Geddes v South Australian Fire and Emergency Services Commission [2026] SAET 15

1. Ms Abfalter deposed in her affidavit to the exchanges that she has had with the applicant, Robert Geddes, and also his brother, James Geddes. She has deposed to Robert Geddes being able to engage in routine discussions about his claim and being able to provide routine instructions. When attempting to discuss complex issues or discussions relating to future implications, the multiplicity of matters between the parties and the interaction of those matters and when attempting to discuss and obtain instructions in relation to a possible settlement and a finalisation of the contract of employment, she was concerned that her client was not fully understanding the advice that was being provided. She noted that the instructions received were neither clear nor competent. She expressed concern that there had been occasions when she received instructions which were apparently competent but subsequent discussion indicated that in fact her client had not understood or appreciated the content of the legal advice provided.
2. Ms Abfalter has deposed to her concerns increasing over time and that by December of 2025 she raised her concerns with her client's brother James Geddes, also a solicitor, who had the same concerns in relation to his brother's mental capacity.
3. Ms Abfalter wrote to Dr Jankowiak by letter dated 11 December 2025 seeking his expert opinion as to whether Robert Geddes has the mental capacity to be able to understand the nature of the proceedings, matters related to the proceedings and whether he has the ability to provide informed instructions.
4. Dr Jankowiak has provided a medical report dated 20 December 2025 which was annexed to Ms Abfalter's affidavit. Dr Jankowiak's opinion is consistent with the observations of Ms Abfalter. He referred to having seen Robert Geddes experience considerable difficulty concentrating, understanding and recalling information from more cognitively challenging and anxiety inducing situations, such as matters related to his employer and the current proceedings. He referred to the history supporting fairly persuasive and ongoing significant levels of impairment and difficulties with executive functioning, including understanding more complicated concepts, understanding longer explanations and instructions, organisation and advanced planning. His report indicates that these difficulties may be worse at times of anxiety.
5. Dr Jankowiak referred to Robert Geddes having the ability to receive and understand some information provided it is received slowly and in a succinct manner in everyday language. He considers that Robert Geddes would be able to understand the oath or affirmation required to give evidence but would not be fit to answer questions in cross-examination.
6. When asked whether Robert Geddes has the capacity to manage his affairs including any settlement monies that he may receive, Dr Jankowiak provided a qualified answer:

I do hold concerns about Mr Geddes' capacity to manage his affairs in the context of his chronic and significant mental health conditions where in the time I have been managing him he has missed rent payments on multiple occasions, required ongoing support from his parents and brother to assist his organisation and demonstrated reduced judgement including engaging in significant binge drinking of alcohol.

Whilst holding these concerns I do not consider that I have the necessary skills and experience to assess this issue to the requisite level of detail to give a firm opinion either way, appreciating it is a serious matter to given (sic) an opinion of incapacity and that it isn't common for patients with PTSD and depression at his age to be considered incapable.

1. In his affidavit, James Geddes addressed why he has concerns in relation to his brother's mental capacity. He stated:

Rob does not understand the nature of the current litigation, its possible outcomes or risks as to legal costs. I think he would struggle to answer any questions relating to these proceedings. He would not understand the nature of the question and would likely get angry/frustrated and talk only about the ways in which he believes the MFS have done wrong by him.

1. James Geddes sets out in his affidavit, in some detail, his understanding of the responsibilities associated with being a litigation guardian and confirms his consent to be appointed litigation guardian for his brother.
2. In her affidavit, Ms Abfalter deposed her belief, based upon her interactions with James Geddes, that he would act appropriately as his brother's litigation guardian.

1. Ms Abfalter submitted that there is no specific provision in either the RTW Act, the South Australia Employment Tribunal Act 2014 (SA) (the SAET Act) or the South Australia Employment Tribunal Rules 2024 (SA) (the SAET Rules) which provides for the appointment of a litigation guardian.
2. On that basis, reference was made to r 7 of the SAET Rules which empowers this Tribunal to apply the Uniform Civil Rules (UCR) where an issue or procedure is not provided for by the SAET Rules, the SAET Act or a relevant Act.
3. Ms Abfalter referred to r 23.8 of the UCR which provides for the appointment of a litigation guardian in matters pertaining to a person with a "legal incapacity". Rule 2.1 of the UCR defines a person under a legal incapacity to include "a person who, because of a mental or physical disability or illness, is not capable of managing their participation in a proceeding".
4. Ms Abfalter submitted that the evidence establishes that Robert Geddes is a person, relevantly, under a legal incapacity, that it would be appropriate to a point a litigation guardian and that James Geddes would be a person appropriately to be appointed.
5. Ms Abfalter submitted that the approach was consistent with statements of principle from the decisions of this Tribunal in Price v Department for Education (Price)[2] and Williams v Return to Work South Australia (Williams).[3]

1. The SAET Rules do contain rules relating to the appointment of a litigation guardian. Rule 107 addresses the eligibility of a person to be a litigation guardian. It provides:

107. Eligibility to be a litigation guardian

(1) Subject to sub-rule (2), the following persons are eligible to be a litigation guardian for a person under a legal incapacity:

(a) a parent or guardian of the person under a legal incapacity;

(b) a person who holds an enduring power of attorney authorising them to act on behalf of the person under a legal incapacity;

(c) the Public Trustee of South Australia or an equivalent Public or State Trustee of another State or Territory or a licensed trustee company within the meaning of Part 5D of the Corporations Act 2001 having authority to manage the affairs of the person under a legal incapacity that extends to acting as litigation guarding in the proceeding;

(d) or a person approved by the Tribunal.

