DAWSON & BEASLEY
[2015] FCCA 480
•3 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAWSON & BEASLEY | [2015] FCCA 480 |
| Catchwords: FAMILY LAW – Practice and procedure – Litigation Guardian – where applicant in need of a litigation guardian – whether rules relating to the appointment of a litigation guardian should be waived. |
| Legislation: Federal Circuit Court Rules 2001, rr.1.03(1), 1.06, 11.08(1), 11.09(1), 11.11(1), 11.11(2), 11.12(1), 11.12(2), 11.12(4) Guardianship and Administration Act 2000(Qld), ss.12, 33(1), 34, 174(1), 176 |
| Cases cited: Crockett v Roberts [2000] TASSC 148 |
| Applicant: | MR DAWSON |
| Respondent: | MS BEASLEY |
| File Number: | BRC 6584 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 March 2014 |
| Date of Last Submission: | 10 March 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 3 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J Allen |
| Solicitors for the Respondent: | Legal Aid Queensland |
| Counsel for the Independent Children's Lawyer: | Ms Oakley |
| Solicitors for the Independent Children's Lawyer: | Norman & Kingston |
ORDERS
The application made by Legal Aid Queensland on 23 December, 2013 be dismissed.
All outstanding applications are adjourned to 7 April 2015 at 9.30 a.m. for further directions in the Federal Circuit Court of Australia sitting at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Dawson & Beasley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 6584 of 2012
| MR DAWSON |
Applicant
And
| MS BEASLEY |
Respondent
REASONS FOR JUDGMENT
Ms Beasley is the mother of [X], who was born [omitted] 2003.
Mr Dawson is [X]’s father. Ms Beasley and Mr Dawson are engaged in litigation concerning parenting orders for [X].
However, the parties agree that Ms Beasley is a person to whom a litigation guardian would ordinarily be appointed pursuant to rule 11.11(1) of the Federal Circuit Court Rules 2001. She has an acquired brain injury arising from a cardiac event that she experienced in December, 2011.
Such is her capacity that on 31 May, 2012 the Queensland Civil and Administrative Tribunal appointed the Adult Guardian as a substituted decision maker for Ms Beasley in relation to personal matters, including legal matters (but not including financial or property matters) pursuant to the provisions of the Guardianship and Administration Act 2000 (Qld). That initial appointment was for one year, but on 28 May, 2013 it was extended for a further two years.
These reasons relate to an application made orally on 23 December, 2013 by counsel instructed by Legal Aid Queensland as solicitors for Ms Beasley to dispense with so many of the rules of this Court as is necessary to allow the proceedings to continue without the appointment of a litigation guardian for Ms Beasley.
Despite the fact that all parties agree that ordinarily a litigation guardian would be appointed in the proceedings for Ms Beasley, none has been appointed. The Adult Guardian refuses to accept such an appointment despite the appointment as a substituted decision maker in relation to Ms Beasley’s legal matters. There is no other person who is willing to accept such an appointment.
Some procedural history is necessary to understand the context in which the present application arises.
Mr Dawson commenced these proceedings on 23 July, 2012. On the first occasion the matter was before the Court (31 August, 2012), both Mr Dawson and Ms Beasley appeared by duty lawyers. No issue was taken with Ms Beasley’s capacity and consent parenting orders were made for [X] to live with the first respondent (her maternal grandmother) and to spend time with Mr Dawson. Orders for the appointment of an Independent Children’s Lawyer were made.
On the next court date (23 November, 2012) the Independent Children’s Lawyer appeared, as did Mr Dawson. Neither Ms Beasley nor her mother appeared. Further parenting orders were made. The position with Ms Beasley’s capacity remained unknown to the Independent Children’s Lawyer and Mr Dawson.
On 23 January, 2013, the application came again before the Court. The Independent Children’s Lawyer appeared, as did Mr Dawson.
Ms Beasley and her mother did not appear. A representative from the office of the Adult Guardian sought, and was granted, leave to appear. On that occasion, it became clear for the first time that Ms Beasley laboured under a disability. Orders were made for [X] to be recovered and to live with Mr Dawson until further order. The matter was adjourned for a short period and orders were made for Ms Beasley and her mother (still the first respondent at that stage) to appear.
On 11 February, 2013 the applicant appeared in person, the Independent Children’s Lawyer appeared, the Adult Guardian again sought and was granted leave to appear and a solicitor appeared purporting to appear for Ms Beasley. Ms Beasley’s mother, the second respondent did not appear. Further orders were made by consent and the matter further adjourned pending further investigation by the Independent Children’s Lawyer.
