Background
RS commenced a negligence claim against the State of NSW concerning the Department of Communities and Justice’s alleged response to circumstances involving her 16-year-old daughter, AS. RS purported to bring the claim both for herself and for AS, whom she described as a second plaintiff and sought to represent as her tutor or litigation guardian.
RS was self-represented. Family Court consent orders placed AS in her father’s care, gave him sole long-term decision-making responsibility, and restrained RS from communicating with AS unless AS initiated contact. The State opposed RS’s appointment as tutor but supported protective non-publication orders.
The Court’s Holding
Rigg J dismissed RS’s application to be appointed as AS’s tutor and to conduct AS’s proposed claim without a solicitor. AS was not properly a party merely because she had been named in the statement of claim, and RS had not met the procedural requirements for proceedings by a person under legal incapacity.
The Court held that RS could not practically or appropriately act for AS. She was restrained from contacting AS, could not obtain AS’s views or instructions, and could not readily arrange evidence or expert assessments. The proposed litigation was complex, AS’s possible claim might differ from the claim pleaded by RS, and there was a potential conflict between their interests. The Court also ordered RS to amend her pleading so that she alone remained a plaintiff.
The Court made a 50-year non-publication order preventing publication of material identifying AS, including through naming her parents or siblings. Costs of the motion were reserved.
Key Takeaways
- A parent seeking to litigate for a minor must comply with the UCPR requirements for a tutor and, ordinarily, act through a solicitor.
- A tutor application may fail where family-law orders prevent communication with the child and make it impossible to obtain instructions or protect the child’s independent interests.
- Complexity, potential conflicts, and the child’s welfare can make self-represented lay representation unsuitable.
Why It Matters
The decision illustrates the Court’s supervisory role over litigation involving children. A parent’s belief that they are advocating for a child does not suffice where the proposed claim requires independent assessment, legal representation, and instructions that the parent cannot obtain.
It also shows that courts may protect a minor’s identity while refusing a proposed litigation arrangement that does not adequately safeguard the minor’s interests.