Alford v State of Victoria
[2010] VSC 468
•21 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 04575
| JAMES ALFORD | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2010 (with subsequent written submissions on 14, 17 September 2010) | |
DATE OF JUDGMENT: | 21 October 2010 | |
CASE MAY BE CITED AS: | Alford v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 468 | |
PRACTICE AND PROCEDURE ― Litigation guardian ― Appointment by Court ― Proposed proceedings by infant plaintiff ― Absence of suitable person to be litigation guardian ― Proposed claim yet to be formulated ― Court appointment sought to enable investigation of proposed claim ― Court’s power to appoint before proceeding commenced ― Rule 15.02(1), 15.03 (4)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Ms E M James | DLA Phillips Fox |
HIS HONOUR:
This application by originating motion concerns the Court’s power to appoint a litigation guardian before a proceeding is commenced, and whether the power should be exercised if it exists. The predicament that actuates the application is unique. The approach to the Court could be described as perplexing.
Mark Tate is eight years old. His mother is Jennifer Tate. The person named as Mark’s father on his birth certificate is Jennifer Tate’s husband, Evan Tate. However, DNA testing has confirmed that the plaintiff, James Alford, is Mark’s biological father.
The plaintiff is in Fulham Prison serving a five year sentence of imprisonment for assaulting or attempting to murder Jennifer Tate (it is not clear to me which, but the material refers more to the latter) by stabbing. He has no contact with his son Mark and believes he remains in the care of Jennifer Tate. He says Jennifer Tate told him as from the time of Mark’s birth, that she intended to preclude the plaintiff from having any involvement in Mark’s life.
A solicitor engaged by the plaintiff, Katherine Ann Wilson, states that Mr Alford has been pressing the Department of Human Services to take action out of concern for his son’s welfare. She deposes –
The Plaintiff has instructed me that over a long period of time he consistently pressed the State of Victoria through the operation and services of the Department of Human Services and Victoria Police for action to be taken to protect and preserve the welfare of his son, but largely to no avail. From late April 2002 until early September 2007, despite numerous requests for assistance by the Plaintiff the Department of Human Services failed to make any protection application in relation to Mark Tate.
A protection application is made to the Children’s Court under the Children, Youth and Families Act 2005 for a finding that a child is in need of protection. Such an application originates under s 162 of the Act which describes the grounds on which, for the purposes of the Act, a finding may be made that a child is in need of protection. It includes the suffering, or likelihood of suffering, emotional or psychological harm of a kind that damages the child’s development and from which the child’s parents are not likely to give protection.[1] It also includes harm to the child’s physical development or health and the absence of basic care.[2]
[1]See s 162(1)(e).
[2]See s 162(1)(f).
The plaintiff’s solicitor exhibits an “Application and Disposition Report” dated 28 September 2007 expressed to be submitted by the Department of Human Services (“the DHS”) to the Geelong Children’s Court, said to be in the context of a DHS application for a supervision order against Jennifer Tate.[3] I am describing the report in that cautious way because the defendant here, the State of Victoria, has not filed any affidavit material as its opposition is based on legal grounds, but in its submissions it describes the report as having an “unknown provenance”. There was no challenge to the report’s authenticity or admissibility for the purposes of this application. I interpret the State’s attitude to be that the plaintiff or his solicitors have not said how that document, which is marked “Confidential Court Report”, was obtained. I am not sure, but I detect the State is saying that it should never have got into the plaintiff’s hands.
[3]Under s 280 of the Act, a supervision order gives the Secretary of the DHS responsibility for the supervision of the child and does not effect the guardianship or custody of the child and provides for the child to be placed in the day to day care of one or both of the child’s parents.
The report is not exhibited as being confidential, and I was not asked by counsel for either party to treat it that way. Despite that, I have my own reservations, so I shall not refer to the report’s contents any more than the bare necessity for present purposes. [4]
[4]The Act gives confidentiality when it comes to the possible identification of persons who notify or report to the authorities about a child in possible need of protection.
