SA v Manonai
[2008] WASCA 168
•15 FEBRUARY 2008
SA -v- MANONAI [2008] WASCA 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 168 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:121/2006 | 15 FEBRUARY 2008 | |
| Coram: | PULLIN JA | 14/02/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Adjourned | ||
| B | |||
| PDF Version |
| Parties: | SA TARINEE MANONAI |
Catchwords: | Appeal Application to appoint a next friend or amicus curiae Whether presumption of appellant's ability to understand the proceedings has been disturbed Referral to the Office of the Public Advocate Application adjourned Turns on own facts |
Legislation: | Guardianship and Administration Act 1990 (WA) Rules of the Supreme Court 1971 (WA), O 70 r 3 |
Case References: | Dalle-Molle v Manos (2004) 88 SASR 193 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432 Masterman-Lister v Brutton & Co [2003] 3 All ER 162 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SA -v- MANONAI [2008] WASCA 168 CORAM : PULLIN JA HEARD : 15 FEBRUARY 2008 DELIVERED : 15 FEBRUARY 2008 FILE NO/S : CACV 121 of 2006 BETWEEN : SA
- Appellant
AND
TARINEE MANONAI
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 2165 of 2006
Catchwords:
Appeal - Application to appoint a next friend or amicus curiae - Whether presumption of appellant's ability to understand the proceedings has been disturbed - Referral to the Office of the Public Advocate - Application adjourned - Turns on own facts
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA)
Rules of the Supreme Court 1971 (WA), O 70 r 3
Result:
Adjourned
Category: B
Representation:
Counsel:
Appellant : Dr J J Hockley
Respondent : Mr D C Leask
Solicitors:
Appellant : In person
Respondent : Leask & Co
Case(s) referred to in judgment(s):
Dalle-Molle v Manos (2004) 88 SASR 193
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432
Masterman-Lister v Brutton & Co [2003] 3 All ER 162
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
(Page 3)
1 PULLIN JA: These are my reasons for adjourning the present application for directions. The Rules of the Supreme Court 1971 (WA) O 70 defines a person under a disability, relevantly, as a person who by reason of mental illness, defect or infirmity is declared by the court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates.
2 Decisions which will be of assistance to parties in a consideration of the question about whether a declaration should be made include: Masterman-Lister v Brutton & Co [2003] 3 All ER 162; Dalle-Molle v Manos (2004) 88 SASR 193; L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432 and Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51.
3 If a declaration is made under O 70, then a person under disability may not bring proceedings except by his next friend. The material before the court bearing on the question of capacity is as follows: first, the appeal notice was prepared by JPA, who is the appellant's mother. JPA is not a legal practitioner. She has a history of bringing proceedings in this court and in the High Court on other matters. The appeal notice describes the appellant as SA and then underneath his name appears, '[JPA] (as Guardian for Appellant)'.
4 This irregular heading prompted the registrar to question JPA about this when she appeared on a directions hearing on 2 May 2007. There is a registrar's note, which I should record, which reads what happened at that hearing. The registrar's note, which is on the file, reads:
I discussed at some length the need to clarify the capacity of her son to bring proceedings and his need for a next friend. Her son is a married adult with a history of mental illness, diagnosed at one stage as chronic paranoid schizophrenia (medical evidence from 2004 attached to [JPA's] affidavit sworn 19 December 2005 in CIV 2165 of 2005, annexure 'JPA 24)'. [JPA] says that she was appointed her son's guardian and administrator by the South Australian Guardianship Board. She says that this order is current and recognised in Western Australia [presumably under the Guardianship and Administration Act (WA), see s 44A and s 83D attached]. I indicated to her that if this is the case then it would appear that he is a 'represented person' for the purposes of O 70 and must bring proceedings through a next friend and as next friend she must act by a solicitor. She is aware of that requirement. … As I understand it, she says that her son is better now and could bring these proceedings in his own name, although he would need assistance in conducting the litigation. She also says that she holds an enduring power of attorney. It seems that [JPA] wants to act in these proceedings as some sort of McKenzie friend rather than as 'next friend' but it is not clear.
(Page 4)
- I told both parties that the status and capacity of [SA] would need to be clarified before the appeal could proceed. I will refer to a SJA for directions. I asked [JPA] to file an affidavit relating to the guardianship order and his current capacity.
