W v S - [2025] WASCA 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   W -v- S [2025] WASCA 21
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   24 JANUARY 2025
DELIVERED          :   24 JANUARY 2025
PUBLISHED           :   24 JANUARY 2025
FILE NO/S:   CACV 72 of 2024
BETWEEN:   W
Appellant
AND
S
First Respondent
THE PUBLIC TRUSTEE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE BECKERLING
File Number            :   PTW 7517 of 2019

Catchwords:

Appeal - Family law proceedings - Person under a disability - Where parties sought property adjustment orders arising out of their former de facto relationship - Where Public Trustee was appointed to be the appellant's case guardian in the primary proceedings in the Magistrates Court of Western Australia constituted by a family law magistrate - Where property adjustment orders disposing of the primary proceedings were made by consent - Where appellant purported to commence an appeal against the consent orders without a next friend - Whether court should declare the appellant to be incapable of managing his affairs in respect of the appeal proceedings - Whether appellant can represent himself or must conduct the appeal proceedings only through a next friend

Legislation:

Family Court Rules 2021 (WA), r 4, r 103, r 105, r 108, r 109
Guardianship and Administration Act 1990 (WA), s 40, s 45, s 68, s 97(1)
Rules of the Supreme Court (WA), O 70 r 1, O 70 r 2

Result:

Appeal stayed pending appointment of a next friend
Ancillary orders made

Category: A

Representation:

Counsel:

Appellant	:	No appearance
First Respondent	:	R I M Bannerman
Second Respondent	:	No appearance

Solicitors:

Appellant	:	In person
First Respondent	:	Bannerman Solicitors
Second Respondent	:	West End Legal

Case(s) referred to in decision(s):

A v City of Swan [No 4] [2009] WASC 155
A v City of Swan [No 5] [2010] WASC 204
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [No 2] [2009] WASCA 55
BIF23 v Minister for Immigration [2024] HCA 44
Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193
Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65
M v P [No 3] [2024] WASC 123
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Rappard v Williams [2013] NSWSC 1279
Scates v State Administrative Tribunal of Western Australia [2011] WASC 319
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
Surrey Insurance Co Ltd v Nagy [1968] SASR 437
Thomson v Smith [2005] QCA 446

REASONS OF THE COURT:

At the hearing of this appeal on 24 January 2025, we made orders which had the effect of staying prosecution of the appeal until a next friend was joined as the appellant under Order 70 of the Rules of the Supreme Court 1971 (WA) (SC Rules). We said that we would publish our reasons for making those orders later. These are our reasons for making those orders.

