Secure Funding Pty Ltd v AB
[2021] WASC 1
•6 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SECURE FUNDING PTY LTD -v- AB [2021] WASC 1
CORAM: PRINCIPAL REGISTRAR STRK
HEARD: ON THE PAPERS
DELIVERED : 6 JANUARY 2021
PUBLISHED : 6 JANUARY 2021
FILE NO/S: CIV [REDACTED]
BETWEEN: SECURE FUNDING PTY LTD
Plaintiff
AND
AB
Defendant
Catchwords:
Practice and procedure - Application by a non-party for access to inspect documents in a case commenced before 1 March 2018 - Application for access to an affidavit filed in support of a pending application, as yet unread by the court as part of a decision making process - Rules of the Supreme Court 1971 (WA) O 67B r 16(1)(e) - Consideration of the nature of the document and the interest of the non-party
Legislation:
Public Trustee Act 1941 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application granted in part and subject to conditions
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Non-party applicant | : | No appearance |
Solicitors:
| Plaintiff | : | Norton Rose Fulbright Australia |
| Defendant | : | In Person |
| Non-party applicant | : | Public Trustee |
Case(s) referred to in decision(s):
Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074
Levy v Victoria (1997) 189 CLR 579
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
Vikas Rambal atf the Rambal Family Trust v Pankaj Oswal atf the Burrup Trust [2014] WASC 86
PRINCIPAL REGISTRAR STRK:
This is an application made on behalf of a non-party, the Public Trustee, for access to inspect the court record for the proceeding, and to take copies of the writ of summons and the affidavit filed in support of the plaintiff's chamber summons dated 31 July 2020.
Since making the application, the Public Trustee has secured a copy of the writ of summons.[1]
[1] By operation of the RSC O 67B r 16(1)(a), upon payment of the prescribed fee, any non-party is entitled to inspect and be given a copy of any writ, and the statement of claim (if any) indorsed on the writ under O 6 r 3.
For the following reasons, the Public Trustee will have leave to inspect and take a copy of the affidavit filed in support of the plaintiff's chamber summons pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 67B r 16(1)(e). Access to the affidavit will be subject to the conditions expressed below. To the extent that the Public Trustee presses a request to otherwise 'inspect the file', the request is not approved.
Background
The context in which the application for access is made is as follows.
The proceeding was commenced in 2013. In short, it is a mortgage action by which the plaintiff seeks to recover money alleged to be due to it by the defendant, together with an order for possession of property. The proceeding is defended and a counterclaim is pressed. The defendant has been unrepresented in the proceeding since September 2017.
By a chamber summons dated 31 July 2020, the plaintiff seeks, among other things, that the defendant be declared a person who is incapable of managing her affairs in respect of this proceeding for the purpose of the RSC O 70 r 1, and that the Public Trustee be appointed to act as guardian ad litem of the defendant pursuant to the RSC O 70 r 3(6), and the Public Trustee Act 1941 (WA) s 7(1).
Given the nature of the plaintiff's application, by operation of an order made on 5 August 2020, the identity of the defendant has been anonymised in these reasons.
The plaintiff's application is supported by the affidavit of Matthew James Ryan sworn 30 July 2020. I refer to the affidavit in these reasons as the Ryan affidavit or the restricted document.
Mr Ryan is the Managing Counsel employed by Liberty Financial Pty Ltd, which performs services for and on behalf of the plaintiff. Mr Ryan deposes to having had responsibility for this matter on behalf of the plaintiff since about 9 September 2019. With the exception of affidavits of service, the only affidavit filed in support of the plaintiff's application is the Ryan affidavit.
The plaintiff's application has not yet been heard and the Ryan affidavit has not yet been read or otherwise relied upon in the proceeding. Any objection to the Ryan affidavit (including its annexures) or any other affidavits filed in support of, or in opposition to, the plaintiff's application dated 31 July 2020, was reserved to the substantive hearing of the plaintiff's application.[2]
[2] Order 3 of the orders made on 5 August 2020.
On 5 August 2020, the proceeding was listed for directions. The plaintiff was represented and the defendant appeared in person. At the hearing, the plaintiff was granted leave to serve the chamber summons on the Public Trustee. It was also ordered that any application for leave under the RSC to inspect or obtain a copy of the Ryan affidavit (including its annexures) and any other affidavits filed in support of, or in opposition to, the plaintiff's application dated 31 July 2020, including their annexures, must be served on the parties to this proceeding, and the parties will receive not less than three business days' notice of any application seeking leave to inspect such affidavits.
