deploy their native endowments under conditions originally unguessed at.
The legislature, in the wording of an enactment, is expected to anticipate developments over time and drafters will try to foresee the future, and allow for it in the wording. However, the court may apply an updating construction even if the drafter's efforts in this regard have not been successful.
The legislature may be taken to intend that an enactment (other than one whose meaning and application are, exceptionally, fixed in time) should be applied at any future time in such a way as to give effect to its original intention, making allowances for any relevant changes that have occurred since the Act's passing.
(d)Order 42 r 8 was included in the Rules of the Supreme Court when they were promulgated in 1971. In my judgment the connotation of the term 'in person' in the second clause of O 42 r 8 is 'personally' or 'directly' as opposed to by an intermediary or by an intermediate method, such as in writing. It is unlikely that even the most far-sighted among the judges of this court who promulgated the Rules of the Supreme Court in 1971 would have conceived the extent to which the practice of 'remote' attendances in court has developed. In my judgment, in 1971 the class of denotations of the term 'in person' as used in the second clause in O 42 r 8 was limited to meaning a physical attendance.
(e)By 2019 the practice of conducting hearings using technology to permit parties and witnesses to appear from locations removed from the court room was well-developed. A consequence of this development in court practice is that by February 2019 the class of denotations of the term 'in person' had expanded to include attendance by audio or audio‑visual links.
(f)Construing O 42 r 8 as permitting a self‑represented defendant to attend a hearing convened for the purpose of the rule by audio or audio-visual link is consistent with s 121 of the Evidence Act 1906 (WA) that, relevantly, provides:[8]
(1)Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting.
(2)The court shall not make such a direction unless satisfied the video link or audio link is available or can reasonably be made available.
(2a)The court shall not make such a direction if satisfied the direction is not in the interests of justice.
(g)Conversely, construing 'in person' in the second clause of O 42 r 8 as meaning 'physically present' would, at the least, create tension between the rule and s 121 of the Evidence Act if not give rise to an inconsistency. Order 42 r 8 should not be construed in a manner that would negate or limit the operation of s 121 of the Evidence Act.[9]
[8] Section 121 was introduced into the Evidence Act 1906 (WA) in 1998 and commenced in 1999.
[9] Copping v ANZ McCaughan Ltd (1995) 63 SASR 523, 527 (King CJ).
It is implicit in the reasoning set out above that I accept that the term 'in person' when it first appears in O 42 r 8 is an adjectival phrase modifying the reference to a defendant and thus making it clear the rule is concerned with a defendant who has filed a memorandum of appearance on their own behalf as distinct from 'appearing' by a solicitor. I do not accept, however, that where the term appears in the second clause it is used in the same manner. When used in the second clause the term 'in person' is used for a different syntactical purpose. It is an adverbial phrase that modifies the manner in which consent is to be given. Ordinarily, of course, it will be presumed that a term used more than once in a provision will bear the same meaning on each occasion. For the reasons I have given, I am satisfied that 'in person' is used in different senses in the first and second clauses of O 42 r 8.

Any requirement for a physical presence may be waived by case management direction

If, contrary to the views I have expressed, on its proper construction, O 42 r 8 required a self-represented defendant to be physically present at a hearing to give their consent, then I consider the court had the power to make a case management direction waiving that requirement.
Order 1 r 4B of the Rules of the Supreme Court provides:
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
(2)These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).
Order 4A r 2 of the Rules of the Supreme Court relevantly provides:
(1)A case management direction is any procedural direction that in the Court’s opinion it is just to make in a case to facilitate the attainment of the objects referred to in Order 1 rule 4B(1).
(2)Without limiting subrule (1), a case management direction may do one or more of the following -
(a)give directions to assist the convenience of the parties or witnesses;
(emphasis added)
Further, O 4A r 4 of the Rules of the Supreme Court provides that:
If a provision in this Order is inconsistent with these rules or the Supreme Court (Corporations) Rules 2004, then the provision in this Order prevails.
Order 4A r 2 facilitates the system of positive case flow management described in O 1 4B. In that respect its significance in the practice and procedure of this court is emphasised by the precedence accorded to its provisions by O 4A r 4.
Order 4A r 2 is to be construed beneficially and given the widest interpretation that the language used permits.[10] Adopting that approach, in my view, O 4A r 2 empowered the court to waive the requirement for a self-represented defendant to be physically present at a hearing convened for the purposes of O 42 r 8.
[10] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, 248 (Toohey J), 260 - 261 (McHugh J).
In this case a case management direction was made permitting the defendant to attend the hearing on 27 February 2019 by telephone and no question of non-compliance with O 42 r 8 arises.

