Legal incapacity & the appointment of a litigation tutor

Although not a case related to medical litigation, Rappard v Williams [2013] NSWSC 1279 is a useful decision for its summary of law regarding legal incapacity in the context of the need for appointment of a tutor to conduct litigation for a plaintiff. The references are to New South Wales provisions, but the principles appear to be of general application.

The relevant discussion appears at [62] – [81]:

62 A tutor is a person appointed to represent a person under legal incapacity, whether by the Court or otherwise, in accordance with Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 (“the UCPR”) (UCPR Dictionary).


63 The UCPR, Part 7, Division 4 (which includes rules 7.13 to 7.18) describes the way in which persons under legal incapacity may participate in litigation.


64 Section 3 of the Civil Procedure Act contains the following inclusive, but not exhaustive, definition:


“‘person under legal incapacity’ means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes:

(a) a child under the age of 18 years, and

(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007 , and

(c) a person under guardianship within the meaning of the Guardianship Act 1987 , and

(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009 , and

(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.”


65 Pursuant to s 11 of the Interpretation Act 1987, which makes a definition in a statute also apply to delegated legislation made under that statute, the definition in the Civil Procedure Act also applies to the UCPR.


66 UCPR rule 7.13, which has been described as “a supplementary definition” by Basten JA in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, at [19], defines a “person under legal incapacity” as including “a person who is incapable of managing his or her affairs”. Otherwise, there is no definition in the UCPR.


67 Rule 7.14(1) requires a person under legal incapacity to commence, and carry on, proceedings by a tutor.


68 The approval of the Court for the appointment of a tutor is not required. A Court order is only required where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). The fact that a tutor has been appointed after the commencement of the proceedings (and before a mediation) is not determinative of the question whether the proceedings should have been instituted by the Plaintiff through a tutor: see, for example, Chong v Mo [2010] NSWSC 251, at [70].


69 A person not being under a personal incapacity to sue, not being an accounting party, not having an interest adverse to the person under a legal incapacity and not relevantly connected with any other party to the proceedings may be a tutor: R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270. The tutor represents the person and does not pursue a personal interest in the proceedings. These requirements are procedural.


70 UCPR rule 7.15(6) confers authority on a tutor to bind the person under legal incapacity. It confers that authority even if the tutor is someone who would not otherwise have authority to bind the person under legal incapacity, by being the manager of a protected person’s estate, or the donee of an enduring power of attorney. However the authority that UCPR rule 7.15 confers on the tutor arises only concerning a limited class of acts, namely acts that the UCPR “authorise or require a party to do in relation to the conduct of proceedings”. One of the things that the UCPR authorises a party to do is to compromise proceedings.


71 Where there is no evidence that a party fits within sub-paragraphs (a) to (e) of the definition of “person under legal incapacity” in s 3 of the Civil Procedure Act, the only way in which she, or he, could be a person under legal incapacity is if the Court were satisfied that she, or he, is a “person who is under a legal incapacity in relation to the conduct of legal proceedings” who does not fit within any of paragraphs (a) – (e) of the definition, or that she or he was a person who was incapable of managing her affairs within the meaning of UCPR rule 7.13.


72 There is no definition of the meaning of “managing … her affairs” in the Civil Procedure Act or in the UCPR. However, there has been discussion, in many cases, as to the meaning of that phrase under the Protected Estates Act 1983 (which has been repealed by s 4 of the NSW Trustee and Guardian Act 2009 with effect from 1 July 2009).


73In Application of SJ [2011] NSWSC 372, I wrote, at [17] – [19]:


“A person’s capability to manage her, or his, own affairs, was discussed, by Campbell J (as his Honour then was), inRe GHI (a protected person) [2005] NSWSC 581; (2005) 221 ALR 581. His Honour affirmed the approach stated by Powell J in PY v RJS [1982] 2 NSWLR 70. Powell J had said:

“It is my view that a person is not shown to be incapable of managing his or her own financial affairs unless, at the least, it appears

(a) that she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

(b) that by reason of that lack of competence there is shown to be a real risk that either

(i) she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property that she may possess may be dissipated or lost … it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner.”

Young J (as his Honour then was) in H v H (Supreme Court, 20 March 2000, unreported) in dealing with the capacity test, said that dealing with the “ordinary affairs of man” does not simply mean being able to go to the bank and draw out housekeeping money. Most people’s affairs:

“are more complicated than that that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one’s family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.”