Background

The appellant and first respondent were in a de facto relationship and have a child who was born in November 2012. They lived together from around November 2011 and separated in October 2017. The primary proceedings were brought in the Magistrates Court of Western Australia constituted by a family law magistrate. The primary proceedings concerned an application in relation to financial matters post-separation.
In the primary proceedings, the appellant wrote the court various letters indicating he was suffering from mental health issues arising out of the loss of a child which were being exacerbated by the continuation of the primary proceedings. The appellant's correspondence indicated that 'each legal communication he receives buries him such that he cannot breathe. He contends it causes a form of paralysis which renders regular filing requirements insurmountable'.[1]
[1] See [W] and [S] [2022] FCWAM 170 (Disability reasons) [4] - [5], [9].
In February 2022, the appellant's treating psychiatrist, Dr Richard Magtengaard, wrote a letter indicating that the appellant was unfit to attend court due to becoming 'totally and permanently disabled as a result of the persistently stressful Family Court matters occurring since November 2019'.[2]
[2] Disability reasons [8].
Under r 103(1) of the Family Court Rules 2021 (WA) (FC Rules), a person with a disability may start, continue, respond to, or seek to intervene in a case only by a case guardian. The term 'person with a disability' is defined in r 4 of the FC Rules in the following terms:
person with a disability, in relation to a case, means a person who, because of a physical or mental disability -
(a)does not understand the nature or possible consequences of the case; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case[.]
Rule 105(1) of the FC Rules provides that a person may apply to the court for the appointment, replacement or removal of a person as the case guardian of a party. Under r 106 of the FC Rules:
(1)If, in the opinion of the court, a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney General of the State nominate, in writing, a person to be a case guardian.
(2)A person nominated by the Attorney General to be a case guardian of a person with a disability is taken to be appointed as such if the person files -
(a)a consent to act in relation to the person with a disability; and
(b)a copy of the written nomination of the person as a case guardian; and
(c)a notice of address for service.
Under r 108 of the FC Rules, the court may order the costs of a case guardian to be paid by a party or from the income or property of the person for whom the case guardian is appointed.
Rule 109(1) of the FC Rules makes the following provision in relation to the duties of a case guardian:
A person appointed as the case guardian of a party -
(a)is bound by these rules; and
(b)must do anything required by these rules to be done by the party; and
(c)may, for the benefit of the party, do anything permitted by these rules to be done by the party; and
(d)if seeking a consent order (except an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party's best interests.
On 21 July 2022, Magistrate Martino delivered the Disability reasons in which he concluded that the appellant was a person with a disability. The dispositive part of the Disability reasons was expressed in the following terms:[3]
I am satisfied the evidence, albeit untested, points to the [appellant] being under a disability, as the evidence points to him being unable to conduct the matter in the manner which is required. Moreover, I am satisfied the [appellant] falls within the definition of a person with a disability as being someone who is not capable of adequately conducting or giving adequate instruction for the conduct of the case. In support of my position, I refer to the medical evidence to which I have referred earlier in these Reasons.
I refer also to the [appellant]'s communications with the Court where he makes reference to his mental ill health, including chronic and generalised anxiety disorder, as well his assertion legal communications bury him, such that he cannot breathe, causing a form of paralysis which renders regular filing requirements insurmountable.
To the extent the [appellant] maintains the communications he has provided to the Court are sufficient for the purpose of satisfying the requirement for him to provide evidence, I do not accept this.
I am satisfied the appointment of a Case Guardian will provide the [appellant] the opportunity to properly present his case and will ensure the matter is able to proceed in a manner that is procedurally fair to both parties.
[3] Disability reasons [14] - [17].
The court made the following orders on 21 July 2022:
Upon the Court having found that the [appellant] is a person with a disability as defined in the [FC Rules]; and
Upon there being no suitable person available to act as Case Guardian for the [appellant],
IT IS ORDERED THAT:-
1. Until further order of the Court, the proceedings on behalf of the [appellant] hereinafter be conducted by his Case Guardian.
2. The Attorney General be requested to nominate a suitable person to be the Case Guardian for the [appellant].
3. The proceedings be adjourned for monitoring and directions on 3 October 2022 at 10:00 am.
4. The said proceedings otherwise be transferred to the Family Court of Western Australia.
On 19 August 2022, the principal registrar of the Family Court of Western Australia wrote to the Attorney General of Western Australia requesting the nomination of a case guardian for the appellant. By letter to the principal registrar dated 3 November 2022, the Attorney General nominated the Public Trustee to be the appellant's case guardian in the primary proceedings. On 10 November 2022, Magistrate Martino made orders appointing the Public Trustee to be the appellant's case guardian in the primary proceedings.
The Public Trustee, through solicitors, negotiated the settlement of the primary proceedings in the absence of the appellant, who was not at that stage willing to communicate with them.
The following orders were made by Magistrate Beckerling on 11 November 2024:
1.By consent, orders are hereby pronounced in terms of the Minute of Final Orders signed by the parties and handed up in Court this day, a sealed copy of which is attached.
2. All executory interim orders other than those pronounced herewith be and are hereby discharged.
3.All subpoenaed documents produced be returned or destroyed in accordance with the request from the named persons on the expiration of 42 days from the date of these orders.
4.The trial commencing on 11 November 2024 be and is hereby vacated and the proceedings otherwise be dismissed.
The minute of final orders signed on 11 November 2024 dismissed the Family Court proceedings and included the following orders against which the appellant appeals:
1.Within 28 days of the date of these Orders the [appellant] pay to the [respondent] the sum $180,000.
…
5. A copy of these Court Orders be provided to the Commonwealth Bank of Australia and the Public Trustee have authority to speak to the Commonwealth Bank of Australia in relation to the home loan account in the name of the [appellant], and any drawings made to the account.
6.Pursuant to section 221 of the Family Court Act 1997 (WA) the Public Trustee as Case Guardian for the [appellant] is hereby authorised to execute all deeds and instruments on behalf of the [appellant] to give validity and operation to these orders.
7.The Case Guardian be discharged save and except in respect of enforcing paragraph 11 of Court Orders dated 10 November 2022 seeking the costs of the Case Guardian to be paid by the income or property of the [appellant].

