TJD v BRJ - [2025] WASC 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TJD -v- BRJ [2025] WASC 433
CORAM:   MUSIKANTH J
HEARD:   5 JUNE, 28 JULY 2025 AND ON THE PAPERS
(FINAL SUBMISSIONS FILED 5 SEPTEMBER 2025)

DELIVERED          :   9 OCTOBER 2025
FILE NO/S:   SJA 1079 of 2023
BETWEEN:   TJD
Appellant
AND
BRJ
First Respondent
OHB
Second Respondent

Catchwords:

Procedure - Person under disability - Limited guardianship order - Guardian (Public Advocate) not authorised to act as next friend in criminal appeal commenced by appellant

Procedure - Person under disability - Plenary administration order - Whether plenary administrator (Public Trustee) authorised to bring or continue criminal appeal in name of appellant

Procedure - Rules of the Supreme Court 1971 (WA) O 70 r 3(6) read with O 70 r 2(1)(a) - Whether mandatory in a criminal appeal
Courts and judges - s 40(1)(l) of Criminal Appeals Act 2004 (WA) - Scope of power
Courts and judges - Supreme Court Act 1935 (WA) s 5 and s 16 - Inherent jurisdiction - Supreme Court Act 1935 (WA) s 16(1)(d) and s 23 - Parens patriae jurisdiction - Whether court empowered to appoint next friend in a criminal appeal

Courts and judges - Person under disability - Appellant not represented by next friend - Need for appointment of next friend - Whether Public Trustee to be appointed - Turns own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Procedure Rules 2005 (WA)
Guardianship and Administration Act 1990 (WA)
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015
Public Trustee Act 1941 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Public Trustee appointed as next friend to appellant for purposes of appeal

Category: B

Representation:

Counsel:

Appellant	:	In person (assisted by Mr D Tingey) (5 June 2025) Mr J Woodford (28 July 2025) Mr L R Nicholls (written submissions)
First Respondent	:	Ms I Inkster (5 June & 28 July 2025) Ms J J E Perera (written submissions)
Second Respondent	:	Ms I Inkster (5 June & 28 July 2025) Ms J J E Perera (written submissions)
Interested Party	:	Mr R Nash (28 July 2025)

Solicitors:

Appellant	:	James Woodford
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Interested Party	:	Office of the Public Trustee

Cases referred to in decision(s):

A v City of Swan [No 5] [2010] WASC 204
ANZ Bank v Dzienciol [2001] WASC 305
Ardrey v State of Western Australia [No 2] [2017] WASCA 41
Attorney General v PHB by his guardian ad litem [2025] WASC 312
Bochert (by next friend Public Trustee) v Terry [2009] WASC 322
Cadwallender v Public Trustee [2003] WASC 72
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Director‑General v T'Hart [2003] WASCA 110; (2003) 27 WAR 185
Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122
Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65
Goddard Elliott (firm) v Fritsch [2012] VSC 87
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hou v The Queen [2003] WASCA 241
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
Johnson v Director General of Social Welfare (Vic) [1976] HCA 19; (1976) 135 CLR 92
Jones v Moylan (1997) 18 WAR 492, 496
JS v The State of Western Australia [2014] WASCA 177
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Services and Complaints Committee and Hardie [2025] WASAT 50
Lim v Gregson [1989] WAR 1
Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
Mathews v The State of Western Australia [2015] WASCA 134
Minister for Health v AS [2004] WASC 286; (2004) 29 WAR 517
Morris v Zanki (1997) 18 WAR 260, 285
Nicholson v The Queen (Unreported, WASCA, Library No 980698, 7 December 1998)
Perpetual Trustee v Cheyne [2011] WASC 225; (2011) 42 WAR 209
Plaintiff M47-2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 42
PT Banyan Resources TBK v BCBC Singapore Pte Ltd [205] HCA 36; (2015) 258 CLR 1
PVS v Chief Executive Officer; Department for Child Protection [2010] WASC 172
R v Foote [1883] 10 QBD 370
R v Mickelberg (1996) 90 A Crim R 126
Re 116 Cardamon Ltd; Ex parte 116 Cardamon Ltd Registration No 06517935 (UK) [2016] WASC 408
Secretary, Department of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S)
Turnbull v The Queen [2003] WASCA 80
Victorian Legal Services Commissioner v Geron [2019] VCAT 1276
W v S [2025] WASCA 21
Wallaby Grip Ltd v QBE Insurance (Aust) Ltd [2010] HCA 9; (2010) 240 CLR 444
Williamson v Director of Penal Services [1959] VR 205
Wilson v Francis, Minister for Corrective Services for Western Australia [2013] WASC 157
Wilson v McDonald [2009] WASCA 39 (S)
Yonge v Toynbee [1910] 1 KB 215

MUSIKANTH J:

