Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd

[2009] WASCA 33

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Parties
3. › Persons under a disability
4. › Next friend or guardian ad litem
5. › Whether court duty bound to inquire into capacity when put on notice by evidence
6. › Whether proceedings irregular if next friend not appointed when required
7. › Rules of the Supreme Court 1971 (WA), O 70
1. Practice and Procedure
2. › Parties
3. › Persons under a disability
4. › Presumption of capacity
5. › Whether presumption displaced by evidence to the contrary
6. › Effect of existing guardianship orders on presumption
1. Practice and Procedure
2. › Stay of proceedings
3. › Stay pending determination of party's capacity to conduct litigation
4. › Whether court may stay proceedings or orders under appeal to preserve subject matter of litigation

Quick Take

When a court is put on notice by evidence that a litigant may lack capacity to manage their own affairs, the court is duty bound to determine the capacity question before proceeding further. Failure to do so renders the proceedings irregular and exposes any resulting orders to being set aside on appeal. The existence of guardianship orders, prior litigation conducted by a next friend, and judicial observations about a party's disability are all matters that put the court on inquiry.