Plaintiff v Defendants

2 The Guardian Application was foreshadowed with the Court and the plaintiff in advance of and during a directions hearing held on 17 October 2025. Directions were then made for the filing and service of further material in support, including the (then anticipated) receipt of a medical report from a treating geriatrician, and an outline of submissions.

3 The Guardian Application was heard on 7 November 2025, and was not opposed by the plaintiff. For the reasons that follow, I made an order at the conclusion of the hearing that Ms Hunter be appointed as litigation guardian for Mr Hunter in respect of this proceeding.

4 In support of the Guardian Application, the following material was relied on:

(a) the affidavit of Ms Catherine Pulverman sworn 10 October 2025 (First Affidavit);

(b) the supplementary affidavit of Ms Pulverman sworn 31 October 2025 (Second Affidavit); and

(c) the defendants' written submissions filed 31 October 2025 (Written Submissions).

5 The exhibits to the Second Affidavit included an expert report of Dr Timothy Bayles, the treating geriatrician for Mr Hunter (Capacity Report).

6 The Written Submissions set out the principles for determining whether a person is a 'person under disability' pursuant to rule 15.01(1) of the Rules,[1] with reference being made to the observations of Derham AsJ in Vishniakov v Lay.[2] The Written Submissions also outlined the circumstances where a person is not competent to give evidence about a fact pursuant to section 13 of the Evidence Act 2008 (Vic).[3]

7 It was submitted that, in circumstances where a litigation guardian is required to be appointed, consideration is to be given to the existence of a diagnosed cognitive impairment and the consequence that the third defendant, by virtue of the diagnosis, is incapable of competently managing his affairs in relation to the current proceeding, particularly insofar as providing instructions and giving evidence is concerned.[4]

8 It was further submitted that the Capacity Report confirmed that Mr Hunter is not capable of managing his affairs and providing the necessary instructions in order to conduct the proceeding, both as a defendant personally, and as a director of Kanyon Pty Ltd and Wickley Nominees Pty Ltd, being the sixth and fifth defendants respectively. On that basis it was submitted that a litigation guardian should be appointed for Mr Hunter in respect of this proceeding.

9 In short, Ms Hunter was submitted to be a person appropriate to be appointed because she: is not a person under disability; has no interest in the proceeding adverse to Mr Hunter; has consented to being appointed; is in good health; is familiar with and understands the proceeding; is and will continue to be in a position to act in Mr Hunter's interests; and will be able to give instructions as and when required.

10 During oral exchanges with the Bench at the hearing on 7 November 2025, Ms Pulverman again submitted that the relevant requirements were satisfied and the appointment should be made. Ms Pulverman also helpfully indicated that if there was a need to provide any further evidence, that could be done, including obtaining a further report from Dr Bayles if necessary.

11 For the plaintiff, Mr Sinisgalli informed the Court that he considered it appropriate that the appointment be made and that the plaintiff did not oppose the application.

Order 15 of the Rules and principles and observations regarding the appointment of litigation guardians

12 Order 15 of the Rules deals with, among other things, the appointment of a litigation guardian for a person under disability. Relevantly, order 15 of the Rules provides in part as follows:

(a) a minor; or

(b) a person who is incapable, by reason of injury, disease, senility, illness or physical or mental infirmity, of managing that person's affairs in relation to the proceeding.

15.02 Litigation guardian of person under disability

(1) Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by the person's litigation guardian.

(2) Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by the person's litigation guardian.

(3) A litigation guardian of a person under disability shall act by a solicitor.

(4) Unless for special reason the Court otherwise orders, the litigation guardian of a person under disability is not personally liable for costs awarded against the person.

(1) A person may be a litigation guardian of a person under disability if the first-mentioned person -

(a) is not a person under disability; and

(b) has no interest in the proceeding adverse to that of the person under disability.