The report says the application before the Children’s Court was a protection application by the DHS. The grounds of the application were under s 162(e) and (f) of the Act, that is, on the grounds that the child’s parents have not protected, or are unlikely to protect the child from emotional or psychological harm or are unlikely to provide basic care or other remedial care. The report says Mark is the second oldest sibling of four. It does not say the plaintiff is the father of the other three children. There was concern about Mark’s aggressive conduct towards other children, his hygiene and presentation, and his epileptic condition. The report states a belief that the children have been exposed to an environment of neglect and minimal standard of care and have experienced past incidents of domestic violence on their mother. The parents struggle to manage the challenging behaviour of Mark given his identified intellectual disability. The children have been exposed to a chaotic and unstable home environment marked by domestic violence. There is an extensive history of child protection notifications, and DHS had made numerous intervention orders against Jennifer Tate including interim accommodation orders. The conclusion was that in the absence of effective intervention and change it was believed likely that Mark may suffer from harm and his mother had not and was not likely to protect him from that harm. There was evidence of a history of numerous separations and reunifications by Jennifer Tate and ongoing confusion and persistent low level of care. All children showed signs of developmental delay.
The report says that the child’s best interests were served by his remaining in the care of his mother. It says she displays a genuine love for all four children and a desire to do what is best for them, but lacks an adequate insight into the development needs of the children. The recommendation was that Mark Tate be placed on supervision order on condition that Jennifer Tate accept visits and co‑operate with the Department and accept support services as directed by the Department and go to counselling as directed by the Department.
There is no evidence whether the application proceeded and if it did, there is no evidence of the Court’ findings and orders, and the events concerning Mark since 2007.
The affidavit from the plaintiff’s solicitor states she has been instructed to “initiate a claim for damages on behalf of his son…for injuries sustained…by reason of acts and/or omissions of the State of Victoria regarding the care of Mark Tate.” The affidavit does not describe the acts or omissions which constitute an actionable wrongdoing, or the injuries caused. There is nothing else before the Court which discloses any facts to form a foundation for any claim against the DHS. I can only suppose the plaintiff’s grievance is that the DHS should have been more interventionist and obtained an protection order. The plaintiff is still in jail but his solicitor deposes that he has paid $21,909.20 into her firm’s trust account to cover disbursements, and the firm has agreed to investigate and prosecute the proposed claim on a conditional fee basis.
So how does this application come before this Court? There is no proceeding in the Court making a claim against the State for any damages suffered by Mark. Any such claim would have to be commenced by a litigation guardian as required by rule 15.02(1). That would ordinarily be by a parent, relative or friend. Nor is there before the Court evidence of the contents of a proposed proceeding by way of statement of claim. The plaintiff’s originating motion seeks this relief or remedy –
1.That the Court appoint a Litigation Guardian to represent the interests of MARK TATE a minor, and son of JAMES ALFORD, in proceedings claiming damages on behalf of MARK TATE from the State of Victoria as a result of acts or omissions of agents of the Crown in relation to the welfare of the said MARK TATE.
2.That the Court appointed litigation guardian have access to MARK TATE to enable medical examinations to be carried out for the purpose of these proceedings and be able to obtain records on behalf of MARK TATE.
3.Such further and/or other orders as the Court deems appropriate.
The difficulty is caused because the plaintiff says it would be inappropriate for him to be the litigation guardian. Having been imprisoned for attempting to murder the child’s mother, and believing that she is precluding him from having anything to do with the child, he does not wish to be seen as pursuing a vendetta and therefore not acting in the child’s best interests. Under rule 15.03 (1), a person may be a litigation guardian if he has no interest in the proceeding adverse to the person under disability. Under rule 15.03(6) a solicitor must certify that the solicitor knows or believes that to be so.
It does not fall for my decision, but I am not so sure that the enmity between father and mother means that the father has an interest “adverse” to the child. It must be assumed he is moved by love for his son, naturally no different to the assumption to be made about Mark’s mother. For the purposes of the rules of legal procedure, it is a different question whether it is in this child’s interests to have the father as a litigation guardian, and whether that could afford grounds for removal. In the circumstances the child’s mother cannot be the guardian. She may not take the same view about Mark’s condition or need for legal redress against DHS, or what is in her son’s best interests. She may regard the father’s concerns as misconceived or the result of a personal vendetta, or that the concerns and proposed action against the State might reflect adversely on her motherly care and standards.
