Robert Mitford Rowell by Next Friend Angela Joan Rowell v CALDER
[2007] WASC 23
•29 JANUARY 2007
ROBERT MITFORD ROWELL by Next Friend ANGELA JOAN ROWELL & ANOR -v- CALDER & ORS [2007] WASC 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 23 | |
| Case No: | CIV:1922/2006 | 29 JANUARY 2007 | |
| Coram: | MARTIN CJ | 28/01/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Adjourned for further directions with respect to mediation and pleadings The matter be entered to the Commercial and Managed Cases list | ||
| B | |||
| PDF Version |
| Parties: | ROBERT MITFORD ROWELL by Next Friend ANGELA JOAN ROWELL ANGELA JOAN ROWELL ELIZABETH ANN MITFORD CALDER ROSALIND RUTH MITFORD PHELPS ROBINSON ROBERT MITFORD ROWELL SHARON PHILLIPA MITFORD ROWELL ROWELL PTY LTD (ACN 008 678 135) SAUNDERS NOMINEES PTY LTD (ACN 008 781 128) JOANNA ELIZABETH CALDER BRUCE ROWELL CALDER SALLY CALDER KATHERINE EMMA IIRELAND GEORGINA BRONTE GARDNER JOHN PRESTON ROBERT GARDNER ELIZABETH ROSE KYLE DAVID PETER KYLE ROBERT MITFORD ROWELL HEATHER ROWELL ALEXANDRA ROWELL JACQUELINE ROWELL SARAH KELLY THOMAS KELLY THE REMOTER ISSUE by their Representative KATHERINE EMMA IIRELAND BLINA PTY LTD (ACN 008 678 117) BRACKENRIDGE BROS PTY LTD (ACN 008 676 319) LENNARD TRADING PTY LTD (ACN 008 684 651) PANTER DOWNS PTY LTD (ACN 008 742 381) PERTH METROPOLITAN INVESTMENTS PTY LTD (ACN 008 716 336) WALLAL DOWNS PASTORAL CO PTY LTD (ACN 008 668 095) |
Catchwords: | Practice and procedure Plaintiffs seeking an injunction to restrain the defendants from proceeding with an application lodged in the State Administrative Tribunal under the Guardianship and Administration Act 1990 (WA) Assertion that the issues raised in those proceedings should be dealt by the Supreme Court as they are substantially the same Issues arising for consideration by the Tribunal Jurisdiction and power of the Tribunal Assertion that the prosecution of those proceedings amounts to contempt of court by way of frustrating proceedings in this Court Whether the Tribunal is a more appropriate forum to determine the issues than the Supreme Court Plaintiffs seeking a declaration that the first plaintiff is a person under disability and that the declaration be made retrospectively Whether the second plaintiff can properly act as the next friend of the first plaintiff Turns on own facts Costs Consequences of making an order with retrospective effect and the refusal to make such an order where possibility that the refusal might necessitate the institution of fresh proceedings Turns on own facts |
Legislation: | Guardianship and Administration Act 1990 (WA), s 109 Rules of the Supreme Court 1971(WA), O 70 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
ANGELA JOAN ROWELL
Second Plaintiff
AND
ELIZABETH ANN MITFORD CALDER
First Defendant
ROSALIND RUTH MITFORD PHELPS
Second Defendant
ROBINSON ROBERT MITFORD ROWELL
Third Defendant
SHARON PHILLIPA MITFORD ROWELL
Fourth Defendant
ROWELL PTY LTD (ACN 008 678 135)
Fifth Defendant
- SAUNDERS NOMINEES PTY LTD (ACN 008 781 128)
Sixth Defendant
JOANNA ELIZABETH CALDER
Seventh Defendant
BRUCE ROWELL CALDER
Eighth Defendant
SALLY CALDER
Ninth Defendant
KATHERINE EMMA IIRELAND
Tenth Defendant
GEORGINA BRONTE GARDNER
Eleventh Defendant
JOHN PRESTON ROBERT GARDNER
Twelfth Defendant
ELIZABETH ROSE KYLE
Thirteenth Defendant
DAVID PETER KYLE
Fourteenth Defendant
ROBERT MITFORD ROWELL
Fifteenth Defendant
HEATHER ROWELL
Sixteenth Defendant
ALEXANDRA ROWELL
Seventeenth Defendant
JACQUELINE ROWELL
Eighteenth Defendant
SARAH KELLY
Nineteenth Defendant
- THOMAS KELLY
Twentieth Defendant
THE REMOTER ISSUE by their Representative KATHERINE EMMA IIRELAND
Twenty First Defendant
BLINA PTY LTD (ACN 008 678 117)
Twenty Second Defendant
BRACKENRIDGE BROS PTY LTD (ACN 008 676 319)
Twenty Third Defendant
LENNARD TRADING PTY LTD (ACN 008 684 651)
Twenty Fourth Defendant
PANTER DOWNS PTY LTD (ACN 008 742 381)
Twenty Fifth Defendant
PERTH METROPOLITAN INVESTMENTS PTY LTD (ACN 008 716 336)
Twenty Sixth Defendant
WALLAL DOWNS PASTORAL CO PTY LTD (ACN 008 668 095)
Twenty Seventh Defendant
Catchwords:
Practice and procedure - Plaintiffs seeking an injunction to restrain the defendants from proceeding with an application lodged in the State Administrative Tribunal under the Guardianship and Administration Act 1990 (WA) - Assertion that the issues raised in those proceedings should be dealt by the Supreme Court as they are substantially the same - Issues arising for consideration by the Tribunal - Jurisdiction and power of the Tribunal - Assertion that the prosecution of those proceedings amounts to contempt of court by way of frustrating proceedings in this Court - Whether the Tribunal is a