5 Registrar Eldred then made a formal order that by 18 May 2007, JPA file and serve affidavit evidence relating to the capacity of the appellant to bring proceedings in his own right, including evidence of any orders appointing a guardian or administrator for the appellant and medical evidence as to his current legal capacity. The response was an application filed on 9 May 2007, by or on behalf of SA, seeking 'relief from Order 70 Rule 3 Rules of the Supreme Court 1971 that the proceedings be made through his Next Friend and a solicitor, given his mental recovery' and seeking leave:
[T]o allow his mother, [JPA] to appear as a friend of the court and represent him as amicus curiae, to place this case before the court or in the interest of justice to assist the honourable Court of appeal; or alternatively; seeks leave to allow his mother to act as McKenzie friend.
6 This was accompanied by an affidavit by JPA deposing that the Public Trustee in South Australia was granted administration orders for SA on a date unknown to JPA but believed to be in the year 1999. She deposed that she and her husband hold SA's enduring power of attorney, executed in 1997. The affidavit deposed that on 30 March 2000 the Guardianship Board revoked the Public Trustee's administration order:
And as matters stand, both my husband and myself continue to act for [SA] in our guardian/administrator capacity at [SA's] request and since the execution of his enduring power of attorney since 1997.
7 Exhibited to the affidavit is an order of the President of the Guardianship Board of South Australia, under the Guardianship and Administration Act 1993 (SA), headed 'in the matter of [SA]'. It is a review of 'an administration order dated 14 September 1999 in respect of [SA]'. The order was 'that the administration order made under the Guardianship and Administration Act 1993 be and is hereby revoked'. The order is dated 30 March 2000.
8 JPA's affidavit continues that on 22 December 2004 Dr Steve Baily, consultant psychiatrist at Fremantle Hospital, in a report, verified that SA's medical condition 'improved' and was 'approaching pre-illness levels'. JPA's affidavit exhibited a letter, dated 21 December 2006, from Dr Gillian Cowen, Psychiatric Registrar with the Fremantle team, Adult
(Page 5)
- Mental Health Services, Fremantle Hospital and Health Services. It was headed, '[SA] … Diagnosis: Chronic Paranoid Schizophrenia. It reads:
I reviewed this gentleman on the 14 December 2006. At this time he was stable, from a mental health perspective [SA] has improved considerably since his last admission to hospital in 2004, is compliant with his medication and has good insight into his illness. I will continue to see him and support him in optimising his mental health.
Both [SA] and myself have a vested beneficiary entitlement in the deceased estates mentioned herein, and accordingly I filed interest in the legal proceeding by Form 18A Application filed on 18 August 2006 and sought leave from the Supreme Court to be added as second plaintiff in the pending Supreme Court action no: 2165 of 2005 against the respondent, and which application I believe, to the best of my knowledge, remains inconclusive.
10 This material is not relevant in relation to whether SA should be declared to be a person under a disability, but the fact that JPA also claims an interest will be relevant if a declaration is made under order 70 and JPA seeks to be appointed next friend.
11 The matter was then listed before me on 22 June 2007. Dr Hockley, who appeared on 22 June 2007, explained that he appeared 'as pro bono counsel for JPA at the request of Registrar Eldred to assist the court'. I asked Dr Hockley whether he had a concern about whether he should be taking instructions from SA or from his mother, JPA. Dr Hockley said that that was the case.
12 Dr Hockley submitted the court should invite the Public Advocate to investigate SA's mental state and if necessary make an application under the Guardianship and Administration Act 1990 (WA). I then made an order, on 22 June 2007 that:
The transcript of today's proceedings and a transcript of the master's reasons for decision and the notice of appeal in this appeal be referred to the Public Advocate for the Public Advocate to consider whether an application should be made under the Guardianship and Administration Act 1990 in respect of the appellant; or alternatively, to report to the court as to why such an application is not necessary.
13 On 2 July a letter was sent to the Office of the Public Advocate, in accordance with the order. On 3 July 2007 the Court of Appeal received a letter which appeared to be signed by SA stating that his parents held an enduring power of attorney, that his wife, his parents and 'myself' object
(Page 6)
- to his documents being sent to any third party. A copy of this letter was sent to the Office of the Public Advocate and SA informed of this. By letter to the Public Advocate, dated 20 July 2007, SA appears to have signed a letter which read:
My parents hold my Enduring Power of Attorney since 1997, and should the need arise to give further instructions to a barrister/solicitor to assist her with my legal matters, then either of my parents are willing and capable enough to give instructions on my behalf to any pro bono legal representative (that I am given to understand my mother has arranged with the assistance of the Supreme Court).
