Court Rules for Mentally Impaired Litigants

November 1st, 2015

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;

 Order 70 — Disability

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

      (1)     Subject to subrule (4) a person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not 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 him, except by his 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 shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.

      (3)     A next friend or guardian ad litem of a person under disability must act by a solicitor.

      (4)     A judge may by order permit an infant to sue or defend or take part in any proceedings to which the order relates, without a next friend or guardian ad litem on being satisfied that in the circumstances of the case it is proper to do so.

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

3.            Next friend or guardian ad litem, appointment of

      (1)     This rule does not apply in relation to a probate action.

      (2)     Save as provided by subrules (5) and (6) or by rule 5, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.

      (3)     If a person under a disability is a represented person in respect of whom —

                  (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.

      (4)     In respect of a represented person within the meaning of the Public Trustee Act 1941, the Public Trustee shall be the next friend or guardian ad litem as the case may be.

      (5)     Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.

      (6)     Where, after the commencement of any proceedings, a party thereto becomes a person under a disability, an application shall be made to the Court for the appointment of a next friend or guardian ad litem, as the case may be, of that party.

      (7)     Unless the next friend or guardian ad litem of a person under disability has been appointed by the Court, is a guardian or administrator referred to in subrule (3), or is the Public Trustee —

                  (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.

      (8)     The documents referred to in subrule (7) are as follows —

                  (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

      (1)     This rule applies in relation to a probate action.

      (2)     Save as provided in subrule (3) a person shall not act in a probate action as next friend or guardian ad litem of a person under disability unless he has been appointed to so act by the Court.

      (3)     A person may act as next friend or guardian ad litem in a probate action without an order of the Court where —

                  (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.

      (4)     Where a person is entitled to act as next friend or guardian ad litem of a person under disability without an order of the Court the writ beginning the action (where such person is the plaintiff) must not be issued, and an appearance must not be entered for him in the action (where he is a defendant, intervener or person cited) without the consent of a master.

      (5)     On the application for a consent under subrule (4) there must be produced to the master, in the case of a represented person a copy of the order under Part 5 or Part 6 of the Act authorising the next friend or guardian ad litem to conduct legal proceedings in the name of the represented person, and in the case of an infant —

                  (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

      (1)     Where —

                  (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.

      (2)     Where a party to an action has served on a person under disability who is not already a party to the action, a third party notice within the meaning of Order 19 and no appearance is entered by that person to the notice, the party serving the notice before proceeding further with the third party proceedings must make an application to the Court after the time limited (as respects that person) for appearing for an order appointing a guardian ad litem of that person and giving consequential directions.

      (3)     Where in any proceedings against a person under disability begun by motion or by originating summons to which no appearance need be entered, that person does not appear by a guardian ad litem at the hearing of the motion or summons, the Court hearing it may appoint a guardian ad litem of that person in the proceedings, or direct that an application be made for the appointment of such a guardian.

      (4)     At any stage in proceedings under any judgment or order, notice of which has been served on a person under disability, the Court may, if no appearance is entered for that person, appoint a guardian ad litem of that person in the proceedings or direct that an application be made for the appointment of such a guardian.

      (5)     An application under subrules (1) or (2) must be supported by evidence proving —

                  (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)     The Court may order that notice of an application under subrules (1) or (2) need not be served on a person under disability.

      (7)     An application for the appointment of a guardian ad litem pursuant to a direction of the Court under subrule (3) or (4) must be supported by evidence proving the matters referred to in subrule (5)(b).

               [Rule 5 amended in Gazette 28 Jun 2011 p. 2552‑3.]

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

      (1)     The Court may of its own motion or on the application of a party to any proceedings or of any other person remove a next friend or guardian ad litem, and may stay proceedings until a next friend or guardian ad litem in place of the one removed has been appointed.

      (2)     An application under this rule shall be by summons which, unless the Court otherwise orders, must be served on the next friend or guardian ad litem whose removal is sought and on the person under disability.

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

      (1)     No settlement or compromise, and no acceptance of money paid into court, whenever entered into or made, in any cause or matter (other than an appeal to the Court of Appeal) in which there is a claim by or on behalf of or against a person under disability, shall be valid unless it is approved by the Court.

      (2)     An application for approval under subrule (1) —

                  (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.

      (3)     In this rule settlement includes an acceptance of an offer to consent to judgment.

               [Rule 10 inserted in Gazette 7 Oct 1977 p. 3602; amended in Gazette 29 Apr 2005 p. 1795; 28 Jun 2011 p. 2552.]

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

      (1)     Where a claim which is enforceable by proceedings in the Court is made by or on behalf of or against a person under disability, and before proceedings to enforce the claim are commenced an agreement is reached for settlement or compromise of the claim, and it is desired to obtain the Court’s approval to the agreement for settlement or compromise the next friend of the person under disability or the person making the claim against the person under disability may issue an originating summons for —

                  (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.

      (2)     Where in proceedings under this rule an application is made in respect of a claim under the Fatal Accidents Act 1959, the originating summons must include the particulars mentioned in section 8 of that Act.

12.          Control of money recovered for person under disability

      (1)     Where —

                  (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.

      (2)     The Court may at any time, and from time to time, give directions for the application of the income or of the capital and income of the investment for the maintenance, welfare, advancement, or otherwise for the benefit of the person under disability.

               [Rule 12 amended in Gazette 12 Jun 2012 p. 2452.]

13.          Personal service on person under disability

      (1)     Where in any proceedings, a document is required to be served personally on any person and that person is a person under disability then, subject to Order 26 rule 15(3) and Order 27 rule 8(3), personal service must be effected in accordance with this rule.

      (2)     Where the person under disability has a next friend or guardian ad litem in the proceedings the document may be served on such next friend or guardian.

      (3)     Where the person to be served is an infant (who is not also a patient) and has no next friend or guardian ad litem in the proceedings, the document may be served —

                  (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.

      (4)     Where the person to be served is a represented person and has no next friend or guardian ad litem in the proceedings, the document may be served —

                  (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.

      (5)     Notwithstanding anything in subrules (2), (3) and (4) the Court may order that a document which has been, or is to be, served on the person under disability, or on a person other than a person mentioned in that subrule shall be deemed to be duly served on the person under disability.

      (6)     A document served pursuant to any of subrules (2) to (5) must be served in the manner required by these rules with respect to the document.

      (7)     A judgment or order requiring a person under disability to do, or refrain from doing any act, a notice of motion or summons for the committal of any person under disability, and a subpoena against any such person, must notwithstanding anything contained in subrules (2) to (5), be served personally on him, unless the Court otherwise orders.

      (8)     Subrule (7) does not apply to an order for interrogatories or for discovery or inspection of documents.

               [Rule 13 amended in Gazette 15 Jun 1973 p. 2250; 22 Jul 1994 p. 3748; 21 Feb 2007 p. 576; 28 Jun 2011 p. 2552‑3 and 2555.]

 

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;

The office of next friend

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.”

The liability of a next friend for the costs of the other side and the making of a security for costs order against a next friend

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 Insuranceand 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].