The matter returned to Court on 5 August, 2013. By that time the Independent Children’s Lawyer had obtained a report pursuant to s.62G of the Family Law Act1975. Mr Dawson appeared in person, the Independent Children’s Lawyer appeared and a solicitor appeared for Ms Beasley. The Independent Children’s Lawyer recommended certain parenting orders with which each parent agreed.
At a directions hearing on 6 November, 2013 the parties advised the Court that they could not agree on the final disposition of the application. Mr Dawson appeared in person, the Independent Children’s Lawyer appeared and a solicitor appeared for Ms Beasley. A trial date was set and directions for the preparation of the matter for trial were made.
By the arrival of the trial date on 23 December, 2013, the difficulty with Ms Beasley’s capacity had become acute in the sense that the solicitor who had hitherto been acting for her and attempting to do the best he could for her on a pro-bono basis felt that he was embarrassed for instructions. Legal Aid Queensland took over the conduct of the matter on behalf of Ms Beasley, but not until very soon before the trial date. It was clear that the application was not ready for trial. Neither Mr Dawson, nor Ms Beasley had filed any evidence of any substance.
The Independent Children’s Lawyer had continued investigations and had unearthed more information about Ms Beasley and her condition. Consequently, the Independent Children’s Lawyer recommended a move away from the interim parenting orders then in place from unsupervised time between [X] and her mother to formal supervised time. Mr Dawson supported those orders. The solicitors for Ms Beasley did not.
All present appeared to agree that the matter was not ready for final determination. Some further interim parenting orders were made with the benefit of some oral evidence and cross-examination of those deponents. Some settled arrangements that catered for [X]’s needs were required.
Legal Aid Queensland sought that the rules relating to the appointment of a litigation guardian for Ms Beasley be dispensed with. I was urged to permit the application to proceed without a litigation guardian for Ms Beasley on the basis that the Adult Guardian had power to make decisions for her in these proceedings and was providing instructions to Legal Aid Queensland for the purposes of the proceedings. The Independent Children’s Lawyer opposed dispensation of the rules. After permitting the parties some time to formulate some directions to advance the matter, the Court made further directions with the agreement of each of the parties, namely:
5) By no later than 4.00pm on 31 January, 2014 the adult guardian and/or the respondent file and serve written submissions dealing with:
a) the basis upon which the Court may, and whether the Court should, dispense with the rules relating to the appointment of a litigation guardian for the respondent;
b) and if so:
i) which rules should be dispensed with; and
ii) whether the Court should dispense with the application of rule 11.11(2) in particular.
6) By no later than 4.00pm on 14 February, 2014 the Independent Children’s Lawyer and applicant file and serve any written submissions they wish to make about those issues.
…
11) Any application in a case for the appointment of a litigation guardian be filed and served by 4.00pm on 28 February, 2014.
No application for the appointment of a litigation guardian was made as contemplated by FCCR 11.11(1), or at all.
The Independent Children’s Lawyer, the Adult Guardian and Legal Aid Queensland filed written submissions as directed in support of, or opposed to, the dispensation of the rules as the case might be.
When the matter returned to Court on 10 March, 2014, Mr Dawson appeared. Counsel instructed by Legal Aid Queensland appeared purportedly for Ms Beasley. The Independent Children’s Lawyer appeared by counsel. The Adult Guardian did not appear and did not make any oral submissions in support of the written submissions already filed by him. The other parties made oral submissions in support of their respective positions.
The parties’ relationship background
Mr Dawson and Ms Beasley commenced living together some time during 2001. They separated some time during 2004. [X] lived with Ms Beasley following the separation.
In 2007, Ms Beasley commenced a relationship with Mr D, from whom she separated in 2011. There is some evidence that [X] had a relationship with Mr D whereby she viewed him as a father- type figure.
Until 2 December 2011, Ms Beasley was the primary carer for [X] and she had no meaningful relationship with Mr Dawson.
On 2 December 2012, Ms Beasley suffered a cardiac arrest and a consequential brain injury. Her injury is permanent and has left her with a cognitive impairment.
During the course of these proceedings [X] has developed a relationship with Mr Dawson. As I have recorded above, [X] now lives in his primary care.
Ms Beasley’s relationship with Mr D resumed while she was still in hospital recovering from her cardiac event. She and Mr D now have a child together – [Y].