The Public Trustee's application for access - procedural history
The Public Trustee was served with the plaintiff's chamber summons, and by a communication received on 7 September 2020, the Public Trustee requested access to inspect the file and requested copies of the writ of summons and the affidavit filed in support of the plaintiff's application of 31 July 2020. The application was made pursuant to the RSC O 67B r 16 as the documents were filed in respect of a proceeding commenced before 1 March 2018,[3] and although the Public Trustee had been served with the plaintiff's chamber summons, the Public Trustee was not a party to the proceeding.
[3] RSC O67B r 15.
Notice of the application made by the Public Trustee was given to the parties. Upon the court receiving notice of the objection of the defendant to the application, the parties were informed that if the Public Trustee pressed the application for access, the court proposed to list the application by the Public Trustee on 15 October 2020 for hearing.
The defendant indicated that she was unable to attend the hearing listed on 15 October 2020. The hearing was relisted on 29 October 2020. By letter issued by the court on 20 October 2020, the parties were informed of a change to the commencement time to the afternoon of 29 October 2020.
On 29 October 2020, representatives of the plaintiff and the Public Trustee attended the hearing of the application by the Public Trustee for access. There was no appearance by the defendant. In the absence of the defendant, the application was not determined and further programming orders were made for the filing of materials and otherwise for the determination of the application by the Public Trustee on the papers. The proceeding was otherwise adjourned for directions only to 10 December 2020. The defendant was advised of the orders made by post and by telephone on 30 October 2020.
In support of the application for access and in accordance with the programming directions, the Public Trustee filed written submissions on 13 November 2020, together with the affidavit of Jean Clifford Henrisson, Acting Director Trustee Services in and for the State of Western Australia. In the documents filed, the Public Trustee disclosed that it had secured a copy of the writ of summons by which the proceeding had commenced. By the written submissions and supporting affidavit, the Public Trustee presses for access to the plaintiff's affidavit in support of the chamber summons. No reference is made to the Public Trustee's request to inspect the court file for the proceeding. While the inspection request was not formally abandoned, it was not advanced.
By facsimile received on 8 December 2020, the defendant requested that the hearing on 10 December 2020 be vacated. Among other things, the defendant raised that she had not been served with the materials filed by the Public Trustee.
By administrative orders made on 10 December 2020, the time by which the defendant was required to file responsive materials was extended to 4.00 pm on 21 December 2020 and the proceeding was otherwise adjourned to 6 January 2021. Upon receipt of a request made by the defendant by telephone on the afternoon of 21 December 2020, the defendant was granted a further day to file responsive materials.
In support of the application for access, the Public Trustee relies upon written submissions filed on 13 November 2020, together with the Henrisson affidavit.
The plaintiff does not oppose the Public Trustee's application for access. No submissions nor affidavits were filed on behalf of the plaintiff in response to the same.
The defendant objects to the Public Trustee's application for access. On 22 December 2020, the defendant presented for filing a written submission in opposition to the application in the form of an email. The submission was accepted for filing in that form.
The defendant has further sought that the hearing on 6 January 2021 be vacated.
By letter issued on 23 December 2020, the parties and the Public Trustee were informed by the court that it appeared that all documents intended to be relied upon in support of, or opposition to the application made by the Public Trustee had been filed and served. The parties and the Public Trustee were further informed that in the circumstances, the application of the Public Trustee as a non-party applicant for access made pursuant to the RSC O 67B r 16 would proceed to be determined on the papers, in accordance with the orders made on 29 October 2020 (as varied).
The parties and the Public Trustee were informed that an advance copy of these reasons would be provided to the parties prior to 6 January 2021, when the reasons would be formally delivered. They were also informed that any application to adjourn the hearing on 6 January 2021 would need to be made on notice to all parties and supported by affidavit filed in the proceeding. On the materials filed to date, there is no application, nor any discernible proper basis to defer the delivery of these reasons.
The Rules and access by non-parties to documents in cases commenced before 1 March 2018
The Rules of the court which concern access to information and things held by the court are set out in O 67B. Division 7 of O 67B applies to a person, other than a party to a proceeding, who wants access to information or a record or thing held by the court in respect of a proceeding commenced before 1 March 2018.[4]
[4] RSC O 67B r 15.
