Protecting the Estate's Interests: The Need for Independent Legal Advice for Executors

Introduction

In Hall v Hall [2023] WASC 342, Christopher Hall brought proceedings against his brother Michael Hall in Michael's capacity as executor of their mother Alwyn's estate, and in Michael's personal capacity.

An issue arose as to whether the firm acting for Michael in both capacities, Taylor Smart, owed potentially conflicting duties to him in those different capacities.

Facts

Michael was appointed executor of Alwyn's estate, which was valued at over $9 million ([31]).

Christopher sought various orders requiring Michael as executor to take action against Michael personally relating to loans, property improvements and unpaid rent ([35]-[37]).

Michael opposed the orders sought ([39]).

Taylor Smart (lawyers) acted for Michael as executor and personally, filing affidavits and submissions without distinguishing his capacities ([65]).

The court noted Taylor Smart had prepared Alwyn's will and power of attorney ([65]), and there was no evidence Michael as executor had independent advice about potential claims against Michael personally ([68]-[69]).

Analysis

In Hall v Hall, Howard J considered Taylor Smart's representation of Michael in his personal and executor capacities gave rise to a potential conflict of duties ([66]).

His Honour stated it was "imprudent, at the least" for Taylor Smart to act for Michael in these potentially conflicting capacities without distinguishing between them ([70]).

The court has a supervisory role over its officers to ensure the administration of justice, which includes ensuring solicitors avoid acting where there are conflicting duties.

Michael as executor was entitled to be advised independently about potential claims against Michael personally ([68]-[69]).

Michael ought to consider his positions and obligations as executor and personally, and obtain independent advice, given the potential conflict ([74]).

The court refrained from making any order at that time, but considered it sufficient to raise the obvious matter ([75]).

To Name or Not to Name? An Analysis of Confidentiality Exceptions for Identifying Parties in Guardianship Proceedings

Introduction

The decision in Australian Broadcasting Corporation v Public Trustee [2022] WASC 85 concerned an application by the ABC under cl 12(8)(d) of sch 1 of the Guardianship and Administration Act 1990 (WA) (the Act) for a direction permitting it to publish reports about guardianship proceedings which identified the parties involved.

The facts concerned an application brought by one of AC's children resulting in orders appointing the daughter as AC's guardian and the Public Trustee as administrator of AC's financial affairs. AC died 15 months later.

The ABC sought to include AC's case in a Four Corners report on the Public Trustee system and public guardian nationally. The children of AC consented to being identified.

The key issue was the construction of cl 12(8)(d) and whether the court had a general discretion or whether exceptional circumstances had to be shown.

Facts

The facts are set out at [6]-[12].

In summary, the ABC was investigating the Public Trustee and public guardian systems nationally and sought to include AC's case as one of four case studies in a Four Corners report ([6]-[9]).

Orders were made in June 2015 appointing AC's daughter as guardian and the Public Trustee as administrator.

AC died 15 months later in September 2016 ([10]). AC's children consented to the application and being identified ([11]-[12]).

Law

The general position under the Act is confidentiality of proceedings, evidenced by ss 112-113 and sch 1 ([15]-[16]). The exceptions are set out in sch 1 cl 12(8), including cl 12(8)(d) which permits publication pursuant to a direction of the Tribunal or court ([16]).

The requirement for confidentiality is consistent with the protection afforded to vulnerable members of the community ([26]). However, statutes affecting open justice should be construed to minimise intrusion on that principle where possible: Hogan v Hinch [2011] HCA 4 at [27] ([28]).

In construing cl 12(8)(d), the ordinary meaning of "notice" and "report" should be adopted in the absence of any contrary intention ([29]-[30]). The clause confers a general discretion on the court, subject only to limits implied from the Act's scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] ([33]).

Guidance can be obtained from Family Court decisions on the identically worded Family Law Act provision: AH v SS (2005) 194 FLR 111 at [10]-[11] ([31]-[32]). However, there are no express constraints on the discretion and the court should not impose any not implied from the Act's scope and purpose ([37]).

