Ms Julieanne Syme, the mother of the applicant in the substantive proceeding, Anthony Syme, has made application for an order that she be appointed litigation guardian for her son. The substantive proceeding is an application to review a determination of the respondent dated 30 April 2025. By that determination, the respondent rejected an application that Mr Syme be treated, on an interim basis, as a seriously injured worker. The respondent has not opposed the making of the order sought by Ms Syme.
The application has been made primarily pursuant to Rule 107(1)(a) of the South Australian Employment Tribunal Rules 2024 (the SAET Rules) which empowers the Tribunal sitting in court session to appoint a parent as litigation guardian of a person who is under a legal incapacity.
[2]
Mr Syme was born on 26 August 1991. He was employed by the Old Red Brick Co Pty Ltd and the respondent has accepted Mr Syme suffered a work injury by way of a traumatic brain injury on 9 March 2023. Mr Syme has also submitted claims for compensation asserting a work injury to his left shoulder, left knee, right knee, and his neck. By letter dated 30 April 2025, Employers Mutual Limited (EML), as nominated claims agent for the respondent, rejected Mr Syme's application to be treated on an interim basis as a seriously injured worker pursuant to of the (the RTW Act). It did so on the basis that it concluded upon the evidentiary material before it that Mr Syme's level of whole person impairment (WPI) would not reach at least a 35% WPI, being the relevant threshold to be treated, on an interim basis, as a seriously injured worker. Mr Syme has sought a review of that determination by the Tribunal.
In support of the application by Ms Syme to be appointed litigation guardian, the Court was provided with an affidavit of Mr Syme's solicitor Roberto Clemente sworn on 30 October 2025 and an affidavit of Ms Syme sworn on 24 October 2025. I have had regard to the contents of those affidavits. Exhibited to the affidavit of Mr Clemente was a medical report of clinical psychologist Dr Emma Fitzgerald dated 3 October 2024. She assessed significant cognitive and behavioural impairments. Also exhibited to Mr Clemente's affidavit was a medical report of neurosurgeon Paul Carney dated 1 October 2024. He diagnosed Mr Syme as having suffered a severe head injury with extensive intracranial bleeding, and probable subarachnoid and subdural cerebral contusions. He noted difficulty with attention and concentration, and more so with multiple task demands. Dr Carney noted difficulty attending to and recalling instructions, and particularly so when more than one piece of information is provided. He considered these impairments to be permanent.
Similar views of the severity of the traumatic brain injury were expressed by Dr Gary Clothier in a report dated 12 November 2024 which was also exhibited to Mr Clemente's affidavit.
EML arranged for Mr Syme to be assessed by clinical neuropsychologist Dr Michael Wood. He has provided a recent report dated 17 September 2025. He too expressed the view that Mr Syme had suffered a very severe brain injury and he saw no reason to disagree with Dr Clothier's conclusions in relation to Mr Syme's cognitive deficits.
Ms Syme has made application to the South Australian Civil and Administrative Tribunal (SACAT) which concluded that Mr Syme has a mental incapacity and that an administration order appointing Ms Syme should be made.
In her affidavit, Ms Syme deposes to having a strong relationship with her son. She provides assistance with respect to domestic tasks in the home, and has been his primary support person attending to his day to day needs. She has confirmed that she was appointed full administrator of her son's estate by the SACAT on 14 April 2023 as a result of Mr Syme's mental incapacity, and that the order was reviewed and confirmed by the SACAT on 13 December 2024.
Ms Syme has deposed to her understanding of the responsibilities associated with being appointed litigation guardian and has provided an assurance to the Court that she would act in accordance with those responsibilities if appointed.
[3]
The factors to take into account in determining whether a litigation guardian should be appointed, once satisfied that the Court is empowered to do so, were addressed in Price v Department for Education (Price)[1].
In Price, I referred to the judgment of Kyrou J in Slaveski v State of Victoria & Ors.[2] and I distilled from those reasons the following principles in determining whether a litigation guardian should be appointed:
There is a presumption that a person of full age is capable of managing his own affairs which includes the management of litigation to which that person is a party.
If an application is made then the person who alleges the contrary bears the onus of persuading the Court.
There is no universal test for determining whether a person is capable of managing his or her affairs. Lack of mental capacity is usually denoted by a person's inability to understand the nature of an event or transaction when it is explained to that person.
For a person to continue to be a party in litigation that person must understand the nature of the litigation, its purpose and its possible outcomes including the risks with respect to costs.
Words such as "in relation to the proceeding" in a relevant rule brings focus on the person's ability to bring or defend a particular proceeding, rather than whether the person is able to manage his or her affairs generally.
Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a capable litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage a court proceeding in an unfamiliar and stressful situation.
Ordinarily, the Court will determine whether a party has the requisite capacity after receiving medical evidence. However, where a party's incapacity in readily apparent from his or her behaviour inside the courtroom, the Court may be able to make the determination without the assistance of medical evidence.
Once a litigation guardian is appointed, he or she stands in the shoes of the person under a disability and must act in the interests of that person. The litigation guardian has the conduct of the proceeding, including the responsibility for the engagement of legal representatives and the giving of instructions about the calling of witness and the settlement of proceedings.
The Court retains supervision of the appointed litigation guardian and may remove the litigation guardian of a protected person (whether or not appointed by the Court) on any reasonable ground and may permit or appoint some other person to be the litigation guardian.
I have been persuaded by the evidence and submissions before me that notwithstanding Mr Syme being of full age, he is not capable of managing his own affairs and that includes the management of the current litigation. I find that Mr Syme currently does not understand the nature of the litigation, its purpose, and its possible outcomes including the risks with respect to costs. In reaching this conclusion, I have taken into account the medical evidence before me, the contents of the affidavits of Mr Clemente and Ms Syme, and the administration order made and confirmed by the SACAT. I have not found it necessary to conduct a hearing in court and require the attendance of either Ms Syme or Mr Syme.
I am satisfied that it is appropriate to make the declaration and order sought.
[4]
I declare that the applicant Anthony Syme is a person under a disability such that a litigation guardian needs to be appointed.
I order that the applicant's mother Julieanne May Syme be appointed litigation guardian for the applicant until further order.