(2) Where a person is authorised by or under any Act to conduct legal proceedings in the name of or on behalf of a person under disability referred to in paragraph (b) of the definition of that term in Rule 15.01, the person so authorised, unless the Court otherwise orders, shall be entitled to be litigation guardian of the person under disability in any proceeding to which that person's authority extends.

(3) Where after a proceeding is commenced a party to the proceeding becomes a person under disability, the Court shall appoint a litigation guardian of that party.

(4) Where the interests of a party who is a person under disability so require, the Court may -

(a) appoint or remove a litigation guardian; or

(b) substitute another person as litigation guardian.

13 In Vishniakov v Lay, Derham AsJ summarised the principles regarding the appointment of a litigation guardian as follows:[5]

[24] The power of the court to appoint a litigation guardian in ord 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) is derived from the inherent jurisdiction of the Crown as parens patriae to care for those who are unable to care for themselves.[6]

[28] The rules do not restrict who may apply to the court for the appointment of a litigation guardian. A judge may raise the issue of incapacity on the Court's own motion.[7] A litigation guardian may also be appointed on the application of a party's solicitor.[8]

[29] There is no general rule as to whether notice should or should not be given to other party or parties. Each application must be considered on its own circumstances.[9] The guiding consideration as to who might be heard on the application is whether such persons are relevantly interested in, or might be affected by, the application.[10]

[30] The following principles have been established in authorities in Australia and the United Kingdom:

(a) There is a presumption that everybody of full age has the mental capacity to manage their own affairs, including the commencement and defence of legal proceedings. The burden of proving to the contrary rests with those asserting incapacity.[11]

(b) The law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself.[12]

(c) The authority of a lawyer to represent a client depends on the client having the requisite mental capacity.[13] A lawyer has a duty of care not to coerce their client into a settlement or to take or act on instructions from a client to settle a case when they know or should know the client lacked the mental capacity to give the instructions or could not be reasonably satisfied the client had that capacity.[14]

(d) The commencement of proceedings on behalf of a client implies the solicitor, as an officer of the court, is reasonably satisfied the client has that capacity.[15] It is therefore the solicitor's responsibility to be reasonably satisfied that the client has the mental capacity to participate in the proceeding and to instruct.[16] If the issue cannot be resolved to the reasonable satisfaction of the solicitor, they must raise the issue with the court. It is the court which has the final responsibility to determine the issue.[17]

(e) A solicitor who persists with representing a client who has lost mental capacity is liable to have costs awarded against them on an indemnity basis even if there is no impropriety.[18]

(f) The authority of a court-appointed litigation guardian may be challenged, and a proceeding issued by them dismissed, where the party is shown to be capable of managing their affairs.[19]

(g) The appointment of a litigation guardian protects the person under a disability and the processes of the court as these apply to the parties generally.[20]

(h) Provisions of the kind established by ord 15 are procedural and not substantive law designed to ensure that:

(i) there is someone answerable to the Court on behalf of the litigant with a disability;

(ii) crucial decisions affecting that litigant can be properly and responsibly made.[21]

(i) An application for the appointment of a litigation guardian for a person is very serious because it deprives the person of their fundamental civil rights under the common law, most especially the 'right to sue or defend in [his or her] own name, and ... compromise in litigation without the approval of the court'.[22]

(j) There is no universal test for determining whether a person is capable of managing his or her affairs.[23] Lack of capacity is usually denoted by a person's inability to understand the nature of an event or transaction when it is explained.[24]

(k) The words 'in relation to the proceeding' in r 15.01 are important because they focus on the person's ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction.[25]

(l) The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties.[26] A person can have the requisite capacity for one proceeding and lack it for another.[27]

(m) A person will be incapable of managing their affairs in relation to the proceeding if they do not have the mental capacity to understand the nature of the acts or transactions in respect of which they need to give instructions to the lawyer.[28]

(n) Depending on the nature and circumstances of the particular case, there may be many factors relevant to the determination of whether a person lacks capacity in relation to a proceeding.[29] As a general rule, however, the following have been found to be relevant:[30]

(i) whether the person had the ability to understand that they required advice in respect of the relevant legal proceeding;

(ii) whether the person had the ability to communicate this requirement to someone who could arrange an appropriate advisor or, alternatively, whether he or she could arrange such an advisor of their own accord;

(iii) whether the person had the ability to instruct the advisor with sufficient clarity to enable that advisor to understand the situation and to advise the person appropriately; and

(iv) whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.