It is said, but no evidence is adduced, that there is no other suitable person to act as litigation guardian. The plaintiff puts no one forward and makes no suggestion who the Court should appoint as litigation guardian. Is it to be an officer within the Court? Is it to be some other person solicited by the Court? An appointment is something more than a perfunctory step, particularly in a case involving human welfare. It is a serious undertaking, involves decisions about the conduct of litigation, and carries a liability for costs.
Moreover, this is not just a case of someone saying to the Court that a case exists and is ready to be commenced, but a suitable litigation guardian cannot be found, thereby requiring an approach to the Court to appoint someone as guardian. Counsel for the plaintiff, Mr Ingram, says a litigation guardian is being sought to investigate the case and gain sufficient information in order to obtain facts and instructions in order to properly commence a case. I understood him to be saying there could be sufficient now to “scratch together” a case which could be instituted bona fide and which might survive attack as being frivolous or vexatious or not disclosing a cause of action. Yet he acknowledged it would be premature to sue for alleged injuries without further investigation to discover all of the elements of the case in particular any injury that has been suffered as a result of the Department’s apprehended wrongdoing, and what the claimed compensation might be. That explains the claim made for a medical examination and records.
Thus I can only proceed on the basis that if a claim could be conceived and properly formulated, it could have been done by now. It is apparent that the plaintiff’s stratagem or object is to obtain discovery of relevant records and for a medical examination of the child so as to enable a litigation guardian to try and properly frame a claim to be brought against the State. It was submitted the Court has the power to order discovery in such circumstances “and that it is appropriate to order that the child be made available for medical examination in the event that the Defendant refuses to agree to independent medical assessment of the current health and welfare of the child for the purpose of proceedings proposed to be brought against it.”
I am afraid to say the plaintiff’s method, or its legal grounds, are not at all clear to me. As I said in argument, this resembles in part, an application for pre action discovery of documents under the rules. But it is certainly not being put that way. Rule 32.05 empowers the Court to order discovery from a prospective defendant if after making all reasonable enquiries, an applicant does not have sufficient information to decide whether to commence a proceeding in a court to obtain that relief. But there has to be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. And that precondition is presently lacking. Therefore, as the State submits, the plaintiff appears to be bypassing rule 32.05.
Putting aside the question of appointing a litigation guardian, the plaintiff has not put forward a principled basis, or procedural right, to ask for the discovery of documents it is seeking. The same can be said, with even greater force, for the application to have the child medically examined. If a proceeding is to be commenced, the child will be the plaintiff. It is not competent for the father, a non party, to use coercive civil procedure to have his son medically examined, certainly before a proceeding is instituted. A litigation guardian, properly appointed in a legal proceedings properly instituted, could arrange for that to be done voluntarily. Otherwise the only procedure for a medical examination is under rule 33 under which a defendant may seek medical examination of a plaintiff. That is of no avail here.
Thus, as things stand, this is the state of affairs: a proceeding has not been commenced; a case has not been formulated; Mr Alford wants to instigate the commencement of a case for his son against the State; he wants to first investigate the State’s documents and have his son medically examined. He wants a litigation guardian appointed for that purpose.
The issue
Putting aside for the moment the absence of properly conceived proceeding which someone wishes to institute, the first question posed by the State is whether the Court has the power anyway to appoint a litigation guardian before a proceeding is commenced. The only source of power is the rules. The plaintiff does not seek recourse to the Court’s inherent jurisdiction, but that is something I am bound to return to later.
The Court’s power of appointment of a litigation guardian is conferred under rule 15.03(4) which states:
(4)Where the interests of a party who is a person under disability so require, the Court may –
(a)appoint or remove a litigation guardian; or
(b)substitute another person as litigation guardian.
The State acknowledged that the rule does not, in terms, preclude the possibility of an appointment prior to the commencement of the proceeding, but it submits a proper construction of the rule leads to a contrary view. The expression “where the interests of a party who is a person under disability so require” calls for close attention to the words “of a party”. The State submits that “of a party” necessarily or naturally connotes “a party to a proceeding” so that the Court’s powers of appointment (or removal or substitution) arise after litigation has commenced when the person under disability has become a party. Otherwise, the State submits the words “who is a person under disability” would be redundant. If the rule was intended to cover a person not yet a party to a proceeding it could so easily have said “where the interests of a person under disability so require … “.