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more appropriate forum to determine the issues than the Supreme Court - Plaintiffs seeking a declaration that the first plaintiff is a person under disability and that the declaration be made retrospectively - Whether the second plaintiff can properly act as the next friend of the first plaintiff - Turns on own facts
Costs - Consequences of making an order with retrospective effect and the refusal to make such an order where possibility that the refusal might necessitate the institution of fresh proceedings - Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 109
Rules of the Supreme Court 1971(WA), O 70
Result:
Adjourned for further directions with respect to mediation and pleadings
The matter be entered to the Commercial and Managed Cases list
Category: B
(Page 5)
Representation:
Counsel:
First Plaintiff : Mr R K O'Connor QC and Mr P J Mugliston
Second Plaintiff : Mr R K O'Connor QC and Mr P J Mugliston
First Defendant : Mr M J McCusker QC and Mr N P Gentilli
Second Defendant : Mr M J McCusker QC and Mr N P Gentilli
Third Defendant : Mr M J McCusker QC and Mr N P Gentilli
Fourth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Fifth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Sixth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Seventh Defendant : Mr M J McCusker QC and Mr N P Gentilli
Eighth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Ninth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Fourteenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Fifteenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Sixteenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Seventeenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Eighteenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Nineteenth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twentieth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twenty First Defendant : No appearance
Twenty Second Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twenty Third Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twenty Fourth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twenty Fifth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twenty Sixth Defendant : Mr M J McCusker QC and Mr N P Gentilli
Twenty Seventh Defendant : Mr M J McCusker QC and Mr N P Gentilli
Solicitors:
First Plaintiff : Hammond Worthington
Second Plaintiff : Hammond Worthington
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Third Defendant : Jackson McDonald
Fourth Defendant : Jackson McDonald
- Fifth Defendant : Jackson McDonald
Sixth Defendant : Jackson McDonald
Seventh Defendant : Jackson McDonald
Eighth Defendant : Jackson McDonald
Ninth Defendant : Jackson McDonald
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : Jackson McDonald
Fourteenth Defendant : Jackson McDonald
Fifteenth Defendant : Jackson McDonald
Sixteenth Defendant : Jackson McDonald
Seventeenth Defendant : Jackson McDonald
Eighteenth Defendant : Jackson McDonald
Nineteenth Defendant : Jackson McDonald
Twentieth Defendant : Jackson McDonald
Twenty First Defendant : No appearance
Twenty Second Defendant : Jackson McDonald
Twenty Third Defendant : Jackson McDonald
Twenty Fourth Defendant : Jackson McDonald
Twenty Fifth Defendant : Jackson McDonald
Twenty Sixth Defendant : Jackson McDonald
Twenty Seventh Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
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1 MARTIN CJ: There are a suite of interlocutory applications that have been brought before the Court today, some of which are no longer pressed for reasons that I will explain shortly. The applications include those for an abridgment of time and for interlocutory injunctions. The application for abridgment of time is no longer necessary and the applications for interlocutory injunction have, in part, been resolved on the basis of an exchange of undertakings substantially in the forms earlier proffered to each of Simmonds and Miller JJ when the matters came before them. I will return to the logistics of just how further undertakings in those terms might be prepared and executed by the parties in due course.
