Access to restricted documents concerning settlement under Order 70 Rule 10 of the Supreme Court Rules 1971 (WA) 

In Western Australia, a “next friend” is the mechanism the Supreme Court uses to ensure that people who cannot conduct litigation for themselves—such as children or adults lacking legal capacity—are adequately protected. Under Order 70 of the Rules of the Supreme Court 1971 (WA), a next friend is authorised to commence and manage proceedings on behalf of a person under a disability, not as a party in their own right, but as an officer of the Court whose overriding duty is to act in the vulnerable person’s best interests. 

The “next friend” role is tightly regulated: the next friend must act through a solicitor, must not have interests adverse to the person they represent, and remains subject to the Court’s ongoing supervision, including removal if they fail to discharge their protective function.

TF by next friend LP -v- BF as executor and trustee of the estate of AF [2021] WASC 485

was an application under O 70 r 10, Rules of the Supreme Court 1971 (WA) ensuring judicial protection where litigation involves a person who is legally regarded as being under a disability (for example, lacking litigation capacity).

1. Court approval is mandatory

Any settlement, compromise, or acceptance of money paid into court in a proceeding involving a person under a disability is invalid unless the Court approves it. Applying whether the person under a disability is bringing the claim, defending it, or is otherwise affected by it. The only exception is an appeal to the Court of Appeal.

2. The applicant must seek approval 

The procedure for obtaining approval depends on the stage of the proceedings:

• Before trial: making the application by summons in chambers.
• During trial: the application must be made to the trial judge by motion.

In either case, an independent counsel’s opinion addressing the merits of the settlement supported by affidavit evidence that it is in the person’s best interests. The Court retains a discretion to dispense with counsel’s opinion where appropriate.

3. What counts as a settlement

For the rule, “settlement” is defined broadly. It includes not only formal compromises but also the acceptance of an offer to consent to judgment.

In essence, the rule reflects the Court’s protective jurisdiction: it prevents settlements from being finalised without judicial scrutiny, ensuring that any resolution is fair and genuinely in the best interests of a person who cannot fully protect their own legal position.

The defendants were the plaintiff’s brother and two sisters. They appeared in dual capacities:

• as executors and trustees of the Will (first–third defendants); and
• as beneficiaries under the Will (fourth–sixth defendants).

Court approval was required because, on 26 August 2019, Master Sanderson had declared the plaintiff a person under a disability for the proceeding. Appointing a legal practitioner (LP) as the plaintiff’s next friend.

In addition, on 12 May 2020, the State Administrative Tribunal appointed LP as limited administrator of the plaintiff’s estate, authorising LP to obtain legal advice and to commence, defend, and (where appropriate) settle litigation connected with the plaintiff’s family-related disputes, including those involving partnerships, trusts and companies. LP acted pursuant to those orders.

Principles

The Court approached the approval application by applying the principles stated in Sosa v Carter [1978] WAR 123 for settlements requiring approval under O 70 r 10.

Evidence supporting the application

LP supported the application with a confidential affidavit sworn on 8 December 2021. It was confidential because it referred to and annexed legal advice obtained in the course of LP discharging her duties as next friend/administrator.

The affidavit annexed:

• three psychiatric reports by Associate Professor Macfarlane (28 May, 20 June and 7 July 2021); and
• An independent counsel’s opinion from Mr Hockley.

Although Mr Hockley both appeared for the plaintiff (on LP’s instructions) and authored the “independent” opinion, the Court was satisfied the opinion was balanced and could properly be treated as independent, consistently with the approach endorsed in Maas v O’Neill [2013] WASC 379.

The psychiatric evidence opined that the plaintiff met diagnostic criteria for delusional disorder (persecutory type) and would likely have difficulty providing reliable, consistent evidence under cross-examination. The reports also suggested her beliefs about the dispute prevented reasoned litigation decision-making, and that she was likely to react adversely to representatives acting contrary to her wishes (including attempting to remove them), in a way harmful to her interests, particularly given her history of costly litigation in pursuit of claims not objectively supported.

Merits of the proposed settlement

The Court identified the statutory foundation for family provision under ss 6–7, Family Provision Act 1972 (WA), and noted the established two-stage approach:

1. the “jurisdictional question” (adequacy of provision); then
2. discretion as to what provision should be ordered (per Lemon v Mead [2017] WASCA 215).

Key facts drawn from the affidavit evidence included:

• The plaintiff was 73, divorced, with one surviving child;
• at the date of death (11 November 2017), her assets were estimated at $6 million (including her home and an anticipated cash entitlement from the estate); and
• The estate was estimated at $10 million.

They will divide the residue into 16 parts:

• plaintiff: 3/16
• plaintiff’s daughter: 1/16
• each sibling (fourth–sixth defendants): 4/16.

A major driver of conflict was the plaintiff’s fixation on a supposed fixed beneficial entitlement in family discretionary trusts, based on her mother’s belief that she held about 21% of those trusts. The Court noted the plaintiff’s assertion of a “fixed entitlement” was inconsistent with the nature and constituting documents of discretionary trusts.

Settlement terms (deed 15 Oct 2021; variation 3 Dec 2021):

1. ~$1.39m representing the plaintiff’s cash inheritance component from the estate;
2. ~$1.2m for the purchase of the plaintiff’s minority interest in a Perth CBD property (net to plaintiff estimated at ~$900k after CGT); and
3. $1.9m paid by trusts over four years (30 June 2024 to 30 June 2027), protected through a new trust structure with the plaintiff’s daughter as one trustee/guardian (appointor) and an independent, financially qualified co-trustee, with vesting on the plaintiff’s death for the daughter.