On 23 September 2022, the appellant was convicted, upon her plea of guilty, of one charge of driving with a prescribed illicit drug in oral fluid or blood, contrary to s 64AC(1) of the Road Traffic Act 1974 (WA) (RTA) in the Joondalup Magistrates Court. She was fined $500, and ordered to pay $264.30 in costs, plus a $200 analyst's fee.
Not long afterwards, on 20 October 2022, the appellant was also convicted, following a trial, on a single charge of failing to comply with a requirement to provide an oral fluid sample contrary to s 67AB(1) of the RTA in Perth Magistrates Court. She was fined $600 and ordered to pay $264.30 in costs.
The appellant suffers from long standing mental health issues including psychosis, having also been diagnosed with schizophrenia in December 2022.
On 19 September 2023, the appellant filed an appeal notice, pursuant to the Criminal Appeals Act 2004 (WA) (CAA), seeking leave to appeal both convictions and an extension of time within which to bring her appeal.
On 14 November 2023, the State Administrative Tribunal (Tribunal) made a guardianship order in relation to the appellant, and on 8 August 2024 an administration order.
On 5 March 2025, the Tribunal revoked and substituted its guardianship order of 14 November 2023, and also amended the administration order which it had made in relation to the appellant on 8 August 2024.
By its orders of 5 March 2025, the Tribunal relevantly:
(1)Declared that the appellant was:
(i)unable by reason of mental disability to make reasonable judgments in respect of matters relating to all of her estate;
(ii)in need of an administrator of her estate;
(iii)incapable of looking after her own health and safety;
(iv)unable to make reasonable judgments in respect of matters relating to her person;
(v)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(vi)in need of a guardian.[1]
(2)Appointed the Public Trustee as plenary administrator of the appellant's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) (GAA).[2]
(3)Appointed the Public Advocate as limited guardian of the appellant with, relevantly, the following functions:
(i)as the guardian ad litem of the appellant, [to] defend or settle any legal proceedings taken against the appellant, except proceedings relating to her estate;[3] and
(ii)to seek legal advice and representation on behalf of the appellant, and to advocate in relation to any police investigation, criminal charges or related proceedings.[4]
[1] Tribunal's orders of 5 March 2025, Order 1.
[2] Tribunal's orders of 5 March 2025, Order 3.
[3] Tribunal's orders of 5 March 2025, Order 7(e).
[4] Tribunal's orders of 5 March 2025, Order 7(f).
Information provided by the Office of the Public Advocate suggests that, when making these orders, the Tribunal knew the Public Advocate was assisting the appellant with the current appeal though there were no 'further oral submissions' before, or significant discussions with, the Tribunal about the appeal on that occasion.
Initially, the appellant was assisted by Mr Tingey of the Office of the Public Advocate in these proceedings. However, the nature and extent of that assistance was limited because of the confined scope of the Public Advocate’s powers under the Tribunal's orders of 5 March 2025.
In short, the Tribunal's orders afford no power to the Public Advocate to continue this appeal on behalf of the appellant.

Nor does the Public Trustee presently enjoy such a power. As the appellant's plenary administrator, the Public Trustee's powers only extend to functions which the appellant could herself perform, or refrain from performing, in relation to her estate.[5] This appeal principally concerns matters relating to the appellant's status as a convicted person.
[5] GAA, s 71(2).
By reason of the above matters, the appellant was (until recently) for all practical purposes self‑represented in this appeal. Moreover, and concerningly, her 'grounds' of appeal said nothing beyond 'not guilty to the above charges', no written submissions were filed on her behalf, and the matter generally progressed at a glacial pace.
After several attempts to move the matter along, the appeal was listed for hearing before me on 5 June 2025.
It was immediately apparent, from the court's interactions with the appellant at that hearing, that the appellant was struggling with the process, deeply confused, and in no position to advance the matter.
After hearing from counsel for the respondent and Mr Tingey, I made the following orders:
1.By 18 June 2025, the Public Trustee in writing advise the Associate to the Honourable Justice Musikanth, by email to [my associate] as to whether there be any reason(s) as to why it should not be appointed as next friend to the appellant for the purposes of these appeal proceedings, whether pursuant to the Court's parens patriae jurisdiction reflected in s 16(1)(d)(ii) of the Supreme Court Act 1935 (WA), read with s 7(1) of the Public Trustee Act 1941 (WA), or otherwise.
2.For the purpose of determining its position in relation to order 1, the Public Trustee: (a) have leave to access, and to take copies of any documents on, the court file in these appeal proceedings; and (b) be provided with a copy of the transcript of today's hearing.
3.The matter be listed for a directions hearing on 23 June 2025 at 10:00am.
4.By 13 August 2025, the appellant file and serve its submissions, any amended grounds of appeal, any application to adduce additional evidence and any affidavit(s) in support.
5.By 27 August 2025, the Respondents file any further or substituted submissions and any evidence in response to any application to adduce additional evidence.
6.The appeal hearing be vacated and relisted for 8 October 2025 at 10:00am.
7.There be liberty to apply.
The directions hearing contemplated by order 3 was subsequently relisted for 28 July 2025.
On 4 July 2025, the Public Trustee filed affidavit evidence together with written submissions. According to the Public Trustee, it was 'neither necessary nor appropriate' for it to be appointed as next friend to the appellant.
On 25 July 2025, a legal practitioner, Mr Woodford, filed a notice of acting on behalf of the appellant. He subsequently appeared for the appellant at the directions hearing three days later.
After hearing from Mr Woodford, the State and the Public Trustee, the court reserved its decision as to whether a next friend should be appointed.
Shortly afterwards, the Public Trustee filed further submissions in which it reiterated its opposition to being so appointed.
On 11 August 2025, written submissions signed by counsel at the independent Bar were filed by Mr Woodford in which it was contended that the court should appoint the Public Trustee as the appellant's next friend for the purposes of the appeal.
Approximately one week later, the court was advised that the appellant had been admitted to Royal Perth Hospital following a traumatic incident which had resulted in significant injuries.
According to a senior social worker, the appellant remained hospitalised as of 18 August 2025 due to the severity of her condition and was expected to require an extended period of medical treatment and rehabilitation. The court was asked to consider adjourning her appeal hearing (again) for a period of at least three months to allow time for her recovery.
The court subsequently relisted the appeal for hearing in 2026.
On 5 September 2025, the respondents filed written submissions in relation to the proposed appointment of a next friend, in which it was contended that the court has no power to make such an order in this appeal.

