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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Litigation Guardian


A litigation guardian is appointed by the court when a litigant does not have the capacity to instruct their lawyer, either because they are aged under 18 or mentally impaired.

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

“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.
  • the litigation guardian can be appointed by application or by the court. A court can also remove or substitute them.
  • a person 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 suitable person cannot be found to appoint as a litigation guardian, a court can ask the Attorney-General to appoint someone.
  • the court can order that the costs and expenses of a litigation guardian be paid by a party or from the income or assets of the person for whom the guardian is appointed.

Cases

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 the woman was suffering from post-traumatic stress disorder and was incapable of giving evidence in the proceedings, but it did not address her ability to give instructions. The wife’s solicitors then obtained a psychiatrist report which stated the woman 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 a litigation guardian be appointed.

Somerville & Somerville [2014]

The court had to decide whether a woman’s personality disorder warranted the appointment of a litigation guardian to her in a parenting matter. 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 psychiatric and parenting 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 that gave the father sole custody and the mother extremely limited contact 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.

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.

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