Western Australian Consolidated Acts Western Australian Consolidated Acts (1) If a resident of a
retirement village has made a complaint to the Commissioner and the
Commissioner —
(a)
after investigating the complaint, is satisfied that the resident may have a
right to institute or defend proceedings under this Act; and
(b) is
of the opinion that it is in the public interest that the Commissioner should
institute, defend or assume the conduct of those proceedings on behalf of the
resident,
the Commissioner may
institute, defend or assume the conduct of those proceedings.
(2) The Commissioner
shall not institute, defend, or assume the conduct of, any proceedings under
subsection (1) on behalf of a resident without first obtaining the
written consent of the resident which once given shall be irrevocable except
with the consent of the Commissioner.
(3) In relation to any
proceedings referred to in subsection (1) the following provisions
apply —
(a) the
Commissioner shall, on behalf of the resident of the retirement village, have
in all respects the same rights in, and control over, the proceedings,
including the right to settle any action or part of any action, as the
resident would have had in the conduct of those proceedings;
(b) the
Commissioner may, without consulting or seeking the consent of the resident,
conduct the proceedings in such manner as the Commissioner thinks appropriate
and proper;
(c) in
the case of proceedings already commenced by or against the resident, the
State Administrative Tribunal or the court hearing the proceedings shall, on
the application of the Commissioner, order that the Commissioner be
substituted for the resident as a party to the proceedings, and may make such
other orders or give such other directions in that behalf as the State
Administrative Tribunal or the court thinks fit;
(d) any
moneys (excluding costs) recovered by the Commissioner shall belong and be
paid to the resident without deduction and any amount awarded against the
resident shall be paid by and recoverable from the resident, but in all cases
the costs of the proceedings shall be borne by or paid to and retained by the
Commissioner as the case may require; and
(e) if
any party to the proceedings alleges another cause of action, or if the
resident on whose behalf the proceedings are being defended has another cause
of action, the State Administrative Tribunal or the court hearing the
proceedings may, on the application of the Commissioner, order that the
proceedings for the other cause of action be heard separately and that the
party or the resident as the case may require be a party to those proceedings
in his or her own right and may make such other orders or give such other
directions in that behalf as the State Administrative Tribunal or the court
thinks fit.
(4) In any proceedings
referred to in subsection (1), a document purporting to be signed by the
Commissioner stating in respect of the proceedings that the Commissioner is
satisfied that the resident may have a right to institute or defend
proceedings under this Act and that it is in the public interest to institute,
defend, or assume the conduct of, the proceedings, as the case may be, on
behalf of the resident of the retirement village shall, in the absence of
proof to the contrary, be accepted as proof that the Commissioner instituted,
defended, or assumed the conduct of, the proceedings, as the case may be, in
accordance with that subsection.
(5) In any proceedings
referred to in subsection (1) a document purporting to be the consent of
the resident of the retirement village to the Commissioner instituting,
defending, or assuming the conduct of, the proceedings, as the case may be,
shall, in the absence of proof to the contrary, be accepted as proof of that
consent.
(6) Notwithstanding
anything in this section, if the State Administrative Tribunal or the court
hearing the proceedings is satisfied whether on application by the resident or
otherwise that any proceedings taken by the Commissioner under this section in
the name of a resident are not in the interests of the resident the State
Administrative Tribunal or the court, as the case may be, shall order that the
proceedings shall be —
(a)
discontinued; or
(b)
continued so as not to affect the interests of the resident and only in
accordance with such directions including directions as to costs, as the State
Administrative Tribunal or court, as the case requires, thinks just.
(7) Any costs
recovered by the Commissioner under subsection (3)(d) shall be credited
to the Consolidated Account.
(8) In this section
resident includes a prospective resident or former resident.
[Section 9 amended by No. 6 of 1993
s. 11; No. 49 of 1996 s. 64; No. 55 of 2004 s. 1044;
No. 77 of 2006 s. 4.]