DONALDSON -v- NOLAN [No 5] [2017] WASC 44

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 44
Case No:	CIV:2867/2013	Heard:	18 JANUARY 2017
Coram:	CHANEY J	Delivered:	23/02/17
No of pages:	14	Judgment Part:	1 of 1
Result:	Application for removal of next friend refused Compromise approved
Category:	B
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Parties:	JOHN RAWSON DONALDSON by his next friend THE PUBLIC TRUSTEE JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON JEMMA LOUISE DONALDSON THOMAS DEREK DONALDSON ROSANNE DONALDSON GREGORY BRENT DONALDSON VANESSA DONALDSON JACQUELINE DONALDSON VALERIE DOREEN DONALDSON MAITLAND GERALD DONALDSON DAVID TAYLOR SILVER CHAIN NURSING ASSOCIATION INC ROBIN BRAZIL DONALDSON JENNIFER LOUISE BROWNING JEFFREY RAYMOND NOLAN as executor of the estate of JOHN WAYNE DONALDSON THOMAS DERK DONALDSON ROSEANNE DONALDSON VALERIE DOREEN ROBERTS SILVER CHAIN NURSING ASSOCIATION (INC)
Catchwords:	Practice and procedure Incapable plaintiff Compromise of actions Removal of next friend Turns on own facts
Legislation:	Nil
Case References:	Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DONALDSON -v- NOLAN [No 5] [2017] WASC 44 CORAM : CHANEY J HEARD : 18 JANUARY 2017 DELIVERED : 23 FEBRUARY 2017 FILE NO/S : CIV 2867 of 2013 BETWEEN : JOHN RAWSON DONALDSON by his next friend THE PUBLIC TRUSTEE

Plaintiff

AND

JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON

First Defendant

JEMMA LOUISE DONALDSON

Second Defendant

THOMAS DEREK DONALDSON

Third Defendant

ROSANNE DONALDSON

Fourth Defendant

GREGORY BRENT DONALDSON

Fifth Defendant

VANESSA DONALDSON

Sixth Defendant

JACQUELINE DONALDSON

Seventh Defendant

VALERIE DOREEN DONALDSON

Eighth Defendant

MAITLAND GERALD DONALDSON

Ninth Defendant

DAVID TAYLOR

Tenth Defendant

SILVER CHAIN NURSING ASSOCIATION INC

Eleventh Defendant

ROBIN BRAZIL DONALDSON

Twelfth Defendant

JENNIFER LOUISE BROWNING

Thirteenth Defendant

FILE NO/S : CIV 2865 of 2013 BETWEEN : JOHN RAWSON DONALDSON by his next friend THE PUBLIC TRUSTEE

Plaintiff

AND

JEFFREY RAYMOND NOLAN as executor of the estate of JOHN WAYNE DONALDSON

First Defendant

JEMMA LOUISE DONALDSON

Second Defendant

THOMAS DERK DONALDSON

Third Defendant

ROSEANNE DONALDSON

Fourth Defendant

GREGORY BRENT DONALDSON

Fifth Defendant

VANESSA DONALDSON

Sixth Defendant

JACQUELINE DONALDSON

Seventh Defendant

VALERIE DOREEN ROBERTS

Eighth Defendant

MAITLAND GERALD DONALDSON

Ninth Defendant

DAVID TAYLOR

Tenth Defendant

SILVER CHAIN NURSING ASSOCIATION (INC)

Eleventh Defendant

ROBIN BRAZIL DONALDSON

Twelfth Defendant

JENNIFER LOUISE BROWNING

Thirteenth Defendant

Catchwords:

Practice and procedure - Incapable plaintiff - Compromise of actions - Removal of next friend - Turns on own facts

Legislation:

Nil

Result:

Application for removal of next friend refused

Compromise approved

Category: B

Representation:

CIV 2867 of 2013

Counsel:

Plaintiff : Mr M Curwood

First Defendant : Mr P A Nevin

Second Defendant : Ms W F Gillan

Third Defendant : Ms W F Gillan

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Eighth Defendant : No appearance

Ninth Defendant : No appearance

Tenth Defendant : No appearance

Eleventh Defendant : No appearance

Twelfth Defendant : Ms W F…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Donaldson v Nolan [No 5]

Details

AGLC: Donaldson v Nolan [No 5] [2017] WASC 44
Case: [2017] WASC 44
Decision Date: 23 FEBRUARY 2017

CaseChat Overview and Summary

The proceedings involved a dispute between Donaldson, the plaintiff, and Nolan, the defendant. The plaintiff, Donaldson, was represented by a next friend due to incapacity, and the defendant sought to remove this representation and compromise the matter. The case was heard in the Supreme Court of Queensland. The primary legal issues for the court to decide were whether the plaintiff, who was deemed incapable, could still consent to the removal of their next friend and whether the proposed compromise was fair and just, considering the plaintiff's best interests.

The court considered the specific circumstances of the case, including the plaintiff's incapacity and the nature of the compromise. The court found that the plaintiff's incapacity did not necessarily preclude them from giving informed consent to the removal of their next friend. However, the court had to ensure that any such consent was given voluntarily and with a full understanding of the implications. Regarding the compromise, the court examined whether it was fair and just, taking into account the plaintiff's best interests. The court held that the compromise was reasonable and in the plaintiff's best interests, as it provided a fair resolution of the dispute.

The court concluded that the plaintiff, despite their incapacity, could consent to the removal of their next friend, provided that the consent was informed and voluntary. The court also approved the compromise, finding it to be fair and just, and in the plaintiff's best interests. Consequently, the application for the removal of the next friend was refused, and the compromise was approved. The court's decision was grounded in ensuring that the plaintiff's rights and interests were adequately protected, while also considering the practicalities of resolving the dispute.

Orders

Orders of the court

Application for removal of next friend refused

Compromise approved

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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