| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WOOD -v- MINISTER FOR EDUCATION [2003] WADC 72 CORAM : BLAXELL DCJ HEARD : 29 SEPTEMBER 2000, 2 APRIL, 15 JUNE 2001, 6 DECEMBER 2002, 29 JANUARY, 19, 20 MARCH 2003 DELIVERED : Delivered Extemporaneously on 20 MARCH 2003 and edited by Trial Judge FILE NO/S : CIV 921 of 1994 BETWEEN : ANDREW PETER WOOD Plaintiff
AND
MINISTER FOR EDUCATION
Defendant
Catchwords: Practice and procedure - Person under a disability - Appointment of next friend - Whether proposed next friend suitable for appointment - Turns on own facts
Legislation: Nil
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Result:
Order appointing proposed next friend Representation:
Counsel:
Plaintiff : Mr R C Astill (until 15.6.2001)
Defendant : Ms I P L Loh
Solicitors:
Plaintiff : Unrepresented
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 BLAXELL DCJ: This is an application by the plaintiff for appointment of his mother, Arlen Wood, as his next friend. The application has been opposed by the defendant on the grounds that:
2 The history of the matter is that the writ was issued on 24 February 1994. It was issued by the plaintiff's mother as next friend because he was then an infant, having been born on 16 October 1981. 3 The plaintiff's claim is an unusual one based upon wrongful imprisonment and/or negligence. It is alleged that while the plaintiff was a student at Mt Lawley Primary School the staff disciplined him on numerous occasions by locking him up in a "time out" room. It is claimed that the detention of the plaintiff in this manner resulted in psychological trauma and an aggravation of his pre-existing attention deficit hyperactivity disorder. 4 Following the issue of the writ the action proceeded very slowly, and it would seem that one of the reasons for this was that the plaintiff and his mother had moved interstate. Until 1999 the Director of Legal Aid acted for the plaintiff, but in June of that year the solicitors D'Angelo & Partners were appointed to conduct the action. However, D'Angelo & Partners ceased to act for the plaintiff during 2001. Subsequently the plaintiff has been unrepresented, but I have allowed his mother to appear and make submissions in a role akin to that of a McKenzie friend. 5 On 16 October 1999 the plaintiff came of age, and accordingly the authority of his mother to act as next friend ceased. The present application was then brought for the plaintiff's mother to continue as next friend, on the ground that he is incapable of managing his own affairs by reason of an intellectual disability. 6 The affidavit in support of the application annexes a report (dated 22 March 2000) from Dr Christopher Lamb, a psychiatrist in South Australia who had been treating the plaintiff. In that report Dr Lamb expressed the opinion that:
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"Andrew is incapable of understanding the various issues that arise in litigation. He would be incapable of participating in useful discussions on compensation. He would be unable to provide instructions to his solicitor as to whether to accept or reject such offers. … A person with such poor judgment, lack of acceptance of consequences, and such poor understanding of legal processes would not be expected to be able to make reasoned decisions about complex legal matters … Andrew does not understand discussions regarding his treatment and medical condition … ." 7 There is no evidence to contradict that expert opinion, and there is no reason to suppose that the plaintiff's condition has changed since the date of Dr Lamb's report. I accordingly make the finding that by reason of his condition the plaintiff is incapable of managing his affairs in respect of the proceedings and is a person under a disability. 8 The remaining issue is whether or not the plaintiff's mother is suitable for appointment as next friend. As to that, the defendant has produced a considerable quantity of materials to support its contention that she is incapable of conducting the litigation in an impartial and objective manner. 9 These materials include numerous letters from the plaintiff's mother to the Crown Solicitor's Office, the Premier, the Prime Minister, and others, from which it could be easily inferred that she has the potential to become a vexatious litigant. 10 Another matter of concern arose from her statement made during submissions to myself that she intended to pursue the action to trial without the benefit of legal representation for the plaintiff. 11 In view of these concerns, my initial conclusion was that it would be more appropriate if some public authority such as a Public Trustee or Guardian could be appointed as the plaintiff's next friend. As the plaintiff was then resident in South Australia, the present application was adjourned to enable enquiries to be made of the Public Trustee, Public Advocate's Office, and the Guardianship Board in that State. 12 Unfortunately those enquiries became redundant when the plaintiff transferred his place of residence from South Australia to New South
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Wales. Enquiries were then made of the plaintiff's uncle, a solicitor practising in New South Wales, to see if he would act as next friend, but he eventually declined to do so. 13 Subsequently, enquiries have been made to the Public Advocate and the Public Trustee in this State on the basis that the plaintiff's claim is a chose in action within this jurisdiction, but to date those bodies have declined to act. The Public Advocate in turn has approached the Guardianship & Administration Board in New South Wales, but those enquiries have not yet borne fruit. 14 In the meantime, the plaintiff's action has continued to languish and a period of more than 2½ years has elapsed since the application was made for the plaintiff's mother to continue as next friend. In my view, a decision on the application can no longer be deferred, and the choice that must be made is either to dismiss the application or to appoint the mother as next friend. 15 If I was to dismiss the application the probability is that the plaintiff would take no further steps in the proceedings, and the action would then be dismissed for want of prosecution. That would be an outcome that on the information before me would clearly not be in the plaintiff's best interests. 16 If on the other hand, I make an order appointing the mother as next friend, there is a risk that she will not act in an impartial manner, and may make decisions in the proceedings based upon her own perceptions of alleged wrongdoing, rather than on what is objectively in the plaintiff's best interests. However, this risk is perhaps diminished by the fact that Mrs Wood has today filed an affidavit in which she effectively undertakes to seek legal representation for her son. Such an undertaking is necessary by reason of O 70, r 2(3) of the Rules of the Supreme Court which requires a next friend to act by a solicitor. 17 In the end, and with considerable reluctance, I have come to the view that the only way in which justice can reasonably be done is to make the order as asked in the application. 18 I accordingly order that Arlen Wood be appointed as next friend of the plaintiff.
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