2 There are, however, some matters that remain contentious and in order to explain those matters I will give a very brief background to the proceedings before dealing with them. The proceedings have been commenced by two plaintiffs. The first plaintiff, Robert Mitford Rowell, who is said to act by his next friend, Angela Joan Rowell, who is his wife of almost 30 years and the second plaintiff.
3 The first plaintiff is 92 years of age and unfortunately suffers from an advanced stage of Alzheimer's disease and various other health problems. It is clear from the uncontested evidence that he is quite incapable of giving instructions in relation to these proceedings and has been incapable of giving those instructions for some years now.
4 The first four defendants are the first plaintiff's children from his first marriage. The fifth defendant is a company formed by the first plaintiff approximately 50 years ago in which substantial assets acquired in the course of the first plaintiff's businesses have been vested.
5 The sixth defendant is the trustee of a trust in which the second plaintiff, the first four defendants and various other defendants, including the grandchildren of the first plaintiff, are beneficiaries.
6 The proceedings were commenced on 31 August 2006 and from the amended statement of claim it appears that a variety of matters are put in issue. It is unnecessary for me to detail those matters at this stage other than to say that they canvass such questions as the validity of an enduring power of attorney which was granted to the second plaintiff in 1993; rearrangements that were made in relation to both the trust and the company in 1995; and the exercise of the powers of the directors of both the fifth defendant and the sixth defendant in relation to the company and the trust respectively. There has also been a counterclaim filed challenging the validity of the enduring power of attorney.
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7 There are also issues concerning the Articles of Association of the fifth defendant, including the question of whether the majority shareholders in the company can properly amend those Articles. Conversely, there is the question of whether the second plaintiff, as attorney of the first plaintiff, can exercise the powers conferred by Article 37 to compel the other shareholders in the fifth defendant to transfer their shares to the first plaintiff at a price fixed by reference to the issue price of those shares which was $2 each.
8 It is unnecessary to go into detail of those issues because the substantive injunctive relief that was sought in relation to the exercise of powers under Article 37 and the amendment to the Articles of the company has been resolved by the parties agreeing to exchange mutually dependent undertakings not to exercise those powers without first giving 10 Court sitting days' notice to the other party.
9 That leaves a number of issues in contention. It is perhaps convenient if I address, as the first of those issues, the injunction that is sought by the plaintiffs to restrain the defendants from proceeding with an application which they have lodged to the State Administrative Tribunal ("SAT") under the Guardianship and Administration Act 1990 (WA) ("the Act"). Those proceedings were launched late in 2006 and the defendants seek, amongst other things, an order vesting the administration of the affairs of the first plaintiff in an independent trustee such as Perpetual Trustees or the Public Trustee. In addition, the defendants seek the exercise of powers conferred upon SAT in relation to the revocation of the enduring power of attorney granted in favour of the second plaintiff. I have been told that a hearing for directions in those proceedings will be held in SAT in early February.