The plaintiff looks to the language of rule 15.02 and emphasizes that it says that “a person under disability shall commence a proceeding by his or her litigation guardian”. He relies upon a statement by Kyrou J in Slaveski v State of Victoria[5] concerning the expression “in relation to the proceeding” in rule 15.01. The issue in Slaveski concerned a plaintiff’s capacity after the commencement of proceedings. In the passage relied upon by the plaintiff , his Honour said:
The words ‘in relation to the proceeding’ in r 15.01 are important because they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction [emphasis by plaintiff]
[5]Above, at [27]
The submission seems to be that “party” in rule 15.03(4) can also mean someone who seeks to bring a proceeding. But I do not see how the passage from Slaveski supports that. It concerns a different issue. Nor do I see support from the words “a person shall commence” in rule 15.02. If anything that rule supports the State’s primary submission because that rule makes the linguistic distinction between a “person” and a “party”. After a person commences a proceeding then he or she becomes a party to the litigation.
Mr Ingram’s additional submission is that if a proceeding cannot be commenced without a litigation guardian, then the Court must have the power to make an appointment in the present circumstances otherwise how can a case be brought? There is an answer to that, to my mind. Although rule 15.02 is cast in mandatory terms, it is established that the failure to commence a proceeding by a litigation guardian does not render the proceeding a nullity, but an irregularity which is capable of being cured by a subsequent order: see Clarey v Permanent Trustee Co Limited [6] and Slaveski v State of Victoria. [7]But I think the question of what a Court could do if there truly was no person able to be litigation guardian for a case ready to be commenced ― and those words will loom large in my analysis to follow ― aids the determination of this application.
[6][2005] VSCA 128 at [53].
[7][2009] VSC 596 at [24].
I commence by saying I think the State is correct in its textual analysis. Rule 15.03 concerns, or assumes, a party to litigation already commenced. A problem of the sort here will not arise where a person under disability is sued as defendant. In that case the defendant will be a “party” and it is conceivable that a Court may be asked to make an appointment where no-one was willing or available to be litigation guardian. That happened in Deputy Commissioner of Taxation v P[8] a case I shall return to later
[8](1987) 11 NSWLR 200
A court may appoint (other than by substitution) a litigation guardian to a plaintiff party in an existing proceeding where the party is assessed subsequently as being unable to manage his or her affairs in relation to the proceeding. That is what happened in Slaveski v State of Victoria[9] after 22 days of trial. The Court there acted under rule 15.03(3) and appointed the party’s wife as guardian. In Clarey v Permanent Trustee Co[10] the mental illness of the plaintiff at trial, and the refusal of an adjournment and the failure by the trial Judge to appoint a litigation guardian were unsuccessfully argued on appeal to have resulted in a denial of natural justice. Another possibility, more apposite to a minor, is where a proceeding was commenced without a litigation guardian and the non compliance was then sought to be rectified by a Court appointment.
[9][2009] VSC 596.
[10][2005]VSCA 128 at [47] to [63].
Secondly, I would hold that the Court is not without power in the right case to appoint a litigation guardian before a proceeding is commenced where it was necessary to do so for the attainment of a pursuit of civil justice, and in the interests of the person under disability. It will be a rare case. Although it was not argued, and therefore the matter is open, I see two sources of possible power. First, rule 1.15 the Court has power to determine procedure where the rules are wanting or in doubt. Rule 1.15(3) speaks of an “application for directions with respect to the commencement of a proceeding” being brought by originating motion. If that was not enough, I think there could be recourse to the Court’s inherent jurisdiction to facilitate the proper conduct of legal proceedings.[11]
[11]See (Keith) Mason , “The Inherent Jurisdiction of the Court” in (1983) ALJ 449
But if the Court was to be asked to make an appointment before a proceeding was commenced, then at the very least the Court’s power could not be exercised unless there was before the Court as part of the application a properly conceived and composed statement of claim so the Court can be satisfied there is to be a proper or regular invocation of the Court legal process, and by reference to which the Court can assess where the interests of the infant lie and who the appropriate appointee might be. Appointment can then be made on certain conditions such as the bringing of the proceeding in accordance with the proposed pleading. It may also require prior notice to other persons whose interests are affected. It will depend on the case, rare as it will be. But it would not be enough for anyone to say that they are on the scent of a case but wish to have a Court appointed litigation guardian in order to properly investigate it or advance it. And that is where I think the present application cannot be sustained.