New proceedings must be commenced to set aside consent orders

While it has been described as a 'procedure of convenience',[11] the general position is that the jurisdiction to set aside a consent order on a ground which would invalidate the agreement it expresses should be invoked in a new action brought for that purpose and not by an application in the original proceedings.[12]
[11] Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13, 30 (Sheller JA).
[12] Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 697 (Handley JA); Lewandowski v Lovell [2006] WASCA 54 [34] (Pullin JA).
In her minute of directions filed on 23 March 2023 the defendant sought leave to proceed with her application to set aside the consent orders. This is not a case, however, in which the issue of the defendant's mental capacity can be resolved on a summary basis by reference to contentious affidavit evidence within the existing proceeding.
The issue of alleged incapacity must be defined by pleadings. The issue is a simple one and the pleadings need not be complicated. Perhaps more importantly, the issue of the defendant's capacity can only be determined fairly if both parties have access to all relevant documentary material. It is reasonable to expect that the plaintiff would require the defendant to give discovery of her relevant medical records (for example, the materials provided to the consultant psychiatrist who provided the report attached to her affidavit). Further, it is reasonable to expect that not only would the plaintiff wish to cross‑examine the defendant and the expert psychiatrist on whose opinion she relied but that it would adduce evidence from its own lay witnesses and adduce expert psychiatric evidence in response to that relied on by the defendant. These are the substantive reasons why any challenge to the consent orders made on 27 February 2019 should be made in further proceedings commenced for that purpose.

The evidence adduced by the defendant neither establishes a lack of capacity nor knowledge by the plaintiff of a lack of capacity

A consent order compromising proceedings may be set aside on grounds which would render a simple contract void or voidable, that is, on any grounds that invalidate the agreement which it expresses.[13]
[13] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, 243 - 244 (Dixon CJ, McTiernan, Williams, Webb & Fullagar JJ).
A person who is mentally disordered at the time of contracting is bound by the contract unless, relevantly:[14]
(a)the person was suffering from such a degree of mental disability at the time of contracting that the person was incapable of understanding the contract; and
(b)the other person was aware of this incapacity.
[14] Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423.
As to the first issue the determinative question is whether the person has sufficient soundness of mind to be capable of understanding the general nature of what they were doing by their participation in (relevantly) the compromise sought to be set aside.[15]
[15] Gibbons v Wright (437 - 438) (Dixon CJ, Kitto & Taylor JJ).
In Gibbons v Wright[16] Dixon CJ, Kitto and Taylor JJ stated the applicable principle in this way:[17]
The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.
[16] Gibbons v Wright.
[17] Gibbons v Wright (437) (Dixon CJ, Kitto & Taylor JJ).
Thus, the test as to whether the defendant lacked the capacity to enter into the compromise recorded in the minute of consent orders signed by her and expressed in the court's orders of 27 February 2019 is not whether the defendant suffered from a mental impairment but whether she was suffering from such a degree of mental disability at the time she signed the consent orders and appeared at the hearing on 27 February 2019 that she was incapable of understanding the general nature of the orders to which she was consenting.
Understandably given that the defendant is a lay person representing herself, her evidence and submissions are not directed to the test referred to in [55]. Rather, they are directed to establishing two matters: first, that in February 2019 she suffered from a mental impairment (one sign of which was the panic attack she suffered on 20 February 2019); and secondly, that she did not have the capacity to represent herself in the proceedings. The defendant's evidence does not address the question of whether she was incapable of understanding the general nature of the orders to which she consented. That is a qualitatively different question from the questions of whether she was suffering from a mental impairment or whether she had the capacity to represent herself in litigation. The affirmative answers given by the consultant psychiatrist to the last two questions does not establish that the defendant was incapable of understanding the nature of the compromise to which she was consenting.
Further, the defendant has not established that the plaintiff or its lawyers knew that she lacked the requisite capacity. Apart from the difficulty that the defendant's evidence does not establish incapacity at the level required by the authorities, it is difficult to see how knowledge of such incapacity can be inferred from the offer made by Mr Humphreys on the plaintiff's behalf for the defendant to engage with the plaintiff's Employee Assistance Program.

The 14 November 2018 suppression order should not be set aside

The suppression order made on 14 November 2018 was an interlocutory order that the court has power to set aside albeit that such power should be exercised rarely.[18] Further, the doctrine of functus officio does not prevent the court from setting aside or varying an order where the interests of justice so require.[19]
[18] Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115 [9] - [11] (Corboy J).
[19] Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435; Swancross Corporation Pty Ltd v Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259 [12] (Master Sanderson).
The interlocutory injunction reasons were suppressed because publication of the reasons would necessarily have involved publishing the statements the plaintiff contended were false. Thus, the publication of the reasons would have increased the risk of the plaintiff suffering the commercial harm which the grant of interlocutory injunction was intended to prevent and would also have undermined the effectiveness of the injunction. In that respect the making of the suppression order was necessary for the administration of justice.
As Corboy J observed in Commonwealth Bank of Australia Ltd v Saraceni[20] efficient and economical case management will generally require interlocutory disputes and associated issues to be finally determined as they arise. There has been no material change in circumstances since making the order of 14 November 2018 which favour the discharge of the suppression order. That the defendant consented to the grant of final injunctive relief in February 2019 is a development that reinforces rather than undermines the rationale for the suppression orders. If the interlocutory injunction reasons were published this would undermine the effectiveness of the final injunctive relief.
[20] Commonwealth Bank of Australia Ltd v Saraceni.

Order 2(d) of consent orders not a suppression order

Order 2(d) of the consent orders made on 27 February 2019 does no more than restrict third parties (not the defendant) from access to the court file. It is not an order suppressing publication of documents on the file. The only suppression orders (as distinct from orders to injunctive relief) made in these proceedings were made on 17 October 2018 and 14 November 2019.

Conclusion

As stated earlier the defendant's application must be dismissed. I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
29 MARCH 2023