10 The history to the SAT proceedings began in 2000 when an application was made to the Guardianship Tribunal, which, of course, previously exercised the jurisdiction which has now been vested in SAT. The application sought a declaration that the first plaintiff was a person under disability and that the enduring power of attorney was in force and effect. In that same year, the Guardianship Tribunal made declarations in those terms.
11 As I have observed, the plaintiffs seek an injunction restraining the defendants from prosecuting the current proceedings before SAT.
12 The basis upon which they seek those orders is; firstly, an assertion that the issues that would be raised in those proceedings should be dealt
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- with by the Court, because they are substantively the same issues; secondly, that the prosecution of those proceedings is a contempt of court by reason that their purpose is to frustrate proceedings which have been properly commenced in this Court.
13 In relation to the first argument, in my opinion, the issues that will be dealt with by SAT are quite different to those that would arise for determination by the Court. The issues that will arise for consideration by SAT are the question of who is the most appropriate person to protect the interests of the first plaintiff generally; that is to say, is it the second plaintiff or should somebody else be appointed?
14 If SAT forms the view that the second plaintiff is not an appropriate person to protect the interests of the first plaintiff, either in these proceedings or in relation to his affairs generally, it will have a wide-ranging discretion as to who should be appointed to administer the first plaintiff's affairs. Another issue that will arise before SAT is the question of whether it should exercise the powers conferred by s 109 of the Act to revoke the enduring power of attorney. That is neither a jurisdiction which this Court has, nor is it a power that could be exercised by this Court.
15 It therefore seems to me that the questions at issue in the proceedings before SAT are quite distinctly different to those that would arise for determination by the Court. The questions at issue in the proceedings before the Court would essentially be limited to questions of conflict of interest and improper purpose in relation to these proceedings; although the substantive effect of those broader issues upon the proceedings before the Court is easy to see.
16 In relation to the allegation that the proceedings in SAT constitute a contempt of court, the evidence does not enable me to conclude that the proceedings in SAT have been commenced for some prohibited or collateral purpose that would constitute a contempt of court. Part of my reason for this conclusion is, of course, because the issues raised in SAT are distinctly different from those dealt with in the Court and the powers enjoyed by SAT are distinctly different from the powers enjoyed by the Court. Therefore, it cannot be said that the defendants are trying to achieve through SAT something that they could just as easily achieve through the ventilation of these issues in the Court.
17 It seems to me that there are at least three good reasons why those issues should be dealt with by SAT rather than by this Court. The first is
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- that they have previously been considered by the predecessor to SAT in the form of the Guardianship Tribunal. The second is that the issues that are to be dealt with in SAT are distinctly different in terms of the jurisdictional basis for, and ambit of, those issues when compared to the issues that will arise in these proceedings.
18 As I have observed, SAT enjoys significantly greater powers than the powers that would be enjoyed by the Court. The Court's powers which would essentially be limited to the determination of whether these proceedings were vitiated by some improper motive and therefore, constituted an abuse or whether the second plaintiff is precluded by a conflict of interest from acting as the next friend of the first plaintiff. I have also observed, the issues that will be considered by SAT are significantly broader than that.
19 The third reason why SAT is better equipped than this Court to determine those issues is that SAT is the specialist body in which jurisdiction of this kind has been vested by the legislature. It has developed an expertise over the years in the discharge of this jurisdiction. It has practices and procedures that are somewhat more flexible and which have been specifically fashioned to deal with that specialised jurisdiction when compared to those that would apply in this Court in relation to the determination of the issues arising in this litigation.
20 So for those reasons, it is my view that SAT is the preferable jurisdiction for the ventilation and determination of the issues which have been raised by the defendants in that forum. I am not, therefore, presently disposed to grant any form of relief restraining the defendants from pursuing those proceedings.
21 That conclusion has implications for the other issues that have been ventilated by the parties which evolve around the status of these proceedings and the status of the second plaintiff as purported next friend of the first plaintiff. The reason for the ventilation of those issues is that, although a declaration of disability had been sought in other proceedings of a similar kind commenced by the plaintiffs prior to the commencement of these proceedings, no declaration of disability had been sought in respect of these proceedings prior to their commencement on 31 August 2006.
