SA v Manonai [No 2]
[2008] WASCA 170
•27 JUNE 2008
SA -v- MANONAI [No 2] [2008] WASCA 170
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 170 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:121/2006 | 27 JUNE 2008 | |
| Coram: | PULLIN JA | 27/06/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| 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 Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 4 r 3(1), O 70 r 3 |
Case References: | L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432 SA v Manonai [2008] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SA -v- MANONAI [No 2] [2008] WASCA 170 CORAM : PULLIN JA HEARD : 27 JUNE 2008 DELIVERED : 27 JUNE 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 - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 4 r 3(1), O 70 r 3
(Page 2)
Result:
Application dismissed
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):
L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432
SA v Manonai [2008] WASCA 168
(Page 3)
1 PULLIN JA: The question as to whether the appellant, SA, should be declared a person under a disability has been raised but I am now satisfied that there is no admissible evidence to disturb the presumption that the appellant has the capacity to understand the nature of the litigation and to make decisions concerning it: L v Human Rights & Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432 [26].
2 The only admissible medical evidence is of a qualified expert, Dr Velayudhan, who is of the opinion that the appellant is 'capable of understanding the court case and being a party in his own right', that he is 'happy to be a party in the case' and that he was able to discuss the current legal issues with Dr Velayudhan in a way which indicated an understanding of the issues in the case. According to Dr Velayudhan the appellant indicated that he would like to instruct a lawyer to argue his case.
3 An affidavit sworn 24 June 2008 has been filed by the appellant's father, AA. In this, AA proffers a view about the appellant's capacity which might be seen to be in opposition to Dr Velayudhan's medical opinion but it is not an expert opinion and cannot therefore be treated as evidence in opposition to Dr Velayudhan's opinion. I rely on Dr Velayudhan's opinion and I therefore conclude that it is not necessary to make a declaration under O 70 and therefore not necessary to appoint a next friend to represent the appellant in the proceedings. The doubts I expressed in SA v Manonai [2008] WASCA 168 have been removed.
4 As a result of that, I will make an order that the title to the proceedings be amended by deleting the words 'by guardian ad litem [JPA]' so that henceforth that order will take effect so that all documents should be filed simply showing the appellant as the appellant and the respondent as presently shown as the respondent. I should add that the words which had been added 'by guardian ad litem [JPA]' were inappropriate in any event but we need not any longer concern ourselves with that.
5 Next I should deal with the application which was made by the appellant's mother, JPA, on 9 May 2007, where an order was sought in terms that leave be granted to allow JPA to appear either as a friend of the court or to represent the appellant as amicus curiae or to allow her to act as a McKenzie friend or to address the court or otherwise take an active part in the proceedings, seeking relief from O 70 r 3 Rules of the Supreme Court 1971 (WA) that the proceedings be made through a next friend; that is, the appellant have appointed a next friend. That application must be
(Page 4)
- dismissed. I should add that it is said to be an application made by the appellant. It is not entirely clear to me whether that is so or whether in fact it was JPA's application but in any event the application is hereby dismissed.
6 This leads me to observe that there is a tendency on the part of the appellant's parents to treat this file as a vehicle for the unfortunate dispute between themselves and the appellant, but of course it cannot be permitted to be used in that way and I am going to direct the registry not to accept for filing any document which purports to have been prepared by the appellant's parents, so that there are no further instances of documents being filed which do not relate to the litigation between the two parties.
7 I should also observe that the appellant's father contends that he has a power of attorney, an enduring power of attorney, for the appellant. The information suggests that it may have been revoked but I do not make any determination about that issue. Even if AA does hold an enduring power of attorney which has not been revoked, that would not give AA any right per se to appear himself or through JPA to represent the appellant. Order 4 r 3 does not permit that. A person can appear on their own behalf or through a solicitor and not through a person who is not a solicitor. The issue about the existence of an enduring power of attorney does not concern in any way the issue about who may represent SA in court.
8 Finally, I note SA's request to Dr Velayudhan that he wants a solicitor to represent himself and I note that Dr Hockley has indicated that there is a procedure available whereby the court can ask for a person to receive pro bono assistance. Dr Hockley has always appeared here on the basis that he has taken instructions from JPA. If SA wants pro bono assistance, then he is going to have to appear before this court and make that request himself because so far he has not been seen in the court and I have a concern that these proceedings have been in effect conducted and controlled by the appellant's mother.
9 If the matter is to proceed with the appointment of a pro bono solicitor, then he will have to appear and ask for it himself and I propose to adjourn the matter until 4 July 2008, to give SA the opportunity of appearing and making that request. If he does not appear and make the request, then it will be up to the respondent to take whatever action the respondent thinks appropriate and that may mean an application to strike out the appeal because of noncompliance with the rules or orders.
(Page 5)
10 I am not clear on what the state of play is in relation to the appeal itself. So far the energy and efforts of this court have been dedicated to trying to work out whether or not a declaration should be made under O 70. That has now been decided. The parties will now be free to take whatever steps are open to them under the rules.
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