M v P [No 3] - [2024] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   M -v- P [No 3] [2024] WASC 123
CORAM:   LUNDBERG J
HEARD:   11 APRIL 2024
DELIVERED          :   12 APRIL 2024
FILE NO/S:   CIV XXXX of 2023
BETWEEN:   M
Plaintiff
AND
P
Defendant

Catchwords:

Defamation - Application pursuant to Order 70 of the Rules of the Supreme Court 1971 (WA) - Defendant seeking a declaration that the plaintiff be declared a person under a disability and that a next friend be appointed - Alternative directions sought for assistance of the Public Advocate to be requested - No medical evidence presented in support of the application - Consideration as to appropriate pathway for the Court to follow - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 97
Rules of the Supreme Court 1971 (WA), O 70 r 1, O 70 r 3
Supreme Court Act 1935 (WA), s 16(1)(d), s 23

Result:

Orders made to request assistance of the Public Advocate

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	C E Chenu

Solicitors:

Plaintiff	:	In Person
Defendant	:	Steedman Stagg Lawyers

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

A v City of Swan [No 5] [2010] WASC 204
Farrell v Allregal Enterprises Pty Ltd [2008] WASCA 264
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91

Table of Contents

A. Introduction and overview

B. Relevant principles

C. Submissions and evidentiary materials

D. Disposition

E. Conclusion and orders

LUNDBERG J:

A. Introduction and overview

This is a defamation action in which the plaintiff alleges he was defamed by several oral and written communications allegedly published by the defendant. There are around 18 publications identified in the pleadings. The parties are both medical practitioners.[1] The action has been on foot for over a year now. It is also apparent that the plaintiff is presently engaged in a number of disputes in other courts and tribunals.
[1] Given the sensitive issues raised by the present application, I have anonymised the names of the parties to the action.
The plaintiff is unrepresented in the proceedings before this Court and, I gather, also unrepresented in the other proceedings to which he is a party.
The defendant has recently applied to this Court for an order that the plaintiff be declared a person under a disability by reason of mental illness, defect or infirmity, within the meaning of par (c) of the definition of 'person under disability' in O 70 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC).[2] The term 'person under disability' is defined in O 70 r 1 RSC as:
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;
[2]…

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 M v P [No 3]

Details

AGLC: M v P [No 3] [2024] WASC 123
Case: [2024] WASC 123
Decision Date: 12 APRIL 2024

CaseChat Overview and Summary

The parties in this case were M, the plaintiff, and P, the defendant. The dispute arose from an alleged defamatory statement made by the defendant against the plaintiff. The case was heard in the Supreme Court of Western Australia. The defendant sought a declaration that the plaintiff was a person under a disability and that a next friend be appointed, or alternatively, directions for the assistance of the Public Advocate. The application was made pursuant to Order 70 of the Rules of the Supreme Court 1971 (WA).

The court was required to decide whether the plaintiff was a person under a disability, which would justify the appointment of a next friend or the involvement of the Public Advocate. The central issue was whether there was sufficient evidence to support the defendant's application, given that no medical evidence was presented. The court needed to consider the appropriate legal pathway to follow, as the case turned on its own specific facts.

The court considered the lack of medical evidence presented in support of the application. It concluded that without such evidence, it was not in a position to determine whether the plaintiff was a person under a disability. The court acknowledged the importance of the appropriate pathway in such cases but found that it could not proceed without the necessary evidence. The court ultimately declined to make the declaration sought by the defendant and did not order the appointment of a next friend or the assistance of the Public Advocate.

No final orders were made in the text provided, as the court found that it was not in a position to determine the issue of disability without the necessary evidence.

Orders