Issues

Ultimately, the issues I must decide are:
(1)Whether the court has power to appoint a next friend to an appellant in a criminal appeal.
(2)(If yes) whether such an appointment should be made in this appeal.
(3)(If yes) who to appoint.
For the reasons which follow, I consider the court is empowered to appoint a next friend to an appellant in a criminal appeal, there is a manifest need to make such an appointment in this case, and the Public Trustee should be so appointed.

Power to appoint a next friend?

Order 70 of the RSC and criminal appeals

By O 70 r 2(1)(a) of the RSC, a 'person under disability' cannot bring or make a claim in any proceedings except by their next friend save in circumstances not presently relevant.
A 'person under disability' includes a 'represented person'.[6]
[6] RSC, O 70 r 1 (definition of 'person under disability').
A 'represented person', in turn, means a person in respect of whom a guardian or administrator has been appointed under the GAA Act with authority to do either or both of the following:[7]
(a)as the next friend of the represented person, to commence, conduct or settle on behalf of the represented person specified proceedings, some proceedings or all proceedings;
(b)as the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person.
[7] RSC, O 70 r 1 (definition of 'represented person').
The appellant meets the definition of 'represented person' in O 70 r 1 of the RSC. This is at least because the Tribunal has appointed the Public Advocate as her guardian ad litem with power to defend or settle any legal proceedings taken against her (except proceedings relating to her estate).[8]
[8] Tribunal's orders of 5 March 2025, Order 7(e).
As noted earlier, the Tribunal made this appointment after this appeal was commenced.
By O 70 r 3(6), an application must be made to the court for the appointment of a next friend or guardian ad litem with respect to a party to proceedings where the party becomes a person under disability after commencement of the proceedings.
It follows that the appellant cannot continue this appeal without a next friend, and such an appointment is mandatory, unless O 70 does not apply.
In making their submissions, the parties appear to have proceeded on the assumption that the appointment of a next friend to the applicant is not mandatory.
I agree for at least the following reasons:
(1)This is a single judge appeal brought under div 2, pt 2 of the CAA.
(2)The judges of this court have, pursuant to their rule‑making power under s 50(2) of the CAA, made a comprehensive set of rules specifically designed to regulate the conduct of such appeals; namely pt 14 of the Criminal Procedure Rules 2005 (WA) (CPR).
(3)The CPR expressly record they are to be read with the Supreme Court (General) Rules 2005 (WA).[9] However, the CPR are silent as to whether they are also to be read with the RSC; thus inviting application of the expressio unius est exclusio alterius maxim.
(4)O 1 r 3(3)(a) of the RSC provides that the RSC do not apply to 'criminal proceedings'.[10]
[9] CPR, r 4(2).
[10] RSC, O 1 r 3(3)(a).
In the last‑mentioned respect I note that in the context of an appeal against a refusal of bail, Malcolm CJ held, in Lim v Gregson,[11] that an appeal in relation to a proceeding involving the exercise of miscellaneous criminal jurisdiction is a 'criminal proceeding' for the purpose of O 1 r 3(2) in that such an appeal 'takes its colour' from the primary proceedings.[12]
[11] Lim v Gregson [1989] WAR 1.
[12] His Honour also referring, at 6 ‑ 7, to R v Foote [1883] 10 QBD 370 and Williamson v Director of Penal Services [1959] VR 205, 206.
By parity of reasoning, I consider that an appeal brought under the CAA against a criminal conviction is likewise a 'criminal proceeding' for the purposes of O 1 r 3(2).
I therefore conclude that compliance with O 70 is not mandatory because the RSC have no direct application in this appeal.

Inherent power to control conduct of proceedings, and parens patriae jurisdiction

