Farrell v Allregal Enterprises Pty Ltd [No 2] - [2009] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FARRELL -v- ALLREGAL ENTERPRISES PTY LTD [No 2] [2009] WASC 65

CORAM: PULLIN J

HEARD: 13 MARCH 2009

DELIVERED : 13 MARCH 2009

PUBLISHED : 23 MARCH 2009

FILE NO/S: CACV 70 of 2008

BETWEEN: CAROL ELIZABETH FARRELL
Appellant
AND
ALLREGAL ENTERPRISES PTY LTD (ACN 071 642 683)
Respondent

FILE NO/S :CACV 101 of 2008

BETWEEN :ALLREGAL ENTERPRISES PTY LTD (ACN 071 642 683)
First Appellant
CAROL ELIZABETH FARRELL
Second Appellant
AND
CARPAOLO NOMINEES PTY LTD
Respondent

FILE NO/S :CACV 1 of 2009

BETWEEN :CAROL ELIZABETH FARRELL
Appellant
AND
ALLREGAL ENTERPRISES PTY LTD (ACN 071 642 683)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
File No  :CIV 1788 of 2008
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 2250 of 2007
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
File No  :CIV 2271 of 2008

Catchwords:

Procedure - Person under disability - Limited guardianship order - Guardian not authorised to act as next friend or guardian ad litem in proceedings concerning estate - No guardian ad litem or next friend appointed in proceedings in General Division - Court orders made - Appeal

Courts and judges - Person under disability - Appellant not represented by next friend - Need for appointment of a next friend - No person willing to act - Whether Public Trustee or Public Advocate to be appointed

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Court of Chancery Act 1842 (UK)
Guardianship and Administration Act 1990 (WA), s 3
Interpretation Act 1984 (WA), s 19
Public Trustee Act 1941 (WA), s 2, s 4(3), s 7
Rules of the Supreme Court 1971 (WA), O 70 r 1(2), O 70 r 2(1), O 70 r 3(2), O 70 r 3(3), O 70 r 5
Supreme Court Act 1935 (WA), s 16(1)(d)

Result:

Public Trustee appointed as next friend

Category: A

Representation:

CACV 70 of 2008

Counsel:

Appellant:     In person
Respondent:     No appearance
Representative from
Public Trustee               :     Mr B W Ashdown

Solicitors:

Appellant:     In person
Respondent:     No appearance
Representative from
Public Trustee               :     Public Trustee (WA)

CACV 101 of 2008

Counsel:

First Appellant               :     No appearance
Second Appellant          :     In person
Respondent:     No appearance
Representative from
Public Trustee               :     Mr B W Ashdown

Solicitors:

First Appellant               :     No appearance
Second Appellant          :     In person
Respondent:     Solomon Brothers
Representative from
Public Trustee               :     Public Trustee (WA)

CACV 1 of 2009

Counsel:

Appellant:     In person
Respondent:     No appearance
Representative from
Public Trustee               :     Mr B W Ashdown

Solicitors:

Appellant:     In person
Respondent:     No appearance
Representative from
Public Trustee               :     Public Trustee (WA)

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

A v A Health Authority [2002] Fam 213
Australian Securities and Investments Commission v Reid [No 1] [2006] FCA 699
Beall v Smith (1873) 9 Ch App 85
Clarey v Permanent Trustee Co Ltd [2005] VSCA 128
Deputy Commissioner of…

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.

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Details

Case: [2009] WASC 65
Decision Date: 13 MARCH 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Farrell v Allregal Enterprises Pty Ltd [No 2] was heard by Justice Edelman. The dispute involved a person under disability, who had a limited guardianship order in place, and who was seeking to challenge the actions of the respondent, Allregal Enterprises Pty Ltd. The primary legal issue before the court was whether the limited guardian was authorised to act as a next friend or a guardian ad litem in the proceedings concerning the estate. Additionally, the court needed to determine if the Public Trustee or the Public Advocate should be appointed as a next friend for the appellant due to the absence of a willing individual to take on this role.

The court considered the statutory provisions that governed the appointment of a next friend or guardian ad litem in proceedings involving a person under disability. The court noted that the limited guardian was not authorised to act as a next friend or a guardian ad litem in the estate proceedings, and no such person had been appointed in the proceedings in the General Division. The court held that it was necessary to appoint a next friend for the appellant, as they were not represented by one. The court concluded that in the absence of a willing person to take on this role, the Public Trustee should be appointed as the next friend for the appellant.

The court's decision was based on the need to ensure that the appellant's interests were adequately represented in the proceedings. The court emphasised the importance of appointing a next friend to protect the interests of a person under disability in legal proceedings. The court further noted that the Public Trustee was a suitable candidate for the role, given their experience and expertise in handling matters involving persons under disability. The court's final order was that the Public Trustee be appointed as the next friend for the appellant in the proceedings.

Orders

Orders of the court

Public Trustee appointed as next friend

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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