The court appoints a litigation guardian when a litigant lacks the capacity to instruct their lawyer, either because they are mentally impaired or under 18 years of age.

A litigation guardian is required to act in best interests of the party and has the same obligations as a lawyer. The purpose of the role is to protect the rights of litigants who would otherwise be disadvantaged and court process. Lord Justice Chadwick in the 2003 case of Masterman-Lister v Brutton & Co said:

“The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend (mentally sound representative).”

Rules

Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 governs the use of a litigation guardian. Under Rules 3.12 to 3.18:

a person can be appointed to the role if they are an adult, have no interest in the proceeding adverse to the interest of the person needing the guardian, and can fairly and competently conduct the proceeding for the person needing the guardian.

A litigation guardian can be appointed by the court or by application. A court can also substitute or remove them.

A party to proceedings needs a litigation guardian “if the person does not understand the nature or possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”. Also, unless the court orders otherwise, “a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding”.

If a person suitable to be appointed as a litigation guardian cannot be found, the court can ask the Attorney-General to appoint someone.

The court can order payment of a litigation guardian’s costs and expenses by a party or from the income or assets of the person for whom the guardian is appointed.

Cases

Gallanders & Gallanders [2020]

A wife who had had a litigation guardian appointed to her by a court made an application to have them removed. However, once a litigation guardian has been appointed, only the litigation guardian can make such an application: r 11.09(1) of the Federal Circuit Rules (at that time) stated: “a person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian”. The parties were aged 88 and 91, and litigation guardians had been appointed to them due to their age-related incapacity in respect of court proceedings.

Somerville & Somerville [2014]

In a parenting matter, one issue was whether a woman’s personality disorder warranted the appointment of a litigation guardian to her. The court-appointed single joint expert determined that the mother was capable of “understanding the nature and possible consequence of court proceedings”. However, a psychiatrist engaged by the mother, to provide a parenting and psychiatric assessment of her, concluded she had impaired reasoning due to the personality disorder and lacked such capacity. Ultimately the court decided against appointing a litigation guardian. It made a parenting order giving the father sole parental responsibility and the mother very limited time with the children. The court stated the general principle that the decision as to capacity rests with the court but it will be guided by medical evidence.

Oliver & Gall [2008]

A wife applied for the appointment of a litigation guardian to act for her in a property settlement matter after she found it difficult to focus on and respond to questions during a conference with her solicitors. Her psychologist provided a report stating that she was suffering from post-traumatic stress disorder and was incapable of giving evidence in the proceedings, but the report was silent on the wife’s ability to give instructions. The wife’s solicitors then obtained a psychiatrist report which stated that she was suffering from post-traumatic stress disorder, major depression and anorexia nervosa and “would not be able to withstand the rigours of adversarial court proceedings”. The court determined that on the balance of probabilities the wife was not capable of giving adequate instruction for the conduct of the proceedings, and ordered the appointment of a litigation guardian.

Where to now?

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