Order 67B r 16(1) provides:
(1)Any person referred to in rule 15 is, on payment of the prescribed fee, entitled during office hours to inspect and be given a copy of any of these filed documents -
(a)any writ, and the statement of claim (if any) indorsed on the writ under Order 6 rule 3;
(b)any originating application made under the Corporations Act 2001 (Commonwealth);
(c)any appeal notice filed under the Supreme Court (Court of Appeal) Rules 2005;
(d)any judgment or order given or made in court;
(e)with the leave of the Court or a registrar, any other document.
The Public Trustee is a person referred to in r 15. By operation of the RSC O 67B r 16(1)(a), upon payment of the prescribed fee, the Public Trustee was entitled to inspect and be given a copy of the writ filed on 28 August 2013. There is no question that the Public Trustee was entitled to access the writ of summons. What is in issue is whether the Public Trustee ought be:
(a)given a copy of the Ryan affidavit pursuant to the RSC O 67B r 16(1)(e), with leave, as the Ryan affidavit is not of a class of documents to which the Public Trustee may have inspection or a copy as of right under the RSC O 67B r 16(1); and
(b)permitted to inspect the whole of the court record (if that request is indeed still pressed).
Principles and practice relating to inspection of documents
In Vikas Rambal atf the Rambal Family Trust v Pankaj Oswal atf the Burrup Trust,[5] Le Miere J considered an application by a non‑party for access to documents made pursuant to the RSC O 67 r 11(1)(d) (the predecessor to O 67B r 16(1)(e)). At [6] - [10], Le Miere J summarised some of the principles and practices that emerge from a review of the authorities concerning granting leave to non-parties to inspect and copy filed documents.
[5] Vikas Rambal atf the Rambal Family Trust v Pankaj Oswal atf the Burrup Trust [2014] WASC 86.
Order 67B r 16 is in substantively the same terms as its predecessor provision. It is appropriate that the same principles and practices be applied to the determination of an application pressed pursuant to the RSC O 67B r 16(1) as applied to the determination of an application pressed pursuant to O 67 r 11. They are as follows.
First, there is no unfettered right to inspect documents on the court file except the documents referred to in (a) to (d) of O 67B r 16(1).
Secondly, the applicant must identify the document or class of document in respect of which leave is sought. In this regard, at [7], Le Miere J refers to and quotes passages from the decision of Moore‑Bick J in Dian AO v Davis Frankel & Mead (a firm),[6] where Moore-Bick J considered r 5.4(2) of the UK Civil Procedure Rules which relevantly provided that any person may inspect and take a copy of any document, other than a claim form which has been served on a judgment or order given or made in public, if the court gives permission. Moore-Bick J found that the language of r 5.4(2) made clear that the documents which the applicant wishes to be allowed to look for must be identified with reasonable precision, and the rule did not contemplate permission to inspect the file as a whole. The language of the RSC O 67B r 16(1) also does not contemplate permission being granted to inspect a file as a whole.
[6] Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074.
Thirdly, the principle of open justice is a strong reason for allowing access to documents that have been read by the court as part of the decision-making process, including the process of determining pre-trial applications. As observed by Le Miere J at [8], in such cases the court should lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access.
Fourthly, a party who is engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation in which the applicant is involved.
Fifthly, where the documents sought have been filed but not read the principle of open justice is not engaged at all and the court should only give access to such documents where there are strong grounds for thinking it necessary in the interests of justice to do so.
The Public Trustee's position
The Public Trustee asserts that it has an interest in the application pressed by the plaintiff that the Public Trustee be appointed to act as guardian ad litem of the defendant in this proceeding. It is the asserted interest in the plaintiff's application that grounds the Public Trustee's application for access.
The Public Trustee says that it seeks to be heard, and respectfully submits that it has the right to be heard, in relation to the plaintiff's application to have the Public Trustee appointed as guardian ad litem of the defendant. In order for the Public Trustee to consider its position and to be properly heard, the Public Trustee says that it requires knowledge of the relevant information (that is, the information and evidence relating to why the plaintiff says that the defendant requires a guardian ad litem).
