JK -v- CSR PTY LTD [2026] WASC 278

[2026] WASC 278 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : JK -v- CSR PTY LTD [2026] WASC 278 CORAM : STRK J HEARD : ON THE PAPERS DELIVERED : 8 JULY 2026 FILE NO/S : CIV 2220 of 2025 BETWEEN : JK Plaintiff AND CSR PTY LTD First Defendant MIDALCO PTY LIMITED Second Defendant STATE OF WESTERN AUSTRALIA Third Defendant SHIRE OF ASHBURTON Fourth Defendant Catchwords: Practice and procedure - Application for declaration nunc pro tunc pursuant to O 70 of the Rules of the Supreme Court 1971 (WA) that a party is incapable of managing their own affairs in respect of the proceeding and the appointment of a next friend - Turns on own facts -- 1 of 12 -- [2026] WASC 278 Page 2 Legislation: Guardianship and Administration Act 1990 (WA) Rules of the Supreme Court 1971 (WA) O 70 Result: Application granted Category: B Representation: Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Solicitors: Plaintiff : Slater & Gordon (Perth) First Defendant : Jackson McDonald Second Defendant : Jackson McDonald Third Defendant : State Solicitor's Office Fourth Defendant : HWL Ebsworth Lawyers (Perth) -- 2 of 12 -- [2026] WASC 278 Page 3 Case(s) referred to in decision(s): A v City of Swan [No 5] [2010] WASC 204 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Hines v Phillips [1906] VLR 417 R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VR 445 Re Taylor ; Taylor v Taylor [1881] WN 81; 25 SJ 525 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 Scates v State Administrative Tribunal of Western Australia [2011] WASC 319 Snook v Magistrate Trevor Darge [2024] WASC 91 Spellson v George (1987) 11 NSWLR 300 -- 3 of 12 -- [2026] WASC 278 STRK J Page 4 STRK J: Introduction 1 By a writ of summons filed on 27 October 2025 the plaintiff commenced a proceeding in this Court against four defendants, CSR Pty Ltd, Midalco Pty Limited, the State of Western Australia and the Shire of Ashburton. The plaintiff's claim is for damages for personal injuries, loss and damage suffered by the plaintiff as a result of contracting mesothelioma and/or asbestos related malignancy and/or lung cancer, respiratory degeneration, pain, shock and psychological reaction, suffered as a consequence of her exposure to and inhalation of asbestos dust and fibres whilst residing in the township of Wittenoom, in the state of Western Australia, from about 1965 to about 1966. The plaintiff alleges that the said exposure to asbestos was as a consequence of the negligence of one or more of the name defendants, their servants and/or their agents. 2 The plaintiff is represented in the proceeding. She is 88 years old. On 10 March 2026 the action was entered into the Commercial and Managed Cases List. Each of the defendants has entered an appearance, and all but the fourth defendant have filed a defence to the plaintiff's pleaded claim. 3 By an application made by letter filed on 2 July 2026 on behalf of the plaintiff, orders were sought in the following terms: 1. The Court declares that the Plaintiff is under a disability pursuant to RSC Order 70 Rule 1 (c) of the Rules of the Supreme Court 1971 (WA) and [YZ] be appointed the next friend of the plaintiff for the purposes of these proceedings pursuant to Order70 Rule 3(6) of the Rules of the Supreme Court 1971 (WA). 1A. The declaration as made in Order 1, above, be effective as from 27 October 2025. 2. The heading of the action be amended to replace the name of the plaintiff with that of "[JK], by her next friend, [YZ]". 3. The plaintiff have leave to amend the Writ of Summons, issued on 27 October 2025, in terms of the Minute of Proposed Amended Writ of Summons, dated 2 July 2026. 4. The Minute of Proposed Amended Writ of Summons stand as the Amended Writ of Summons and any requirement for service thereof be dispensed with. -- 4 of 12 -- [2026] WASC 278 STRK J Page 5 5. The costs of this application be costs in the cause. 4 Because of the sensitivity of the matters involved, the names of the plaintiff and the proposed next friend have been anonymised. 5 Filed with the application was a minute of proposed orders dated 2 July 2026; a minute of proposed amended writ of summons dated 2 July 2026; the affidavit of Laine Ashforth-McDonald affirmed on 17 June 2026; the affidavit of YZ affirmed on 18 June 2026; and a notice of consent to act as next friend which was signed by YZ and dated 18 June 2026. 6 By the letter through which the application was made, the Court was informed that the solicitors for the defendants in this action had been informed of the nature of the orders sought by the application; and that there was no objection to, nor did any defendant consent to, the appointment of the proposed next friend. 