(o) The level of mental capacity required by a litigant in person is greater than that required to instruct a lawyer, because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.[31]

(p) A person who does not have the mental capacity to represent themselves may have sufficient capacity to be able to give instructions to a lawyer to represent them.[32]

(q) The means by which the court will determine whether a guardian should be appointed varies from case to case. It is prudent, but not essential, that the decision whether a party lacks the relevant capacity be based on a medical assessment, or the assessment of another appropriately qualified expert.[33] However, the court is entitled to rely on its own observation to make an assessment about the capacity of a party or to rely on other evidence, including the assessments of legal practitioners.[34] This is so particularly where:

(i) there is no medical evidence available or the party refuses to submit to an expert assessment;

(ii) the lack of capacity is so clear that medical evidence is not called for.[35]

14 The applicable principles had also been previously addressed by Kyrou J in Slaveski v State of Victoria,[36] the relevant aspects of which are captured by the above observations of Derham AsJ.[37] Further, in Pickett v Amin & Anor, Harris J recently emphasised the importance of considering what best serves the administration of justice when deciding whether to appoint a litigation guardian:[38]

[34] [T]here is authority to the effect that the Court's powers under r 15.03 are, in any event, derived from the inherent jurisdiction of the Crown as parens patriae to care for those who are unable to care for themselves: see Vishniakov v Lay[39] and the authorities cited there by Derham AsJ. While, as noted by Derham AsJ in that case at [30(i)], the appointment of a litigation guardian is a serious matter because it may deprive a person of their rights under the common law to sue or defend a proceeding in their own name, it is also relevant to consider, in an urgent case such as this, what will best serve the administration of justice. There is a risk that the processes of the Court and any prospective judgment may be frustrated if the current application cannot be made, which would be the case if no litigation guardian can be appointed.

15 Having regard to the terms of order 15 of the Rules, the evidence before the Court, the nature of the proceedings and the issues arising in it, and the relevant principles and observations referred to above, it is appropriate that Ms Hunter be appointed as Mr Hunter's litigation guardian in respect of this proceeding. My reasons for so concluding can be briefly stated.

16 First, there is evidence before me that establishes that Mr Hunter is incapable by reason of disease, senility, illness or physical or mental infirmity of managing his affairs in relation to this proceeding. I refer in this regard to the Capacity Report.

17 Among other things, the Capacity Report recorded the following:

1. Over the past year, Mr Hunter has had ongoing deterioration of his cognitive and functional abilities related to his underlying dementia.
2. Dr Bayles assessed Mr Hunter for cognition and capacity on 23 September 2025 where he demonstrated significant difficulty with retention and retrieval of information, along with communication. Dr Bayles had performed a standardised Mini Mental State Examination, for which Mr Hunter scored 7/30. Dr Bayles expressed the opinion that this indicated severe, advanced cognitive impairment consistent with Mr Hunter's progressive mixed dementia. Dr Bayles noted that Mr Hunter was not oriented to time or place, and that he was unable to recall the specific names of the companies or positions he held in the past.
3. Dr Bayles' opinion that, due to Mr Hunter's dementia and cognitive impairment, he met the definition of a 'handicapped person' and lacks capacity to reasonably understand and respond to the proceeding. Dr Bayles also opined that Mr Hunter is not competent to give evidence by reason of satisfying the requirements under section 13(1) of the Evidence Act 2008 (Vic). In this context, it was noted that Mr Hunter's permanent and progressive cognitive impairment restricts his ability to not only understand and retain information from questioning, but also his ability to communicate a coherent response.
4. Given the assessment performed, Dr Bayles believes that Mr Hunter does not have the mental and physical capacity to exercise his powers and duties as a director of Wickley Nominees Pty Ltd, as the trustee of the trusts,[40] and as a director of Kanyon Pty Ltd.