Pursuant to the orders made on 23 December, 2013 any time between [X] and Ms Beasley is supervised by Mr D’s mother, Ms D.
Whether Ms Beasley needs a litigation guardian
Rule 11.08(1) FCCR will be engaged if Ms Beasley is a person who “does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting or giving adequate instruction for the conduct of, the proceeding”.
That Ms Beasley engages that rule is conceded by all of the parties in these proceedings. The concession is well made. The expert evidence reveals that Ms Beasley’s brain injury is a serious disability. Neuropsychologist [name omitted] deposes that “as a result of [Ms Beasley’s] cognitive and memory deficits, she will not have the ability to understand or recall simple concepts of information required to give legal instruction”. In a letter from Dr R (ex 2) he recommended that Ms Beasley not attend a previous hearing of this matter because “she does not have the capacity to fully understand the proceedings and the stress associated with attending might result in deterioration of her mental state and possible relapse”.
Ms Beasley is a person who needs a litigation guardian for the purposes of FCCR 11.08(1). It follows that FCCR 11.09(1) applies, so that a litigation guardian must be appointed for these proceedings to advance, unless FCCR 11.09(1) is dispensed with under FCCR 1.06(1).
The submissions of the Adult Guardian
The Adult Guardian is an independent statutory officer appointed under the Guardianship and Administration Act to protect the rights and interests of adults who have impaired capacity for a matter: ss.176 and l74(1).
The order made by QCAT on 31 May, 2012 appointing the Adult Guardian as a decision maker for Ms Beasley is in the following terms:
IT IS THE DECISION OF THE TRIBUNAL THAT:
GUARDIANSHIP
1. The Adult Guardian is appointed as guardian for Ms Beasley for decisions about the following personal matters:
(a) Accommodation;
(b) Healthcare;
(c) Provision of services;
(d) Legal matters not relating to the adult’s financial or property matters.
2. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year.
ADMINISTRATION
3. The Public Trustee of Queensland is appointed as administrator for Ms Beasley for all financial matters.
4. The Tribunal dispenses with the requirements of the administrator to provide a financial management plan.
5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
6. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year.
Relevantly, the order appointing the Adult Guardian for decisions about legal matters not relating to Ms Beasley’s financial or property matters was continued for a further two years from 28 May, 2013.
The Guardianship and Administration Act provides for the appointment and sets out the powers and responsibilities of the Adult Guardian. QCAT may appoint the Adult Guardian pursuant to s.12 of the Act. Having regard to s.12, that QCAT appointed the Adult Guardian for decisions about legal matters in respect of Ms Beasley must mean that QCAT was satisfied that:
a)Ms Beasley had impaired capacity for making decisions about personal matters being legal matters not relating to her financial or property matters;
b)There was a need for making decisions about personal matters being legal matters not relating to her financial or property matters; and
c)Without an appointment:
i)Ms Beasley’s needs would not be adequately met; or
ii)Her interests would not be adequately protected.
Personal matter is defined in schedule 2 of the Guardian and Administration Act in such a way so as to include decisions that Ms Beasley might otherwise have made about the current proceedings but for the appointment of the Adult Guardian. It is specifically defined to include decisions relating to a legal matter.
Schedule 2 of the Guardian and Administration Act defines legal matter to include:
[A] matter relating to—
(a) use of legal services to obtain information about the adult’s legal rights; and
(b) use of legal services to undertake a transaction; and
(c) use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and …
(d) bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding
[my emphasis]
Subsection 33(1) of the Guardianship and Administration Act sets out the powers of the Adult Guardian consequent upon his appointment. The effect of the QCAT order of appointment and s.33(1) of the Act is that the Adult Guardian is authorised to do, in accordance with the terms of the order of appointment, anything in relation to a personal matter that Ms Beasley could have done if she had capacity for the matter when the relevant power was or is exercised.
Section 34 of the Guardianship and Administration Act requires an adult guardian to apply the principles set out in schedule 2 of the Act, which include, inter alia, principles as to human rights, individual value, societal and communal values, self-reliance, participation, supportive relationships, cultural value, and confidentiality.
Having regard to the provisions to which I have just referred, and the submissions of each of the parties, it is not controversial that the Adult Guardian has authority to make decisions on Ms Beasley’s behalf in relation to the present proceedings.