The appeal to this court

An appeal lies under s 210A of the Family Court Act 1997 (WA) from a final order made by the Magistrates Court constituted by a family law magistrate.
On 26 November 2024, the appellant personally filed an appeal notice, appealing against the 'Financial Orders by Beckerling on 11.11.2024' and listed the following orders on the form:
1.Respondent to Pay
5. Public Trustee Authority
6.Arbitrary Case Guardian
7.Arbitrary Case Guardian Costs
On 27 November 2024, the Court of Appeal registrar referred the following questions to the court under r 11(1)(a) and r 11(3) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoA Rules):
(a) Should the court make a declaration under Order 70 rule 1 of the [SC Rules] that the appellant, by reason of mental illness, defect or infirmity, however occasioned, is incapable of managing his affairs in respect of the appeal?
(b) Can the appeal be maintained by the appellant without the appointment of a next friend pursuant to Order 70 of the [SC Rules]?
(c) Should the court appoint a next friend for the appellant in the appeal?
The registrar made the following programming orders for the parties to file written submissions and evidence in relation to these questions:
2. By 4 pm on 6 December 2024, the first and second respondents may file and serve written submissions (not exceeding 5 pages in length) and any affidavits on which they intend to rely in relation to the referred questions.
3. By 4 pm on 11 December 2024, the appellant may file and serve written submissions (not exceeding 5 pages in length) and any affidavits on which he intends to rely in relation to the referred questions.
Also on 27 November 2024, the registrar issued a notice to the parties to attend at 2.15 pm on 13 December 2024 for the court to consider the referred questions.
Pursuant to those orders the first respondent filed an affidavit sworn by her on 4 December 2024 and written submissions dated 6 December 2024. The second respondent did not file any written submissions but filed an affidavit sworn by Jean Henrisson on 6 December 2024. The appellant did not file any documents pursuant to order 3 of the registrar's orders.
The appellant did not attend the hearing on 13 December 2024. The appellant did send an email, in abusive terms, to the manager of the Court of Appeal office at 9.18 am on 12 December 2024. The appellant's email was in response to an email sent by the manager of the Court of Appeal office advising him that matters contained in certain earlier emails of the appellant could not be dealt with in correspondence to the court.
The appellant's email of 12 December 2024, which was copied to various persons but not the respondents, read:
If you copy me into communications directly with the predatory perpetrators of my total and permanent disablement one more time, I will take that as an active and deliberate act of violence against a victim of abuse (as per undisputed and admitted facts & medical evidence) and it will be reported widely as such - I am merely seeking due accommodation as a self-represented party in a very legitimate and compelling appeal.
Provide some meaningful information without copying in those responsible for my plight.
I am seeking additional time to attempt the required e-filing.
Legal mumbo jumbo and so called 'rules' are optional and discretionary whereas life-saving treatment is not!!
Cease and desist with your biased collusion (corruption?) and focus on safeguarding the sociobiopsychosocial (intersectional) protection of those seeking to survive your passive-aggressive misconduct instead.
Just do better
(original emphasis)
The appellant's email also attached a report purportedly from Dr Magtengaard dated 9 December 2024 which contained statements which appeared to differ from the views expressed by Dr Magtengaard in reports to the Family Court referred to below. The form of Dr Magtengaard's signature on the report of 9 December 2024 is different from that on his earlier reports which are in evidence.
At the hearing on 13 December 2024, this court made the following orders:
1. The time for the appellant to comply with order 3 of the orders made by the court on 27 November 2024 is extended to 4 pm on 15 January 2025.
2. If the appellant seeks to introduce a report of Dr Richard Magtengaard into evidence, the report must be verified as true and correct in an affidavit sworn by Dr Magtengaard, and should address the following matters:
(a) Any psychiatric conditions from which the appellant currently suffers and the treatment being provided for that condition.
(b) Identify the current symptoms of any such condition which may impact upon the capacity of the appellant to understand or participate in litigation.
(c) Identify the observations and/or evaluations on which any opinion expressed as to the appellant's capacity is based.
(d) Explain the reasons why the observations and/or evaluations lead to the opinion expressed as to the appellant's capacity.
3. The hearing of the questions referred by the Court of Appeal registrar on 27 November 2024 be adjourned to 2.15 pm on 24 January 2025.
4. Costs reserved.
At the hearing, the court stated as follows:[4]
I need to make clear to the appellant three things about communications with the court. First, the court cannot engage in communications with only one party to a proceeding in the absence of the other. Any communication by the appellant to the court needs to be copied to the solicitors for the two respondents. Any communication by the court to the appellant will be copied to the solicitors for the respondents.
If the appellant is going to represent himself in this appeal, an inevitable consequence is that the solicitors for the respondents be copied into any communication between the appellant and the court follows. We will direct the Court of Appeal office that any emails sent by or on behalf of any party which are not copied to the other parties or their representatives is to be treated as not having been received.
It will not be placed on file and will not be brought to the attention of the judges. Second, the abusive and threatening terms in which the appellant's email of 12 December 2024 is framed are entirely unacceptable. By copying all parties into communications from the court, the manager of the Court of Appeal office was just doing her job in the only way she is permitted to do it. She does not deserve to be subjected to correspondence in those terms.
Future communications of that type will not be tolerated. If further abusive or threatening communications of this kind are received, we will make orders which will have the effect of preventing the appellant from sending any emails to the court. Third, the court does not receive evidence or submissions by email. If the parties wish to adduce evidence, then the evidence must be contained in or attached to an affidavit.
If the parties wish to put submissions before the court, they need to be lodged for filing in the ordinary way. The court will not take account of submissions made by way of email communications.
[4] Ts 13.12.24, 4 - 5.
In making the orders, the court also observed that the appellant's case remained due to be filed and served on 21 January 2025, as advised by the letter from the Court of Appeal office dated 27 November 2024.
A copy of the orders was sent to the parties on 13 December 2024. A copy of the transcript of the hearing on 13 December 2024 was sent to the parties on 20 December 2024.
Despite being provided with a copy of the transcript, the appellant continued to forward material to the Court of Appeal office by email without copying the emails to the respondents. Pursuant to the court's directions, the emails have not been placed on the court file and we have not had regard to any submissions or purported evidentiary material contained in those emails.
The appellant has not filed any written submissions or affidavits in relation to the referred questions as provided for in the above orders. He also has not filed an appellant's case in the appeal.
On 23 January 2025, the parties were advised by email that, due to the potential for industrial action to impede access to the court building on 24 January 2025, the hearing would be conducted remotely. They were asked to provide contact details for that purpose. The appellant did not do so by the requested time or prior to the time of the hearing.
The appellant did not appear at the hearing on 24 January 2025. The appellant's name was called by the court orderly three times in the precincts of the court to confirm that he did not appear in person at the hearing. At the hearing, the court called the telephone number the appellant had previously provided with his service details, but the call was not answered and was diverted to the appellant's message bank.