All logically relevant factors should be considered including privacy, freedom of communication and the represented person's position ([37]).

Analysis

French CJ's statement in Hogan v Hinch supports a broad construction of cl 12(8)(d) to minimise intrusion on open justice ([28]).

The ordinary meaning of "notice" and "report" encompasses the proposed Four Corners program ([29]-[30]).

The clause confers an unconstrained discretion subject only to limits implied from the Act's scope and purpose ([33]).

While guidance can be obtained from Family Court decisions ([31]-[32]), no constraints on the discretion should be imposed other than those implied from the Act ([37]).

Logically relevant factors include privacy, freedom of communication and the represented person's position ([37]).

Here, AC was deceased and the children consented ([39]).

There was public interest in the Public Trustee's operations and the Act's operation ([40]).

The rights of AC and others would not be unduly infringed by the direction. In all the circumstances, the discretion should be exercised to permit identification ([41]).

One Star Review: Damages for Defamatory Google and Facebook Reviews

Introduction

In Lyell Steven Allen t/as AVL Electrical Services v Godley [2023] WADC 54, the District Court of Western Australia considered the assessment of damages in a defamation claim brought by an electrician against six defendants, including Nathan James Simpson, for one-star business reviews posted on Google and Facebook. The court found the reviews conveyed imputations that the plaintiff provided poor quality services and awarded $35,000 general and aggravated damages against Simpson.

Facts

The plaintiff operated an electrical services business and marketed it on Google and Facebook. Prior to December 2018, he had a five-star rating on both platforms (at [40]-[46]). In November 2018, a dispute arose between the plaintiff and his neighbour, the first defendant, regarding a Christmas lights display. On 14 December 2018, the first defendant changed his positive Google review of the plaintiff’s business to a one-star review without explanation (at [50]-[56]). That day, the second defendant, who was the first defendant’s sister, also posted an unexplained one-star Google review of the plaintiff’s business (at [57]). Over the following days, the third, fifth and sixth defendants, who were connected to the first defendant, posted similar one-star Google reviews (at [58]-[59]).

On 19 December 2018, the fourth defendant, Simpson, posted a one-star Google review and a one-star Facebook review stating the plaintiff was a “grinch” he would not recommend (at [59]). The plaintiff had never provided services to Simpson or the other defendants except the first defendant (at [59]). Following the reviews, the plaintiff’s Google rating dropped to 4.4 out of 5 stars (at [62]). The plaintiff claimed the reviews conveyed imputations including that he provided poor quality services that should be avoided (at [69]).

Law

To establish defamation, the plaintiff must prove the defendant published defamatory matter to a third party which identified the plaintiff and lowered his reputation (Armstrong v McIntosh [2020] WASC 31 at [224]). Once established, damage to reputation is presumed (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 247, 250). Damages serve to compensate hurt feelings, repair harm to reputation and vindicate the plaintiff (Armstrong at [225]). Aggravated damages may be awarded where the defendant’s conduct increased injury to the plaintiff (Armstrong at [236]).

Analysis

Justice Gillan found Simpson’s non-appearance meant he admitted publishing the reviews and they carried the imputations pleaded (at [25]). Her Honour was prepared to infer from the circumstantial evidence that third parties searched for electricians online, saw the reviews and the plaintiff’s Google hits increased after they were posted (at [79]-[80]). This established publication to third parties. The imputations concerning poor quality services seriously damaged the plaintiff’s professional reputation and lowered his standing, making them defamatory (Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]; Armstrong at [224]).

Justice Gillan accepted the reviews caused the plaintiff serious hurt and distress (at [88]). She awarded $35,000 general and aggravated damages, taking into account the plaintiff had settled with other defendants but Simpson’s refusal to apologise or remove the “grinch” review justified additional damages (at [96]). Her Honour also granted an injunction requiring Simpson to remove the reviews (at [97]). The defendant’s failure to make a settlement offer or respond to proceedings meant indemnity costs were appropriate (at [101]).

