7.68 At common law, the capacity test for a person to participate in civil proceedings is the same as that required for a person to enter into legal transactions. There is a presumption of capacity ‘unless and until the contrary is proved’.
7.69 The focus of the test is on the capacity of the person to understand they have a legal problem, to seek legal assistance about the problem, to give clear instructions to their lawyers and to understand and act on the advice which they are given.
7.70 The test is issue-specific. That is, capacity must be considered in relation to the particular proceedings and their nature and complexity. This contrasts with the test of unfitness to stand trial in criminal law.
The civil test takes a functional approach to capacity in that it assesses a person’s ability to make a particular decision at a particular moment in time, and not a person’s ability to make decisions more generally.
7.71 The test is able to take into account the level of legal representation. In particular, the level of capacity required to be a litigant in person is higher than where the person is required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. Therefore, ‘a person who does not have the mental capacity to represent themselves may have sufficient capacity to be able to give instructions to a lawyer to represent them’.
Proposal 7–4 The rules of federal courts should provide that a person needs a litigation representative if the person cannot:
(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings;
(b) retain that information to the extent necessary to make the decisions;
(c) use or weigh that information as part of a decision-making process; and
(d) communicate the decisions in some way.
Proposal 7–5 The rules of federal courts should provide that available decision-making support must be taken into account in determining whether a person needs a litigation representative.
7.72 Where a person does not have capacity to conduct litigation, a litigation representative may be appointed. A litigation representative may also be known as a litigation guardian, case guardian, guardian ad litem, next friend, tutor or special representative. In broad terms, a litigation representative acts in the place of the person and is responsible for the conduct of the proceedings.
7.73 The circumstances in which a litigation representative may be appointed are set out in rules of court. In general, a litigation representative is appointed by the court, on the application of a party or an interested person, such as a parent or guardian or, sometimes, the person’s own lawyer.
7.74 Litigation representatives can also be removed or substituted by the court, on the application of a party or on its own motion. There are no other review mechanisms for the conduct of a litigation representative, except to the extent that the representative’s conduct may be reviewed under state and territory guardianship laws, if the representative is also a guardian or administrator.
7.75 Under federal court rules, a person may be assessed as needing a litigation representative if the person:
is ‘under disability’ (High Court);
is ‘under a legal incapacity’ because of being a ‘mentally disabled person’ and ‘not capable of managing the person’s own affairs in a proceeding’ (Federal Court);
is ‘with a disability’ and ‘does not understand the nature or possible consequences of the case; or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case’ (Family Court);
‘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’ (Federal Circuit Court).
7.76 The way in which some of these federal court rules are drafted is clearly inappropriate and inconsistent with contemporary conceptualisations of capacity and disability. In particular, some rules adopt elements of a ‘status-based’ approach that is inconsistent with the CRPD.
7.77 While the common law capacity test for civil proceedings may be used to interpret the application of rules of court dealing with the appointment of litigation representatives, the rules could more closely reflect the common law—and its focus on capacity in relation to the particular transaction or proceedings, rather than ‘disability’.
7.78 The ALRC proposes that—as with the new test in criminal proceedings proposed above—the rules of federal courts concerning the appointment of litigation representatives should reflect the guidelines for determining decision-making ability in the National Decision-Making Principles.
7.79 Arguably, there is little difference between the proposal and the position that applies at common law in determining whether a person has capacity to conduct civil litigation.
7.80 The National Decision-Making Principles recognise that there is a spectrum of decision-making ability—and that ability should be assessed by reference to the decision to be made—and that ability may evolve or fluctuate over time. In contrast, the existing test for capacity to conduct litigation is ‘once and for all’ (that is, for the course of the proceedings)—except to the extent that a person represented can apply to the court to have their litigation representative removed. However, this may be sensible administratively and for practical reasons concerning the efficient resolution of disputes.
7.81 A more major change than the proposed test of decision-making ability is to require courts to consider the available decision-making support in determining whether a person needs a litigation representative.
7.82 Existing rules do not expressly enable the availability of support to be taken into account in assessing whether a litigation representative should be appointed. However, in some ways this is simply a manifestation of the existing approach of assessing capacity in the context of the particular transaction or proceedings.
7.83 Implementation of these proposals is more likely than not to result in more people being involved in civil litigation without having a litigation representative formally appointed.
7.84 An overarching purpose of federal civil practice and procedure provisions is to facilitate the just resolution of disputes, according to law, and ‘as quickly, inexpensively and efficiently as possible’. From some perspectives this reform may be seen as making the resolution of some disputes less ‘efficient’.
7.85 Arguably, lawyers and courts need to know from whom they should take instructions and applications—that is, for the interests of a party to be represented by one voice. Facilitating and ensuring the participation of litigants with impaired decision-making ability may be considered too complex for lawyers and courts to manage.
7.86 Another relevant factor is that, under an adversarial system, courts are not easily able to facilitate the participation of persons with impaired decision-making ability in legal proceedings. The problems unrepresented litigants face in civil justice settings have been well documented over the years.
