What is a litigation guardian?

A litigation guardian is appointed to protect the processes of the Court and to ensure that the interests of a litigant who has impaired capacity are protected against the disadvantage that the litigant would otherwise be under. At common law a litigation guardian owes a duty to see that every proper and legitimate step is taken for the adult’s representation. A litigation guardian is a substitute decision-maker, which means that they are required to act on what they perceive are the best interests of the party.

A litigation guardian is subject to the same obligations about the conduct of a matter as a lawyer, including the undertakings implied in rule 5 of the UCPR. The Court may remove a litigation guardian if the interests of justice require it.^[1]

There are risks to accepting the role of litigation guardian. At common law, a litigation guardian:

1. 1. 1. is personally liable for the costs of a solicitor retained by the litigation guardian on behalf of a relevant adult;^[2]
      2. for a plaintiff will generally be personally liable for any of the defendant’s costs that the plaintiff is ordered to pay;^[3]
      3. for a defendant will generally not be personally liable for any of the plaintiff’s costs that the defendant is ordered to pay, unless there was misconduct on the part of the litigation guardian;^[4]
      4. is entitled to an indemnity from the adult’s estate for costs and expenses properly incurred.^[5]

How is a litigation guardian appointed?

A person becomes a litigation guardian by filing in the registry the person’s written consent or by appointment by the court.^[6]

While a court can appoint someone to act as litigation guardian without their consent, it is unlikely to do so in practice. In Queensland, there is no support regime which requires, for example, appointment of the Public Trustee as litigation guardian in the absence of a person willing to help. When a person does not have someone willing to be their litigation guardian, the Public Trustee cannot be appointed without its consent and it is generally reluctant to be appointed as litigation guardian.^[7]

Accordingly, when no-one is willing to act as a litigation guardian and the Public Trustee refuses to act, the only outcome is an indefinite stay of proceedings.

Sanctioning an agreement or order

Once a matter is finalised, an order or agreement for compensation should be sanctioned by the court.

Sanctioning a settlement between another person and an adult with impaired capacity or where the court orders an amount to be paid by an adult with impaired capacity^[8] protects all parties, including the litigation guardian.

1. Rule 94(2) UCPR
2. Stephenson v Geiss [1998] 1 Qd R 542 at 558 per Lee J
3. NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247 at 253-4 per Sackville J
4. Murray v Kirkpatrick (1940) 57 WN (NSW) 162
5. Stephenson v Geiss [1998] 1 Qd R 542 at 558
6. Rule 95, Uniform Civil Procedure Rules 1999
7. Fowkes v Lyons [2005] QSC 007; 27(3) Public Trustee Act 1978
8. s 245 GAA