Procedural Direction PIC14 – Persons under legal incapacity

1.    This Procedural Direction provides procedural information for appointing a tutor, including a Guardian Ad Litem from the Guardian Ad Litem Panel, or an appointed representative to represent a person under legal incapacity.

Preliminary

2.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

3.    The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

4.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).

Applicable legislation and rules

5.    Parties should be familiar with the following:

(a) Section 1.4 and Part 7, Division 7.7 of the Motor Accident Injuries Act 2017 (the 2017 Act),

(b) Clauses 7.30–7.32 of the SIRA Motor Accident Guidelines, Version 10.1,

(c) Section 43A of the PIC Act,

(d) Section 3 of the Civil Procedure Act 2005,

(e) Rules 64A and 97 of the PIC Rules,

(f) Procedural Direction PIC 1 – Conduct of parties.

Legal incapacity

6.    The Commission may appoint an appropriate person to represent a person under legal incapacity to commence or carry on proceedings in the Commission.

7.    A person under legal incapacity is defined in section 5 of the Civil Procedure Act 2005 and section 1.4 of the 2017 Act. It includes the following:

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

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

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

(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 prevents the person from receiving communications, or expressing the person’s will, in relation to the person’s property or affairs.

8.    For proceedings commenced in the Motor Accidents Division, under Part 7 of the 2017 Act, a claimant under a legal incapacity may not make any application or refer any matter to the Commission, or carry on proceedings, except by his or her ‘appointed representative’. An appointed representative is not required to be legally represented.

9.    For all other proceedings, the Commission may appoint a ‘tutor’ to represent a person under legal incapacity. Unlike in the Motor Accidents Division, tutors cannot commence or carry on proceedings without legal representation, unless otherwise ordered by the Commission.

Eligibility for appointment as an appointed representative or tutor

10.    Any person is eligible to be an appointed representative or tutor for a person under legal incapacity, provided they are not under any legal incapacity themselves, and they do not have an interest in the proceedings that is adverse to the interests of the person under legal incapacity.

11.    An appointed representative or a tutor may be a relative, friend, or other suitable person who is willing and able to be appointed to represent the person under legal incapacity. It may be a person who is already appointed through a Guardianship Order.

12.    In determining whether a person is suitable or appropriate to be an appointed representative or tutor, consideration may be given to matters such as residency and availability of the proposed appointed representative or tutor to participate in proceedings, or the potential for that person to be a witness in the proceedings. For example, parents who are claiming dependency in workers compensation proceedings for the death of a worker may not be suitable tutors for their children who are also claiming dependency.

13.    Where there is no appropriate person available to act as an appointed representative or tutor, the Commission may appoint an independent representative, a Guardian Ad Litem (GAL), from the Guardian Ad Litem Panel (GAL Panel) administered by the Department of Communities and Justice.

Making an application for an appointed representative or tutor

14.    An application for appointment of an appointed representative or tutor (including an appointment from the GAL Panel) can be made at the commencement of, or during the course of proceedings.

15.    An application for appointment must be made to the Commission in the form approved by the President or as ordered by the Commission, and include evidence that the person applying for an appointed representative or tutor is under legal incapacity.

16.    If a person under legal incapacity already has an appointed representative or tutor (for example, under an existing Guardianship Order), the application should include evidence of the appointment.

17.    If a suitable person has been identified to act as an appointed representative or tutor, the application must include the name and contact details of that person, and certification by them or their legal representative that the proposed appointed representative or tutor:

(a) consents to acting as an appointed representative or tutor,

(b) does not have an adverse interest to the person under legal incapacity, and

(c) agrees to comply with the PIC Rules and Procedural Directions.

18.    The application for appointment will be referred to a member. When determining whether to make the appointment, the member will consider the appropriateness of the proposed tutor or appointed representative, including any legal incapacity, adverse interests, and the availability of the person to participate in proceedings.

19.    Following determination of the application, the member will issue orders to the parties which either:

(a) confirm the appointment of the tutor or appointed representative,

(b) direct the appointment of a GAL from the GAL Panel (for example, where there is no appropriate person available to act as an appointed representative or tutor), or

(c) dismiss the application or direct that more information be provided to the Commission (for example, where further information is required, such as evidence of legal incapacity).

20.    Where the appointment is from the GAL Panel, the Commission’s Registry will be directed to arrange this appointment and will notify the parties and the member of the details of the GAL who is nominated to represent the person under legal incapacity. The member will then issue orders confirming the appointment of the GAL from the GAL Panel.

21.    A member may also make an order on their own motion to appoint a tutor or appointed representative, or for a person to lodge an application for an appointment, or to appoint a GAL from the GAL Panel, if it is apparent during the course of proceedings that a person under legal incapacity requires an appointed representative or tutor.

22.    A member may also make an order that a person is to be an appointed representative or tutor for a specified period of time, such as until the person under legal incapacity turns 18 years of age.

The role and expectations of an appointed representative or tutor

23.    An appointed representative or tutor may make an application, refer any matter to the Commission, or carry on proceedings in the same way the person under legal incapacity could have done so if not under legal incapacity.

24.    Appointed representatives and tutors are subject to the same expectations of parties and representatives under Procedural Direction PIC 1 – Conduct of Parties and the guiding principles under section 42 of the PIC Act.

25.    It is expected that the appointed representative or tutor:

(a) act in the best interests of the person under legal incapacity,

(b) participate in the proceedings only as the person’s tutor or appointed representative,

(c) take reasonable steps to understand the issues in the proceedings, the interests and wishes of the person under legal incapacity, and any legal advice from the tutor or appointed representative’s solicitor,

(d) attend all proceedings (including conferences, hearings or assessments),

(e) represent and support the person under legal incapacity, including assisting the person to understand and participate in the proceedings,

(f) take reasonable steps to explore settlement,

(g) ensure they do not use or disclose confidential information unless permitted or required by law to do so,

(h) behave courteously and respectfully towards other parties, representatives, witnesses and Commission decision-makers and staff, and

(i) comply with any Directions made by the Commission as necessary to facilitate appropriate steps in the proceedings.

26.    Failure to comply with these expectations may call into question the person’s suitability for appointment and may lead to the Commission making an order for removal of the appointment.

Cessation or removal of an appointed representative or tutor

27.    The Commission may, at any time, make an order for the cessation or removal of an appointment of an appointed representative or tutor.

28.    This includes circumstances where a person is no longer under legal incapacity, where there is evidence of an appointed representative or tutor having an adverse interest, or due to the conduct of the appointed representative or tutor.

29.    An appointed representative or tutor must notify the Commission as soon as practicable if there is any reason they cannot continue their appointment, including if they become aware of any adverse interest or conflict.

30.    An appointed representative or tutor of a person under legal incapacity must apply to the Commission to cease their appointment if they are no longer able or eligible to represent the person under legal incapacity.

31.    In the event of cessation or removal of an appointed representative or tutor, and a new appointment is required, the Commission will stay proceedings pending appointment of a new appointed representative or tutor.

32.    A person may not replace another person as an appointed representative or tutor of a person under legal incapacity except by order of the Commission.

33.    A member, or a party, may object to an appointment or seek the removal of a tutor or appointed representative if the appointment is no longer appropriate, for example, due to conduct. Where necessary, the member will provide the appointed representative or tutor and the parties with an opportunity to respond to the proposed removal, prior to a decision being made by the member regarding the proposed removal.