Van Lieshout v Mead Centre Armadale Mental Health Service
[2011] WADC 104
•27 JUNE 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: VAN LIESHOUT -v- MEAD CENTRE ARMADALE MENTAL HEALTH SERVICE [2011] WADC 104
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 27 JUNE 2011
DELIVERED : 27 JUNE 2011
FILE NO/S: CIVO 1434 of 2011
BETWEEN: DAVID PETER VAN LIESHOUT
Plaintiff
AND
MEAD CENTRE ARMADALE MENTAL HEALTH SERVICE
Defendant
Catchwords:
Person under a disability - Entitlement of a non-lawyer to represent plaintiff
Legislation:
Rules of the Supreme Court 1971 (WA) O 70 r 3
Result:
Action stayed
Representation:
Counsel:
Plaintiff: Ms T van Lieshout
Defendant: Mr P D Spragg
Solicitors:
Plaintiff: Not applicable
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 27 June 2011 and has been edited from the transcript.]
The application before me this morning is an application by chamber summons dated 31 May 2011 by the State of Western Australia as defendant in this action seeking orders, among others, that the plaintiff's writ be struck out on the ground of irregularity.
In the action, the plaintiff, Mr David Peter van Lieshout, is being represented by Teresa van Lieshout, whom I understand is a relative of the plaintiff. She purports in the writ to act under an enduring power of attorney and guardianship. Ms van Lieshout filed a detailed response to the chamber summons dated 19 June 2011.
One of the grounds raised by the State in its chamber summons, is that pursuant to O 70 r 2(3) of the Rules of Supreme Court 1971 (WA), a next friend must act by way of a solicitor. No solicitor is being recorded as acting for either the plaintiff or Ms van Lieshout. Order 70 r 2(3) provides:
A next friend or guardian ad litem of a person under a disability must act by a solicitor.
In her submissions, Ms van Lieshout, in essence, invites me to make the finding that O 70 r 2(3) is beyond the power of the judges of the Supreme Court to make and is invalid. If O 70 r 2(3) applies on its face, then the appropriate order this morning is an order staying the action until such time as there is a properly appointed next friend or guardian ad litem for the plaintiff, and that person is represented by a solicitor.
The State in its chamber summons raises a number of other deficiencies in the writ, but I have deferred consideration of them for the present purposes.
In her submissions, Ms van Lieshout, basically put to me two bases on which I should make a finding that O 70 r 2(3) is invalid. The first basis is that it is inconsistent with other legislation giving powers to a guardian. The second basis is that it is inconsistent with the human rights of Mr van Lieshout guaranteed by statute, in particular as a person under a disability.
There are two issues in relation to the representation of a person under a disability in proceedings in this court. The first issue is the power of an individual to act on behalf of another; that is, a person must be able to establish to the court that they are an appropriate next friend or guardian ad litem of a person under a disability.
Once that hurdle is cleared, there is then the question of how that power is to be exercised. It is to that question that O 70 r 2(3) is directed. Its effect is that once there is a validly appointed next friend or guardian ad litem of a person under a disability, that person acting in a representative capacity must act by a solicitor.
A registrar of the District Court, I must give effect to the Rules of the Supreme Court which apply in this court. In any event, on the material available to me, there is no basis for a finding of invalidity. The appropriate order today is that the plaintiff's action will be stayed until such time as there is a regularly appointed next friend or guardian of Mr van Lieshout, and that person has entered an appearance by a solicitor.
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