By his written submissions, the Adult Guardian accepts that in legal proceedings, his role:
[M]ay include assisting an adult with obtaining a legal representative, liaising with the legal representative with regard to their advice around the proceedings, and providing instructions with regard to the further conduct of the legal matters as appropriate.
However:
8. With regard to family law proceedings, the Adult Guardian is mindful that given the factual nature of any dispute, he is clearly not in a position to provide instructions to any legal representative regarding the nuances of the dispute. However as a substituted decision maker, he will provide assistance to the adult, in this case, Ms Beasley in so far as she is able to participate in the process and protect her rights and interests in any proceedings.
The objections raised by the Adult Guardian to an appointment as
Ms Beasley’s litigation guardian in these proceedings seem to be fourfold:
a)given the factual nature of the dispute in these proceedings, the Adult Guardian is “clearly not in a position to provide instructions to any legal representative regarding the nuances of the dispute.”;
b)the appointment of the Adult Guardian as Ms Beasley’s litigation guardian in the proceedings may expose the Adult Guardian to orders for costs, a risk that the Adult Guardian is unwilling to accept;
c)the Court can be satisfied that by virtue of the Adult Guardian's statutory obligation pursuant to the Guardianship and Administration Act, “Ms Beasley's rights and interests will be properly protected”; and
d)
without the Adult Guardian’s consent to the appointment, the Court is bereft of power to appoint the Adult Guardian as
Ms Beasley’s litigation guardian.
The Adult Guardian submits that the options available to the Court in relation to the appointment of a litigation guardian are to either:
a)refer to the Attorney-General pursuant to FCCR 11.12(3) for the appointment of a manager of affairs to act as litigation guardian; or
b)dispense with compliance with FCCR 11.11(1), pursuant to FCCR 1.06(1).
The submissions of Legal Aid Queensland
Legal Aid Queensland submitted that in circumstances where the Adult Guardian was unwilling to consent to an appointment as litigation guardian for Ms Beasley the Court could, and should, dispense with the requirements of FCCR 11.09(1). Dispensation was said to be appropriate because the purpose of FCCR Division 11.2 is to protect parties who would otherwise be at a disadvantage, as well as to protect the integrity of the Court process. Legal Aid Queensland’s submission continued that Ms Beasley’s interests will be adequately protected if Legal Aid Queensland was to receive instructions from the Adult Guardian on Ms Beasley’s behalf.
Moreover, they submit that the integrity of the Court process will not be undermined by the absence of a litigation guardian because Legal Aid Queensland will not be embarrassed for instructions and will be able to act upon instructions from the Adult Guardian whether the Adult Guardian is Ms Beasley’s litigation guardian or not.
Alternatively, Legal Aid Queensland submits that it may be open to the Court to appoint the Adult Guardian as litigation guardian for
Ms Beasley pursuant to FCCR 11.11(1) and dispense with compliance with FCCR 11.11(2). Legal Aid Queensland submits that it is reasonably arguable that the terms of FCCR 11.11(1) and 11.11(2) provide for two alternative means by which a person may become a litigation guardian, that is:
a)by appointment by the Court pursuant to FCCR 11.11(1); or
b)by a person filing an affidavit of consent to appointment as a litigation guardian pursuant to rule 11.11(2).
Legal Aid Queensland submits that if such a construction of FCCR 11.11(1) and 11.11(2) is correct, the Court could appoint the Adult Guardian as litigation guardian whether or not consent was forthcoming. However, the Court should only consider the appointment of the Adult Guardian as litigation guardian without his consent if the Court determines that it will not dispense with compliance with FCCR 11.09(1).
The submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer submits that compliance with the rules relating to the appointment of a litigation guardian should not be dispensed with by the Court. The Independent Children’s Lawyer submits that the submissions of the Adult Guardian and the solicitors for Ms Beasley both imply that if the Court insists upon a litigation guardian for Ms Beasley, Ms Beasley’s role in the proceedings will cease because there is no person who is willing to undertake the role of litigation guardian for her.
The Independent Children’s Lawyer submits that the appointment of a litigation guardian serves three purposes:
a)The protection of the person in need of a litigation guardian. If no litigation guardian is appointed, Ms Beasley will have uninstructed legal representatives conducting her case, and there is the risk that she will be exposed to a costs order against her.
b)The protection of the other parties to the proceeding, such that the litigation guardian is responsible and accountable for the conduct of the litigation and any consequences that arise out of it. The Independent Children’s Lawyer submits that a significant reason for appointing a litigation guardian is so that the other party can be satisfied if an order for costs is made by the Court, which would not be enforceable against an impaired person.
c)The protection of the Court’s process, by ensuring litigation is just and efficacious.