By s 16 of the Supreme Court Act 1935 (WA) (SCA), this court is relevantly invested with the inherent jurisdiction of the superior courts of England as at 1861.
The phrase 'inherent jurisdiction' is often used interchangeably with 'inherent power'.[13]
[13] Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 [14].
The inherent power is not restricted to defined and closed categories,[14] and is independent of statutory authority, express or implied.[15]
[14] Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 502 (Deane & Gaudron JJ); Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 25 ‑ 26 (Mason CJ); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 364 (Gaudron J).
[15] Re 116 Cardamon Ltd; Ex parte 116 Cardamon Ltd Registration No 06517935 (UK) [2016] WASC 408 [4]; PT Banyan Resources TBK v BCBC Singapore Pte Ltd [205] HCA 36; (2015) 258 CLR 1, [37] ‑ [38].
It includes the power, not affected by the RSC, to control the conduct of a proceeding to make such orders as are necessary to enable it to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner.[16]
[16] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 [71] (Quinlan CJ).
The fact that the court has this power is also evident from the definition of 'jurisdiction' in s 4 of the SCA which 'includes all powers and authorities incident to the exercise of jurisdiction'.[17]
[17] Gething & al, Civil Procedure Western Australia Vol 1, [1105.4].
Moreover, this court is also invested with parens patriae jurisdiction by s 16(1)(d)(ii) and s 23 of the SCA.[18]
[18] PVS v Chief Executive Officer; Department for Child Protection [2010] WASC 172 [22] ‑ [24]; Wilson v Francis, Minister for Corrective Services for Western Australia [2013] WASC 157 [13] (Martin CJ); Perpetual Trustee v Cheyne [2011] WASC 225; (2011) 42 WAR 209 [60] ‑ [61] (Edelman J); Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65 [22]; Cadwallender v Public Trustee [2003] WASC 72 [27] ‑ [31]. See also Morris v Zanki (1997) 18 WAR 260, 285; Jones v Moylan (1997) 18 WAR 492, 496 (Wallwork J); Director‑General v T'Hart [2003] WASCA 110; (2003) 27 WAR 185 [11] (Hasluck J, Murray & Wheeler JJ agreeing); Minister for Health v AS [2004] WASC 286; (2004) 29 WAR 517 [16] (Pullin J); A v City of Swan [No 5] [2010] WASC 204 [62] (Murphy JA).
Although the parens patriae jurisdiction now manifests itself in O 70 of the RSC, it is important to remember that the jurisdiction is itself exercisable by force of these provisions in the SCA.
In this connection, the court is afforded the same power and authority, within Western Australia, to appoint litigation representatives for persons under disability as the Lord Chancellor of England had at the commencement of the Supreme Court Ordinance 1861.[19]
[19] SCA, s 16(1)(d)(ii).

By then, the Court of Chancery appears to have become a 'purely civil tribunal'.[20] It necessarily follows that the powers exercisable by this court in its parens patriae jurisdiction extend (at least) to civil cases.
[20] Cf. Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890) at 153. I infer as much given Sir Nicholas Bacon (to whom the learned author refers in this context) died nearly 300 years before the commencement of the Supreme Court Ordinance 1861.
The parens patriae jurisdiction cannot be abolished or suspended by statute in the absence of clear and unambiguous language.[21] It is a jurisdiction which derives from the inherent obligation of the Crown to care for those unable to care for themselves.[22] Relevantly, it is also a jurisdiction which empowers the court to require a person to be represented by a next friend or guardian ad litem.[23]
[21] Director-General v T'Hart [37] (Hasluck J, Murray & Wheeler JJ agreeing); Johnson v Director General of Social Welfare (Vic) [1976] HCA 19; (1976) 135 CLR 92, 97 (Barwick CJ, Stephen & Mason JJ agreeing).
[22] Secretary, Department of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218, 258; A v City of Swan [No 5] [62].
[23] Secretary, Department of Health and Community Services (NT) v JWB and SMB 258; A v City of Swan [No 5] [62].
The court's power to appoint such a representative is not only aimed at ensuring all parties are afforded the protection of the court's processes,[24] it is also concerned with ensuring the court's process is itself protected.[25]
[24] A v City of Swan [No 5] [63].
[25] A v City of Swan [No 5] [64] ‑ [65] quoting Masterman‑Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 [31] (Kennedy LJ) and [65] (Chadwick LJ, Potter LJ agreeing).
The integrity of that process frequently depends on the ability of members of the legal profession to discharge their own duties and obligations as officers of the court.
One of those many responsibilities is the duty to be reasonably satisfied as to a client's capacity to instruct and to understand advice.[26] Indeed, as counsel for the appellant correctly points out, a lawyer who continues to act for a person who the lawyer knows (or should know) lacks mental capacity to give instructions risks exposure to liability in negligence;[27] adverse disciplinary consequences;[28] and/or a personal costs order.[29]
[26] Cf. Bochert (by next friend Public Trustee) v Terry [2009] WASC 322 [69] (Kenneth Martin J); Goddard Elliott (firm) v Fritsch [2012] VSC 87 [548] ‑ [549] (Bell J).
[27] Eg. Goddard Elliott (a firm) v Fritsch [418].
[28] Eg. Victorian Legal Services Commissioner v Geron [2019] VCAT 1276. See also Legal Services and Complaints Committee and Hardie [2025] WASAT 50 and the reasoning in Legal Profession Complaints Committee and Wells [2014] WASAT 112.
[29] Yonge v Toynbee [1910] 1 KB 215.
It necessarily follows that proper discharge of this duty may sometimes lead to a litigant whose capacity is in doubt being left unrepresented.