(2) A person is not eligible to be a litigation guardian if:

(a) they are under a legal incapacity;

(b) unless the Tribunal otherwise orders, they have or would have an interest in the proceeding adverse to that of the person under a legal incapacity; or

(c) the Tribunal so orders.

1. The phrase "a person under a legal incapacity" is defined in r 6 of the SAET Rules to include "a person...who, because of a mental disability or illness is not able to properly participate in a proceeding."
2. The evidence does not prove James Geddes to be either a guardian of Robert Geddes or that he holds an enduring power of attorney authorising him to act on behalf of his brother whilst under a legal incapacity. An issue for the Tribunal to determine is whether James Geddes should be approved by the Tribunal to be litigation guardian in accordance with r 107(1)(d) of the SAET Rules.
3. Rule 108 sets out the status of proceedings where there has been a failure to appoint a litigation guardian and the powers of the Tribunal when it becomes aware that a party is a person under a legal incapacity. It provides:

108. Failure to appoint a litigation guardian

(1) A failure to appoint a litigation guardian does not invalidate a proceeding brought by or against a person under a legal incapacity.

(2) On becoming aware that a party is a person under a legal incapacity, the Tribunal may make such orders concerning steps already taken in the proceeding, as it thinks fit, on such conditions as it thinks fit, including, without limitation, setting aside or varying any:

(a) step taken in the proceeding; or

(b) order made or judgment granted in the proceeding.

1. Rule 109 addresses the position of a litigation guardian in a proceeding before the Tribunal. It provides:

109. Proceedings involving litigation guardians

(1) Unless the Tribunal orders otherwise, any proceeding sought to be brought by a person under a legal incapacity must be brought by an eligible person as litigation guardian for the person under a legal incapacity.

(2) An eligible person may bring an action or appeal as litigation guardian for a person under a legal incapacity if a guardian certificate is filed by the person immediately after filing the originating process.

(3) Subject to sub-rule (4), a proceeding may only be instituted against a person under a legal incapacity by naming both the person and a litigation guardian for the person as a respondent or interested party and filing a guardian certificate at the same time.

(4) A proceeding may be instituted against a person under a legal incapacity without naming a litigation guardian but no further steps may be taken against, or in respect of, the person unless and until a litigation guardian is appointed.

(5) The Tribunal may at any stage appoint a person who signs a guardian certificate as a litigation guardian for a party to a proceeding, including in addition to or instead of any existing litigation guardian, and may remove any litigation guardian on such conditions and with such consequential or transitional orders as thought fit.

(6) A person under a legal incapacity is treated as the substantive party to the proceeding and the litigation guardian is treated as a quasi-attorney for the person under a legal incapacity.

(7) Unless the Tribunal orders otherwise, a litigation guardian may take any step in a proceeding that could be taken by the person under a legal incapacity as if the person had capacity to act in their own right.

(8) Unless the Tribunal orders otherwise, any right or liability to receive or pay costs in a proceeding vests in the person under a legal incapacity and not in the litigation guardian.

(9) This rule does not affect the question whether a litigation guardian is entitled to be indemnified out of the assets of a person under a legal incapacity.

(10) In all other respects, the roles and responsibilities of litigation guardians are to be in accordance with the practice and procedure of the District Court under the Uniform Civil Rules as governed by general legal principles.

1. Rule 110 addresses the requirements of finalising proceedings where there is a litigation guardian. It is not necessary to address further r 110 for the purposes of determining the current application.
2. Sub-rule 109(10) adopts the practise and procedure of the District Court under the UCR and general legal principles associated with the appointment of a litigation guardian where it is not otherwise specifically provided for in the SAET Rules.
3. These SAET Rules were referred to by Mr Calligeros, of counsel for the respondent, in his written submissions. He also referred to the application of r 107 of the SAET Rules in an earlier decision of this Tribunal in Waller v Return to Work Corporation of South Australia.[4]
4. I find that Robert Geddes is a person under a legal incapacity. I find that he is not mentally able to make rational decisions in relation to prosecuting or settling the proceedings in this Tribunal. He is incapable of managing his affairs as a result of his mental incapacity. He is unable to understand properly the nature of the current litigation, its purpose and possible outcomes and does not have the capacity to understand the nature of the acts or transactions in respect of which he needs to give instructions to his legal representative. It follows that Robert Geddes is not able to properly participate in the proceeding because of his mental disability or illness as provided in r 6 of the SAET Rules.
5. In making these findings I have taken into account the expert opinion of Dr Jankowiak and also the observations of Ms Abfalter and James Geddes. I have taken into account that both Ms Abfalter and James Geddes are solicitors and officers of the Court.
6. In Price, I referred to the ability of the Court to conduct an inquiry in court where it considers it necessary to do so. As in Williams, in this case I have not considered it necessary for Robert Geddes to appear in court.
7. Having found that Robert Geddes is a person under a legal incapacity and that a litigation guardian should be appointed, the final issue is whether his brother, James Geddes, is a person appropriately to be appointed. I am so satisfied. I have taken into account the contents of his affidavit and also the submission of Ms Abfalter which has had regard to her interactions with both Robert Geddes and James Geddes. Consistent with the expert opinion of Dr Jankowiak, Ms Abfalter has reported to the Tribunal that Robert Geddes has sufficient mental capacity to have some understanding of his limitations and he supports the appointment of his brother as his litigation guardian.

1. That James Gordon Geddes be appointed litigation guardian for the applicant in the proceedings, Robert Geddes, until further order.
2. The costs of and incidental to the application for directions dated 17 February 2026 are costs in the cause.

[2] [2020] SAET 43.

[3] [2021] SAET 170.

[4] [2025] SAET 74.