CM v Secretary, Department of Communities and Justice

[2022] NSWCA 120

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

CM v Secretary, Department of Communities and Justice [2022] NSWCA 120

Hearing dates:

30 June 2022

Decision date:

07 July 2022

Before:

Leeming JA at [1];
Kirk JA at [35];
Simpson AJA at [36].

Decision:

Amended summons dismissed.

Catchwords:

CHILD WELFARE – care and protection of children – appeal from Children’s Court – mother seeks judicial review of appointment of guardian ad litem for mother – whether error of law on face of record – whether record included reasons for appointing previous guardian ad litem – whether necessary to make order that mother be legally represented before appointing guardian ad litem – whether jurisdictional error – ss 98 and 101 of Children and Young Persons (Care and Protection) Act 1998 (NSW) considered

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9(1), 3, 34(1), 91, 92, 94, 95, 98, 99A, 99B, 99C, 99D, 100, 101, 101AA, 105

Civil and Administrative Tribunal Act 2013 (NSW), s 45

Consolidated Equity Rules 1902 (NSW), r 55

Families, Communities and Disability Services Miscellaneous Amendment Act 2021 (NSW), Sch 3, item 9

Guardianship Act 1987 (NSW), ss 21C, 58

Judicature Rules 1875 (UK), O XIII r 1

Matrimonial Causes Act 1959 (Cth)

Matrimonial Causes Rules 1960 (Cth), rr 118, 126

Stronger Communities Legislation Amendment (Children) Act 2021 (NSW)

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68

Clay v Clay (2001) 202 CLR 410; [2001] HCA 9

CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157

Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92

Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294

Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337

Texts Cited:

A Cairns, Eversley’s Law of the Domestic Relations (5th ed, 1937, Sweet & Maxwell)

Category:

Principal judgment

Parties:

CM (a pseudonym) (Applicant)
Secretary, Department of Communities and Justice (First Respondent)
District Court of New South Wales (Second Respondent)
RM (a pseudonym) (Third Respondent)
Graeme Fordham (Fourth Respondent)

Representation:

Counsel:
P Glissan (Applicant)
M Anderson (First Respondent)

Solicitors:
Crown Solicitor’s Office (First Respondent)
Legal Aid NSW (Third Respondent, submitting)
Self-represented (Fourth Respondent, submitting)

File Number(s):

2022/138696

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Appeal from Children’s Court

Date of Decision:

13 April 2022

Before:

Olsson SC DCJ

File Number(s):

2021/187593

Judgment

1. LEEMING JA: By her amended summons filed on 15 June 2022, the applicant seeks judicial review of an order, made by the District Court in chambers on 13 April 2022, appointing the fourth respondent Mr Graeme Fordham guardian ad litem for herself in a pending appeal to the District Court from a decision of the Children’s Court. The subject of the proceedings in the Children’s Court and the pending appeal is who should have parental responsibility for an eight year old boy. The effect of s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is that neither he nor the applicant, his birth mother, may be named or otherwise identified. Consistently with the pseudonyms deployed in other cases, and in accordance with a direction made by the Registrar, I shall refer to the applicant as “CM”. The guardian ad litem and the independent legal representative of the boy filed submitting appearances. The only opposition was from the Secretary.

2. No formal reasons were given for the order made on 13 April 2022, although it was clearly flagged at a directions hearing on 30 March 2022, during which the Court was told of the desire of the previously appointed guardian ad litem to cease her appointment following a serious divergence of views with CM. That previous appointment had been made on 29 October 2021, on the Court’s own motion, following a hearing on 27 October 2021 in the course of which her Honour gave concise ex tempore reasons. In light of the parties’ submissions, they are best reproduced in their entirety:

“Under the District Court Rules, the test of incompetence is whether the litigant is capable of managing his or her own affairs. There is no universal test for determining whether a person is capable of managing his or her own affairs, see Gibbons v Wright (1954) 91 CLR 423 and Murphy v Doman [2003] NSWCA 249. In the latter case, the Court said at [35],

‘The cases do not consider the level of mental capacity required to be a “competent” litigant in person, but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.’