I am not interested in giving any instructions to any barrister my mother may have arranged through the Supreme Court … to act for and on my behalf, nor do I have any reason to consult with your office either.
As a matter of interest to all concerned an application in an appeal filed on 9 May 2007 in the Court of Appeal for my mother to act as amicus curiae, is pending consideration.
Please consult directly with my appointed attorneys entitled to handle my legal matters on my behalf, who will be pleased to assist you.
15 A copy of this letter was sent to the Court of Appeal and to Dr Hockley. The Public Advocate wrote to the court on 27 September 2007. The letter explained that the Public Advocate was unable to contact SA personally and said that once a response was received from Dr Cowen the Public Advocate would write to the court again. Subsequently, by letter dated 16 November 2007, the Public Advocate wrote again to my associate. This letter revealed that the Public Advocate had requested Dr Cowen, SA's treating psychiatrist, to provide general capacity assessment information based on her knowledge of SA.
16 This letter then set out a summary of what Dr Cowen had provided by way of information to the Public Advocate, and that revealed that Dr Cowen had known SA for approximately 10 months and last saw him in September 2007, that SA's mental illness fluctuates but is currently stable on medication and he is compliant in taking his prescribed medication.
17 The letter said that in the area of personal health care Dr Cowen described SA to be capable, having insight into his condition and currently accepting of his treatment. In relation to his living condition, for example making decisions about his accommodation, Dr Cowen says that
(Page 7)
- she was not sure about this but described him as having the ability to make simple choices. In relation to financial decisions Dr Cowen reported that she was not sure about SA's decision making ability, however she commented that SA declined to discuss his financial affairs and referred her to his attorneys.
18 In relation to his competency to execute an enduring power of attorney, Dr Cowen says she was not sure about this either. Dr Cowen reported that should SA be required to participate in a hearing at the State Administrative Tribunal - she was not able to specifically answer the question about his appearance but commented that he may relapse due to the psychological stress involved, 'However I cannot predict definite relapse if requested to attend court.'
19 The Public Advocate's letter also said that Dr Cowen suggested that a private psychiatrist be arranged to assess SA's capacity. The Public Advocate, in the rest of the letter, then indicated that SA had not attended the Public Advocate's office personally or been in contact, despite efforts being made to make contact with him. The Public Advocate felt unable to compel SA to attend or attend a psychiatrist or any other professional. The Public Advocate said that the Guardianship and Administration Act 1990 (WA) provides that a person is presumed to have capacity unless otherwise proven.
20 The Public Advocate concluded the letter saying that she was not satisfied that there was sufficient information to lodge an application for an appointment of a guardian or administrator with the State Administrative Tribunal, which, in view of the information referred to above, came as somewhat of a surprise given that there is provision in the Guardianship and Administration Act for a very limited administration order restricted to the bringing and defending of actions, suits, and other legal proceedings in the name of the represented person. But in any event that is the outcome of the reference to the Public Advocate.
21 So in summary, it seems clear that SA does suffer from a mental illness. It requires treatment and it fluctuates. It is at least sometimes stable when he is on medication and when seen in September 2007 he was compliant in taking his medication. He has insight into his condition and was accepting of his treatment at the time of these earlier letters. However, the material referred to in the Public Advocate's letter of 16 November 2007, and in particular the material from Dr Cowen, leaves me in doubt about the appellant's capacity.
(Page 8)
22 This doubt is heightened by the fact that JPA, his mother, saw fit to commence the appeal acting as his guardian. It is heightened by the fact that Dr Hockley, acting pro bono, is clearly sufficiently uncertain about SA's legal capacity. He has not spoken to SA and is uncertain about whether he should act on JPA's instructions conveyed to her, apparently, by SA.
23 The authorities that I have referred to indicate that there is a common law presumption of competence but the material that I have referred to does raise a question about whether the presumption can stand.
24 It is also necessary for the respondent to take an interest in this subject because the respondent can be affected by the situation if at some stage it is contended that SA is, in effect, a person who should have been made the subject of a declaration under O 70. If the proceedings are conducted without a next friend and if the proceedings are, for example, either discontinued or settled, then the discontinuance could be set aside.
25 So for all those reasons I am going to adjourn the matter and leave it to the parties to consider what should next happen, including giving consideration to arrangements being made to have SA come to the court, and perhaps Dr Cowen come to the court; and to consider the various other options that have been mentioned by the Public Advocate and by Dr Cowen. But I think the situation has to be regularised one way or the other and I would be assisted by the submissions of the parties.
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