As things stand a proceeding has not been commenced by the infant against the State. The person who ordinarily would give instructions as litigation guardian would be the mother, father, grandparent or relative. The infant’s father wants to instigate the commencement of the case against the State. He is motivated to sue the State for his son and has funded lawyers who have not formulated a case but wish to investigate the State’s handling of its responsibility to see if a case can be composed, including having the child medically examined.
Mr Ingram submitted the Court has jurisdiction to appoint a litigation guardian to look into the case and to gain information and then to give instructions in order to fully plead a case, in circumstances where there is sufficient from the confidential report to believe there are grounds to bring a case. He submits it is sufficient for present purposes for the Court to be satisfied that the objects are not frivolous or vexatious, and are bona fide. He says that it would be premature now to sue for any wrongdoing or for any alleged industries as a result of that wrongdoing until such time as further facts can be obtained about the elements of the injury and the confrontation necessary to remedy the wrongdoing. The conclusion is that there is not yet in existence a body of provable facts capable of comprising a statement of claim and disclosing a cause of action.
I would hold that until such time as there is in existence a proposed statement of claim which the Court can assume has been verified in some proper way by a legal practitioner and is fit to be issued as a proceeding, this Court cannot entertain an application for an appointment of a litigation guardian either under rule 15 (if I am wrong in my construction of it) or under rule 1.15 or under the Court’s inherent jurisdiction.
I think it inappropriate to be prescriptive about any ancillary matters and nothing I say should be construed that way. But I see real force in the State’s submission that in this unique case the Court would also not act without notice to the mother of the child lest she take a different view about the interests of the child. The Court might have to consider other matters. If there was a real apprehension that the child’s interests were not being protected, then it will be said the appropriate course was to engage the processes under the Children, Youth and Families Act 2005 in order to ensure protective or remedial measures for the child’s welfare. Equally there is force in the contention that the presence of protective measures under the Act do not displace the right of anybody to bring common law action against the State or its agencies should there be a real and genuine basis for alleging a wrongdoing and the suffering of damage.
And that really underlies my reasoning in this case. At the very least, before the Court can be called upon in this case to make any appointment, it is incumbent on those who have the interests of this child to protect, to come forward, if they can, with a properly constituted statement of claim by which a proceeding can be validly brought. Until that is done, I see no proper basis for the exercise of a power to appoint a litigation guardian. Nor do I see an injustice because if there is some need for urgent protection of a child, then other measures can be taken.
Finally, there is a second difficulty I see with the plaintiff’s case. The plaintiff merely asks for the Court to make an appointment. But who? In Deputy Commissioner of Taxation v P,[12] Hodgson J dealt with a contention that the Court should appoint one of its officers to act as tutor (as a litigation guardian is called in New South Wales). His Honour determined that the appointment of a court official would involve considerable responsibilities and duties and unless such an appointment falls within the duties of a particular office, a court official should not be appointed at least unless the court official has freely consented. Reference was made to a practise in New South Wales at least of putting responsibility on the plaintiff to locate a solicitor having no association with the plaintiff who was willing to undertake the serious responsibilities of a litigation guardian on the basis that someone would indemnify him for his expenses and costs. Such an application would need to be supported by evidence about the solicitor’s absence of an adverse interest in case and the absence of any reason why he or she should not act.
[12](1987) 11 NWSLR 200.
Thus I would hold if the power to appoint was attracted, I would not exercise the power where the plaintiff put the burden on the Court to identify a litigation guardian. That is the responsibility of the plaintiff which in the ordinary case would be done in consultation with the mother of the child. However it is to happen, once that responsibility is taken and a guardian is found, then there will be no need for any application to the Court. If facts exist for a case, a proceeding can be commenced whereby a writ and statement of claim is filed naming a litigation guardian, in compliance with the rules. Thereafter if any question arises about suitability of the named guardian, the Court has powers of removal and substitution in accordance with the interests of the child.
For those reasons I would dismiss the summons on the originating motion, which I think necessarily leads to the dismissal of the originating motion itself. But I shall hear counsel on the orders.
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