Section 40(1)(l) of the CAA

By s 40(1)(l) of the CAA, this court is expressly empowered, in a criminal appeal, to 'exercise any power that [it] may exercise in a civil case' (emphasis added).
As the respondents properly acknowledge, s 40(1)(l) of the CAA, and jurisprudence regarding the breadth of the power in that provision (and its predecessor, as enunciated by Malcolm CJ in R v Mickelberg[30]), is relevantly 'unqualified in its terms'.
[30] R v Mickelberg (1996) 90 A Crim R 126, 129 (Malcolm CJ, Steytler J agreeing).
As Buss P observed in Ardrey v State of Western Australia (No 2),[31] s 40(1)(l) is a source of statutory power within a criminal appeal which 'brings into play all of the powers of this court in civil appeals and, also, the residual powers of the court in its inherent jurisdiction'.[32]
[31] Ardrey v State of Western Australia [No 2] [2017] WASCA 41.
[32] Ardrey v State of Western Australia [No 2] [126(e)] referring to R v Mickelberg (129) (Malcolm CJ, Steytler J agreeing); Nicholson v The Queen (Unreported, WASCA, Library No 980698, 7 December 1998) 4 (Kennedy J, White & Scott JJ agreeing); Turnbull v The Queen [2003] WASCA 80 [2] (Murray J, Scott & Wheeler JJ agreeing); Hou v The Queen [2003] WASCA 241 [20] (Malcolm CJ, Steytler & Parker JJ); and Easterday v The State of Western Australia [20].
Moreover, as the Court of Appeal has held, s 40(1)(l) empowers this court to 'exercise any power that the Supreme Court may exercise in a civil case, thereby incorporating the powers conferred upon the Supreme Court by the Rules of the Supreme Court 1971 (WA) [i.e. the RSC] …'[33] (emphasis added).
[33] Mathews v The State of Western Australia [2015] WASCA 134 [131] (Martin CJ, Buss & Mazza JJA agreeing).
The respondents nonetheless contend that s 40(1)(l) does not permit this court to appoint a next friend to an appellant in a criminal appeal.
In support of this position, the respondents appear to rely principally on propositions to the following effect:
(1)The CAA 'covers the field' in relation to criminal appeals and does not provide for the appointment of a next friend or guardian ad litem (as the case may be).
(2)The remit and operation of s 40(1)(l) of the CAA must be read 'in conformity' with O 1 r 3(3)(a) (read with O 1 r 3(4)) of the RSC.
(3)Section 40(1)(l) of the CAA has previously only been relied upon to facilitate the exercise of a 'limited range of powers that arise from the absence of a specific criminal appeal rule or regulation', or to remedy the position when an acquittal results in some related or consequential order being rendered void.
(4)No decision has been identified from any jurisdiction where the criminal defence at trial, or criminal appeal has been conducted on behalf of an accused person by a guardian ad litem or next friend.
(5)There have been single judge appeals in this court where the appellant, conducting the matter on their own behalf, was at the time detained indefinitely under a custody order following a finding of mental unfitness for trial pursuant to the (now repealed) Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
In my view, none of the above matters favours a construction of s 40(1)(l) of the CAA which would lead to a conclusion that the broad powers brought into play by the provision do not include the power to require an appellant to be represented by a next friend, or the power to appoint such a representative, where appropriate.
I say this for at least the following reasons.
First, while it may be accepted that the CAA is the sole source of the court's power to entertain this appeal, and may in that sense be said to 'cover the field',[34] it does not necessarily follow that s 40(1)(l) should be read down so as to effectively exclude any operation of the parens patriae jurisdiction.
[34] JS v The State of Western Australia [2014] WASCA 177 [4] (McLure P, Buss & Mazza JJA agreeing).
As already noted, the jurisdiction cannot be abolished or suspended by statute in the absence of clear and unambiguous language.[35]
[35] Director-General v T'Hart [37] (Hasluck J, Murray & Wheeler JJ agreeing); Johnson v Director General of Social Welfare (Vic) 97 (Barwick CJ, Stephen & Mason JJ agreeing).
There is in any event nothing in the text, context or evident purpose of the CAA to suggest that the word 'any' in s 40(1)(l) should be construed to bear anything other than its ordinary meaning.
Secondly, it is well‑established that, generally speaking, a provision in a statute may not be construed by reference to delegated legislation.[36]
[36] Plaintiff M47-2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1, [56] (French CJ); Wallaby Grip Ltd v QBE Insurance (Aust) Ltd [2010] HCA 9; (2010) 240 CLR 444 [21]; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234, 244 (Mason CJ & Gaudron J).
It follows that the CAA is not to be construed to read 'in conformity' (or otherwise) with any relevant rules of court. That would be a case of the tail wagging the dog.[37] The rules must proceed in conformity with a correct interpretation of the CAA.[38]
[37] Cf. Plaintiff M47-2012 v Director-General of Security [56] (French CJ).
[38] Cf. Hunter Resources Ltd v Melville 244 (Mason CJ & Gaudron J).
Nor is the fact that the RSC do not apply to 'criminal proceedings'[39] a sufficient reason to conclude that this court lacks power to exercise its parens patriae jurisdiction in the context of an appeal brought under the CAA.
[39] RSC, O 1 r 3(3)(a).
In this connection, the CPR are rules made by the judges of this court. CPR r 72(2) and r 73(3) are the only provisions in the CPR which refer to the RSC.
CPR r 72(2) and r 73(2) respectively state that:
(a)a discontinuance notice lodged by an appellant who 'appears' to the court to be a person 'under disability', as defined in RSC O 70 r 1, has no effect unless approved by a judge;[40] and
(b)a settlement or compromise of an appeal to which a person who 'appears' to the court to be 'under disability', as defined in RSC O 70 r 1, is a party has no effect unless it is approved by a judge of appeal.[41]
[40] CPR, r 72(2).
[41] CPR, r 73(3).
The CPR further provide that an application for either form of approval must be lodged with an affidavit and (unless the judge orders otherwise) an opinion by an independent legal practitioner.[42]
[42] CPR, r 72(3) and r 73(4), respectively.
These provisions in the CPR are plainly designed to ensure protection of an appellant in a criminal appeal who meets the definition of a person 'under disability' for the purposes of RSC O 70.
