Court rules for mentally impaired litigants

Order 70 of the Rules of the Supreme Court deals with the practice and procedures which apply when one or more parties to litigation have a mental impairment and what happens to any damages awarded to a person in such circumstances.

The relevant part of the Order is set out in full below;

1. Terms used

In this Order unless the contrary intention appears —

Act means the Guardianship and Administration Act 1990;

person under disability means —

(a) A person who is an infant; or

(b) A represented person; or

(c) A person not being a person referred to in paragraphs (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates;

represented person means a represented person within the meaning of the Act.

[Rule 1 inserted in Gazette 22 Jul 1994 p. 3746.]

2. Persons under disability suing or defending

[Rule 2 amended in Gazette 28 Jun 2011 p. 2552.]

3. Next friend or guardian ad litem, appointment of

(a) A plenary guardianship or administration order has been made under the Act; or

(b) A limited guardianship or administration order has been made under the Act, which authorises the guardian or administrator, as the case may be, to conduct legal proceedings in the name of the person under a disability or on his behalf,

the guardian or administrator shall act as next friend or guardian ad litem, as the case may be, of the represented person in any proceedings unless, in a case to which subrule (5) or (6) or rule 6 applies, some other person is appointed by the Court to be the next friend or guardian ad litem, as the case may be, of the represented person in those proceedings.

(a) The name of any person shall not be used in a cause or matter as next friend of a person under disability; and

(b) An appearance shall not be entered in a cause or matter for a person under disability; and

(c) A person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, summons or motion, which, or notice of which has been served on him,

unless and until the documents specified in subrule (8) have been filed.

(a) A written consent to be next friend or guardian ad litem, as the case may be, of the person under disability, signed by the person proposing to act as such friend or guardian; and

(b) Where the person proposing to be the next friend or guardian ad litem, as the case may be, of a represented person is authorised under Part 5 or Part 6 of the Act to conduct proceedings in the cause or matter in question in the name of the represented person or on his behalf, a copy of the order made under Part 5 or Part 6 of the Act giving such authority; and

(c) Except where the person proposing to be such friend or guardian of a represented person is so authorised under Part 5 or Part 6 of the Act, an affidavit by the solicitor for the represented person deposing —

(i) That he knows or believes, as the case may be, that the person to whom the affidavit relates is an infant or a represented person, stating (in the case of a represented person) the grounds of his knowledge or belief; and

[(ii) Deleted]

(iii) That the person named in the affidavit as next friend or guardian, as the case may be, has no interest in the cause or matter in question adverse to that of the person under disability; and

(iv) That in the case of an infant (who is not a represented person) who has attained the age of 14 years, the infant consents to the person named in the affidavit acting as such next friend or guardian, as the case may be.

[Rule 3 amended in Gazette 22 Jul 1994 p. 3746‑8; 28 Jun 2011 p. 2552‑3.]

4. Probate actions, special provisions for

(a) In the case of a represented person, he is the guardian or administrator appointed under Part 5 or Part 6 of the Act to conduct legal proceedings in the name of the represented person;

(b) In the case of an infant (who is not also a represented person) he is the statutory or testamentary guardian of the infant;

(c) In the case of an infant who has attained the age of 16 years (who is not a represented person) nobody is qualified to be such next friend or guardian by virtue of paragraph (b) and the person is one of the next of kin of the infant and has been appointed by him or her to act as his or her next friend or guardian ad litem.

(a) Where the next friend or guardian ad litem is the statutory or testamentary guardian of the infant, an affidavit deposing to the guardianship, and the age of the infant, and showing that the guardian has no interest in the action adverse to that of the infant;

(b) Where paragraph (a) does not apply —

(i) The appointment by the infant;

(ii) The written consent to act as next friend or guardian ad litem, as the case may be, of the person so appointed;

(iii) An affidavit deposing to the age of the infant and proving the fitness and willingness of the proposed next friend or guardian ad litem to act as such and that he has no interest in the action adverse to that of the infant, and is a next‑of‑kin of the infant.

[Rule 4 amended in Gazette 30 Nov 1984 p. 3952; 22 Jul 1994 p. 3748; 30 Jun 2003 p. 2631; 28 Jun 2011 p. 2552 and 2555.]

