Representation in civil proceedings

The next friend and the guardian ad litem

13.6 Civil litigation is instituted not by a child but on behalf of a child by a next friend or a guardian ad litem.^[5] The High Court Rules provide

1. An infant may sue as plaintiff by his next friend.
2. An infant may defend in a proceeding by his guardian appointed for that purpose.^[6]

The High Court Rules also provide

[a]n infant shall not enter an appearance except by his guardian ad litem.^[7]

13.7 These rules are mirrored in the Federal Court and in State and Territory Supreme Courts and district courts.^[8] In the civil jurisdictions of State and Territory courts, children are most frequently involved in personal injury matters.^[9] In federal civil courts children sometimes appear in relation to consumer issues or in public law matters concerning income support or immigration decisions.^[10]

13.8 In civil proceedings the next friend or guardian ad litem acts in the place of the child and is responsible for the conduct of the proceedings. This includes, in the case of the next friend, incurring liability for litigation costs.^[11] The next friend or guardian ad litem is not a party to proceedings and is not entitled to appear in person.^[12] The High Court Rules and Federal Court Rules state that a person must give written consent before being appointed as the next friend or guardian ad litem.^[13] The court may appoint a guardian ad litem where there is no other person available.^[14] The next friend or guardian ad litem may be removed by order of the court.^[15]

13.9 The child’s next friend or guardian ad litem is generally the legal guardian of that child.^[16] The guardian ad litem and the next friend do not receive remuneration for acting in the position.

13.10 Common law recognises that the next friend or guardian ad litem should act in the best interests of the child.^[17] Legislation does not place the same responsibility on the next friend or guardian ad litem although the Federal Court Rules state that a person may not act as a next friend or guardian ad litem for a child if he or she has an interest adverse to that of the child.^[18] The High Court Rules require that an affidavit be filed by the solicitor on the record stating that the guardian ad litem or next friend is a fit and proper person to act and has no interest adverse to that of the child.^[19]

13.11 Of those submissions to the Inquiry that discussed the matter, a majority approved the next friend model.^[20] The Law Reform Committee of Judges suggested that the next friend and guardian ad litem procedure generally works well and

… has the advantage of flexibility and low cost, as the guardian is invariably a parent or close relative who provides his or her assistance free of charge and has an intimate knowledge of the circumstances of the child.^[21]

However, there is room for improvement in the model in at least two areas, one relating to the best interests of the child and the other to the role of the mature minor in litigation.

Ensuring the outcome promotes the best interests of the child

13.12 Legislation does not provide specifically that the next friend or guardian should conduct the litigation in the best interests of the child. No Australian legislation gives guidance on how to determine what the child’s best interests are in civil matters.

13.13 The Law Reform Committee of Judges suggested that there may be problems on occasion in ensuring that the child’s best interests are served by the litigation conducted by the next friend or guardian ad litem, particularly in relation to settlements and money held on behalf of the child.

Judges have…encountered situations where the litigation guardian has applied for payment out of monies held pursuant to a compromise in circumstances where one may have a reasonable suspicion that the orders sought are predominantly for the benefit of the guardian…^[22]

That submission noted that the court’s ability to remove the guardian in such cases is a sufficient safeguard against any misconduct on the part of a next friend or guardian ad litem.^[23] The Federal Court Rules also provide that settlements involving the next friend or guardian ad litem are not binding upon the child without the approval of the court.^[24]

13.14 Other submissions suggested that court rules should explicitly require the next friend or guardian ad litem to conduct the proceedings in the best interests of the child.^[25] This could be particularly relevant where the guardian ad litem or next friend is not the parent of the child.^[26]

13.15 Neither common law nor legislation recognises that children’s best interests may be served by allowing their direct participation in the proceedings. A child participates in litigation only to the extent that the next friend or guardian ad litem allows the child to be involved in decision making. The next friend or guardian ad litem has no obligation to present evidence of the child’s wishes.^[27] One submission to the Inquiry suggested

[i]n order to fulfil the requirements of CROC and to serve the interests of justice, the next friend model would have to have incorporated into it some requirement that the child’s own opinions and wishes were heard by the decision maker, rather than merely assuming that the next friend reflected those views.^[28]

The Inquiry does not accept this suggestion because the child’s wishes may not be relevant to the determination of issues in some cases.