As to the right of the Public Trustee to be heard, the Public Trustee cites and relies upon the decisions of Smith v Commissioners of the Rural and Industries Bank of Western Australia;[7] and Levy v Victoria.[8] In particular, the Public Trustee refers to the decision of Martin CJ in Smith v Commissioners of the Rural and Industries Bank of Western Australia at [41], where his Honour observed that:
The jurisdictional basis for the power of the court to commit intervention by a non party was examined by Brennan CJ in Levy v The State of Victoria (1997) 189 CLR 579. It is an incident of the court's jurisdiction to hear and determine matters falling within its jurisdiction. Where a non party's legal rights and interests will be directly affected by the determination of the court, the non party will have a right to intervene, consistent with basic considerations of procedural fairness. Where the interests of the non party will be indirectly affected by the determination of the court, the court has a discretion to permit intervention if such intervention would be in the interests of justice.
[7] Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100.
[8] Levy v Victoria(1997) 189 CLR 579.
The Public Trustee has not consented to act as guardian ad litem for the defendant, but states that this may change once the Public Trustee receives more information about why the plaintiff has sought an order that the Public Trustee be appointed.[9]
[9] Henrisson affidavit par 7.
The Public Trustee contends that it is directly affected by the plaintiff's application, and says that if appointed guardian ad litem, the Public Trustee would be impacted in the following ways. First, by the expenditure of time and human resources in what appears, prima facie, to be drawn out and possibly complex proceedings. Secondly, by the expenditure of its financial resources, as the Public Trustee may need to engage external solicitors and counsel under the RSC O 70 r 10.
The Public Trustee further submits that once the Public Trustee reviews the information sought, the Public Trustee may have a view about whether there should be a guardian ad litem at all or whether the guardian ad litem could be someone other than the Public Trustee. Alternatively, once the information sought is reviewed, the Public Trustee may consent to be guardian ad litem of the defendant.[10]
[10] Public Trustee's submission page 2.
The defendant's position
The defendant opposes the application for access made by the Public Trustee, and notes in her submission that her objection has been tabled on several occasions.
The defendant is not represented in this proceeding. Given the defendant's lack of legal knowledge, some flexibility and allowance needs to be made when considering the submission filed in order to identify the true substance of the objection which the defendant endeavours to present.
In her submissions, the defendant did not engage on the question of whether the Public Trustee's rights or interests will be directly or indirectly affected by the plaintiff's application, nor whether the Public Trustee should be permitted to intervene and be heard at the hearing of the plaintiff's application. Rather, the defendant's submission may be characterised as raising two issues.
The first concerns the content of the Ryan affidavit, in particular, the bundle of documents annexed to the affidavit and marked 'MJR-1'.
The defendant complains that the bundle of documents contain private and confidential information. The defendant complains of a 'privacy breach of supressed and confidential medico/legal documents', and raises as an issue the matter of how the plaintiff came to be in possession of the information and documents annexed to the affidavit. It is asserted that some of the information annexed to the Ryan affidavit is the subject of a suppression order made by this court in separate criminal proceedings.
The second concerns whether the defendant has been given adequate time to respond to the application by the Public Trustee.
Disposition
As noted above, by operation of the RSC O 67B r 16(1)(a), upon payment of the prescribed fee, any non-party is entitled to inspect and be given a copy of any writ, and the statement of claim (if any) indorsed on the writ under O 6 r 3. Since making the application, the Public Trustee has secured a copy of the writ of summons filed on 28 August 2013.
It is not clear as to whether the Public Trustee continues to press for inspection of the court record as a whole. To the extent that the application is pressed, it must be refused. An applicant must identify the document or class of document in respect of which leave is sought, as the language of the RSC O 67B r 16(1) does not contemplate permission being granted to a non-party applicant to inspect a file as a whole.
Leave shall be granted to the Public Trustee to be provided with a copy of the Ryan affidavit pursuant to the RSC O 67B r 16(1)(e). In so determining, I have weighed the following in the balance.
First, the Public Trustee identified the Ryan affidavit as a document in respect of which leave was sought.
Secondly, I have had regard to the fact that the Ryan affidavit has been filed but not read. It is not yet a document that has been read by the court as part of the decision-making process, and the principle of open justice which might otherwise weigh in the balance is not yet engaged.[11] This weighs against leave being granted to the Public Trustee to access the Ryan affidavit.
[11] Vikas Rambal atf the Rambal Family Trust v Pankaj Oswal atf the Burrup Trust [8].