Conclusion

The decision illustrates that publishing false negative online business reviews can have serious ramifications in defamation. Where reviews damage a plaintiff’s professional reputation and cause distress, substantial damages may follow. Refusing reasonable settlement offers or a retraction may lead to aggravated damages and indemnity costs. Plaintiffs should act promptly to request removal of unjust reviews.

Assessing Capacity: Independence of Decision-Making Under the GA Act

Introduction

This blog examines the issue of whether capacity under the Guardianship and Administration Act 1990 (WA) (GA Act) is assessed by reference to a represented person's ability to make decisions independently of others.

The analysis is based on the Western Australian State Administrative Tribunal decision in DL [2023] WASAT 66, which involved an application to review a decision to appoint a limited guardian for Mr L, a 59-year old man with an intellectual disability.

In submissions, it was argued on behalf of Mr L that he did not require a guardian as he had capacity to make simple everyday decisions, particularly with assistance from others.

Facts

In DL [2023] WASAT 66, the Tribunal reviewed a decision to appoint the Public Advocate as Mr L's limited guardian with authority over treatment decisions and service decisions.

Mr L opposed the appointment of a guardian, arguing he was capable of making simple everyday decisions with assistance and did not require a guardian [34].

Medical evidence indicated Mr L had capacity to make simple decisions but not complex ones independently [13], [15]-[16].

The Tribunal found Mr L did not have capacity to make complex personal decisions independently and appointed Mr W as his limited guardian for service decisions [17], [29]-[30].

Law

Section 43(1)(b) of the GA Act provides that a guardian can be appointed for a person who is "unable to make reasonable judgments in respect of matters relating to his person".

Under section 4(3), an adult is presumed to have capacity to make decisions about personal matters until the contrary is proved.

Analysis

The Tribunal held that in assessing capacity under section 43(1)(b), it must consider a person's ability to make decisions independently of others [17]. While Mr L could make simple everyday decisions with support, he lacked capacity to make more complex decisions without assistance [16]-[17]. As Davis J said in RE QD [2019] WASAT 112 at [43], capacity under the GA Act is assessed by reference to an ability to make decisions independently.

The Tribunal cited medical evidence indicating Mr L could follow medical advice and make simple decisions, but could not understand complex illnesses or make complicated medical choices without oversight [12]-[15]. This aligned with evidence that Mr L would struggle with complex NDIS decisions [24]. The Tribunal accepted he could make simple choices with support, but the GA Act required consideration of his independent ability to make more complex personal decisions [17].

Although Mr L opposed the appointment of a guardian, the Tribunal held the presumption of capacity in section 4(3) was displaced by the evidence demonstrating he could not independently make reasonable judgments on complex matters relating to his person, meeting the test in section 43(1)(b) [16]-[17]. As Bell J said in RE GD [2018] WASAT 33 at [29], while views of the represented person must be considered, the Tribunal is not bound to accept those views if the evidence indicates otherwise.

Conclusion

The Tribunal in DL confirmed that in assessing capacity under section 43(1)(b) of the GA Act, the relevant consideration is whether the represented person can make reasonable judgments independently in relation to personal matters, not their ability to make decisions with assistance. The Tribunal will consider the represented person's views but does not have to accept those views if satisfied the test in section 43(1)(b) is met based on the evidence.

Awards of Costs in Guardianship Proceedings: Exceptions to the General Rule

Introduction

In CK [2023] WASAT 84, the State Administrative Tribunal considered whether to make a costs order in a guardianship and administration matter.

CK, an elderly man with dementia, was the subject of applications by his children P and V relating to the validity of enduring powers and the appointment of an administrator and guardian.

P sought an order that V or CK pay some or all of his legal costs.

The Tribunal held that the circumstances were not sufficiently exceptional to justify a departure from the starting position that parties bear their own costs.

