GATES by his next friends DREWFUS GATES and CHELINAY GATES & ORS -v- ZALFEN & ANOR
[2008] WADC 88
•20 JUNE 2008
GATES by his next friends DREWFUS GATES and CHELINAY GATES & ORS -v- ZALFEN & ANOR [2008] WADC 88
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 88 | |
| Case No: | CIV:990/2008 | 17 JUNE 2008 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 20/06/08 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Action stayed, with the right to seek alternative orders on application | ||
| PDF Version |
| Parties: | KIRI LARIMAR GATES by his next friends DREWFUS GATES and CHELINAY GATES CADON AYAWENTHA GATES by his next friends DREWFUS GATES and CHELINAY GATES SHARNEE CELESTE GATES by her next friends DREWFUL GATES and CHELINAY GATES ONI ANANDA GATES by his next friends DREWFUL GATES and CHELINAY GATES ELKE ZALFEN THE PUBLIC OFFICER OF PATJARR ABORIGINAL CORPORATION |
Catchwords: | Practice and procedure Western Australia Action brought by next friends on behalf of infant plaintiffs Whether proper cause of action shown Whether the plaintiffs must act through a solicitor |
Legislation: | Nil |
Case References: | Asvar v Westland Healthcare Limited [2006] WASCA 85 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- CIVIL
- First Plaintiff
CADON AYAWENTHA GATES by his next friends DREWFUS GATES and CHELINAY GATES
Second Plaintiff
SHARNEE CELESTE GATES by her next friends DREWFUL GATES and CHELINAY GATES
Third Plaintiff
ONI ANANDA GATES by his next friends DREWFUL GATES and CHELINAY GATES
Fourth Plaintiff
AND
ELKE ZALFEN
First Defendant
THE PUBLIC OFFICER OF PATJARR ABORIGINAL CORPORATION
Second Defendant
- <Party Name1="KIRI LARIMAR GATES by his next friends DREWFUS GATES and CHELINAY GATES", Type1="First Plaintiff", Name2="CADON AYAWENTHA GATES by his next friends DREWFUS GATES and CHELINAY GATES", Type2="Second Plaintiff", Name3="SHARNEE CELESTE GATES by her next friends DREWFUL GATES and CHELINAY GATES", Type3="Third Plaintiff", Name4="ONI ANANDA GATES by his next friends DREWFUL GATES and CHELINAY GATES", Type4="Fourth Plaintiff", Name5="ELKE ZALFEN", Type5="First Defendant", Name6="THE PUBLIC OFFICER OF PATJARR ABORIGINAL CORPORATION", Type6="Second Defendant",>
Catchwords:
Practice and procedure - Western Australia - Action brought by next friends on behalf of infant plaintiffs - Whether proper cause of action shown - Whether the plaintiffs must act through a solicitor
Legislation:
Nil
Result:
Action stayed, with the right to seek alternative orders on application
Representation:
Counsel:
First Plaintiff : In Person
Second Plaintiff : In Person
Third Plaintiff : In Person
Fourth Plaintiff : In Person
First Defendant : Ms F Davis
Second Defendant : Ms F Davis
Solicitors:
First Plaintiff : Not applicable
Second Plaintiff : Not applicable
Third Plaintiff : Not applicable
Fourth Plaintiff : Not applicable
First Defendant : DLA Phillips Fox
Second Defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Asvar v Westland Healthcare Limited [2006] WASCA 85
(Page 3)
1 DEPUTY REGISTRAR HEWITT: This action was commenced by a writ issued on 2 May 2008. The plaintiffs in the action are the four children of Drewfus and Chelinay Gates. The cause of action pursued by the plaintiffs is by the parents as next friends of the four children for damages said to have been suffered by those children as a consequence of a very serious injury which their father, Drewfus Gates, suffered at Porcupine Rock in the Gibson Desert. The cause of the injury was a fire allegedly lit by the first defendant for which, presumably, since the statement of claim is not clear on this point, the second defendant is said to be vicariously liable.