Thirdly, I have had regard to the fact that it appears likely from the materials filed to date that the defendant will object to parts of the affidavit and annexures being read and remaining part of the court record. As noted above, objection to the Ryan affidavit (including its annexures) or any other affidavits filed in support of, or in opposition to, the plaintiff's application was reserved to the substantive hearing of the plaintiff's application.[12] The potential for successful objection to be taken to all or parts of the Ryan affidavit weighs heavily against the early release of the affidavit (in its entirety and before the determination of any objection) to a non-party.
[12] Order 3 of the orders made on 5 August 2020.
Fourthly, I have had regard to the nature of the documents that are annexed to the Ryan affidavit as 'MJR-1'. The documents contain information that is clearly of a personal and sensitive nature. The defendant's legitimate concern to protect her personal medical information, together with the principle of open justice not being engaged, are strong factors that weigh against release of the Ryan affidavit to a non-party.
Fifthly, I have also weighed in the balance the interest of the Public Trustee to the proceeding and I am satisfied that the Public Trustee has an interest in the proceeding insofar as the plaintiff seeks that the Public Trustee be appointed to act as guardian ad litem of the defendant.
The Public Trustee was given notice of the plaintiff's application, and was served by the plaintiff with a copy of the same. The Public Trustee foreshadows that it will seek to be heard, and respectfully submits that it has the right to be heard, in relation to the plaintiff's application to have the Public Trustee appointed as guardian ad litem of the defendant.
I accept the submission made on behalf of the Public Trustee that in order for the Public Trustee to consider its position, the Public Trustee requires knowledge of the relevant information (that is, the information and evidence relating to why the plaintiff says that the defendant requires a guardian ad litem).
I am satisfied that given the nature of the plaintiff's application, the Public Trustee has a legitimate interest in inspecting the Ryan affidavit in advance of that hearing, being a document which on its face appears to contain information relevant to the issues in that part of the litigation in which the Public Trustee is involved. In accordance with the principles of procedural fairness, it is appropriate that the Public Trustee be granted leave to access the affidavit evidence upon which the plaintiff grounds its application for the appointment of the Public Trustee as guardian ad litem, namely the Ryan affidavit. I am satisfied that providing access to the affidavit to the Public Trustee may promote a more efficient and just hearing and determination of the plaintiff's application.
I have weighed in the balance the submissions made on behalf of the Public Trustee as to the potential advantages of the Public Trustee being allowed access to the evidential foundation for the plaintiff's application. Particularly, that access would afford the Public Trustee the opportunity to consider, and potentially seek to be heard as to the appropriateness of the Public Trustee's appointment as guardian ad litem.
I find that the matters raised by the Public Trustee, when considered as a whole in the context of the plaintiff’s application for the Public Trustee to be appointed as guardian ad litem for the defendant, give rise to strong grounds for finding that it is in the interests of justice to grant access to the Ryan affidavit to the Public Trustee, and tip the balance in favour of leave being granted.
The defendant's concern as to how the plaintiff has come into possession of the documents annexed to the Ryan affidavit at 'MJR-1'
In determining the application by the Public Trustee for leave to be provided with a copy of the Ryan affidavit, I have given careful consideration to the issues raised in objection by the defendant.
The defendant raised as a concern the question of how the plaintiff has come into possession of the sensitive documents annexed to the Ryan affidavit at 'MJR-1'.
This concern appears to be answered by Mr Ryan, who deposes that:
(a)since he assumed responsibility for this proceeding, the defendant's mental and physical health have been an issue and the defendant has often claimed that she has not been fit to attend court and has provided various medical reports and certificates to substantiate those claims;[13] and
(b)he is informed by the solicitors for the plaintiff that the bundle of documents annexed to his affidavit and marked 'MJR-1' are true copies of documents relating to the defendant's mental and physical health for the period commencing 9 June 2010 to the date of his affidavit, which have been provided to the plaintiff in the course of the proceeding.[14]
[13] Ryan affidavit par 4.
[14] Ryan affidavit par 5.
From a review of the documents annexed to the Ryan affidavit as the bundle marked 'MJR-1', it appears that some of the documents are facsimiles sent by the defendant to the plaintiff's representatives in support of applications for adjournment.
Further, from a review of the court record, it appears that many of the documents which are annexed to the Ryan affidavit as the bundle marked 'MJR-1' have been annexed to affidavits sworn by the defendant and filed in the proceeding.