Legal principles

The Tribunal's primary concern in guardianship and administration proceedings is the best interests of the person concerned (CK [2023] WASAT 84 at [15], citing Guardianship and Administration Act 1990 (WA) s 4(2)).

Under s 16(4) of the Guardianship and Administration Act 1990 (WA), the Tribunal has discretion to order costs be paid to a party by the represented person if satisfied the party acted in the represented person's best interests.

However, such awards are uncommon, generally only when the applicant's actions benefit the represented person (CK [2023] WASAT 84 at [16]-[17], citing Y and CO [2020] WASAT 166 at [32] and Re WA and IA Ex parte AA and JA [2011] WASAT 33 at [59]-[60]).

The starting point is that parties bear their own costs (CK [2023] WASAT 84 at [18]-[19], citing RK [2020] WASAT 53 (S) at [22] and State Administrative Tribunal Act 2004 (WA) s 87(1)).

Under s 87(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal may order a party to compensate another party's expenses resulting from the proceeding, although not to punish (CK [2023] WASAT 84 at [20], citing Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56 at [61]).

The Tribunal has discretion to award costs in any proceeding, to be exercised based on the circumstances and whether it is fair and reasonable (CK [2023] WASAT 84 at [21], citing GD [2022] WASAT 33 at [59]).

Relevant considerations include whether a party unnecessarily prolonged the hearing, acted unreasonably, or caused increased costs through unreasonable conduct (CK [2023] WASAT 84 at [21], citing GD [2022] WASAT 33 at [59]).

Analysis

In CK's case, the Tribunal held the circumstances were not sufficiently exceptional to justify departing from the starting point that parties bear their own costs.

P argued legal representation was required due to the complexity and his fraught relationship with V. He was not precluded from applying without legal advice as he was an admitted but non-practicing lawyer.

The conflict and allegations were not unusually complex for guardianship proceedings (CK [2023] WASAT 84 at [27]-[33]).

Prior cases awarding costs involved greater incapacity uncertainty, property transactions by the represented person, or applicants unreasonably pursuing applications (CK [2023] WASAT 84 at [31]-[32], citing Re IO; Ex parte VK [2008] WASAT 8 and LC and JS [2007] WASAT 127).

Regarding V paying P's costs, the Tribunal held V's irrelevant evidence about P did not warrant compensation. P incurred further expense obtaining translations unnecessarily after investigations commenced (CK [2023] WASAT 84 at [37]-[40]). The flaws in V's submissions did not cause delay or obstruction (CK [2023] WASAT 84 at [41]-[42]).

Prior cases awarding costs involved more sustained unreasonableness or inappropriate conduct (CK [2023] WASAT 84 at [43]-[45], citing Re WA and IA Ex parte AA and JA [2011] WASAT 33, PJC and RJC [2008] WASAT 224 and WD [2022] WASAT 12 (S)).

Conclusion

The circumstances did not justify departing from the starting position that parties bear their own costs. Awards of costs in guardianship and administration proceedings remain exceptional.

Assessing Capacity: Weighing the Evidence in Guardianship and Administration Proceedings

A key issue in guardianship and administration proceedings is assessing whether the person has capacity to make reasonable judgments about personal, medical and financial matters. The State Administrative Tribunal must be satisfied the person lacks capacity in the relevant domain before making guardianship or administration orders (Guardianship and Administration Act 1990 (WA), ss 43, 64).

The Tribunal's primary consideration is the best interests of the person (s 4(2)). Every person is presumed capable until proven otherwise (s 4(3)). Orders should not be made if less restrictive alternatives are available (s 4(4)). The person's views and wishes must be ascertained and considered (s 4(7)).

In the decision of NB [2023] WASAT 88, the State Administrative Tribunal considered an application to appoint an administrator for NB due to concerns about her vulnerability to financial scams.