7.87 However, in the ALRC’s view, such concerns are outweighed by the need to promote the dignity, equality, autonomy, inclusion and participation of all people involved in civil proceedings.
The role of litigation representatives
Proposal 7–6 The rules of federal courts should provide that litigation representatives:
(a) must support the person represented to express their will and preferences in making decisions;
(b) where it is not possible to determine the wishes of the person, must determine what the person would likely want based on all the information available;
(c) where (a) and (b) are not possible, must consider the human rights relevant to the situation; and
(d) must act in a manner promoting the personal, social, financial and cultural wellbeing of the person represented.
Proposal 7–7 Federal courts should issue practice notes explaining the duties of litigation representatives to the person they represent and to the court.
7.88 Under federal court rules, a person who is found to need a litigation representative may only conduct proceedings through that representative. Relevant rules of court provide as follows:
‘A person under disability shall commence or defend a proceeding by litigation guardian’ (High Court);
‘A person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative’ (Federal Court);
‘A person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian’ (Family Court);
‘A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian’. (Federal Circuit Court).
7.89 There is no obligation under common law or court rules for a litigation representative to make decisions that reflect the will, preferences and rights of the person represented. Rather, at common law, a litigation representative has a ‘duty to see that every proper and legitimate step for that person’s representation is taken’—which seems akin to a ‘best interests’ test.
7.90 A litigation representative has no obligation to consult or facilitate the participation of the person represented, except to the extent that such duties may be imposed by state or territory guardianship legislation (if the person is also a guardian or administrator).
7.91 In her submission, the Hon Chief Justice Diana Bryant AO observed that the role of a litigation representative has been described as:
an invidious one in the sense that the person is taking on the decision-making responsibilities of the litigant whilst having to ensure that their own interests do not conflict with those of the litigant. That means that the case guardian has to make decisions which are often unpalatable to the individual litigant.
7.92 Clearly, this is far from the preferred will and preferences approach to supported decision-making proposed by the ALRC. Further, case law makes it clear that the role of a litigation representative is not only to ‘protect’ the person represented. The Full Court of the Federal Court has held that the purpose of the power to appoint a litigation representative is ‘to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court’.
7.93 Case law also emphasises concerns about protecting the rights of the other parties in the litigation. It has been said that requiring litigation representatives helps to ensure, in some cases, that ‘parties to litigation are not pestered by other parties who should be to some extent restrained’ and that a ‘defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend’.
7.94 In the ALRC’s view, litigation representatives should be required to act, so far as is practicable, in accordance with the National Decision-Making Principles. To this end, the rules of federal courts should provide, among other things, that in making decisions, litigation representatives have a duty to consider the will, preferences and rights of the person represented; to promote their personal, social and financial wellbeing; and to consult with others.
7.95 The ALRC recognises that, in practice, other problems relating to litigation representatives may be of equal or greater significance, but are not a focus of this Inquiry. For example, submissions raised concerns about:
the cost and availability of litigation guardians for people who are unable to instruct legal counsel;
the lack of funding to meet the legal costs of case guardians in Family Court proceedings;
the difficulties in securing the nomination by the Attorney-General of case guardians in Family Court proceedings where another suitable person is not available;
the availability of legal representatives who are independent of guardians appointed by state tribunals.
Question 7–2 Should the Australian Solicitors’ Conduct Rules and state and territory legal professional rules be amended to provide a new exception to solicitors’ duties of confidentiality where:
(a) the solicitor reasonably believes the client is not capable of giving lawful, proper and competent instructions; and
(b) the disclosure is for the purpose of: assessing the client’s ability to give instructions; obtaining assistance for the client in giving instructions; informing the court about the client’s ability to instruct; or seeking the appointment of a litigation representative?
7.96 The National Decision-Making Principles require that people should be provided with the support necessary for them to make, communicate and participate in decision-making. In some cases, this support will include the appointment of a litigation representative. The barriers to obtaining this support may include solicitors’ duties to their clients.
7.97 Solicitors have a duty to act in the best interests of their clients, and to follow a client’s lawful, proper and competent instructions. A solicitor who has concerns about his or her client’s decision-making ability may be unwilling to act for a client who refuses, or is unable to agree to, investigations in relation to their ability or an application for the appointment of a litigation representative.
7.98 Solicitors must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement, subject to limited exceptions—which do not include seeking decision-making support.
7.99 However, the duty of solicitors to the court and the administration of justice is paramount. Once proceedings are commenced, solicitors have a clear and unambiguous duty to raise with the court any concerns about a client’s capacity to conduct litigation.
7.100 There is some case law establishing that concerns about a client’s capacity may ground an exception to duties of confidentiality. In R v P, a solicitor had sought the appointment of a public guardian to have control of his client’s estate and existing court proceedings, independently of his client’s wishes. The New South Wales Court of Appeal held that:
the solicitor’s concern for the interest of the client, so long as it is reasonably based and so long as it results in no greater disclosure of confidential information than absolutely necessary, can justify the bringing of proceedings and such disclosure of confidential information as is absolutely necessary for the purpose of such proceedings.