The presumption of legal sanity applies unless and until the contrary is proved and therefore, there is a presumption that a person is capable of managing his or her affairs, however that is subject to the way in which a person has conducted proceedings to date. I am satisfied that under s 98 of the Care Act, s 98(2) that [CM] requires legal representation and under subs (2A), I have also formed the view that [CM] is not capable of giving proper instructions to a legal representative such that a guardian ad litem should be appointed to speak for her.

This is not a decision that I have come to without serious consideration. There is no doubt that in this country, unrepresented people are entitled to advance their cases in court, and the Court and quite often the other parties afford some assistance in the procedural sense about how to prepare a matter for hearing and how a matter is conducted at trial but there is a limit to how much assistance the Court, in particular, can give. [CM]’s matter has been in this Court now for some time, some considerable time and she has made many applications of which have almost always failed.

They have generally failed on the basis that they either had no merit or were, in legal terms, incompetent. The notice of motion that we have been referring to today is the case in point. It is not for me to say whether or not [CM] has a cognitive impairment and there is no evidence in any respect in respect of that, but I have unfortunately come to the conclusion that [CM] is not capable of conducting her own affairs in these proceedings. Pursuant to s 101 of the Care Act, I order that a guardian ad litem be appointed for [CM] in these proceedings.”

3. When the proceeding in this Court was commenced, CM appears to have been unrepresented. However, at the hearing in this Court, she was represented by Mr Glissan. Appropriately, he confirmed that he did not seek to read or tender most of the voluminous material prepared and filed by his client when she was unrepresented. He made two closely related submissions. One was that there was an error of law on the face of the record insofar as the order appointing the guardian ad litem was made without first there being an order that CM be legally represented. The second was to the effect that her Honour was not, or could not have been, satisfied that CM was incapable of giving proper instructions, thereby falling into reviewable error.

Applicable legislative regime

4. The Children and Young Persons (Care and Protection) Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount: s 9(1). The Act authorises the Secretary, if he or she forms the opinion on reasonable grounds that a child or young person is in need of care and protection, to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person: s 34(1).

5. The child was removed from CM’s care in 2020, following reports of significant harm. There ensured a hearing over some nine days in the Children’s Court between October 2020 and May 2021 leading to a very substantial decision delivered on 10 June 2021 which rejected CM’s submission that the child be restored to her care. The reasons of the Children’s Court stated that the child “was conceived through IVF treatment using both donor sperm and egg” and “the Mother gave birth at the age of 51 years” and that she is “a single working parent” running her own business, as well as being a registered nurse with an MBA. For the purposes of the Act, CM was, prior to 2020, a “parent” of the boy because she had parental responsibility for him: s 3. There is nothing to suggest that any other person was a “parent” of the boy while he was in CM’s care.

6. Section 91 authorises any party who is dissatisfied with an order (other than an interim order) of the Children’s Court to appeal to the District Court against the order. CM has exercised that right. The Court was told that the appeal was initially listed for November 2021, then vacated and set down for hearing in March 2022, only once again to be vacated. It is now listed for hearing over 10 days commencing late August 2022.

7. The appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal: s 91(2). Relevantly for present purposes, s 91(8) provides:

“The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

8. The provisions empowering the Children’s Court to appoint a guardian ad litem are contained in Part 1 of Chapter 6, which comprises ss 92-108. Those provisions are expressed to apply “to proceedings before the Children’s Court under this Act” (s 92), but by dint of s 91(8) they also apply to and in respect of the hearing of CM’s appeal brought under s 91(1).

9. Section 94 provides:

“(1) All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

…

(4) The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that—

(a) it is in the best interests of the child or young person to do so, or

(b) there is some other cogent or substantial reason to do so.”

10. Those provisions apply to the appeal pending in the District Court. The procedural history of CM’s appeal to date, including its twice vacated hearing dates, sits uneasily with those provisions. In light of s 94, and the obvious interest all parties have in the proceedings being heard and determined as quickly as possible, the judicial review proceedings brought by CM in this Court have been listed and determined with a high degree of expedition.

11. The central provisions for present purposes are ss 98 and 101. Section 98 is directed to rights of appearance, and provides as follows:

“98 Right of appearance

(1) In any proceedings with respect to a child or young person—

(a) the child or young person and each person having parental responsibility for the child or young person, and

(b) the Secretary, and

(c) the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A) If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court may appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.”