18 It is apparent from the Capacity Report and the above that Dr Bayles referred to the defined term 'handicapped person' rather than a 'person under disability'. This was because it was the term used in his letter of instructions, which resulted from a small error of the solicitors using a previous definition from a former iteration of the Rules. Importantly however, the letter of instructions set out a definition of 'handicapped person' that was in identical terms to the definition of a 'person under disability' in rule 15.01 of the Rules, relevantly being '...a person who is incapable, by reason of injury, disease, senility, illness or physical or mental infirmity, of managing the person's affairs in relation to the proceeding'. It is apparent from the terms of the Capacity Report that Dr Bayles directed his consideration towards this definition, being the relevant and applicable definition under rule 15.01 of the Rules. Consequently, this small difference in terminology is of no relevant consequence for present purposes, noting also that the Court was informed that a further report correcting the error could be obtained if needed.[41]

19 Regarding Mr Hunter's capacity, I also refer to the evidence outlined in the First Affidavit regarding instructions received by Ms Pulverman, on and from May 2025, about Mr Hunter's advanced state of dementia, and his residing in an aged care nursing home.[42]

20 Second, rule 15.03(3) of the Rules is engaged because, subsequent to the commencement of this proceeding, a party to it, namely Mr Hunter, has become a person under disability. As earlier set out, this rule then provides that the Court shall appoint a litigation guardian of that party.

21 Third, I am satisfied on the evidence before me that Ms Hunter is eligible to be appointed as the litigation guardian for Mr Hunter. Having regard to the terms of rule 15.03(1) of the Rules, she is not a person under disability and she has no interest in the proceeding adverse to Mr Hunter. In this context, I refer to the following evidence in the First Affidavit and the Second Affidavit:

1. Ms Pulverman was informed by Ms Hunter and believes that Ms Hunter: is familiar with the claim in the proceeding in general terms; understands the risks to Mr Hunter in the proceeding in respect of compensation being sought by the plaintiff; has been updated by the first defendant on the progress of the proceeding; understands that she will need to provide instructions on a range of issues, engagement of experts, further security, preparation for trial, and settlement matters; and will do whatever is necessary to assist with the proceeding.[43]
2. Based upon what she has observed and been informed by Ms Hunter, Ms Pulverman believes that Ms Hunter is in very good health and is still working.[44]

22 For the avoidance of doubt, the circumstances I have taken into account include Ms Hunter's age and being of advanced years, noting, of course, that being of advanced years is not an adverse factor in and of itself. I also note Ms Pulverman's evidence that she has satisfied herself that Ms Hunter can and will act in the best interests of Mr Hunter in this proceeding.

23 Fourth, Ms Hunter has confirmed in writing that she consents to being appointed as Mr Hunter's litigation guardian in this proceeding and that she has no interest in this proceeding that is adverse to the interests of Mr Hunter.

24 Fifth, there is evidence that there is not currently an alternate person nominated who could be appointed as a litigation guardian in the event that Ms Hunter was not available, which the evidence suggests is partly as a result of there being parties in the proceeding whose interests may diverge from Mr Hunter's, or who may be called as witnesses at trial.

25 Sixth, the issues in the proceeding are not without some complexity and Ms Pulverman has deposed that Ms Hunter is aware of the issues, has familiarity with the claim and the proceeding, and is aware of the range of issues upon which instructions will need to be provided.

26 Seventh, and as is always the case in applications of this kind, if for some currently unanticipated future reason Mr Hunter's interests required his litigation guardian to be replaced or removed, the Court has ample power to do so, including pursuant to rule 15.03(4) of the Rules. For completeness, I add that this observation is not intended to, and does not, convey any implicit or other reservation regarding the suitability of the appointment of Ms Hunter as litigation guardian for Mr Hunter.

