W v S [No 2] - [2025] WASCA 134

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   W -v- S [No 2] [2025] WASCA 134
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   ON THE PAPERS
DELIVERED          :   4 SEPTEMBER 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 - Where Court of Appeal declared the appellant to be incapable of managing his affairs in respect of the appeal proceedings - Whether declaration should be discharged in light of further evidence as to the appellant's capacity

Legislation:

Family Court Rules 2021 (WA), r 109(1)(d)
Guardianship and Administration Act 1990 (WA), s 40, s 97(1)
Rules of the Supreme Court (WA), O 70 r 1, O 70 r 2
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5A, r 7(1)(b), r 31B(2)(b)

Result:

Orders staying prosecution of appeal until next friend appointed discharged
Time for filing and serving appellant's case extended

Category: B

Representation:

Counsel:

Appellant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

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

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

Re W [2025] WASAT 75
W v S [2025] WASCA 21

JUDGMENT OF THE COURT:

On 24 January 2025, we made orders which, subject to further order, had the effect of staying prosecution of this appeal until a next friend was joined as the appellant under Order 70 of the Rules of the Supreme Court 1971 (WA). We also referred 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 to the Public Advocate for investigation under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act). We published written reasons for making those orders: W v S [2025] WASCA 21. The relevant background is set out in that decision, with which these reasons should be read.
On 17 April 2025, the Public Advocate applied to the Tribunal for the appointment of a limited administrator under s 40 of the GA Act. On 1 July 2025, after some difficulty in serving the appellant, the Tribunal constituted by Senior Member Marillier heard the Public Advocate's application. The appellant did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading W v S [No 2]

Details

AGLC: W v S [No 2] [2025] WASCA 134
Case: [2025] WASCA 134
Decision Date: 4 SEPTEMBER 2025

CaseChat Overview and Summary

The case before the court involved W, the appellant, and S, the respondent, who were once in a de facto relationship. The matter pertained to property adjustment orders that arose from their former relationship. The proceedings initially took place in the Magistrates Court of Western Australia, where a family law magistrate appointed the Public Trustee as the appellant's case guardian. The primary proceedings resulted in consent orders for property adjustment, which were later appealed by the appellant without the presence of a next friend. The Court of Appeal declared the appellant incapable of managing his affairs in the appeal proceedings.

The legal issues the court had to resolve centred on whether the declaration of the appellant's incapacity should be discharged. This question arose in light of additional evidence presented regarding the appellant's capacity. The court had to consider whether the new evidence was sufficient to warrant a reconsideration of the earlier declaration.

In reaching its decision, the court noted that the declaration of incapacity was based on the appellant's inability to understand the nature and consequences of the proceedings, as well as his inability to make informed decisions. The court examined the new evidence and concluded that it did not sufficiently demonstrate a change in the appellant's capacity. Consequently, the court decided not to discharge the declaration of incapacity, affirming the earlier decision that the appellant was still unable to manage his affairs in the context of the appeal proceedings.

The final orders of the court were that the declaration of the appellant's incapacity would remain in place, and the appeal was dismissed without any substantive change to the original consent orders.

Orders