7 The application was determined on the papers. Set out below are my reasons for granting the application. Evidence in support of the application 8 Two affidavits were filed in support of the application. The first was the affidavit of Ms Ashforth-McDonald affirmed 17 June 2026, to which was annexed seven documents marked LA1 to LA7. 9 Ms Ashforth-McDonald is a lawyer employed by Slater and Gordon (the firm of solicitors which act for the plaintiff in this proceeding), with conduct of this action. Among other things, Ms Ashforth-McDonald deposed that the plaintiff had been diagnosed as suffering from lung cancer; to the requests made by Slater and Gordon from 1 April 2026 of the plaintiff's treating doctor to ascertain whether the plaintiff was capable of managing her affairs in respect of this proceeding; to the arrangements made for the plaintiff to be reviewed in person by Dr Anne Khouri, an occupational physician registrar, on 28 May 2026 for the purpose of undertaking a capacity assessment; and to the basis for Ms Ashforth-McDonald's belief that the plaintiff should be declared to be a person under disability for the purposes of O 70. 10 Ms Ashforth-McDonald annexed to her affidavit a copy of the supplementary cytopathology report of Dr Anjali Mahadevan dated 12 August 2025; a copy of the report of Professor Fraser Brims, -- 5 of 12 -- [2026] WASC 278 STRK J Page 6 consultant respiratory physician, dated 10 December 2025; a copy of correspondence from Slater and Gordon to Dr Steven Cohen (the plaintiff's treating doctor) dated 1, 14 and 28 April 2026; a copy of a My Aged Care assessment of the plaintiff generated on 1 November 2023, recovered from the plaintiff's Osborne Park Hospital records; and a copy of the report of Dr Khouri dated 28 May 2026. 11 The second was the affidavit of YZ affirmed 18 June 2026, to which YZ annexed three documents. YZ is the plaintiff's daughter and proposed next friend. YZ deposed to the basis of her belief that the plaintiff had been diagnosed as suffering from lung cancer; to having been appointed on 27 December 2017 by the plaintiff as the plaintiff's attorney pursuant to an enduring power of attorney dated 27 December 2017; to having been appointed on 16 June 2021 by the plaintiff as her guardian pursuant to an enduring power of guardianship dated 16 June 2021; to her consent to act as next friend in this action on behalf of the plaintiff; and to her having no interest in this action adverse of that of the plaintiff. 12 YZ annexed to her affidavit a copy of the supplementary cytopathology report of Dr Mahadevan dated 12 August 2025; a copy of the enduring power of attorney dated 27 December 2017; and a copy of the enduring power of guardianship dated 16 June 2021. Disposition 13 Order 70 of the Rules of the Supreme Court concerns disability, and in O 70, unless the contrary intention appears, '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 paragraph (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates. 14 A represented person for the purposes of O 70 means a person in respect of whom a guardian or administrator has been appointed under the Guardianship and Administration Act 1990 (WA) with authority to do either or both of the following: -- 6 of 12 -- [2026] WASC 278 STRK J Page 7 (a) as the next friend of the represented person, to commence, conduct or settle on behalf of the represented person specified proceedings, some proceedings or all proceedings; (b) as the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person. 15 The plaintiff granted her daughter an enduring power of attorney by an instrument dated 27 December 2017 under the Guardianship and Administration Act pt 9. The power authorised YZ 'to do on my behalf anything that I can lawfully do by an attorney', and no conditions or restrictions were prescribed. The plaintiff also granted her daughter an enduring power of guardianship by an instrument dated 16 June 2021 under the Guardianship and Administration Act pt 9A. The plaintiff is not however a represented person for the purposes of O 70 (that is, a person in respect of whom a guardian or administrator had been appointed under the Guardianship and Administration Act pt 5 or pt 6). 16 Subject to an exception which has no application in this case,1 a person under disability cannot bring, or make a claim in, any proceedings except by the person's next friend.2 Where, after the commencement of any proceedings, a plaintiff becomes a person under disability, an application must be made to the Court for the appointment of a next friend of that party.3 17 If the Court proceeds to dispose of a matter in circumstances where there is material before the Court that suggests that a party may not have the capacity to handle their own affairs in the litigation, the proceedings become susceptible to challenge on grounds of irregularity: O 2 r 1.4 18 If a person under a disability commences a proceeding otherwise than by a next friend, the opposing party may apply to have the originating process set aside or for the proceedings to be stayed.5 1 Rules of the Supreme Court O 70 r 2(1)(a) and r 2(4). 