22 It is therefore contended that under the proper construction of O 70 of the Rules of the Supreme Court 1971 (WA), because no declaration of disability had been made, the first plaintiff was not relevantly a person
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- under disability as defined in that order. The consequence of that being that unless and until such a declaration was made, it was not possible for the second plaintiff to act as his next friend and therefore, it is said by the defendants that these proceedings are, and always have been, incompetent.
23 In order to partially address those contentions, the plaintiffs sought a declaration of the disability of the first plaintiff and on 5 January 2007 Miller J made such a declaration. The plaintiffs also contend that the proceedings were validly commenced pursuant to the authority conferred upon the second plaintiff by the enduring power of attorney so that reliance upon O 70 is unnecessary.
24 However, in order to put any contention as to the validity of these proceedings beyond doubt, the plaintiffs now seek that that declaration be made retrospective with effect from a day before the commencement of these proceedings and a further order that for the avoidance of any doubt, the Court retrospectively appoint the second plaintiff as the next friend of the first plaintiff.
25 In relation to the question of retrospectivity, I have already noted it is not in contention that the physical and mental condition of the first plaintiff has been such that at all material times he is incapable of giving instructions in relation to the conduct of the proceedings that have been brought in his name; and it is common ground that his condition was not materially different in that regard on 30 August 2006 as compared to his condition on 5 January 2007.
26 Counsel for the defendants quite properly conceded that in those circumstances, the only difference between the making of an order with retrospective effect and the refusal to make such an order, would be the possibility that the refusal to make such an order might necessitate the commencement of fresh proceedings after the declaration of disability made by Miller J on 5 January in substantially the same form as the current proceedings. The only consequence of that would, of course, be to give rise to some costs issues in relation to the costs of the proceedings that are now on foot and also to expose the plaintiffs to the additional cost of commencing new proceedings and both parties to the costs thrown away by reason of the vehicle for the ventilation of these issues being shifted from one set of proceedings to another.
27 It seems to me, that those are precisely the sorts of circumstances in which the power of the Court to make orders with retrospective effect
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- arises and is enlivened and properly exercised. Thus, if such an order would be effective to avoid those costs being thrown away and would not prejudice the defendants by, for example, being made on terms that would authorise them to apply for the costs of the proceedings up until the making of the order by Miller J on 5 January 2007, then the power should properly be exercised by me. Such an order would only be effective if it were accompanied by an order that the second plaintiff be permitted to act as the next friend of the first plaintiff also with retrospective effect from the day prior to the commencement of these proceedings.
28 That brings me to one of the most contentious issues that was debated before me, and that was the question of whether the second plaintiff can properly act as the next friend of the first plaintiff. There are a number of considerations that I bring to mind in the resolution of that issue. Firstly, it is obvious that the circumstances of this case are such that all parties have a strong interest in the prompt and expeditious resolution of these proceedings. Anything that stands in the way of that objective will be detrimental to all parties and therefore any controversy as to the capacity of the second plaintiff to act on behalf of the first plaintiff should, in my opinion, be resolved as effectively as possible and as soon as possible.
29 Secondly, I consider my conclusion that SAT is the most appropriate forum for the ventilation of issues that are not unrelated to the question of the capacity of the second plaintiff to act as the next friend of the first plaintiff and the likelihood that the determination of SAT will shed considerable light on those issues.
30 So having regard to those two considerations, it seems to me that I would only be precluded from taking a course which would best move these proceedings forward if I were satisfied on the material before me that the second plaintiff is not able to act as the next friend of the first plaintiff. That may be because in the proceedings she would be advancing interests that are adverse to his, or which conflict with his or she is exploiting his rights to advance interests of her own.