Those submissions are consistent with authority: Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1551; L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114.
Moreover, the Independent Children’s Lawyer submits that Legal Aid Queensland lacks authority to seek that the rules relating to the appointment of a litigation guardian be dispensed with. The Independent Children Lawyer directs my attention to authority which, it is argued, suggests that a solicitor whose client requires a litigation guardian is limited to making an application for the appointment or discharge of a litigation guardian, with no other actual or implied authority.
Authority to seek dispensation of the rules
The Independent Children’s Lawyer suggests that Goddard Elliot (a firm) v Fritsch [2012] VSC 87 is authority for the proposition that a solicitor with a client in need of a litigation guardian is limited to making an application for the appointment of a litigation guardian or alternatively seeking to have such a person discharged on a proper basis. The solicitor has no actual or implied authority to do anything else in relation to the matter, presumably including seeking a waiver of the relevant rules. In particular, my attention was drawn to paragraph 550 of the judgment:
[550] The lawyer’s authority can only ever occupy that range which is marked out by the client’s mental capacity. Their authority must end where that capacity ends. As Fox J said in Martin v Azzopardi, “[i]f, and as soon as, the plaintiff was in [such a] condition he would be unable to retain a solicitor. That is to say, he would not have the mental capacity to understand the nature of the acts or transactions which he would be authorizing”. Consequences follow a breach of this principle. If the party lacks mental capacity and the solicitor knew or should have known, the solicitor is at risk of having to pay indemnity costs even in the absence of impropriety, as where the party is an infant and had to sue by their litigation guardian or next friend. A solicitor who persists with representing a client who has lost mental capacity is liable to have costs awarded against them on an indemnity basis even if there is no impropriety. The conduct of the proceeding by a lawyer on behalf of a client lacking this capacity is liable to be stayed on the same basis. By the same logic working in reverse, the authority of a court-appointed next friend may be challenged, and a proceeding issued by them dismissed, where the party is shown to be capable of managing their affairs.
(citations omitted)
Later, after considering in detail the authorities bearing upon the appointment of litigation guardians, Bell J said:
[569] By these rules and principles, a person having mental capacity can, but a person lacking mental capacity cannot, commence or defend legal proceedings. The person lacking mental capacity must have a litigation guardian appointed (by whatever name). A lawyer must be reasonably satisfied that their client has the mental capacity to give instructions. If they are not so satisfied, they cannot act for or represent the client. They can only be, or act for and represent, the litigation guardian. When a client loses mental capacity, their lawyer loses the authority to act for and represent them. If a person commences a proceeding with that capacity but loses it thereafter, their capacity to participate in the proceeding on their own behalf and instruct their lawyer to do so is also lost. The lawyer loses their authority to act for and represent the party in those circumstances. Therefore, when it arises, the issue of the person’s capacity to commence or participate in legal proceedings is a matter of the first importance for the court and for the person’s legal representative as an officer of the court.
Whilst I understand the point expressed by the Independent Children’s Lawyer, I do not think that Goddard Elliot (a firm) v Fritsch is authority for the proposition that solicitors for a litigant in need of a litigation guardian cannot bring an application to dispense with the relevant rules of court. I accept that there is little else that they can do, but if they can bring an application for the appointment or discharge of a litigation guardian, then as a necessary adjunct to that ability, they must also be able to apply for dispensation with the relevant rules.
In the few cases where a court has been asked to dispense with the relevant rules (see Crockett v Roberts [2000] TASSC 148 and South v Northern Sydney Area Health Service [2003] NSWSC 479) it has not been suggested that the solicitors for the litigant lacked authority to prosecute an application for dispensation.
The appointment process
Before deciding if FCCR 11.09(1) should be dispensed with, it is necessary, I think, to understand the process for the appointment of a litigation guardian established by the Federal Circuit Court Rules. Rule 11.11 provides:
11.11 Appointment of litigation guardian
(1) The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.
(2) A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.
(3) The Court may remove a litigation guardian at the request of the litigation guardian.
The Independent Children’s Lawyer and Legal Aid Queensland both submitted (the latter as an alternative submission) that a litigation guardian might be appointed for a party to proceedings in one of two alternative ways. The first way is that established by FCCR 11.11(1). The second is that established by FCCR 11.11(2). However, in my view those two rules are not alternative means of appointing a litigation guardian for a party who needs one. They are two discrete steps in the one process of appointment by the Court.