7.101 The Court also stated that the bringing of such actions is extremely undesirable because it involves the solicitor in a conflict between the duty to do what the solicitor considers in the client’s best interests and the duty to follow the client’s instructions (and maintain confidentiality).
7.102 It has been suggested that, if there is no clear exception to solicitors’ duties of confidentiality, they may ‘cease acting for disadvantaged clients’ resulting in clients ‘moving from lawyer to lawyer or worse, being left unrepresented’. However, there are also arguments against reform, including on the basis that, if a statutory exception were to be introduced,
there may be a risk that lawyers would more readily make applications for the appointment of a substitute decision maker. Applications could potentially be made without the lawyer ﬁrst trying to adequately support the client to enable the client to provide instructions themselves.
7.103 One option for reform would be new legal professional rules to make it clear that solicitors may disclose information when there is reason to believe the client lacks the ability to instruct. This would at least ensure that disclosure is not grounds for professional disciplinary action, but would not remove doubts about liability for breach of confidence or other liability under the general law.
7.104 One model is provided by the American Bar Association’s Model Rules for Professional Conduct. These provide that:
When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities … and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
7.105 The Queensland Law Society submitted that such rules could ‘provide greater clarity for practitioners along with professional certainty of being able to act to protect client’s interests’.
Goddard Elliot v Fritsch  VSC 87, .
L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432, .
Goddard Elliot v Fritsch  VSC 87, .
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 52.
Goddard Elliot v Fritsch  VSC 87, .
The term ‘litigation guardian’ is used in the High Court and Federal Circuit Court, ‘litigation representative’ in the Federal Court and ‘case guardian’ in the Family Court.
The ALRC has chosen to use the term litigation representative, which is also used by the Federal Court, because the current duties of people acting in this role are consistent with the ALRC’s usage of the term ‘representative’ elsewhere in this Discussion Paper—notably, in relation to ‘supporters’ and ‘representatives’ in Ch 4.
High Court Rules 2004 (Cth) r 20.08.
Federal Court Rules 2011 (Cth) r 9.61, Dictionary.
Family Law Rules 2004 (Cth) r 6.08, Dictionary.
Federal Circuit Court Rules 2001 (Cth) r 11.08.
The Law Commission of England and Wales has made this point in relation to the similarity between the capacity test under the Mental Capacity Act 2005 (UK) and that which applies at common law: Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 51.
Federal Court of Australia Act 1976 (Cth) s 37M.
See, eg, Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [5.148]–[5.157]; Productivity Commission, ‘Access to Justice Arrangements’, Draft Report. (2014) Ch 14.
High Court Rules 2004 (Cth) r 21.08.1.
Federal Court Rules 2011 (Cth) r 9.61.
Family Law Rules 2004 (Cth) r 11.09.
Federal Circuit Court Rules 2001 (Cth) Rule 6.08.
Read v Read  SASR 26, 28.
Quoting Anton & Malitsa  FamCA 623, : D Bryant, Submission 22 (emphasis added).
L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432, .
Masterman-Lister v Brutton & Co (Nos 1 and 2)  1 WLR 1511, , .
As discussed in Ch 3, the Inquiry is only concerned with issues surrounding the decision-making ability of adults. The ALRC is not, for example, making any proposals with respect to the duties of case guardians representing children in Family Court proceedings.
Office of the Public Advocate (Vic), Submission 06.
D Bryant, Submission 22.
Queensland Advocacy submitted that ‘a conflict of interest arises when a QCAT-appointed guardian (wrongly, although lawfully, in our view) rejects an adult’s request to litigate a matter simply because in the Guardian’s view it is not in that person’s best interests’: Queensland Advocacy Incorporated, Submission 45.
See, eg, Lauren Adamson, Mary-Anne El-Hage and Julianna Marshall, ‘Incapacity and the Justice System in Victoria’ (Discussion Paper, Public Interest Law Clearing House, 2013).
Law Council of Australia, Australian Solicitors’ Conduct Rules (2011) r 4.1.1.
Ibid r 8.1.
Ibid r 9.
Ibid r 3.1.
Pistorino v Connell & Ors  VSC 438, . ‘Once the matter is raised the court will inquire into the question … In the exercise of jurisdiction the court is acting both to protect the interests of the person with a relevant disability and to protect the court’s own processes’.
R v P  NSWCA 473, . The Law Society of NSW has stated that R v P is ‘an important qualification to the duty of confidentiality owed by solicitors to clients’: see ‘When a Client’s Capacity Is in Doubt: A Practical Guide for Solicitors’ (Law Society of NSW, 2009) 9, App E.
R v P  NSWCA 473, . ‘It is therefore preferable, if possible, if a family or health care professional makes the application [for the appointment of a substitute decision-maker]’: ‘When a Client’s Capacity Is in Doubt: A Practical Guide for Solicitors’, above n 121, 9.
Adamson, El-Hage and Marshall, above n 115, 3.
American Bar Association, Model Rules of Professional Conduct, r 1.14.
Qld Law Society, Submission 53. See also Andrew Taylor, ‘Representing Clients with Diminished Capacity’ Law Society Journal (February 2010) 56, 58.