31 I have listened carefully to the submissions that have been put by the defendants on that topic, but I am not presently satisfied that the second plaintiff is in such a position that it can be said definitively that she is advancing interests in the proceedings which conflict with those of the first plaintiff, are adverse to them or only advance her own interests in reliance upon his rights. In this regard, it is important to note that there are a variety of causes of action raised in the proceedings and a variety of
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- forms of relief that are sought. Some of them, as has been pointed out by counsel for the plaintiffs, are plainly of a kind which would be of direct and immediate benefit to the first plaintiff. In relation to the other causes of action, counsel for the defendants pointed out that there seem to be arguable issues as to whether or not those causes of action are being asserted only for the benefit of the second plaintiff and not for the benefit of the first plaintiff who she purports to represent.
32 Assessment of the categories into which the issues fall is complicated by the fact that in respect of some of those issues the second plaintiff has a claim in her own right; for example, as a beneficiary of the trust of which the sixth defendant is trustee. In some cases, therefore, it is by no means clear whether or not the claim that is being made on the trust is a claim properly made by the second plaintiff in her own capacity or as a claim that could only be made on behalf of the first plaintiff or as a claim in which the first plaintiff and the second plaintiff have a common interest.
33 At all events, in relation to the claims relating to the trust, despite the very thorough argument advanced by counsel for the defendants, I am not presently satisfied that there is indeed a conflict between the interests of the second plaintiff and the first plaintiff, although there are undoubtedly substantial arguments to that effect. However, I do not now purport to determine as further evidence may shed light upon them.
34 In relation to the company, the position is a little easier to elucidate because the second plaintiff does not have any shareholding in the company and if it were clear that forms of relief were being sought by the second plaintiff, ostensibly in the name of the first plaintiff, that were for her benefit and her benefit alone then I think there would be considerable force in the argument advanced on behalf of the defendants. However, it seems to me that those issues turn critically upon determinations of fact as to the objectives of the first plaintiff in both the creation of a company and its continuation over the last 50 years or so of its existence and the difficulty I have with the defendants' argument is that resolution of those contentions would effectively require me to determine now quite contentious issues of fact which will, I think, only become clear after all the evidence has been adduced at a trial.
35 Nevertheless, if the proceedings that have been commenced by the defendants in SAT do not shed the light upon those issues, which I would hope that they will, it would be open to the defendants to renew an application to have the second plaintiff removed as the next friend of the first plaintiff pursuant to O 70 r 7. If that point were reached, it would
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- seem to me to be necessary to effectively have that issue tried as a separate trial before a Judge, either by myself or some other Judge or Master, on the basis of evidence adduced by the parties on that issue with all witnesses being subjected to cross-examination if that was sought by the other party. It seems to me to be undesirable and potentially unjust to try to resolve an issue of that complexity on the basis of affidavit material in the context of an application for urgent interlocutory relief.
36 So for those various reasons, the defendants should have the full opportunity to ventilate the issues that they wish to ventilate in relation to the appropriateness of the second plaintiff acting for, and on behalf of, the first plaintiff in SAT. It is to be hoped that that opportunity will shed considerable light on the question which is raised in these proceedings as to the capacity of the second plaintiff to act as the first plaintiff's next friend.
37 However, it is necessary for these proceedings to continue moving forward while the SAT proceedings continue and because I am also not presently satisfied that the second plaintiff is, in truth, advancing interests in these proceedings, which are necessarily in conflict with, or adverse to, the interest of the first plaintiff or is exploiting his rights solely for her own benefit. Taking into account these two considerations, the course most consistent with the interests of justice is for me to make orders retrospectively declaring the first plaintiff to be a person under disability from 30 August 2006 and retrospectively authorising the second plaintiff to act as his next friend from that time. Those orders will be subject to the condition that the defendants will have liberty to apply for the costs incurred between the time of commencement of these proceedings on 31 August 2006 until 5 January 2007 on the basis that those proceedings were invalidly constituted - a matter which remains in issue and which I have not determined. These orders will also be subject to the condition that the defendants have liberty to apply to remove the second plaintiff as the next friend of the first plaintiff at any time, but in particular after the proceedings in SAT have been determined one way or the other.
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