By way of example, I note that at pars 17 to 19 of the defendant’s affidavit sworn and filed on 14 January 2014 in opposition to the plaintiff’s application for summary judgment, the defendant deposed to her medical condition and symptoms. On 13 February 2014, a further affidavit was sworn by the defendant to which was annexed as 'AS2' a bundle of medical records regarding the defendant’s condition. It would appear that fourteen of the documents that form part of 'MJR-1' were annexed to the defendant’s affidavit of 13 February 2014.[15]
[15] Being the documents identified as 4, 7 - 9, 11, 13, 14, 19, 23 - 26, 29 and 30 of 'MJR-1'.
Further, included in the list of documents verified by the defendant for the purposes of discovery[16] are thirty seven documents described as medical records, thirty four of which match the description of documents that form part of 'MJR-1'.[17]
[16] The affidavit of the plaintiff verifying list of documents filed 16 March 2015.
[17] Being the documents identified as 1 - 5, 7 - 11, 13 - 33 of 'MJR-1'.
Further affidavits have been filed on behalf of the defendant in the proceeding annexing medical records,[18] and through her former solicitors, the defendant gave notice to the plaintiff of medical records intended to be tendered at trial, some of which match the description of documents that form part of 'MJR-1'.
[18] For example, the affidavit of Holly Thomson filed 17 May 2017.
The defendant complains that the bundle of documents contain private and confidential information, and as noted above, I have weighed the nature of the documents in the balance. However, the concern raised by the defendant as to how the plaintiff came into possession of the documents is not one which, in light of the above, provides a cogent basis to refuse the application by the Public Trustee for access to the Ryan affidavit.
I have also considered the assertion made by the defendant that some of the information annexed to the Ryan affidavit is the subject of a suppression order made in separate criminal proceedings. The description and particulars provided by the defendant as to the existence and effect of the asserted suppression order were scant.
However, having identified and reviewed the court record for the criminal proceeding referred to by the defendant, I am satisfied that leave being granted to the Public Trustee to inspect and to be provided with a copy of the Ryan affidavit and accompanying annexures subject to the conditions proposed will not breach the suppression orders.
Has the defendant been afforded sufficient time to respond to the application made by the Public Trustee?
I have also considered the defendant's expressed concern that inadequate time was afforded to her to respond to the application by the Public Trustee.
The defendant has been on notice of the Public Trustee's application since September 2020. The court has accommodated a number of requests for adjournment at the request of the defendant. The defendant was provided with a copy of the materials filed in support of the Public Trustee's application by letter dated 10 December 2020. The time by which the defendant was to file responsive materials was further extended to 4.00 pm on 22 December 2020, at the request of the defendant. The defendant presented for filing submissions within the extended time granted.
Having regard to the chronology of the Public Trustee's application from September 2020 to date, I am satisfied that the defendant has been given proper opportunity to be heard in relation to the application.
Conclusion and orders
In the interests of justice and the efficient progress of this proceeding, it is appropriate that leave to access the Ryan affidavit be granted to the Public Trustee, subject to certain conditions intended to limit those to whom access is given in light of the defendant's concern as to the nature and sensitivity of the documents annexed to the Ryan affidavit.
Subject to hearing from the parties as to the appropriate form of order, leave will be granted to the Public Trustee to inspect and to be provided with a copy of the Ryan affidavit and accompanying annexures pursuant to the RSC O 67B r 16(1)(e), subject to the following conditions:
(a)access to the Ryan affidavit by the Public Trustee shall be limited to delegates of the powers and duties of the Public Trustee, and the Public Trustee's legal representatives and counsel;
(b)upon receipt, the Ryan affidavit be kept confidential by the Public Trustee and may only be used for the purposes of this proceeding; and
(c)should the Public Trustee not be appointed as the guardian ad litem of the defendant for the purpose of this proceeding, then all copies of the Ryan affidavit held in the custody of the Public Trustee must be destroyed within 7 days of being so informed.
I will hear from the parties and the Public Trustee as to the costs of this application.
Finally, it is appropriate to note that in considering the Public Trustee's application for access, I make no decision or finding as to whether the Public Trustee ought to be heard in relation to the plaintiff's application that the defendant be declared a person who is incapable of managing her affairs in respect of this proceeding for the purpose of the RSC O 70 r 1, and that the Public Trustee be appointed to act as guardian ad litem of the defendant pursuant to the RSC O 70 r 3(6), and the Public Trustee Act 1941 (WA) s 7(1). That question is not properly before me and the parties are entitled to be heard in relation to the same.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZD
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