SA v Manonai [No 3]

[2009] WASCA 204

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SA -v- MANONAI [No 3] [2009] WASCA 204

CORAM:   PULLIN JA

NEWNES JA

HEARD:   25 AUGUST 2009

DELIVERED          :   25 AUGUST 2009

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:

Appeals - Procedure - Application for joinder or substitution - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed
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):

SA v Manonai (No 2) [2008] WASCA 170

1. PULLIN JA: JA, the mother of the appellant in this appeal, has sought leave to be joined or substituted as the appellant in the appeal. The background is as follows. A caveat was lodged by the appellant, SA, over certain land, of which the respondent is the registered proprietor. The caveat claimed an interest in the land. An order was made that the caveat should be extended until further order. The respondent then sought a discharge of the caveat pursuant to s 138C of the Transfer of Land Act 1893 (WA). On 7 September 2006 Master Sanderson made an order in effect discharging the caveat. An appeal notice was then filed, with the appellant being shown as SA, but with JA shown as guardian for the appellant in the title to the appeal.

2. It became apparent during the course of applications before the court in this appeal that JA was involved in the preparation of documents involved in the appeal proceedings.  She at one stage sought to appear to speak on SA's behalf.  Over an extended period of time, this court examined the question as to whether the appellant was a person under a disability and whether it was necessary to appoint a next friend to represent the appellant in the proceedings.

3. That issue was finally resolved.  See my reasons in SA v Manonai (No 2) [2008] WASCA 170. In those reasons I concluded that I was satisfied, after receiving evidence, that there was nothing to disturb the presumption that the appellant had the capacity to understand the nature of the litigation and to make decisions concerning it. I then made an order that the title to the proceedings be amended, in effect, to leave SA as the appellant and I ordered that the reference to JA as guardian for the appellant not be used any longer in the title to the proceedings.

4. Subsequently, this court was advised that an application had been made by Mr and Mrs A, SA's mother and father, to be appointed as guardians and administrators of SA's estate for the purpose of conducting this appeal.  I understand that that application was dismissed and I have been informed by the parties, and JA confirms, that that was the case.

5. I was also informed that there was an application lodged to review the decision.  That has been confirmed again today and that application to review the decision refusing to appoint guardians and administrators was itself dismissed by the State Administrative Tribunal.

6. The appellant, SA, is represented by counsel before us today.  The appellant, through counsel, advises us that an agreement has been reached between himself and the respondent that the appeal should be dismissed

with no order as to costs.  If that occurs, then there will also be no pursuit by the respondent of SA in relation to costs in the proceedings below.  The respondent has reserved her rights to continue with an application for costs against JA in this appeal and to make an application that JA pay the whole of the respondent's costs in CIV 2165 of 2005.  The proceedings in the State Administrative Tribunal having failed, the appellant is free to agree to have the appeal dismissed and that has been the attitude of the parties to this appeal, as announced today, and an application has been made in those terms; that the appeal be dismissed with no order as to costs.

1. An application has been made by SA's mother, JA, seeking leave to be joined or substituted as the appellant in the appeal.  Her affidavit in support indicates that JA wishes to treat the proceedings as a vehicle for her own claims that she might have against the respondent.  There has been no good reason shown for joining JA as an appellant or substituting JA as the appellant in this appeal.  As a result, I would dismiss JA's application for joinder or substitution.

2. NEWNES JA:  I agree with Pullin JA.