2 By summons filed 23 May 2008 the defendant has applied to strike out the writ. The basis of the application is two fold. The first basis upon which the applicant relies is the failure of the plaintiffs to observe the requirements of O 70 of the Rules of the Supreme Court1979 which concern the manner in which an action may be pursued by a next friend on behalf of a child. Certainly there are significant procedural irregularities evident in the manner in which this action has been commenced but the most important of those identified by the applicant defendant is the fact that the plaintiffs are not represented by a solicitor. In that regard the defendant relies upon the provisions of O 70 r 38(c) which requires, save in certain circumstances not applicable to this case, that an affidavit by the solicitor representing the person be filed deposing to the various matters set out in subsection (i) to (iv). In the present case the plaintiffs tell me from the Bar table that they are financially unable to engage a solicitor and have been unable to interest a solicitor in taking on the case. In the case of Asvar v Westland Healthcare Limited [2006] WASCA 85 at [52] Sleight DCJ said:
"Under O 70 r 3 of the Supreme Court Rules a next friend of a person under a disability must act by a solicitor. Further, under O 70 r 3(8) an affidavit is required from a solicitor stating his knowledge or belief that the plaintiff is under a disability and that the next friend has no interest in the cause or matter in question that is in conflict with the person under a disability."
3 If that is a correct statement of the law then clearly parties in the positions of these plaintiffs are unable to pursue actions in this Court since they do not have the means to engage a solicitor and are unable to attract a solicitor to represent them and absent a solicitor they are not permitted by the Rules of Court to prosecute their claim. The effect of such a provision insofar as it relates to people of lesser means is obvious and whilst I have an aversion to so concluding nonetheless I consider myself bound by
(Page 4)
- precedent to conclude that it is necessary for the plaintiffs in this action to be represented by a solicitor and that the requirements of O 70 r 3 must be complied with. That conclusion, however, does not necessarily lead me to strike out the action as is the wish of the defendant in the application file. I regard this matter as an irregularity rather than a fatal flaw and in that regard rely on O 2 r 1 which states:
"Where in beginning or purporting to begin any proceeding or at any stage in the cause of or in connection with any proceedings, there has, by reason of anything done or left undone, be a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, a failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein."
5 The next matter to consider which is raised by the defendant is whether or not the statement of claim which has been filed in this action demonstrates a cause of action recognised by the law.
6 It is clear when one reads the statement of claim that much of the basis of claim is for the loss of the services of the parent who was injured in the fire and of the other parent necessarily preoccupied in caring for the injured party. On my understanding such a claim is not recognised by the law. What is recognised, however, is what is generally called nervous shock cases. As I understand the law in an appropriate circumstance a party who suffers a reaction to an injury inflicted on another in such a way as to constitute a recognised psychiatric illness can pursue a claim in respect of that injury.
7 It is very difficult on the face of the materials which are before me to identify facts and matters which together would constitute such an injury and as far as I can see from the materials which are provided to me certain of the claims on behalf of the children are most unlikely to satisfy the necessary requirement. There may, however, be some prospect in regard to some of the children who appear to suffer from difficulties which might upon examination and diagnosis be characterised as a recognised
(Page 5)
- psychiatric illness, attributable to the aftermath of the injuries suffered by the father in circumstances in which the law admits of a claim.
8 The court has always offered special protection to children to ensure that their interests are not ignored or lost. Examples of that attitude are to be found in the provisions requiring the protection of judgment sums recovered on behalf of infant and the requirement that compromises proposed in regard to infant claims be first approved by the court before they can take effect. Extrapolating from those matters a general principle it seems to me that it would be wrong to strike out the plaintiffs' claim but equally I recognise that the defendant has legitimate complaints in the way that this matter has been commenced and the basis of claim which is currently being pursued. For these reasons I take the view that the appropriate order to make is that the action be stayed until further order and that further steps in the action not be taken unless and until a solicitor has been appointed by the plaintiffs and the appropriate formalities required by O 70 have been observed.
9 In accordance with the indication I gave to the parties in court I propose to forward copies of this decision to both the plaintiff and defendant and after the expiration of seven days to make orders staying the proceedings and reserving costs.
10 In the event that any party wishes to dissent from such orders the appropriate course is to re-list the application before me and to move for such orders as they think should be made in the light of the decision which I have reached.
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