2 Rules of the Supreme Court O 70 r 2(1)(a). 3 Rules of the Supreme Court O 70 r 3(6). 4 A v City of Swan [No 5] [2010] WASC 204 [65]. 5 Scates v State Administrative Tribunal of Western Australia [2011] WASC 319 [15], citing Spellson v George (1987) 11 NSWLR 300. -- 7 of 12 -- [2026] WASC 278 STRK J Page 8 However, on such an occasion leave to amend by adding the next friend can be given.6 19 It is well-established that there is a presumption that a person of full age is capable of handling their own affairs. The burden of proof rests upon the party asserting present incapacity.7 However, when put on notice that a person may lack the capacity to manage their own affairs in the litigation, the Court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence.8 20 Order 70 requires the Court to consider whether the relevant person is, by reason of mental illness, defect or infirmity, however occasioned, incapable of managing their affairs in respect of the proceedings. There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs. It will fluctuate according to the legal character, complexity and significance of the relevant transaction (also known as an 'issue-specific' approach).9 21 The expression 'incapable of managing her own affairs' must be construed in a common-sense way as a whole. It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation. A person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life. The expression involves a consideration of whether the person has sufficient mental capacity to understand the case, and the legal issues involved, to make decisions in relation to the case and (if instructing a solicitor) to give instructions. It has been described as:10 The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes … 6 Scates v State Administrative Tribunal of Western Australia [15], citing Hines v Phillips [1906] VLR 417 and R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VR 445. 7 Snook v Magistrate Trevor Darge [2024] WASC 91 [89(b)]; A v City of Swan [No 5] [66]. 8 Snook v Magistrate Trevor Darge [89(f)]; A v City of Swan [No 5] [68]. 9 Snook v Magistrate Trevor Darge [89(g)]; A v City of Swan [No 5] [70] - [71]. 10 Snook v Magistrate Trevor Darge [89(h)]; A v City of Swan [No 5] [71] - [73]. -- 8 of 12 -- [2026] WASC 278 STRK J Page 9 22 Ms Ashforth-McDonald attached to her affidavit a copy of the report of Professor Brims dated 10 December 2025. In his report Professor Brims recorded his opinion that the plaintiff is suffering from lung cancer and estimated her life expectancy prognosis. In the same report Professor Brims also provided an overview of the plaintiff's past medical history. Relevantly, he recorded that her history includes cognitive impairment with dementia. 23 Ms Ashforth-McDonald deposed to the steps taken from in April 2026 to secure the opinion of the plaintiff's treating doctor as to whether the plaintiff currently has the cognitive capacity to make reasonable decisions in relation to legal matters. As at the date of her affidavit Ms Ashforth-McDonald had not received the requested capacity assessment report. 24 On 19 May 2026 Ms Ashforth-McDonald was able to secure from the plaintiff's records held by the Osborne Park Hospital a copy of a support plan assessment report generated on 1 November 2023. The report records (among other things) that the plaintiff was referred for reassessment by her daughter (the proposed next friend) due to ongoing cognitive decline; and that as at the date of that report, the plaintiff had a diagnosis of dementia.11 That is, there is evidence of the plaintiff having been diagnosed with dementia before the commencement of this action on 27 October 2025. 25 Ms Ashforth-McDonald made urgent arrangements for the plaintiff to be reviewed in person by Dr Khouri on 28 May 2026 for the purpose of a capacity assessment. In her assessment report, which was dated 28 May 2026 and received by Ms Ashforth-McDonald on 8 June 2026, Dr Khouri recorded as follows: Executive Summary/Opinion ln my opinion, [the plaintiff] is an 88-year-old woman who has been diagnosed with cognitive impairment with dementia and in June 2025 was diagnosed with metastatic adenocarcinoma of the lung. The supporting documentation provided states that [the plaintiff] has 'Cognitive Impairment With Dementia' but no formal neuropsychological testing was available for review. A report on activities of daily living by Occupational Therapist Ms Natala Cogger notes that [the plaintiff] has had significant decline in her activities of daily living since her diagnosis of lung cancer in 2025. It does not 11 Affidavit of Ms Ashforth-McDonald affirmed on 17 June 2026, pars 9 - 10, LA6. See also LA2 (page 9) as to past medical history. -- 9 of 12 -- [2026] WASC 278 STRK J Page 10 specifically comment on whether there has been an associated acute deterioration of [the plaintiff's] cognition since that time. Based on my clinical assessment today, [the plaintiff] has signs consistent with severe cognitive impairment and is unlikely to have the legal capacity to provide instructions. However, capacity assessment in the context of severe dementia is outside the scope of an occupational physician, and an appropriate specialist should be engaged. 