We were satisfied that it was in the interests of justice to proceed with the hearing in the appellant's absence. The appellant had been given two opportunities to file affidavit evidence and written submissions, and to attend a hearing to make oral submissions, and did not take up those opportunities. There was no reason to think that the appellant would treat a third opportunity any differently. No reason was advanced for the appellant's failure to attend the hearing of which he had been given adequate notice. In the circumstances, we were satisfied that the appellant was provided with a sufficient opportunity to present his case on the referred questions.

Order 70 of the SC Rules

Order 70 r 1 of the SC Rules relevantly defines the phrase 'person under disability' in the following terms:
Person under disability means -
…
(c) a person … who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates.
Order 70 r 2 provides that:
(1)Except as provided in subrule (4) a person under disability -
(a) cannot bring, or make a claim in, any proceedings except by the person's next friend; and
(b) cannot defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on the person, except by the person's guardian ad litem.
(2) Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings must or may, if the party is a person under disability, be done by the person's next friend or guardian ad litem.
(3) A next friend or guardian ad litem of a person under disability must act by a solicitor.

Evidence as to the appellant's capacity

The evidence adduced by the second respondent includes the following reports of Dr Magtengaard.
In an email of 8 February 2023, Dr Magtengaard indicates that the appellant was being treated for the following conditions:
Major Depressive Disorder (partial remission) April 2018
Generalised Anxiety Disorder (reactive, stress-induced exacerbations) April 2018
Grief and Loss dynamic April 2018
Dr Magtengaard indicated that the appellant was 'totally and permanently impaired', and had 'suffered a very significant emotional burden, due to the unremitting nature of the family court proceedings'.
In a letter report to the Family Court dated 4 September 2024, Dr Magtengaard stated:
[The appellant] has been under my care since early 2018. His total and permanent disability (TPD) has been significantly exacerbated by 9 years of unrelenting legal proceedings. The cumulative impact of these proceedings has led to severe psychological and physical impairments, rendering [the appellant] unfit to attend any trial or court‑related activities.
I wish to acknowledge the continuation of such proceedings presents a risk to his mental state, with the potential to precipitate further deterioration. Therefore, I seek your support in not requiring [the appellant] to participate in court proceedings, as his medical conditions preclude him from enduring the associated stress and demands.
In a letter report to the Family Court dated 14 October 2024, Dr Magtengaard stated:
As previously stated [the appellant] has been under my care since early 2018. His total and permanent disability (TPD) has been exacerbated by the unrelenting legal proceedings. Unfortunately, the impact of these proceedings has [maintained] overt psychological and physical impairments, rendering [the appellant] subjectively unfit to attend any trial or court-related activities, based in his fear of not being able to tolerate further exposures.
Based in the above, may I respectfully seek your support in not requiring [the appellant] to participate in court proceedings, as a means of protecting him from the associated stressors.
We also note that the appellant has, throughout proceedings, failed to comply with the CoA Rules in various respects. It is apparent that he did not serve the appeal notice on either respondent. He has not filed the responsive evidence or submissions provided for in the registrar's and this court's programming orders. He has not filed an appellant's case within the time required by the CoA Rules. He has failed to attend the hearings on 13 December 2024 and 24 January 2025. His correspondence with the Court of Appeal office has focussed on criticism of the first respondent's legal representative. Despite being given a copy of the transcript of the hearing on 13 December 2024, he has continued to send material to the court in an inappropriate form without copying the respondents in on his communications.

Declaration on incapacity: general principles

There is a presumption that every person of full age has the mental capacity to manage their own affairs and the burden of proving to the contrary rests with those asserting incapacity.[5]
[5] BIF23 v Minister for Immigration[2024] HCA 44 [37].
A declaration that a party lacks legal capacity is not to be made lightly. Although there may be cases where the court is able to make an assessment of the capacity of a party from its own observations, the court will usually require the assistance of a medical report before being able to be satisfied that incapacity exists and taking the serious step of declaring a person to be under a disability.[6] As McPherson JA observed in Thomson v Smith:[7]
[I]f the Court is by appointing a litigation guardian, asked to take the conduct of current proceedings out of the control of the person who started them, there should be evidence on which a judge can confidently act that that person is not capable of making the decisions required for conducting that litigation.
[6] See A v City of Swan [No 4] [2009] WASC 155 [30] - [32].
[7] Thomson v Smith [2005] QCA 446 [7].
The question raised by the definition in O 70 r 1 of the SC Rules is whether the appellant, by reason of mental illness, defect or infirmity, however occasioned, is incapable of managing his affairs in respect of the current appeal proceedings. This will depend upon whether he is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which consent or decision is likely to be necessary during the proceedings.[8] As Hallen J recognised in Rappard v Williams,[9] albeit in a slightly different statutory context, this may include:
[D]oing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice and engaging in the continuing process of cooperation, interaction and decision making that exists between lawyer and client in running any civil action.
[8] See Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 [75].
[9] Rappard v Williams[2013] NSWSC 1279 [78].
The question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is issue‑specific and relates to the facts and subject-matter of the particular case.[10]
[10] A v City of Swan [No 5] [2010] WASC 204 [73]; Rappard [79]; Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 [23]; Masterman-Lister [27], [62].
The court must be mindful of the impact an order under O 70 r 1 of the SC Rules will have on the civil rights of the individual concerned. Importantly, upon the court requiring the appointment of a representative, the person is denied, by O 70, the important rights to freely prosecute, defend, compromise or otherwise participate in the litigation in their own name. However, 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.[11]
[11] A v City of Swan [No 5] [68].
In circumstances where a litigant is self-represented, the standard with which they are incapable of managing their own affairs has been described as follows:[12]
[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.
[12] Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51[35] (Handley JA, Tobias JA agreeing); A v City of Swan [No 5] [76].
Recently, in Snook v Magistrate Trevor Darge [No 2],[13] Seaward J helpfully summarised the relevant principles in the following terms:
[13] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 [89].
(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:[14]
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:[15]
[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.
[14] Dalle-Molle [23], [26] as quoted in A v City of Swan [No 5] [73].
[15] Murphy v Doman [35] (Handley JA, Tobias JA agreeing); A v City of Swan [No 5] [76].