The reference to “affairs” is a reference to the whole of the person’s affairs or his, or her, affairs generally: P v R [2003] NSWSC 819 at [7]. The cause of the incapacity is irrelevant, although the ability to recognise and protect one’s own interests plays a central part in the inquiry (P v R at [9]).”


74 Thus, without trying to be exhaustive, the management of a person’s affairs can include the management of the whole range of practical matters in which that person is involved.


75 Whether the notion of not being capable of managing one’s own affairs that is appropriate for the Protected Estates Act,applies to the definition of “person under legal incapacity” in the Civil Procedure Act and in the UCPR has been questioned. InDoulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627, at [156] – [157], Campbell JA wrote:


“156 There is a question of construction about whether the notion of being not capable of managing one’s own affairs that is appropriate for the Protected Estates Act also applies to the definition of “person under legal incapacity” in theCivil Procedure Act and Uniform Civil Procedure Rules. One reason why it might be argued that there is a difference is that the effect of a person being found to be not capable of managing their own affairs under the Protected Estates Actis that someone else takes over the conduct of all their affairs, while the practical effect of being not capable of managing their own affairs under the Civil Procedure Act and Uniform Civil Procedure Rules is that someone else takes over the conduct of only a specific piece of litigation. Another reason why it might be argued that there is a difference is that, pursuant to section 13 Protected Estates Act, the estate of a person becomes subject to management only after the court has become satisfied that a person is incapable of managing his or her affairs, while the appointment of a tutor is effective without any formal instrument of appointment or any order or decision of a court (UCPR 7.15(1)), subject only to the filing of the tutor’s consent to act as tutor, and a certificate signed by the tutor’s solicitor to the effect that that tutor does not have any interest in proceedings adverse to the interests of the “person under legal incapacity” (UCPR 7.16). In relation to somewhat, but not totally, analogous rules of court in England, Chadwick LJ has said, in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162 at [66]:

“… there was no requirement, as such, in the rules for the filing or consideration of medical evidence. If the rule is to work in practice, the test of mental capacity should be such that, in the ordinary case, the need for a next friend or guardian ad litem should be readily recognized by an experienced solicitor.”

157 Whatever may be the outcome of that particular question of construction, there is another question of construction concerning whether being “under a legal incapacity in relation to the conduct of legal proceedings” requires the incapacity to exist concerning legal proceedings generally, or concerning the particular legal proceedings in relation to which the appointment of tutor is made. And whatever may be the outcome of that enquiry, there is a question of what is involved in being “under legal incapacity” in relation to whatever legal proceedings, or type of legal proceedings, is the relevant one. (Chadwick LJ suggests one answer in Masterman-Lister at [58].) None of those questions of construction was argued at the hearing. Nor were they argued on the appeal, so I express no opinion now concerning the correct answer to any of them.”


76Whether a person is under a legal incapacity is always a task, and time, specific, matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] – [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a “person who is under a legal incapacity in relation to the conduct of legal proceedings” must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of “person under legal incapacity”.


77 Chadwick LJ in Masterman-Lister v Brutton & Co (referred to in the passage quoted above) also said, at [75]:


“… the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem …”


78 The “conduct of legal proceedings” refers to doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice, and engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceeding: see, for example, Pistorino v Connell[2012] VSC 438, per Dixon J, at [21] – [24].


79 In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J observed, at [23], that the question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is “issue-specific” and “relates to the facts and subject-matter of the particular case”.


80 In Re P [2006] NSWSC 1082, Young CJ in Eq considered the evidence pointed to the defendant as a person with “a mental problem in continuing with the litigation”. He found that the defendant had “a problem which stops him from giving proper instructions to his lawyers and the lawyers would have difficulty in doing what they were instructed by the client because they could not be assured that his mind was proceeding his mouth”.


81 Finally, I should also refer to Bobolas v Waverley Council [2012] NSWCA 126, in which McColl JA (with whom Macfarlan JA and Tobias AJA agreed) wrote:


“60 In addition to its powers under UCPR r 7.18, the Court has inherent power to appoint a tutor for the purposes of particular litigation under its parens patriae jurisdiction in circumstances where there may be doubt as to whether a person’s mental state falls within the statutory definition of “person under legal incapacity”: Re P [2006] NSWSC 1082 per Young CJ in Eq at [8].”