They are thus an obvious manifestation of the court's parens patriae jurisdiction. As has been seen, the dual purpose of that jurisdiction is to ensure all parties are afforded protection of the court's processes and that the court's own process is itself protected.
I accordingly infer that when making the CPR a majority of judges of this court[43] considered the parens patriae jurisdiction to continue to have a role to play in the context of a criminal appeal brought under the CAA.
[43] CAA, s 50(2) read with SCA, s 168.
I respectfully agree with that collective view.
Thirdly, as has been seen the powers which the court may exercise by force of s 40(1)(l) of the CAA include the powers exercisable under the RSC.[44] Those rules relevantly include all the powers reflected in O 70.
[44] Mathews v The State of Western Australia [131] (Martin CJ, Buss & Mazza JJA agreeing).
Fourthly, as has also been seen, s 40(1)(l) is a source of statutory power which not only brings into play all of the powers of this court in civil appeals, but also the residual powers of the court in its inherent jurisdiction.[45]
[45] Ardrey v State of Western Australia [No 2] [126(e)] referring to R v Mickelberg (129) (Malcolm CJ, Steytler J agreeing); Nicholson v The Queen, 4 (Kennedy J, White & Scott JJ agreeing); Turnbull v The Queen [2003] WASCA 80 [2] (Murray J, Scott & Wheeler JJ agreeing); Hou v The Queen [20] (Malcolm CJ, Steytler & Parker JJ); and Easterday v The State of Western Australia [20].
It would seem to me incongruous that this court could be rendered powerless to require that an appellant, who has no capacity either to represent themself or to provide competent instructions to counsel, be represented by a next friend; even in the exercise of its inherent jurisdiction and even in circumstances where such an order may be necessary to allow the court to properly exercise the judicial function.
Fifthly, the fact that s 40(1)(l) of the CAA may in the past only have been relied upon for certain purposes is not, in my view, a matter which may permissibly be deployed to construe s 40(1)(l) in a limited manner. Likewise, the apparent absence any published authority suggesting any criminal appeal may in the past have been conducted on behalf of an appellant by a next friend.
The fact that there are evidently also no published decisions suggesting an accused person having previously been represented, in a criminal trial, by a guardian ad litem is similarly irrelevant. The CAA applies to the conduct of appeals not trials.
Sixthly, the fact that some single judge appeals may have been conducted in this court by appellants indefinitely detained under the (then) Criminal Law (Mentally Impaired Accused) Act 1996 (WA), in their own right, is also of no assistance.
Aside from also being irrelevant to a proper construction of s 40(1)(l), none of the identified decisions indicate whether the appellant was 'otherwise' subject to guardianship or administration orders made by the Tribunal.[46]
[46] Perhaps unsurprisingly given the prohibitions reflected in sch 1 cl 12(1) of the GAA.
The respondents also referred me to the recent decision of Lundberg J in Attorney General v PHB by his guardian ad litem.[47] There, his Honour was dealing with an interlocutory application for the appointment of a guardian ad litem in the context of a substantive application for an extended custody order under the (new) Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act).
[47] Attorney General v PHB by his guardian ad litem [2025] WASC 312 (PHB).
The interlocutory application was brought pursuant to O 70 r 2(5) of the RSC. It was commenced because O 70 r 2 relevantly provides that a 'person under a disability' cannot defend 'any proceedings' except by a guardian ad litem.[48]
[48] PHB [155].
The Public Trustee had previously been appointed as plenary administrator of the respondent's estate, and the Public Advocate as his guardian ad litem 'to defend or settle any legal proceedings taken against [him], except proceedings relating to [his estate]'.[49]
[49] PHB [93] ‑ [94].
Lundberg J declined to appoint, as guardian ad litem, the person within the office of the Public Advocate with delegated authority to make decisions on behalf of the respondent.[50] Ultimately, his Honour did not do so because the Public Advocate already held such a position pursuant to the Tribunal's orders.[51]
[50] PHB [13].
[51] PHB [165].
The respondents drew my attention to PHB to highlight 'the relationship between (and potential exclusionary operation of) statutory regimes, and the underlying rationale for the appointment of guardian ad litem or next friend in civil proceedings as distinct from other types of proceedings'.[52]
[52] Respondents' submissions dated 5 September 2025, [35].
In this connection, they referred me to the remarks made by Lundberg J at [160] to [165] of PHB.
As the respondents properly observe, PHB is distinguishable from the present matter in 'several ways'.
Not the least of those differences is the fact that by the express terms of the CLMI Act, proceedings under pt 7 of the CLMI Act are 'civil proceedings'.[53] It necessarily follows that unlike criminal appeals under the CAA, proceedings under pt 7 of the CLMI Act are not 'criminal proceedings' for the purposes of O 1 r 3(3)(a) of the RSC.
[53] CLMI Act, s 101. Emphasis added.
Further, as will have been seen, in the matter before Lundberg J the Public Advocate was already empowered by the Tribunal's orders to represent the 'person under … disability' in the proceedings before this court.
Not so in this appeal.
Moreover, as his Honour noted, the CLMI Act also contains provisions 'concerning the representation and protection of persons in proceedings under the legislation, which have a degree of similarity to the roles undertaken by a guardian ad litem'.[54]
[54] PHB [163].
No analogous provisions emerge from the CAA.
Indeed, in addition to features of the CLMI Act affording protection to accused and other persons to whom its provisions apply, the CLMI Act also reflects measures that are evidently designed to protect members of the legal profession appearing for such persons; namely, s 38(2) and s 266(2).
These two provisions in the CLMI Act (somewhat uniquely) state that if the person is unable to instruct their legal practitioner, the legal practitioner may exercise an 'independent discretion' and that, in doing so, the legal practitioner 'must act in a way that they reasonably believe to be in the [person's] best interests'.
There are no comparable safeguards for legal practitioners in the CAA.