The mature minor in civil proceedings

13.16 Civil proceedings initiated by a child without the intervention of a next friend may be dismissed by the court and the solicitor on the record ordered to pay costs.^[29] However, these proceedings may continue where there is no objection from another party.^[30] This liability for costs is a disincentive for any representative whom a child may consult to represent him or her directly.

13.17 Some young people may have a cause of action they wish to pursue independently and many are sufficiently mature to do so. Many young people live independently. Some of these young people have causes of action but no suitable family member to act as next friend. The mature minor test was developed in British and Australian courts initially in relation to the ability of a child to make informed decisions concerning medical treatment independent of parents. It may be useful in this broader context.^[31]

13.18 DRP 3 suggested that competent children living independently should be able to initiate civil proceedings directly or defend these proceedings directly. National Legal Aid disagreed with this proposal, noting that

…there should be no special rules in relation to civil litigation in comparison to other jurisdictions. It is believed this will only complicate the legal system. The age of responsibility should stand.^[32]

The Inquiry sought comments from the Chief Justices of the Supreme Court of each State and Territory, the Federal Court and the High Court. Chief Justice Cox of the Supreme Court of Tasmania doubted

…the capacity of most teenagers of that age to make the most appropriate decision in that regard. Indeed, there are too many who would too readily take the ‘bird in the hand’. The interposition of a next friend and the retention of Court approval of infants’ compromises are, in my view, necessary safeguards against youthful impetuosity.^[33]

However, Chief Justice Malcolm of the Supreme Court of Western Australia^[34] and Chief Justice Doyle of the Supreme Court of South Australia both supported the proposal.^[35] Recommendation 52 concerning the ability of children living independently to enter contracts should be accompanied by an ability to litigate in those circumstances.

13.19 Permitting mature minors to litigate directly should not prevent the court from scrutinising settlements and compromises.^[36] It should be accompanied by a provision allowing the court to appoint a next friend or guardian ad litem for a child where that child is litigating directly but, in the opinion of the court, is not sufficiently mature or capable of doing so. This would bring civil proceedings into line with family law proceedings. Such a decision may be appropriate where the court considers that ‘[u]nscrupulous advisers…run up unreasonably high bills which a mature next friend would never countenance’.^[37] The Inquiry recommends that a provision should be inserted into the Federal Court Rules and High Court Rules similar to that contained in Family Law Rules O 23 r 3(1).

13.20 Amendments to the Rules would be required to ensure that the minor would be bound by the judgment. The amendment would not affect the right of plaintiffs to initiate proceedings upon attaining majority under limitations restrictions in civil jurisdictions.^[38] That is, time should not run during the period of the child’s minority so that any proceedings commenced by a child under the mature minor test are within time and those who do not litigate during their minority are not prejudiced.^[39]

13.21 The High Court Rules^[40] and the Federal Court of Australia Act 1976 (Cth)^[41] provide a broad discretion to order security for costs. In DRP 3, we suggested that the child may be required to lodge security for costs when litigating directly. The Chief Justice of the Supreme Court of Tasmania pointed out that at common law a litigant should not be denied access to court by virtue of impecuniosity.^[42] He suggested that it would be inappropriate to use the device of requiring security for costs to restrict the possibility of ‘…unmeritorious litigation by youths…’^[43] The Inquiry is persuaded that it is inappropriate to provide specifically for lodgement of security for costs by child litigants. However, the court may use its general discretion to order security for costs to be lodged by the child in the usual circumstances.