27 Finally, in considering and exercising the Court's power under order 15 of the Rules, I have sought to give effect to the overarching purpose in section 7 of the Civil Procedure Act 2010 (Vic), as required by section 8 of that Act, and in so doing I have had regard to the relevant objects in section 9. In the circumstances, it is my view that appointing Ms Hunter as litigation guardian for her husband, Mr Hunter, serves well the overarching purpose referred to.

28 For the reasons stated above, Ms Hunter will be appointed as litigation guardian for the third defendant, Mr Hunter.

29 My ruling was delivered orally on 7 November 2025 and the relevant authenticated orders giving effect to my ruling were in the following terms:

1. Pursuant to rule 15.03 of the Rules, Beverley Gladys Hunter is appointed as litigation guardian for Bailey Gordon Hunter, the third defendant, in respect of this proceeding.
2. On and from the date of this order, the title of this proceeding and the schedule of parties shall be amended to reflect the third defendant's name as follows:

'BAILEY GORDON HUNTER (by his litigation guardian Beverley Gladys Hunter), Third Defendant'

ASCENZO INVESTMENTS PTY LTD (ACN 126 971 346) AS TRUSTEE FOR THE ASCENZO INVESTMENTS TRUST

CAMERON BAILEY HUNTER IN HIS PERSONAL CAPACITY AND AS TRUSTEE FOR THE CB & NA HUNTER FAMILY TRUST NO. 1

BAILEY GORDON HUNTER (by his litigation guardian BEVERLEY GLADYS HUNTER)

NATALIE ANN HUNTER AS TRUSTEE FOR THE CB & NA HUNTER FAMILY TRUST NO. 1

WICKLEY NOMINEES PTY LTD AS TRUSTEE FOR THE WV HUNTER FAMILY TRUST NO. 1 AND THE BG HUNTER FAMILY TRUST NO. 1

[1] Discussed in further detail below in the 'Order 15 of the Rules and principles and observations regarding the appointment of litigation guardians' section.

[2] [2019] VSC 403; (2019) 58 VR 375 (Derham AsJ).

[3] With reference to R v GW [2016] HCA 6; (2016) 258 CLR 108.

[4] With reference to Milenkovic v Milenkovic [2024] VSC 763, [10] (McDonald J).

[5] [2019] VSC 403; (2019) 58 VR 375, [24], [28]-[30] (Derham AsJ), but noting that this decision was made pursuant to order 15 of the 2015 iteration of the Rules, although that order was in the same terms as order 15 of the Rules.

[6] Howell v Lewis (1891) 61 LJ Ch 89; Secretary, Department of Health and Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218, 258 (Mason CJ, Dawson, Toohey and Gaudron JJ) (Marion's case); L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432, 438 [23]-[24] (L v HREOC); A v City of Swan [No 5] [2010] WASC 204, [62] (City of Swan); Goddard Elliott v Fritsch [2012] VSC 87, [552] (Goddard Elliott).

[7] Slaveski v Victoria [2009] VSC 423, [61]; Pistorino v Connell [2012] VSC 438, [8] (Pistorino).

[8] Farrell v CSL Ltd [2004] VSC 308, [4]; Pistorino [2012] VSC 438, [2], [8], [31].

[9] Pistorino [2012] VSC 438, [13].

[11] Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [36] (Murphy); L v HREOC [2006] FCAFC 114; (2006) 233 ALR 432, 437-38 [20]; Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511, 1520 [17] (Masterman-Lister); City of Swan [2010] WASC 204, [66]; Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398, 414-15 [66]-[68] (Owners of Strata Plan No 23007); Slaveski v Victoria [2009] VSC 596, [25]-[26] (Slaveski); Goddard Elliott [2012] VSC 87, [546].

[12] Masterman-Lister [2003] 1 WLR 1511, 1533 [57] (Chadwick LJ); Goddard Elliott [2012] VSC 87, [547].