26 The plaintiff's legal representatives have, through the application and affidavits filed, brought to the Court's attention that the plaintiff may lack the capacity to manage their own affairs in the litigation. In the circumstances, the Court is bound to consider and decide whether the person has the requisite capacity based upon the available evidence. 27 Having given consideration to the evidence filed, and careful consideration as to whether the plaintiff has sufficient mental capacity to understand the proceeding and the legal issues involved, in order to make decisions in relation to the proceeding and (if instructing a solicitor) to give instructions, I am satisfied that it is appropriate to make the declaration sought, that by reason of mental illness, defect or infirmity, the plaintiff is declared incapable of managing her affairs in respect of this proceeding. 28 I turn to the appointment of a next friend. The appointment of a next friend is principally to ensure the proper protection of the interests of the person under a disability. It will therefore ordinarily be inappropriate to appoint a person as next friend if he or she has an interest adverse to the interests of the person under a disability.12 29 In the circumstances of this case, the Rules of the Supreme Court required that the following documents be filed before the name of the proposed next friend could be used in a cause or matter as next friend of the person under disability: (a) a written consent to be the next friend of the person under disability, signed by the person proposing to act as such friend; and (b) an affidavit by the solicitor for the person under disability deposing that the person named in the affidavit as next friend 12 Re Taylor ; Taylor v Taylor [1881] WN 81; 25 SJ 525; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 113 - 114, recently cited in 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 [74]. -- 10 of 12 -- [2026] WASC 278 STRK J Page 11 has no interest in the cause or matter in question adverse to that of the person under disability.13 30 In her affidavit YZ deposes that she consents to act as next friend in this action on behalf of the plaintiff, and further deposes to having no interest in this proceeding adverse to that of the plaintiff. A consent to act signed by YZ was also filed in the proceeding. In that document YZ confirmed that she authorises Slater and Gordon to act on her behalf. 31 In her affidavit Ms Ashforth-McDonald deposes that to the best of her knowledge, information and belief, YZ is a fit and proper person to act as next friend in this proceeding on behalf of the plaintiff, and has no interest in the proceeding adverse to the plaintiff. 32 By the affidavits and the filing of the consent to act provided by YZ, the conditions prescribed by O 70 r 3(7) have been met. I am satisfied that it is appropriate that YZ be appointed the next friend of the plaintiff for the purposes of this proceeding pursuant to O 70 r 3(6) of the Rules of the Supreme Court. 33 By proposed order 1A (reproduced at [3] of these reasons), it is intended that the declaration be effective nunc pro tunc, as from the commencement of the proceeding when the writ of summons was filed on 27 October 2025. 34 The Court has the power to grant the relief sought. There is a question as to whether the plaintiff had the requisite capacity when the proceeding was commenced by writ. To the extent that there was a failure to proceed by next friend, the failure was procedural and did not go to jurisdiction. Further, the defendants are on notice of the nature of orders sought and do not oppose the same; and the plaintiff will going forward have the oversight afforded by O 70 r 10 and O 66 r 24 of the Rules of the Supreme Court. In all of the circumstances, I am satisfied that the relief sought ought be granted, and the consequential orders sought ought be made. Conclusion 35 The application should be granted and a declaration made that the plaintiff is incapable of managing her affairs in respect of this proceeding. Orders will be made substantively in the form promoted in the application. 13 Rules of the Supreme Court O 70 r 3(7), r (8)(a) and r 8(b)(ii). -- 11 of 12 -- [2026] WASC 278 STRK J Page 12 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DS Associate to the Honourable Justice Strk 8 JULY 2026 -- 12 of 12 --