5.  No appearance by person under disability, procedure on

(a) In an action against a person under disability begun by writ, or by originating summons to which an appearance is required to be entered, no appearance is entered for that person; or

(b) The defendant in an action serves a defence and counterclaim on a person under disability who is not already a party to the action, and no appearance is entered for that person,

the plaintiff or defendant, as the case may be, before proceeding further with the action or counterclaim must, after the time limited (as respects the person under disability) for appearing, make an application to the Court for an order appointing a guardian ad litem of that person, and giving consequential directions.

(a) That the person to whom the application relates is a person under disability; and

(b) That the person proposed as guardian ad litem consents and is a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability; and

(c) That the writ, originating summons, defence and counterclaim, or third party notice, as the case may be, was duly served on the person under disability; and

(d) Subject to subrule (6) that notice of the application was, after the expiration of the time limited for appearance, and at least 7 days before the day named in the notice for hearing the application, duly served on him.

6. Time for application by person under disability to discharge or vary order under O. 18 r. 7

An application to the Court on behalf of a person under disability on whom an order made ex parte under Order 18 rule 7 has been served, for the discharge or variation of the order must be made —

(a) If a next friend or guardian ad litem is acting for that person in the cause or matter in which the order is made, within 14 days after the service of the order on that person;

(b) If there is no next friend or guardian ad litem acting for that person in that cause or matter, within 14 days after the appointment of such friend or guardian to act for him.

7. Removal of next friend or guardian

8. No implied admission from pleading

Notwithstanding anything in Order 20 rule 14(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in his pleadings.

9. Discovery and interrogatories

Orders 26 and 27 shall apply to a person under disability and to his next friend or guardian ad litem.

10. Settlement etc. of action by person under disability

(a) If made before the hearing of a cause or matter, shall be by summons in chambers;

(b) If made during the trial of an action or issue, shall be to the trial judge on motion,

and shall be supported by affidavit and by the opinion of an independent counsel; but the Court or judge may dispense with the necessity of obtaining counsel’s opinion.

10A.  Settlement etc. of appeal by person under disability

If a person under disability is a party to an appeal to the Court of Appeal, any settlement or compromise of the appeal is subject to the Supreme Court (Court of Appeal) Rules 2005.

[Rule 10A inserted in Gazette 29 Apr 2005 p. 1793.]

11.  Settlement etc. before action commenced

(a) Approval of the settlement or compromise, and for such orders and directions as may appear necessary for the protection and investment of any property or funds relating to the settlement or compromise and the application of the income and/or capital for the benefit of the person under disability; or

(b) Alternatively, directions as to the further prosecution of the claim.

12.  Control of money recovered for person under disability

(a) In any proceedings money is recovered by or on behalf of or is adjudged or ordered or agreed to be paid to or for the benefit of a person under disability; or

(b) In any proceedings money paid into court is accepted by or on behalf of a plaintiff who is a person under disability; or

(c) In an application under rule 11(1) the Court has ordered the payment into court or investment of any moneys relating to a settlement or compromise,

the money shall, unless otherwise ordered by the Court, be paid to the Public Trustee for investment on behalf of the person under disability, and if the Court so orders may be invested by the Public Trustee in investments outside the Common Account established under the Public Trustee Act 1941.

13. Personal service on person under disability

(a) If he is aged 16 years or upwards, on him;

(b) On one of his parents or his guardian;

(c) If he has no parent or guardian, on the person with whom he resides or in whose care he is.

(a) On the person (if any) who is authorised under Part 5 or Part 6 of the Act to conduct the proceedings in the name of the represented person or on his behalf; or

(b) On the Public Trustee if the person is a represented person within the meaning of the Public Trustee Act 1941; or

(c) If paragraph (a) or (b) does not apply, on the person with whom the represented person resides or in whose care he is.

Agreeing to take on the role of next friend is not to be considered lightly and can expose a person to person liability for costs in the event that the claim is not successful as was the outcome in Farrel v Royal Kings Park Tennis Club 2007 WASCA 173 in which the court made the following comments;

In NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247, Sackville J summarised the history of the office of next friend. His Honour said, at 253 – 254 [27] – [29]:

“Under the general law, because of an infant’s inability to bind himself or herself, or to incur liability for costs, the infant was incapable of bringing an action without the assistance of some other person responsible to the court for the proper conduct of the suit: Daniell’s Chancery Practice (7th ed, 1932), p 116. This person was known as the next friend (or ‘prochein amy’ in the earlier cases), apparently because he or she was usually a near relative of the plaintiff. If an action was instituted by an infant without a next friend, the defendant could apply to have the action dismissed: p 116. The limitation on the capacity of infants did not extend to matters of substantive entitlement or liability, since at common law an infant could sue and be sued: Haines v Leves (1987) 8 NSWLR 442 at 449 (CA) per Street CJ. The limitation on capacity was procedural.