NB and her husband LB had inherited around $700,000. However, over a short period NB spent or committed to spend all but $75,000 - $80,000 of her share through involvement in an online romance scam. Despite strong evidence she was being defrauded, NB persisted in sending money for a car she believed was gifted by a famous musician she was in contact with online.

NB relied on financial help from family for living expenses while providing money to scammers. Medical evidence indicated NB had mild cognitive impairment affecting financial judgement.

The Tribunal weighed all evidence in concluding NB lacked capacity for financial matters and required an administrator to protect her estate.

A finding of incapacity must be based on evidence, not assumptions. As stated in XYZ (Guardianship) [2007] VCAT 1196 at [69], cognitive tests like the Mini Mental State Examination can place too much weight on language, education and cultural factors. Direct observation of functioning may be more insightful (XYZ at [66]).

The definition of 'mental disability' is inclusive, not exhaustive, and does not require a medical diagnosis (FY [2019] WASAT 118 at [32]). The cause may be unclear but the disability evident. The key issue is whether the person can make reasonable judgments in the relevant domain.

Medical evidence will often be important. In NB [2023] WASAT 88, greater weight was placed on evidence of a consultant physician over a GP. MRI and PET scans showed mild cerebral abnormalities but no neurodegenerative dementia. However, the doctor considered the represented person still had some vulnerability to financial scams and uncertainty judging complex finances (NB at [25]-[27]).

Non-medical evidence provided further proof of incapacity. The represented person's persistent vulnerability to scams, inability to critically evaluate fraud warnings, dismissiveness of family advice, anger at their interventions, and continuing belief she was in contact with a famous musician she admired showed lack of insight and judgement (NB at [29]-[40]).

Assessing capacity requires analysing and weighing all evidence. Medical evidence alone may not indicate incapacity, especially if the person functions highly in other respects. But corroborating non-medical evidence of impaired functioning in daily life can prove incapacity.

Tribunals must evaluate the person's ability to make reasonable judgements in the relevant domain - personal/lifestyle, medical, financial and legal affairs. Financial capacity requires balancing income against necessary living expenses and financial goals, devising a budget, assessing contracts and expenditure, meeting debts, and resolving problems (FY at [53]).

In NB, despite intelligence and past financial responsibility, the represented person lacked reasonable financial judgement. She relied on family for living expenses while sending money to scammers, wanted to spend most of a sizeable inheritance on a luxury car, and would likely deplete remaining funds rapidly without prudent management (NB at [42]-[46]). This demonstrated inability to budget, prioritise essentials, understand contracts and expenditure implications, and meet debts.

Keeping Clients Informed: The Obligation to Revise Cost Estimates

In Luscombe v Australasian Solicitors Pty Ltd trading as HHG Legal Group [2023] WASCA 141, a client retained lawyers for a family law matter.

The lawyers' costs agreement estimated $35,000-$95,000 if proceedings became prolonged.

A short while afterwards, the lawyers requested $50,000 from the client's daughter's estate for costs. The client argued the lawyers failed to provide a revised estimate as required when there was a substantial change to the previous disclosure.

The client argued the lawyers failed to comply with their obligation to provide a revised estimate when there was a substantial change to the previous costs disclosure. She submitted that when new issues emerged, including the request for $50,000 from her daughter's estate in July 2019, no revised estimates were provided as required under section 267 of the Legal Profession Act 2008 (WA).

The lawyers submitted in response that the client did not properly articulate what the 'substantial change' was to the previous disclosure. They argued that because the original disclosure estimated a range of $35,000 to $95,000, the request for $50,000 from the estate did not amount to a substantial change requiring further disclosure under section 267. The $50,000 fell within the range originally estimated.

Key legal principles from Luscombe on revising cost estimates:

• There was an implicit finding by the first instance Judge that by the date the $50,000 was requested, there had been a substantial change requiring a revised estimate under s267 Legal Profession Act 2008 (WA) (Mullins JA at [80]).