[13] Goddard Elliott [2012] VSC 87, [548].

[16] Borchert v Terry [2009] WASC 322, [69]; Goddard Elliott [2012] VSC 87, [549].

[17] Goddard Elliott [2012] VSC 87, [568]; Pistorino [2012] VSC 438, [6].

[18] Yonge v Toynbee [1910] UKLawRpKQB 219; [1910] 1 KB 215, 228; (Buckley LJ). Goddard Elliott [2012] VSC 87, [549].

[19] J (by her next friend) v J [1953] P 186, 191; Martin (1973) 20 FLR 345, 348; Goddard Elliott [2012] VSC 87, [550].

[20] Masterman-Lister [2003] 1 WLR 1511, 1525 [31] (Kennedy LJ), 1536 [65] (Chadwick LJ); City of Swan [2010] WASC 204, [63]-[65]; Goddard Elliott [2012] VSC 87, [552].

[21] State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395, 400-401 (Kirby J). Kirby J also stated that another purpose was to ensure that a person exists who can bear any costs ordered against the person under disability at the end of the litigation. That is no longer apt to the Victorian situation. Dyke v Stephens [1885] UKLawRpCh 202; (1885) 30 Ch D 189 ; Rhodes v Swithenbank [1889] UKLawRpKQB 48; (1889) 22 QBD 577, 578-9; See also R v Registrar of the County Court; Ex parte Farrington [1927] ArgusLawRp 54; [1927] VLR 406, 409-10 where Cussen J said it was an open question whether the purpose of a litigation guardian is to provide for the defendant's costs or to provide for the care of the infant's interests in connection with the action or suit.

[22] Masterman-Lister [2003] 1 WLR 1511, 1520 [17] (Kennedy LJ); Goddard Elliott [2012] VSC 87, [553].

[23] Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [33]; Slaveski [2009] VSC 596, [26].

[24] Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, 437 (Dixon CJ); Masterman-Lister [2003] 1 WLR 1511, 1521 [18] (Kennedy LJ), 1533 [58] (Chadwick LJ); see also Goddard Elliott [2012] VSC 87, [555].

[25] Slaveski [2009] VSC 596, [27].

[26] Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, 199 [23] (Dalle-Molle); Slaveski [2009] VSC 596, [28]; Pistorino [2012] VSC 438, [20]-[22].

[27] Slaveski [2009] VSC 596, [28].

[28] Martin v Azzopardi (1973) 20 FLR 345, 347-8; Slaveski [2009] VSC 596, [29].

[29] See for example the list applicable to a self-represented litigant in Slaveski [2009] VSC 596, [32].

[30] Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [35]; Slaveski [2009] VSC 596, [30].

[31] Slaveski [2009] VSC 596 [31]; Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [35]; Goddard Elliott [2012] VSC 87, [557].

[32] Skrijel v Mengler [2003] VSC 128 [5]; Slaveski [2009] VSC 596, [33]; Goddard Elliott [2012] VSC 87, [558].

[33] Masterman-Lister [2003] 1 WLR 1511, 1520 [17] (Kennedy LJ); Pistorino [2012] VSC 438, [16] - [17].

[34] Slaveski [2009] VSC 596; Pistorino [2012] VSC 438, [17].

[35] Pistorino [2012] VSC 438, [17].

[36] (2009) 25 VR 160; [2009] VSC 596, [24]-[39] (Kyrou J).

[37] Kyrou J also addressed principles and observations where a self‑represented litigant is involved but these are not relevant for present purposes.

[38] [2023] VSC 715, [34] (Harris J). Cited with approval in Kukuy v Holden (in his capacity as liquidator of Jay Invest Property Pty Ltd (in liq)) [2023] VSCA 331, [37] (Niall JA).

[39] [2019] VSC 403; (2019) 58 VR 375, [24].

[40] Being the WV Hunter Family Trust No 1 and the BG Hunter Family Trust No 1.

[41] And I concluded that this was not necessary.