A guardianship for special circumstances

14th Jul 2021

It’s not a common scenario, but in circumstances where an individual is unable to act in their own best interests in court proceedings due to age or capacity, one option may be to appoint a litigation guardian. While the rules and regulations vary considerably across jurisdictions, the principles remain the same. This article aims to provide an overview of litigation guardians from a Victorian perspective.

What is a litigation guardian?

Litigation guardians are appointed by the court to manage the legal affairs of a party to a proceeding in circumstances where they are found to be a ‘person under disability’, for example, a person under the age of 18 or a person who cannot act in their own best interests.

Power to appoint

In Victoria, litigation guardians can be appointed under Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the County Court Civil Procedure Rules 2018 (Vic) (the Rules).

Reasons for appointment

In exercising its jurisdiction to appoint a litigation guardian, the court is acting both to protect the interests of the person under disability and to protect the court’s own processes.

Who can appoint a litigation guardian?

Order 15 of the Rules does not restrict who may apply to the court for the appointment of a litigation guardian. As such, a judge may raise the issue of incapacity on their own motion, or a litigation guardian may be appointed on application by a party’s solicitor.

Considerations for a ‘person under disability’

For the purposes of the definition under Rule 15.01, in Owners of Strata Plan No 23007 v Cross [2006] FCA 900 (Cross) Edmonds J identified the following factors as relevant to determining whether a party is a ‘person under disability’:

  • whether the person has the ability to understand that he or she requires advice in respect of the relevant legal proceeding;
  • whether the person has the ability to communicate this requirement to someone who can arrange an appointment with an appropriate advisor, or alternatively whether he or she can arrange such an appointment of his or her own accord;
  • whether the person has the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and
  • whether the person has the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.

Furthermore, Kyrou J in Slaveski v State of Victoria (2009) 25 VR 160 (Slaveski) identified the following additional factors as relevant considerations:

  • whether the plaintiff understands the factual framework for his or her claims and the type of evidence required to succeed in his or her claims;
  • whether the plaintiff is capable of understanding what is and is not relevant to the proceeding when these matters are explained to him or her; and
  • whether the plaintiff is capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time that the proposal is made.

Ordinarily, the court will determine whether a party is a ‘person under disability’ for the purposes of Rule 15.01 after receiving medical evidence. However, as was the case in Cross and Slaveski, where a party’s incapacity is readily apparent from his or her behaviour inside the courtroom, the court may be able to make the determination without the assistance of medical evidence.

Priam Nandan is a senior estate planning lawyer at Equity Trustees in Melbourne.

Equity Trustees was established in 1888 for the purpose of providing independent and impartial Trustee and Executor services to help families throughout Australia to protect their wealth. As Australia’s leading specialist trustee company, they offer a diverse range of services to individuals, families and corporate clients including asset management, estate planning, philanthropic services and Responsible Entity (RE) services for external Fund Managers.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Victoria litigation