In all the circumstances, I consider there is no warrant for construing s 40(1)(l) of the CAA such that the powers brought into play by the provision do not include power to appoint a next friend to an appellant in a criminal appeal.
For the foregoing reasons, I find that s 40(1)(l) empowers the court to make such an order in an appropriate case.

Should a next friend be appointed?

Recently in W v S,[55] the Court of Appeal cited with approval the following helpful summary, espoused by Seaward J,[56] of the principles relevant to the appointment of a next friend:
[55] W v S [2025] WASCA 21 [47].
[56] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 [89]. Citations omitted.
(a)the power of the court to appoint a representative to act on behalf of a person under a disability is aimed at ensuring that all parties to the action are afforded the protection of the court's processes and those processes are themselves protected;
(b)it is well‑established that there is a presumption that a person of full age is capable of handling their own affairs. The burden of proof rests upon the party asserting present incapacity;
(c)clear evidence that a person has suffered from some form of mental incapacity for a considerable period in the past is not itself determinative, although such evidence may mean that the burden of proof is more easily discharged;
(d)the court, when asked to make an order of this nature, must be mindful of the impact the order will have on the civil rights of the individual concerned;
(e)conscious of the necessary impact on the person's civil rights, the court will be reluctant to order the appointment of a representative without medical evidence of incapacity, although there will be instances where the court will be limited to its own observations, for example, where medical evidence is not forthcoming, or where the person's incapacity is so obvious to the court that the judge is of the view that medical evidence is not required;
(f)when put on notice that a person may lack the capacity to manage their own affairs in the litigation, the court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence;
(g)Order 70 requires the court to consider whether the relevant person is, by reason of mental illness, defect or infirmity, however occasioned, incapable of managing their affairs in respect of the proceedings. There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs. It will fluctuate according to the legal character, complexity and significance of the relevant transaction (also known as an 'issue‑specific' approach);
(h)the expression 'incapable of managing her own affairs' must be construed in a common‑sense way as a whole. It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation. A person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life. The expression involves a consideration of whether the person has sufficient mental capacity to understand the case and the legal issues involved, to make decisions in relation to the case and (if instructing a solicitor) to give instructions. It has been described as:
'The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes ...'
(i)in circumstances where a litigant is self‑represented, the standard has been described as follows:
'[T]he level of mental capacity required to be a 'competent' litigant in person ... cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.'

Noting the above principles, I am required to consider whether there is a sufficient basis to infer that the appellant does not have legal capacity to provide instructions to her legal representatives to pursue this appeal and to understand the consequences, including any adverse cost consequences, of doing so.
In my view, such an inference is inescapable for at least three reasons.
First, the Tribunal relatively recently declared the appellant both unable to make reasonable judgments in respect of matters relating to her person, and unable by reason of mental disability to make reasonable judgments in respect of matters relating to all of her estate.
These (unchallenged) declarations amount to findings by a specialist tribunal, no doubt after proper enquiry, that the appellant is incapable of making reasonable judgments concerning matters relating either to her person or to her estate.
The pursuit, defence or settlement of litigation are matters which self‑evidently require the exercise of reasonable judgment. Although legal practitioners play a critical role in this regard, ultimately the decision whether to pursue, defend or settle litigation is a matter for the client alone.
Where (as here) the client has effectively been declared incapable of making reasonable judgments about matters relating either to her person or estate, the need for the appointment of a substitute decision maker is, in my view, axiomatic.
The fact that the Tribunal also made declarations that the appellant was 'in need of' both an administrator of her estate and a guardian lends further support to this conclusion.
Secondly, as the appellant's lawyers point out:
(a)the appellant has been diagnosed with schizophrenia, displays ongoing psychotic symptoms of responding to unseen stimuli, continues to interact with her auditory hallucinations,[57] and suffers from delusional beliefs, significant confusion, paranoia, and disordered thinking;[58]
(b)the appellant's difficulties (including disordered thinking and an inability to process and conduct her affairs) persist even when she is medically compliant, and she struggles to maintain compliance with her depot medication;[59] and
(c)the appellant has repeatedly failed to comply with directions to put on submissions and further evidence.
[57] Letter from Dr Dennis Ng dated 3 January 2025.
[58] Affidavit of Dean Tingey dated 8 April 2025 [9].
[59] Affidavit of Dean Tingey dated 8 April 2025 [10], [14].
Thirdly, although Mr Tingey among other things reports having 'generally observed' the appellant to be 'consistent' with respect to the 'basis' for her appeal, that the appellant has been able to communicate her 'wishes' to her lawyer, and is willing to engage with and provide 'instructions' to him, the fact remains that appellant's own legal representatives say she has no legal capacity to conduct this appeal without a next friend.
I infer that the appellant's lawyers would not have advanced such a submission if they had in fact considered the appellant capable of instructing them and of understanding the consequences.
In circumstances where I have found the appellant to be so incapable, it is in my view necessary for a next friend to be appointed.
If such an appointment were not made, there is an unacceptable risk the appellant may be left unrepresented; noting the duty previously identified[60] and the absence of any safeguards in the CAA analogous to that afforded to legal practitioners by the CLMI Act.[61]
[60] Paragraph 52 above.
[61] Paragraphs 92 - 93 above.
It goes without saying that such a development would significantly diminish the court's capacity to afford adequate protection to the appellant; to say nothing of the deleterious effect of such development on the court's ability to protect its own process and properly exercise the judicial function.
The fact that the appeal hearing has now had to be adjourned (for a second time), in the circumstances referred to in paragraphs 22 and 23 above, makes the need for such an appointment all the more compelling.