One reason for requiring an infant plaintiff to sue by a next friend was so that there would be a person answerable to the defendant for the costs of the litigation, although the defendant could waive this benefit: Daniell’s Chancery Practice, p 116; Ex parte Davis (1901) 1 SR (NSW) 187 at 189. The next friend was liable for all costs incurred in the actions brought by the infant, until the infant attained his or her majority: Blight v Tredgett (1851) 5 De G & SM 74; 64 ER 1024;Simpson on the Law of Infants (3rd ed, 1909), p 391. The next friend could be attached for the non-payment of the costs of an action in which the defendant obtained a verdict: Radford v Cavanagh (1899) 15 WN (NSW) 226a. However, the next friend was ordinarily entitled to recover the costs from the infant’s estate (if there was one), provided he or she acted bona fide: Pritchard v Roberts (1873) LR 17 Eq 222.

The next friend was regarded as an officer of the court appointed to safeguard the interests of the infant: Rhodes v Swithenbank (1889) 22 QBD 577 at 579 per Bowen LJ; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113-114 per Williams J; Ex parte Davis. The conduct of the proceedings was in the hands of the next friend: Rhodes v Swithenbank at 578 per Lord Esher MR. The next friend was not, however, a party to the action: Pink v J A Sharwood & Co Ltd [1913] 2 Ch 286 at 289 per Eve J. The next friend derived his or her authority from the court, not the infant, and could be removed if, for example, he or she acted improperly or had an interest adverse to that of the infant: Stephenson v Geiss [1998] 1 Qd R 542 at 557 per Lee J; Simpson on the Law of Infants, pp 384-385.”

In Dissidomino by her next friend Dissidomino v Butcher Paull & Calder (A firm) [2005] WASCA 210, Wheeler JA (with whom Roberts-Smith JA and Miller AJA agreed) approved the observations of Sackville J in NSW Insurance in relation to the office of next friend. Her Honour added, at [20]:

“The most significant features of that summary for present purposes are that the next friend is liable for all costs incurred in actions brought by the infant, although ordinarily entitled to recover those costs from the infant’s estate, and that the next friend is not, however, a party to the infant’s action.”

I agree, with respect, with that statement. It applies to any person under a disability, including a person in respect of whom a guardian has been appointed with the functions mentioned in s 45(2)(g) and (h) of the Guardianship and Administration Act: see [5] above. Wheeler JA’s statement is not confined to an infant.

Accordingly, it is well-established that if an action brought by a plaintiff under a disability is dismissed, and the defendant is awarded costs, the next friend of the plaintiff is personally liable to the defendant for the costs. See, in addition to NSW Insurance and the cases cited by Sackville J, Re Brocklebank; Ex parte Brocklebank (1877) 6 Ch D 358 at 360 – 361; Flannagan v Flannagan (1880) 6 VLR 77; Rhodes v Swithenbank (1889) 22 QBD 577 at 578 – 579. Also, it is well-established that if the next friend has acted properly, he or she is entitled to an indemnity from the plaintiff or out of any fund to which the plaintiff is beneficially entitled. See, in addition to NSW Insurance and the case cited by Sackville J, Murray v Kirkpatrick (1940) 57 WN (NSW) 162 at 163. And generally see Williams, Civil Procedure Victoria, Vol 1 at [15.02.50]; Quick on Costs at [4.4440]. Those principles also apply where a person under a disability, whose action has been dismissed, appeals.

Although impecuniosity is not a ground for ordering the next friend of a plaintiff under a disability to provide security for costs at first instance, impecuniosity may be a ground for ordering security where the person under a disability appeals against the dismissal of his or her action. See Swain v Follows (1887) 18 QBD 585 at 587 – 588; Hall v Snowdon, Hubbard & Co [1899] 1 QB 593 at 594 – 595; Wilcox v Wallis Crown Cork and Syphon Co (Lim) (1914) 58 Sol Jo 381 at 382. Generally see The Supreme Court Practice 1999, Vol 1, at [23/3/16].