12. Subsection (2A) was amended by replacing “the Children’s Court is to” by the words “the Children’s Court may” with effect from 23 June 2021 (see Families, Communities and Disability Services Miscellaneous Amendment Act 2021 (NSW), Schedule 3, item 9). This occurred in connection with the litigation decided under the name GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157.

13. Subsections (2) and (2A) remove any doubt that the important right of persons to be heard, either in person or through a legal representative, in proceedings under the Act, is qualified. Subsection (2) confirms the court’s power to disentitle a person’s right to be heard in person by requiring him or her to be legally represented. Subsection (2A) makes it clear that a person incapable of giving instructions may be the subject of an order appointing a guardian ad litem.

14. Sections 100 and 101 confer power to appoint guardians ad litem, as anticipated by s 98(2A). Section 100 empowers the court to appoint a guardian ad litem for the child or young person, while s 101 empowers the appointment for a parent. The latter was the power used in the present case, although it is to be read in context with the similarly drafted power in s 100. It is best to reproduce the terms of both provisions:

“100 Guardian ad litem—child or young person

(1) The Children’s Court may appoint a guardian ad litem for a child or young person if it is of the opinion that—

(a) there are special circumstances that warrant the appointment, and

(b) the child or young person will benefit from the appointment.

(2) Special circumstances that warrant the appointment of a guardian ad litem may include that the child or young person has special needs because of age, disability or illness or that the child or young person is, for any reason, not capable of giving proper instructions to a legal representative.

(3) The functions of a guardian ad litem of a child or young person are—

(a) to safeguard and represent the interests of the child or young person, and

(b) to instruct the legal representative of the child or young person.

(4) A legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.

101 Guardian ad litem and amicus curiae—parents of child or young person

(1) The Children’s Court may—

(a) appoint a guardian ad litem for either or both of the parents of a child or young person, or

(b) request the legal representative of a parent or the parents of a child or young person to act as amicus curiae,

if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.

(2) Circumstances that warrant the appointment of a guardian ad litem or a request for a legal representative to act as amicus curiae may include that the parent of a child or young person has an intellectual disability or is mentally ill.

(3) The functions of a guardian ad litem of a parent of a child or young person are—

(a) to safeguard and represent the interests of the parent, and

(b) to instruct the legal representative of the parent.

(4) A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.”

15. Similarly worded powers to appoint a guardian ad litem may be found in s 45(4) and (4A) of the Civil and Administrative Tribunal Act 2013 (NSW), which are the successors to s 58 of the Guardianship Act 1987 (NSW). Section 21C of the latter statute (which was enacted before the provisions in Part 6 concerning the Guardianship Tribunal were transferred to NCAT) makes it clear that an act of a guardian is taken to be the act of the person for whom the guardian has been appointed, as if that person had capacity to perform that act. It is for this reason, as was mentioned by Kirk JA during the hearing, that Dixon J referred to the appointment of a guardian ad litem for a child as a means of binding the infant in law to a decision: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 88; [1949] HCA 1. The general nature of guardianship, and the contrast with the office of trustee, is considered in Clay v Clay (2001) 202 CLR 410; [2001] HCA 9. Of course, a guardian “ad litem” confers authority upon the guardian only in respect of a particular “lis” or legal proceeding. Thus no issue arises about the ability of CM to file this summons seeking judicial review of a decision in the proceeding pending in the District Court; the summons is a separate proceeding.

16. Traditionally a guardian was someone appointed to the person and property of an infant. The entirety of the account in Part III of A Cairns, Eversley’s Law of the Domestic Relations (5^th ed, 1937, Sweet & Maxwell), which identifies appointments by the Court of Chancery, by the Court of Probate, under certain statutes including the Children and Young Persons Act 1933 (UK) and a number of more obscure bases, is confined to persons under age. However, there is a long history of appointments of guardians for persons who are incapable otherwise than because of youth: see for example O XIII r 1 of the 1875 Judicature Rules which authorised applications to appoint a guardian ad litem for a defendant who was “a person of unsound mind not so found by inquisition”. This rule seems to have stemmed from Chancery practice, as may be seen from r 55 of the Consolidated Equity Rules 1902 (NSW) “Any person of unsound mind, or incapable person, may sue by his committee, or the person entrusted with the care and management of his property, if any, or if none, by his next friend; and may defend by such committee, or person, if any, or if none, by his guardian ad litem”. Those rules restricted the appointment of a guardian ad litem to defending proceedings; where a person of unsound mind was to commence proceedings, that was by his or her committee or next friend or tutor: see GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 at [28] and the passage from Dey already mentioned. However, there are examples of rules which resemble s 101 insofar as they provide that a guardian ad litem might institute proceedings, as well as defend proceedings. That may be seen in the Matrimonial Causes Rules 1960 (Cth) made under the Matrimonial Causes Act 1959 (Cth) which, similarly to ss 100 and 101, extended both to appointments of guardians ad litem for a child or young person, and also to an adult of unsound mind. Thus r 118 authorised the commencement of a proceeding in a matrimonial cause by a person of unsound mind by a person intending to apply for appointment as guardian ad litem, and r 126 authorised the appointment of a guardian ad litem at any stage by the court of its own motion where a party was an infant or a person of unsound mind.