• The lawyers' request for payment for trust money from an external party did not constitute proper written disclosure of the substantial change as required by s267 (Mullins JA at [81]).

• Litigation lawyers should be capable of providing estimates of costs in difficult litigation along with variables affecting estimates (Vaughan JA at [7]).

• Uncertainties in predicting required work can be reflected by appropriate qualifications of estimates (Vaughan JA at [7]).

• What is required are estimates, not guaranteed predictions (Vaughan JA at [7]).

• Lawyers should explain variables potentially affecting estimates and qualify estimates for uncertainties (Vaughan JA at [7]).

• Estimates can be qualified where precise estimates are difficult due to imponderables (Vaughan JA at [7]).

• Focus should be practical estimates based on experience, not guaranteed predictions (Vaughan JA at [7]).

The Intersection of Ademption and Guardianship: A Detailed Exploration

In guardianship law in Western Australia, the intersection of the principle of ademption and the provisions of guardianship and administration sometimes give rise to complex legal issues.

Ademption: An Overview

Ademption is a legal principle that, in essence, stipulates that a specific gift in a will ceases to exist, or is 'adeemed', if the asset or property is disposed of prior to the death of the testator.

This results in the intended beneficiary neither receiving the specific item nor any substitution. However, exceptions to this principle exist in instances of fraud or if the disposal lacked appropriate legal authority.

The Case "ISH [2021] WASAT 169" in Context

ISH [2021] WASAT 169 is a case wherein the principle of ademption was central to the Tribunal's deliberation.

The issue involved potential sale of a house that had been bequeathed in a will purportedly executed in 2007. The crux of the matter was the appropriate treatment of the sale proceeds: should these be merged with the general estate or held separately to uphold the intended bequest?

Interplay with Guardianship and Administration Act 1990 (WA)

The Guardianship and Administration Act 1990 (WA) (the GA Act) proved instrumental in this case.

Section 72 and certain parts of Schedule 2 of the GA Act provide the Tribunal with wide-ranging discretionary powers to maintain the nature or quality of any property within an estate.

This includes directing that the sale proceeds of an asset be placed in a separate bank account.

The Implication in "ISH [2021] WASAT 169"

In ISH [2021] WASAT 169, these provisions were invoked to safeguard the proceeds from the sale of the represented person's house from being amalgamated with the general estate.

This potential amalgamation may have impaired the applicant's claim to these proceeds, thereby potentially contravening the testator's intent.

The Tribunal's handling of the law of ademption in an earlier case, JEB [2016] WASAT 65, underscored a degree of uncertainty in the law's status in Western Australia.

However, in ISH [2021] WASAT 169, the Tribunal circumvented this uncertainty by utilising the extensive powers granted under the GA Act to issue the directions sought by the applicant.

The Best Interest Principle

The Tribunal also reiterated its obligation to act in the best interests of the represented person, which encompasses the consideration of the person's expressed or inferred wishes.

Enshrined under section 4(7) of the GA Act, this principle underscores the importance of acknowledging the autonomy and preferences of the represented person.

Key Take-Aways

• The Tribunal's handling of ademption involves the intricate balance of rigid legal principles and the discretionary powers under the GA Act.

• This approach illustrates a pragmatic response to the complexities that arise in guardianship and administration matters.

The 'Monumental' Costs of Large-Scale Litigation: Insights from the Santos-Fluor Dispute

A recent case in the Supreme Court of Queensland between Santos Limited and Fluor Australia Pty Ltd (Santos Limited v Fluor Australia Pty Ltd & Anor [2023] QSC 77) provides a clear picture of the financial scale associated with large-scale litigation.

The case centres around a dispute over alleged overpayments made by Santos to Fluor during a coal-seam gas project construction between 2011 and 2014.

Santos alleges overpayments to Fluor. Before initiating proceedings, Santos conducted a year-long investigation into these alleged overpayments​.