The first step in the process provided by FCCR 11.11(2). By that rule a person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding. There is nothing in that rule that would prevent more than one person filing an affidavit of consent. Upon doing so, each person who filed an affidavit of consent would, arguably, become a litigation guardian.
The second step in the process is that provided for by FCCR 11.11(1). By that step, the Court may appoint a litigation guardian in a proceeding in the interests of person who needs a litigation guardian. It will be observed that the power to appoint provided by FCCR 11.11(1) is confined to a power to appoint a litigation guardian. Save for one exception, a litigation guardian is a person who has filed an affidavit of consent in a proceeding in accordance with FCCR 11.11(2). But there is no power to appoint a person as a litigation guardian in a proceeding pursuant to FCCR 11.11(1) unless that person has first become, or will become, a litigation guardian by filing an affidavit of consent in accordance with FCCR 11.11(2).
The one exception to which I have just referred arises from FCCR 11.12, which is in the following terms:
11.12 Manager of the affairs of a party
(1) In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2) A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the authority extends.
(3) The Attorney‑General may appoint in writing a person to be a manager of the affairs of a party for this rule, either generally or for a particular person.
(4) A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
The Adult Guardian is within the definition of manager of the affairs of a party for the purposes of FCCR 11.12(1). Section 33 of the Guardianship and Administration Act supplies the authority required by FCCR 11.12(1) when read with the definition of personal matter in that Act. According to FCCR 11.12(2) the Adult Guardian is entitled to be the litigation guardian for Ms Beasley in these proceedings and he will become the litigation guardian for her if he files an affidavit of consent. Upon doing so, the Adult Guardian would become capable of appointment by the Court pursuant to FCCR 11.11(1).
That description of the process by which a litigation guardian is appointed by the Court in pending proceedings is not inconsistent with FCCR 11.09(1) which requires a person who needs a litigation guardian to start a proceeding only by his or her litigation guardian. A person who needs a litigation guardian to start a proceeding may do so only by a person who has filed an affidavit of consent to become a litigation guardian pursuant to FCCR 11.11(2) or FCCR 11.12(4). The Court need not make an appointment of a litigation guardian to enable a person to commence proceedings by their litigation guardian.
It follows, in my view, that the submissions by the Independent Children’s Lawyer and Legal Aid Queensland to the effect that the Court could either appoint the Adult Guardian as Ms Beasley’s litigation guardian without his consent, or dispense with the rule requiring the Adult Guardian’s consent (either FCCR 11.11(2) or 11.12(4)) cannot be maintained. The Court can only appoint a litigation guardian. It cannot appoint a person who is not a litigation guardian. A litigation guardian is, and only is, a person who has filed an affidavit of consent. In my view, there is nothing that can be waived or in respect of which there could be an order for dispensation. If compliance with FCCR 11.11(2) was dispensed with, FCCR 11.11(1) would still not permit the appointment of a person who had not filed an affidavit of consent because that person would not be a litigation guardian for the purposes of FCCR 11.11(1).
Should FCCR 11.09(1) be dispensed with?
Dispensation with compliance with one or more of the Federal Circuit Court Rules is a discretionary exercise. The discretion can only be exercised where it is in the interests of justice to do so, but its exercise is otherwise unfettered. The discretion must be exercised judicially. Moreover, it must be exercised with an eye to the objects of the FCCR as set out in FCCR 1.03(1) which is to assist the just, efficient and economical resolution of proceedings.
The Independent Children’s Lawyer submits that it cannot be in the interests of justice to dispense with the rules, because to do so will leave Ms Beasley’s solicitors without instructions. The Independent Children’s Lawyer points out that whilst Legal Aid Queensland says that it will be instructed by the Adult Guardian on Ms Beasley’s behalf, the Adult Guardian does not suggest that it will provide any instructions. Specifically, the Independent Children’s Lawyer looks to the Adult Guardian’s written submissions at paragraph 8 which I have extracted above. The Adult Guardian suggests that because he does not have any knowledge of the factual nature of the dispute, he is “not in a position to provide instructions to any legal representative regarding the nuances of the dispute”.
Because the Adult Guardian did not appear at the hearing before me (although had done so in the past) I received no expansion or explanation of the Adult Guardian’s written submissions and in particular what exactly was meant by what was said in paragraph 8 of that submission.