17. The power to appoint a guardian ad litem for a child or young person in s 100 is framed in different terms from the power in s 101 to appoint a guardian ad litem for a parent. The former requires the court to be satisfied of two things: “special circumstances” and that the child or young person will benefit from the appointment. “Special circumstances” include the circumstance that the child or young person is not capable of giving proper instructions (that being the touchstone for the s 101 power to appoint a guardian ad litem for a parent) but is not limited to that. However, the s 101 power is not confined by the need for the court to be satisfied that the parent will benefit from the appointment.

15. One aspect of that difference corresponds with the obligation in s 95 to take such measures as are reasonably practical to ensure that a child or young person understands the nature and legal implications of assertions made in proceedings, and in particular the requirement in s 95(3) that “the Children’s Court must ensure that the child or young person has the fullest opportunity practicable to be heard, and to participate, in the proceedings.”

16. Another difference between the two sections emerges from ss 99A-99D which make provision for the role of a legal representative of a child or young person. Sections 99B and 99C deal with when a child or young person is presumed to be capable or incapable of giving proper instructions. Section 99D makes provision for the role of the legal representative of a child. Section 99A bears upon the relationship between guardian ad litem and legal representative. It provides:

“99A Legal representative to act as independent legal representative or direct legal representative

(1) A legal representative for a child or young person is to act as a direct legal representative if—

(a) the child or young person is capable of giving proper instructions, and

(b) a guardian ad litem has not been appointed for the child or young person.

(2) A legal representative for a child or young person is to act as an independent legal representative if—

(a) the child or young person is not capable of giving proper instructions, or

(b) a guardian ad litem has been appointed for the child or young person.”

20. The consequence of s 100(4) read with s 99A(2) is that if a guardian ad litem has been appointed for the child or young person, then a legal representative for that child or young person is to act on the instructions of the guardian ad litem but to do so as an independent legal representative. However, in both of ss 100(3) and 101(3) the functions of a guardian ad litem are expressed in identical language, as is the obligation of a legal representative to act on the instructions of the guardian ad litem in ss 100(4) and 101(4).

21. Section 101AA provides that the Children’s Court may order that a person be represented by a guardian ad litem without naming a particular person to be appointed as guardian ad litem, and if so the guardian ad litem is taken to be appointed when the court receives a written notice from the administrator of the Guardian Ad Litem Panel naming the person selected to be the guardian ad litem. These provisions reflect changes made by the Stronger Communities Legislation Amendment (Children) Act 2021 (NSW), with effect from 8 December 2021, which in turn appear to be a response to Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68. (The transitional provision, which validated the appointments of some guardians ad litem appointed prior to 8 December 2021, and therefore applied to the appointment of the first guardian ad litem, might conceivably bear upon the issues raised by the summons, but as no one mentioned it and it is not necessary to address its operation on the view I have reached, it may be passed over.)

Submissions

22. CM’s principal submission was that the order disclosed error of law on the face of the record. No privative clause applies to the decision (contrast s 176 of the District Court Act 1973 (NSW) which applies to appeals in the District Court’s criminal jurisdiction). Nor is there any difficulty in accepting what was common ground between the parties, namely, that the record included the reasons given on 27 October 2021 for the decision to appoint a guardian ad litem in the first instance. The record includes the reasons for the court’s “ultimate determination”: s 69(4) of the Supreme Court Act 1970 (NSW). The reasons given on 27 October 2021 coupled with the fact that there had been no material change in circumstance are to be understood as the reasons for the appointment of a replacement guardian ad litem on 13 April 2022.