The settlement resolved both the family provision claim and the plaintiff’s asserted trust-related claims, which the Court considered practically inseparable.

Should the settlement be approved?

The Court granted approval, considering:

• The family provision claim would have been difficult to win, and the pursuit carried a real risk not only of failure but of high adverse costs, potentially on an indemnity basis.
• The trust claims were also complicated to advance, remarkably, where they were inconsistent with the trust documents and where medical evidence cast doubt on the plaintiff’s reliability as a witness.
• The third payment was assessed as fair, acknowledging that discretionary beneficiaries generally cannot compel distributions of particular amounts; and
• LP had conducted exhaustive investigations, and there were no further sensible lines of inquiry.

Overall, the Court found the settlement overwhelmingly in the plaintiff’s interests and entered orders approving it.

Conclusion

Orders were made approving the settlement, with the Court to hear from the parties as to the precise form of the orders.

On 10 December 2021, the Supreme Court of Western Australia approved a settlement under O 70 r 10 of the Rules of the Supreme Court 1971 (WA). The settlement resolved TF’s family provision claim against her late mother’s estate and also addressed related disputes TF had raised concerning the administration of discretionary trusts established by her parents.

Earlier in the proceeding (26 August 2019), Master Sanderson had declared TF to be a person under a disability for the litigation and appointed LP, an experienced Sydney practitioner, as TF’s next friend.

Separately, on 12 May 2020, the State Administrative Tribunal appointed LP as limited administrator of TF’s estate, authorising LP to obtain legal advice, bring or defend proceedings, and settle disputes connected with TF’s family-related partnerships, trusts, companies and associated entities. By the time of settlement approval (10 December 2021), TF’s trust-administration grievances had not advanced to issued proceedings.

The access restriction order

Among the settlement-approval orders was an access restriction confining the court file to the parties, requiring leave for any other access, and specifically restricting access to LP’s affidavit (9 October 2021) and independent counsel’s opinion (3 December 2021). The order defined TF as a party only through her next friend.

This restriction—particularly the provision preventing TF from personally accessing the file—was sought by LP. LP’s concern was that TF, if given access (especially to LP’s affidavit and counsel’s opinion), would attempt to unravel the settlement by attacking LP’s integrity and those involved, in a way likely to harm TF’s own interests.

TF’s application for access and procedural steps

By letter dated 20 March 2023 to the Principal Registrar, TF sought access to:

1. all documents lodged by LP leading to approval of the “secret settlement”;
2. LP’s original 2019 application for next friend/litigation guardianship and the 26 August 2019 hearing transcript; and
3. invoices and any costs material lodged or served (including cost assessment material, or invoices sent to TF’s daughter).

TF said she needed these documents to support an application in the State Administrative Tribunal to end LP’s limited administration of her estate.

At a directions hearing on 13 April 2023, arrangements were made to compare documents on the court file with those on the Tribunal file (which TF could access). That comparison showed substantial overlap; in substance, TF’s request narrowed to the LP affidavit and counsel’s opinion.

On 9 May 2024, directions were made for affidavit and submissions on the access application, to be determined on the papers. Filing Opposing material (including an affidavit from the fourth defendant, LP’s affidavit and submissions) extending TF’s time multiple times, providing extensive written material on 29 August 2025

TF’s grounds in support of access

The judge noted TF’s materials were too voluminous to summarise sensibly, but distilled TF’s core contentions as including allegations that:

• LP negotiated a settlement contrary to TF’s best interests;
• LP engaged in deceitful conduct towards TF;
• TF’s incapacity had been fabricated; and
• the settlement was inadequate compared with the merits of TF’s claims.

Disposition and key reasoning

The Court dismissed TF’s application, making several central observations:

1. Declarations of disability are not made lightly. In this matter, TF had acknowledged on 30 July 2019 that she no longer had litigation capacity, in support of the incapacity declaration.
2. Evidence supported enduring incapacity and difficulty taking instructions. Materials before the court on settlement approval included a 5 December 2018 letter from TF’s former solicitors describing serious, persistent instruction-taking difficulties. The judge relied on this not to single out LP, but to show LP was not the only lawyer to encounter these problems.
3. LP’s evidence reinforced the capacity concerns. LP and counsel briefed by her described similar problems obtaining instructions and providing advice. The judge accepted TF’s inability to instruct and understand advice was not merely interpersonal friction but reflected deeper functional difficulties.
4. Capacity was lacking in 2019 and remained lacking through settlement approval in December 2021. The court expressed “no doubt” TF lacked capacity throughout that period.
5. TF’s submissions demonstrated ongoing impairment relevant to the protective jurisdiction. The court viewed TF’s very lengthy submissions (over 418 pages) as exhibiting the same kinds of difficulties that justified the disability declaration: sweeping allegations, fixation on detail, and inability to grapple coherently with the weaknesses in her claims.
6. Protective jurisdiction was central; access would undermine it. The disability declaration and settlement approval were characterised as protective steps. A significant protective benefit was resolving claims assessed as weak and avoiding the substantial risk that TF would incur high adverse costs through futile litigation. Given the declaration remained in force and still necessary, granting TF access would, in the judge’s view, be an improper retreat from that protective function.
7. No arguable basis to set aside the settlement. The court found there was “no remotely arguable” ground to challenge or set aside the approved settlement. Allowing access risked encouraging TF to believe such a challenge was realistic, when it was not.
8. Settlement overwhelmingly in TF’s best interests. Objectively, the court found TF’s claims weak and likely to fail; pursuing them would have likely resulted in dismissal and substantial cost exposure. The settlement protected TF from that outcome.

Outcome

Dismissal of TF’s application for access to the restricted documents.