However, the submission that “the Adult Guardian is mindful that given the factual nature of any dispute, he is clearly not in a position to provide instructions to any legal representative regarding the nuances of the dispute” misapprehends the role of a litigation guardian. It is not necessary for a litigation guardian to have any knowledge, personal or otherwise, of the facts of the dispute at hand in the way in which the Adult Guardian seems to imply. In Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 Hodgson J, referring to a tutor as a litigation guardian as described in the rules of the Supreme Court of New South Wales as they then stood, recorded at 203:
A useful statement of principle concerning the role of a tutor is contained in the judgment of Bowen LJ in Rhodes v Swithenbank (1889) 22 QBD 577at 579 (quoted with approval by Williams, J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113-114):
“… The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. Accordingly, where more than one person is willing to act as a next friend, the court will appoint as most suitable the father or if he is dead the widow or some near relative in preference to a stranger unless the interest of the father or other relative is adverse to that of the infant. The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interests will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend.”
This statement concerns the next friend of an infant, and the comment about the principal purpose of the appointment of a person to act on behalf of the infant in proceedings being because the law considers that an infant is incapable of asserting or protecting his rights, applies with at least equal force to the case of a guardian ad litem, that is a tutor appointed to represent an infant defendant in proceedings.
Just as Hodgson J thought that the statement of Bowen LJ in Rhodes applied with at least equal force to a guardian ad litem, so too, I think that the statements apply with equal force to a litigation guardian appointed to a person who, although not an infant, is nonetheless a person in need of a litigation guardian pursuant to FCCR 11.08(1).
In Deputy Commissioner of Taxation v P Hodgson J recorded that the “usual practice in the past [was] … to appoint a solicitor of this Court who has no interest in the proceedings adverse to that of the infant defendant” as a tutor for the infant. Indeed, where no person is able or willing to accept an appointment as a tutor or litigation guardian, howsoever described, a solicitor is usually appointed to that role. Hodgson J was, however, asked to appoint a court official as litigation guardian for the infant in that case. Of that request, his Honour said:
However, it appears that in this case no such person is willing, and under the Supreme Court Rules, a person shall not be made a tutor without his consent. One reason for this rule would appear to be that a person made a tutor without his consent might not exercise the necessary diligence in seeking to uphold the interests of the infant. Even assuming that the Court has power to dispense with compliance with that particular rule, I do not think it would be proper for the Court to do so, certainly not in this case.
As I have indicated, the plaintiff seeks the appointment of a court official as tutor. However, such an appointment involves significant responsibilities and duties, and unless the acceptance of such appointments falls within the duties of a particular office, I do not think any court official should be so appointed, at least unless that court official freely consented.
Three matters arising from this passage require observation. First, the rules of the Supreme Court as they existed at the time of Hodgson J’s judgment indeed prevented the appointment of a person as a tutor where the proposed appointee did not consent. As I have discussed above, the terms of the Federal Circuit Court Rules also prevent the appointment of a person as a litigation guardian without their consent.
Second, his Honour seems to have permitted of the possibility that the rule requiring the prospective appointee’s consent might be dispensed with. But the form of the rules of the Supreme Court considered by his Honour is different to those under consideration here. Again, for the reasons I have attempted to express above, I do not think that FCCR 11.11(2) or 11.12(4) are amenable to dispensation.
Third, his Honour was clearly concerned not to burden the proposed appointee with significant responsibilities and duties unless the acceptance of such an appointment fell within the duties of a particular office. Here of course, the responsibilities and duties relating to
Ms Beasley’s participation in the present proceedings are squarely within the Adult Guardian’s bailiwick. Section 33(1) of the Guardianship and Administration Act authorises the Adult Guardian to do the things specified in that section. It does not oblige the Adult Guardian to act. However, the written submissions from the Adult Guardian tend to suggest that he will act to assist Ms Beasley in the proceedings to the extent to which he sees it as necessary. The position of the Adult Guardian is significantly different to the court official under consideration by Hodgson J in Deputy Commissioner of Taxation v P.
Thus, as to the first basis upon which the Adult Guardian suggests that FCCR 11.09(1) should be dispensed with, it seems to me that the ground is misconceived. It is not to the point that the Adult Guardian does not have an understanding of the factual nuances of the case. The submission suggests that only such a person could be appointed a litigation guardian for a party to a proceeding. But that ignores the very real possibility that such a person might be placed into a position conflict because of their very involvement in the factual matrix of the case at hand: see for example South v Northern Sydney Area Health Service Health Service [2003] NSWSC 479.