Whether a declaration of incapacity should be made in this case

The present case is not unusually complex, however nor is it simple. The primary proceedings were long-running, and the challenges involved in appealing against an order made by consent should not be underestimated.
The reports of Dr Magtengaard referred to above indicate that the appellant suffers from major depression disorder and generalised anxiety disorder, which are a 'mental illness, defect or infirmity' within the meaning of O 70 r 1 of the SC Rules. The reports indicate that the appellant's reaction to the ongoing legal proceedings has led to severe psychological and physical impairments over a prolonged period. Those impairments have impacted on the capacity of the appellant to properly engage with and participate in the proceedings. That appears to be reflected in the appellant's limited communications and steps in this appeal. The reports of Dr Magtengaard are not contradicted by any admissible evidence placed before the court and include relatively recent reports from September and October last year. In determining this question, the court should take into account the procedural history of the matter, any medical reports and other evidence provided in the Family Court proceedings that go towards the appellant's capacity. The fact that in this court the appellant has not demonstrated any ability to comply with court rules and procedures supports the inference that he is incapable of managing his affairs in respect of the proceedings.
In our view, the evidence establishes that the appellant, by reason of mental illness, defect or infirmity is incapable of managing his affairs in respect of these appeal proceedings. This court should make a declaration accordingly.

Continuation without appointment of next friend

Once the court declares the appellant to be a person under a disability, the appellant is effectively barred from participating in these proceedings other than through a next friend. Order 70 r 2(1)(a) of the SC Rules provides that a person under a disability cannot bring proceedings except by the person's next friend. If a next friend is not appointed when one is required, then the proceedings will be irregular, and a step or decision taken in the proceeding will be liable to be set aside under O 2 r 1 of the SC Rules for that reason.[16]
[16] Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd[2009] WASCA 33, [6] - [8]; Murphy v Doman [39] - [42]; Surrey Insurance Co Ltd v Nagy [1968] SASR 437, 439.
The steps open to a court when proceedings are irregularly commenced were discussed by Heenan J in Scates v State Administrative Tribunal of Western Australia:[17]
There are numerous instances where a litigant who was a minor or infant has brought proceedings in a Supreme Court without a next friend being appointed, resulting in the proceedings being stayed or set aside for want of compliance with that obligation - see Cash v Cash (1896) 22 VLR 110 where a judgment in the Magistrates Court was set aside for want of the appointment of a next friend but without prejudice to the infant's right to bring proceedings by a next friend if so desired. In Hines v Phillips [1906] VLR 417 an infant was entitled to bring proceedings in his own name in a Magistrates Court as an apprentice under the Factories and Shops Act 1900 (Vic). It was held that notwithstanding that right, the infant could not institute an appeal other than by a next friend on an application for an order nisi in the Supreme Court. In the latter case the court directed that the solicitor appearing on the order for review was at liberty to act as next friend and accepted his appointment.
It is equally apparent that if a person under a disability commences a proceedings otherwise than by a next friend, the opposing party may apply to have the originating process set aside or for the proceedings to be stayed: Spellson v George (1987) 11 NSWLR 300 but on such an occasion leave to amend by adding the next friend can be given, as already noticed in Hines v Phillips and as done in R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VR 445.
[17] Scates v State Administrative Tribunal of Western Australia [2011] WASC 319 [14] - [15].
In Farrell v Allregal Enterprises Pty Ltd [No 2],[18] once Pullin JA was satisfied that Mrs Farrell was a person under a disability, his Honour found it necessary for the court to make some provision for the appointment of a next friend in relation to the proceedings under appeal. As Mrs Farrell had not been able to identify anyone who would be prepared to accept appointment as next friend, Pullin JA found the only solution was to exercise the court's power under s 7 of the Public Trustee Act 1941 (WA) and to appoint the Public Trustee as next friend.[19]
[18] Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65.
[19] See Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [No 2] [2009] WASCA 55 [21] - [22].
Pullin JA held that the court had no power to appoint the Public Advocate as next friend without the Public Advocate's consent.[20] Pullin JA concluded with the following observations:[21]
Having stated my conclusion, I should observe that in my opinion legislative attention is required in this area. I say this because of the uncertainty created by the existence of the Guardianship and Administration Act and s 7 of the Public Trustee Act. It would surprise me if there has not been discussion or debate between the Office of the Public Trustee and the Office of the Public Advocate about who carries the responsibility for acting as a litigation guardian of last resort. This is because on the one hand the Guardianship and Administration Act authorises the State Administrative Tribunal but not the Supreme Court to appoint the Public Advocate to act as guardian or administrator, with the result that the Public Advocate would then be obliged by O 70 to act as litigation guardian, whereas, on the other hand, s 7 of the Public Trustee Act authorises this court, but not the State Administrative Tribunal to appoint the Public Trustee as litigation guardian. The result of that bifurcation in the legislation is seen in this case where both authorities resist appointment as litigation guardian. Both claim to be too under‑funded or under‑resourced to be able to take on the role as litigation guardian. If there is any legislative change, then O 70 would also require redrafting.
[20] Farrell [15].
[21] Farrell [41].
Recently in M v P [No 3],[22] Lundberg J deferred his Honour's decision as to whether to declare the plaintiff as a person under a disability until further inquiries were made. His Honour made orders to the effect of requesting that the Office of the Public Advocate make the necessary investigations pursuant to its function under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act) and to investigate whether or not the Public Advocate should make an application under the GA Act to appoint an administrator to conduct the proceedings as the plaintiff's next friend.
[22] M v P [No 3] [2024] WASC 123.