23. I turn then to the substance of the submissions. Mr Glissan seized upon the distinction in ss 98 and 101 between an incapability to represent oneself, and an incapability to instruct a lawyer. It was submitted that the order of the District Court could not have been made without first there being an order that the applicant be legally represented. This reflected, so it was said, the ordinary meaning of the provisions, and yielded a sensible construction, for how could a person’s incapability of giving proper instructions be assessed until the person had had an opportunity to give instructions to a legal practitioner? He emphasised that while her Honour’s reasons had said that she was satisfied that CM required legal representation, no order to that effect had been made.

24. Mr Glissan also emphasised the possessive pronouns “his or her, and their” in the conclusion of s 101(1) defining the opinion to be held before the power to appoint a guardian ad litem was engaged. Those words were said to confirm that there must first in fact be a legal representative, before an opinion could be formed that the parent or parents was or were incapable of giving proper instructions.

No error of law on the face of the record

25. Mr Glissan’s submissions were made clearly and succinctly. However, I do not accept them. They amount to implying a restriction on the power to appoint a guardian ad litem. On the applicant’s construction, not only must the court be satisfied that the person be incapable of giving proper instructions, but before exercising the power, there must actually have been legal representatives acting for the person. But a court may be satisfied of incapability in many ways. One way, no doubt, is when the court has been able to assess the instructions which have in fact been given by the person to his or her legal representatives. But it is easy to envisage other circumstances when a court may attain the same state of satisfaction. As mentioned during the hearing, one is where the person is physically disabled (say, in a coma) and unable to participate in an urgent hearing. Alternatively, there might be available to the court medical or psychiatric evidence of a person’s mental incapacity to understand proceedings so as to be able to provide instructions. Just as one does not need direct evidence of a person’s attempts to give instructions to compose a will in order for evidence to be adduced as to a person’s testamentary capacity, so too in an appropriate case (I am not to be taken necessarily to be implying that this is the present case) such evidence will enable a court to be satisfied that a person is incapable of giving proper instructions without a legal representative having been appointed.

26. Further, the implication for which CM contends sits ill with the requirement in s 94 for expedition. On her construction, it is necessary to order that a person be legally represented, and perhaps thereafter to permit time to elapse so as to determine whether the person is capable if giving proper instructions, and only then may a guardian ad litem be appointed. But that would amount to needless expense and delay in cases where one could confidently infer that proper instructions could not be given.

27. I do not accept that anything turns on the pronouns “his or her or their” in s 101(1). The corresponding opinion which is a precondition to the power to appoint a guardian ad litem for a child or young person is expressed in terms of “not capable of giving proper instructions to a legal representative”. If the pronouns in s 101 had the force for which the applicant contends, then their absence in s 100 should likewise have significance. But it would be absurd for provisions which are otherwise so similarly worded to carry a substantive difference, in that the power to appoint a guardian ad litem to a parent was preconditioned upon there first having been a legal representative, but not in the case of a child, and for that distinction to be achieved through the use of “his or her, and their” in s 101(1) but “a” in s 100(2). And it is quite plain that there will be cases where a court can be satisfied that a parent is incapable of giving proper instructions without there first having been an appointment of a legal representative (for example, a debilitating medical or psychological condition afflicting the parent). In short, the words “his or her or their” are an insufficient basis for the implication for which CM contends.

28. Mr Glissan sought to invoke what had been said in earlier litigation commenced by CM in CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 at [30]-[32]:

“[30] In a case such as the present, the use of s 101 appears to be a two-step process. A person, such as the mother, is determined to be someone ‘not capable of adequately representing herself’ within Care Act, s 98(2A), and then if it is found that if the person is ‘incapable of giving proper instructions’ to their legal representative within Care Act, s 101, then an appointment of a GAL can be made. A critical concept in this legislation is that of capability. Before appointing a GAL under s 101, a Court must often first go through the gateway of s 98 and make a judgment about whether the person is ‘capable of adequately representing … herself’. Then the Court must make a separate judgment about whether the person is ‘incapable of giving proper instructions’ to his or her legal representative.