The second basis upon which the Adult Guardian suggests that dispensation is appropriate is that he is unwilling to become the litigation guardian for fear of being exposed to a costs order. The Adult Guardian submits that he is not funded by the Queensland Government in that regard. However, in my view this concern is more illusory than real.
I recognise immediately that there is a possibility, however remote, that a costs order might be made in the present proceedings and that it might be made against Ms Beasley’s litigation guardian if the circumstances so require. But in my view, the following matters lead to the conclusion that such a possibility is barely discernible:
a)the proceedings are for the making of parenting orders pursuant to Part VII of the Act and so, the welfare of [X] is the paramount consideration. Whilst the proceedings are adversarial proceedings between the parties to the proceedings, they nonetheless do not concern the rights and entitlements of the parties, but rather their obligations and responsibilities towards their daughter;
b)the proceedings are brought pursuant to the Family Law Act and s.117 of that Act will govern any applications for costs. Pursuant to that section the starting point is that each party should bear their own costs: s.117(1);
c)it will be relevant to any consideration of a different order for costs than that which would see each party bear their own costs that:
i)Mr Dawson is representing himself and therefore has no claimable legal costs;
ii)the Independent Children’s Lawyer is in receipt of legal aid; and
iii)the Adult Guardian is fulfilling a statutory role upon an appointment by QCAT.
The existence of a litigation guardian for Ms Beasley is likely to assist the resolution of the proceedings and so be an efficient use of resources. If no litigation guardian is appointed, then the issues litigated in the proceedings are at risk of further litigation (and therefore the further expenditure of time and cost) if Ms Beasley ceases to be under her present disability or she commences fresh proceedings with a willing litigation guardian: see SFTB v Minister for Immigration [2003] FCAFC 108 at [13]. The integrity of the Court’s process is thereby at risk because there can be no certainty on the part of Mr Dawson, or [X] that the litigation has come to an end.
The outcome will not bind Ms Beasley and although parenting orders are never final in some senses, there is a significant impediment to further litigation about parenting matters once final orders have been made presented by the principles discussed in cases like Marsden & Winch [2009] FamCAFC 152. However, if the present proceedings are conducted without a litigation guardian, Ms Beasley may not be subject to those impediments. It is difficult to see how a “just” resolution of proceedings could be achieved without the appointment of a litigation guardian.
The Independent Children’s Lawyer submits that it is in [X]’s best interests that these proceedings be concluded as soon as possible, and that all of the relevant evidence be placed before this Court to enable a final decision to be made. I agree. With these considerations in mind, the appointment of a litigation guardian would help ensure finality to this litigation.
Whilst the Adult Guardian submits that the Court can be satisfied that by virtue of the Adult Guardian's statutory obligation pursuant to the Guardianship and Administration Act, “Ms Beasley's rights and interests will be properly protected”, the refusal by the Adult Guardian to take up the role as litigation guardian is of considerable concern. So too is that refusal in light of the Adult Guardian’s submission that “However as a substituted decision maker, [the Adult Guardian] will provide assistance to the adult, in this case, Ms Beasley in so far as she is able to participate in the process and protect her rights and interests in any proceedings.” It would seem to me that a refusal to take up the appointment for fear of an adverse costs order in proceedings in which an adverse costs order almost certainly will not be made, is not likely to advance or protect Ms Beasley’s interests.
Conclusions and Orders
Without the Adult Guardian’s consent to his appointment as litigation guardian in the proceedings for Ms Beasley, the Court is bereft of power to appoint the Adult Guardian as Ms Beasley’s litigation guardian.
However, no good reason has been demonstrated by Legal Aid Queensland, or the Adult Guardian, to dispense with compliance with FCCR 11.09(1). I am not satisfied that it is in the interests of justice to dispense with compliance with FCCR 11.09(1). The application by Legal Aid Queensland in that respect must be dismissed.
It is necessary, then to consider what consequential orders, if any, ought to be made for the further conduct of the proceedings. I am inclined to order that Ms Beasley response be stayed until such time as a consent to act as litigation guardian for her is filed. That may mean that
Mr Dawson is left without a resolution, but, subject to further submissions, it may be appropriate for the present orders to remain until the proposed stay is discharged.
It is appropriate that the application be adjourned for further submissions and directions about the further conduct of the proceedings.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 3 March 2015
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