Appropriate orders in this case

We are not persuaded that it is in the interests of justice at this stage to strike out the appeal notice by reason of the appeal being commenced by the appellant without a next friend. However, further prosecution of the appeal should be stayed until such time as a next friend is joined and, acting through a solicitor, decides that the proceedings should be continued. This stay may be subject to variation or discharge if there is evidence of a material change in circumstances warranting revocation of the declaration pursuant to O 70 r 1 of the SC Rules that the appellant is incapable of managing his affairs in respect of the appeal.
It is not appropriate to appoint the Public Trustee as next friend in this appeal from the primary orders. The appellant's complaint about the primary order concerns the way in which the Public Trustee conducted the case in the Magistrates Court on his behalf. This is in a context where it is not apparent that the Public Trustee filed the affidavit required by r 109(1)(d) of the FC Rules when seeking the consent orders.
However, as Pullin JA held in Farrell, this court does not have power to appoint the Public Advocate to act as the appellant's next friend. There does not appear to be any other obvious candidate for appointment.
In these circumstances, the appropriate course is to stay the current appeal until such time as a next friend is joined in the appeal and to adopt a course similar to that taken by Lundberg J in M v P [No 3] and refer the matter to the Public Advocate for investigation. Under s 97(1) of the GA Act, the functions of the Public Advocate include:
(a)to make applications under this Act and to attend hearings of the State Administrative Tribunal when he thinks fit and when required to do so by the Tribunal;
…
(c)to investigate any complaint or allegation that a person is in need of a guardian or administrator … or any matter referred to him by a court[.]
The applications which the Public Guardian is authorised to make under the GA Act include an application for a guardianship order or an administration order under s 40 of that Act. Under s 44(5) and s 68(5) of the GA Act, the Public Advocate may be appointed as guardian or administrator when there is no other suitable person who is willing to act.
To ensure that the matter does not languish, it is also appropriate to list the matter in June for the court to consider whether the appeal notice should be struck out if no next friend is appointed by that time.

Orders

For the above reasons, at the hearing on 24 January 2025, we made the following orders:
1.It is declared that the appellant, by reason of mental illness, defect or infirmity, is incapable of managing his affairs in respect of these appeal proceedings.
2.Subject to these orders and any further orders of the court, the prosecution of the appeal, other than any application to appoint a next friend, is stayed until a next friend is appointed for the appellant and joined as the appellant in the appeal.
3.The question of whether an application should be made to the State Administrative Tribunal for the appointment of a guardian or administrator to act as the appellant's next friend in this appeal is referred to the Public Advocate for investigation under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA).
4.The Court of Appeal registrar is directed to provide to the Public Advocate copies of these orders, the court's written reasons for making these orders, the transcripts of the hearings of this appeal and the court documents filed in this appeal.
5.The determination of the questions referred by the registrar's orders of 27 November 2024 is otherwise adjourned to a date to be fixed in June 2025.
6.The parties must file and serve any additional affidavits and submissions in relation to the referred questions at least 7 days prior to the date of the adjourned hearing in June 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
24 JANUARY 2025