The court referred questions arising on pleadings to 3 referees. Hearings were heard before the referees between November 2021 and August 2022. The referees submitted a draft report on 7 March 2023 and allowed parties to make further written and oral submissions in April 2023​.

The sheer magnitude of this litigation is evident in the resources invested. Santos reported expending over 120,000 solicitor hours, $36.5 million in expert fees, $21 million in counsel fees, and $2.5 million in other costs. The scale of the litigation extended beyond financials, with the parties disclosing over 5.7 million documents, 14 experts producing 81 expert reports, and 90 lay witnesses providing 178 witness statements.

The Judge noted that the parties are “engaged in litigation on a monumental scale”, marked by numerous interlocutory disputes and appeals.

The Defendants applied to stay the conduct of the reference (to the Referees) until further order, presumably until the hearing and determination of the substantive application. In his reasons given for dismissing the application, the Judge stated that the costs associated with finalising the referee report were likely to be "relatively insignificant in the scheme of this litigation."

The Santos-Fluor dispute underscores the complexity and cost that can be associated with litigating large resource and infrastructure projects. As this case continues to unfold, it serves as a stark reminder of the potential financial implications of such large-scale disputes.

Joinder & Scandalous Affidavits in Defamation Cases: Insights from Souraki Azad -v- Jose [2023] WASC 160

In defamation, issues about the: (a) joinder of parties and (b) scandalous affidavits, commonly arise. Both arose in the recent case of Souraki Azad -v- Jose [2023] WASC 160.

Joinder

The joinder process allows for additional parties to be included in an ongoing lawsuit.

Souraki Azad -v- Jose

In Souraki Azad -v- Jose, the plaintiff and defendant were medical doctors.

The plaintiff sought to join the Australian Health Practitioner Regulation Agency (AHPRA) to his defamation case.

The plaintiff accused AHPRA of conspiring against him, thus playing a role in the defamation.

The Court, following the principles established in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [58] and the Rules of the Supreme Court 1971 (WA) Order 18 rule 3(2), scrutinized the plaintiff's application. What was required was a solid basis in the pleadings for the joinder of AHPRA.

Legal Principles

One of the key factors the court considered was whether the plaintiff had a 'colour of right' to the final relief - a principle established by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [18].

The 'colour of right' implies that the plaintiff must demonstrate a reasonable likelihood of entitlement to the relief they seek.

In this case, the court found no evidence that the plaintiff had a recognised basis in law to sustain final relief against AHPRA.

The court also scrutinized the balance of convenience, as well as the public interest, in this case.

The joinder application did not succeed.

Precision in Joinder Applications

Another noteworthy aspect of this case was the court’s attention to the precision and clarity in joinder applications. This vagueness in the application served as one of the justifications for dismissing the joinder application.

Scandalous Affidavits

When an affidavit crosses the line into scandalous territory, it can complicate proceedings and impact the fairness of the trial.

In Souraki Azad -v- Jose [2023] WASC 160, the plaintiff, Dr. Azad, filed a series of affidavits that were contested by both the defendant and AHPRA.

The affidavits contained serious, unsupported allegations of criminal wrongdoing by various persons, including representatives of the Medical Board and AHPRA, and included inappropriate images of children. Their counsel argued that these were scandalous, irrelevant, and oppressive, necessitating their removal from the court file.

Legal Framework: Order 37 Rule 7 RSC

The objections to the scandalous affidavits were grounded on Order 37 rule 7 of the Rules of the Supreme Court (RSC), which allows the court to strike out scandalous, irrelevant, or otherwise oppressive matter from an affidavit.

Court's Approach in Souraki Azad -v- Jose

In evaluating the scandalous nature of the affidavits, the court recognized the gravity of ordering the removal of affidavit material from the court file, stating it was an 'extreme step' that should be taken with great caution.

Despite the scandalous nature of the affidavits, the court decided to restrict access to these affidavits to the court and parties involved, rather than removing them entirely from the file.

This was an interim solution, with the option to revisit the removal application as the action progressed.