Who should be appointed as next friend?

The only remaining question is who ought to be appointed as next friend.
Had the Tribunal appointed the Public Advocate as plenary guardian, the Public Advocate would, by force of s 45(2)(g) of the GAA, have had power to commence, conduct or settle any legal proceedings on behalf of the appellant (except proceedings relating to her estate) as her next friend.[62]
[62] GAA, s 45(2)(g).
However, the Tribunal did not do so.
Nor, as previously noted, do the Public Advocate's current powers, as limited guardian, extend to the continuation of this criminal appeal on the appellant's behalf.
Only the Tribunal is empowered to make a guardianship order with respect to a represented person in which it may appoint the Public Advocate (or another person) as plenary or limited guardian.[63]
[63] GAA, s 43(1), s 43(2)(a).
As Pullin J observed in Farrell v Allregal Enterprises Pty Ltd (No 2),[64] there is no power conferred on this court under the GAA to appoint the Public Advocate as next friend.[65]
[64] Farrell v Allregal Enterprises Pty Ltd [No 2].
[65] Farrell v Allregal Enterprises Pty Ltd [No 2] [15], affirmed in W v S [58].
That said, this court does have power to appoint the Public Trustee as next friend without the precondition of the Public Trustee first providing consent.[66]
[66] Public Trustee Act 1941 (WA), s 7; Farrell v Allregal Enterprises Pty Ltd [No 2] [30].
No person has been suggested as an appropriate candidate for appointment other than the Public Trustee.
The Public Trustee resists appointment.
In addition to advancing contentions broadly consistent with points raised by the respondents, the Public Trustee also relies, in substance, on submissions to the following effect:
(1)The Public Trustee does not have the expertise or 'wherewithal' to conduct criminal proceedings.
(2)An order appointing the Public Trustee is 'unnecessary' because the Public Advocate has already been appointed to seek advice and representation, and to 'advocate for' the appellant, in relation to any 'police investigation, criminal charges or related proceedings'.
(3)The appellant's interests in the appeal are 'now' protected in that she has both the benefit of both counsel and the support of the Public Advocate as her limited guardian.
(4)Such an appointment would have the effect of depriving the appellant of 'any retained autonomy' in relation to giving instructions.
(5)The Public Trustee has declined to provide funding on the basis that the appellant has 'very limited resources' and cannot afford to fund the legal costs involved for the purposes of this appeal.
(6)As next friend, the Public Trustee would be personally liable for any costs that may be awarded against the appellant.
The first point may be dealt with briefly. The Public Trustee has power to instruct external solicitors or counsel who have such expertise.
As for the second, third and fourth points, I have concluded that the appointment of a next friend is necessary despite the Public Advocate having been appointed as the appellant's limited guardian and the fact that the appellant currently has legal representatives acting for her.
In short, the Public Advocate's current powers are insufficient to provide her with the support she needs for the purposes of prosecuting this appeal, and her legal representatives have themselves submitted that the appellant does not have legal capacity to continue to conduct the appeal and a next friend should be appointed.
The appellant's legal representatives are under a duty to be reasonably satisfied as to her capacity to instruct them and have nonetheless made this submission. It follows, in my view, that the appointment of a next friend is a matter of practical necessity.
At the end of the day, the appellant is incapable of providing instructions to her lawyers in this appeal and to understand the consequences. It is thus inevitable that another person will need to be found who can make those decisions on her behalf.
The fifth point, limited funding, whilst relevant, cannot in my view be a sufficient reason to leave a person without capacity to do either of the things just mentioned without a substitute decision‑maker in proceedings before this court.
Nor do I consider the final point, potential exposure to the risk of personal liability for costs,[67] to be an adequate reason for not appointing a next friend where there is a manifest need to do so. Ultimately, the risk identified by the Public Trustee may only eventuate if costs are actually sought by the respondents and then ordered in their favour in the appropriate exercise of the court's discretion.
[67] Cf. ANZ Bank v Dzienciol [2001] WASC 305.
In this connection, it is also well to note there is no general rule in criminal appeals that costs should ordinarily follow the event. The CAA confers a general and unconstrained discretion upon the decision‑maker to award costs, having regard to all relevant circumstances, including any relevant aspect of the public interest.[68]
[68] Wilson v McDonald [2009] WASCA 39 (S) [10] (Martin CJ, Beech AJA agreeing); The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) [10] (Pullin, Newnes & Mazza JJA).
For the foregoing reasons, and in circumstances where no other suitable candidate has been identified, I consider it both necessary and appropriate that the Public Trustee be appointed as next friend to the appellant for the purposes of this appeal.

Conclusion

I make orders accordingly.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
9 OCTOBER 2025