[31] A judgment under s 101 of capability to give proper instructions may perhaps be made in the most advantageous circumstances where there is actually a legal representative to whom an attempt has been made to give legal instructions, although the judgment can be made without the prior appointment of a legal representative.

[32] The legislation is undoubtedly written in the context of the well-established common law principle of a citizen’s right to unimpeded access to the Courts, which can only be taken away by express enactment: see for example: Chester v Bateson [1920] KB 829, R&W Paul Ltd v Wheat Commission [1937] AC 139. With this common law in mind, Care Act, s 101 is clearly expressed in terms of whether a person is ‘incapable’ of giving proper instructions to a legal representative rather than whether it is more convenient for the person to give such instructions through a GAL.”

29. The applicant’s submissions stressed the importance given to the assessment of capacity to provide proper instructions as if they were unqualified, and sought to rely on the importance of a litigant’s personal right of audience. The importance of the latter is undoubted, but s 98 is expressly subject to ss 100 and 101, and thus the resolution of the question of law turns on statute rather than generalities. Further, the reasoning is in fact contrary to the construction for which the applicant contends, because it expressly contemplates circumstances when a guardian ad litem may be appointed without a legal representative first having been appointed. That is the force of “often” in [30] and the concluding words in [31] “although the judgment can be made without the prior appointment of a legal representative”. Insofar as those passages acknowledge the possibility of appointment of a guardian ad litem without there first having been legal representation, I would respectfully agree. In relation to the empirical suggestion in [31] that a judgment under s 101 may perhaps best be made when a legal representative has been appointed, I respectfully agree with the tentativeness of the proposition. A legal representative who has formed the view that he or she is not receiving proper instructions is placed in a very difficult position, and it is far from clear that it will be easier for a court to assess the position when a legal representative has been appointed as opposed to where the person is unrepresented.

30. In short, there will be cases when it is possible for a Court to be satisfied simultaneously that a person cannot represent themselves and cannot instruct lawyers. There is no reason why the legislation would be construed on the basis that it was first necessary to make an order for legal representation before appointing a guardian ad litem.

No jurisdictional error

31. The thrust of the parties’ submissions was directed to error of law on the face of the record. Indeed, at one stage, the applicant suggested that the alternative claim of jurisdictional error had no additional content. I think that concession was fairly made.

32. It is no small thing to establish jurisdictional error on the part of a court. The District Court was authorised to decide questions of law, including deciding them wrongly. In order for this Court to conclude that the decision was affected by jurisdictional error, such that it was a nullity, it was necessary to establish that her Honour had fundamentally misunderstood the limits of her authority, such that the order made went beyond the limits to which her Honour was subject and such that the result is a nullity. What is required in order to establish jurisdictional error on the part of the District Court has been described at some length in recent decisions of this Court, including Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 and Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337. Most recently, it was said in the joint judgment of this Court, by reference to those decisions, that “this Court will not intervene unless satisfied that, in some material respect, the court below has misconceived its function, so as to exceed its jurisdiction or fail to carry out the jurisdiction conferred on it by statute”: Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 at [5].

33. Contrary to a submission made by the Secretary, jurisdictional error is not confined to denial of procedural fairness. However, nothing remotely resembling jurisdictional error is made out. The primary judge said that she had regard to what had occurred in the litigation to date and expressed a view that CM was incapable of providing proper instructions such that a guardian ad litem should be appointed. The applicant did not suggest that that occurred in any way other than one which was procedurally fair, and there is nothing in the transcripts that suggests to the contrary. Far from what occurred disclosing jurisdictional error, one sees instead a careful attention to the requirements of the statute before the first appointment was made. It is plain from the transcript of 30 March 2022 that nothing had occurred to detract from the conclusions which had led to the first appointment of a guardian ad litem. Although no complaint was addressed to this, for clarity I should add that in the circumstances of this case, there was no requirement to provide separate reasons for the appointment of the second guardian ad litem, his predecessor having sought to be removed from that position.

Orders

34. For those reasons, the amended summons must be dismissed. My present view is that there should be no order as to costs, but if a party wishes to be heard for some different order, application may be made within the period specified by UCPR r 36.16.

35. KIRK JA: I agree with Leeming JA.

36. SIMPSON AJA: I agree with Leeming JA.

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Decision last updated: 07 July 2022