Renae Michelle Syme as Personal Representative of Graeme John White v Graeme John White, Brian Peter White and Gavin Mathew White as Partners in the Partnership Trading as the Pe White and Sons Partnership

[2026] WASC 161

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Parties
3. › Persons under disability — Next friend — Appointment — Whether prior declaration of incapacity required before commencement of proceedings
1. Practice and Procedure
2. › Parties
3. › Persons under disability — Proceedings commenced irregularly — Whether nullity or irregularity — Leave to regularise
1. Partnership
2. › Dissolution
3. › Partner of unsound mind — Two of three partners under disability — Best interests of incapable partner — Section 46(a) Partnership Act 1895 (WA)
1. Partnership
2. › Management
3. › Exclusion from management decisions — Joint administrator's right to participate — Section 34(5) Partnership Act 1895 (WA)

Quick Take

The Court held that proceedings commenced by a person purporting to act as authorised representative of persons under a disability, rather than as their next friend, are irregular but not a nullity and may be regularised by amendment. Where one plaintiff's incapacity was established by medical evidence and the joint donee/co-administrator (the opposing party) had not obtained leave from the Tribunal, the Court granted leave to substitute the next friend as first plaintiff, but stayed the second plaintiff's claim pending the State Administrative Tribunal's reconsideration of the joint administration appointment given the co-administrator's arguable conflict of interest. The Court left open whether O 70 r 1's requirement that a person be 'declared by the Court' incapable mandates a prior declaration before proceedings are commenced, noting this language appears unique to Western Australia.