TB, was a 34 year old truck driver, who commenced working for his employer in April 2020 through the RISE scheme. He was found deceased in his truck at a rest bay along the Eyre Highway, between Caiguna and Norseman in Western Australian (approximately 1,600 kms from home) on 9 October 2020.
The applicant, TR (36), claims that she was the deceased's de facto partner at the time of his death.
From the evidence presented thus far, it emerges that there may have been up to four dependent children at the time of his death:
PJB (8 years)- child of the applicant and the deceased.
NRB (aged 11 years) - child of the applicant and the deceased.
JJB (16 years) - child of the applicant from a prior relationship, who resided with the applicant and the deceased prior to his death and apparently receives child support payments from her father.
RB (16 years) - child of the deceased from a prior relationship, who resides with his mother (JN) and apparently received child support payments from the deceased but had no contact with the applicant.
Issues in the proceedings include whether TB's death occurred in compensable circumstances and, if so, what if any entitlements the applicant and each of the children have under the Return to Work Act 2014 (RTW Act).
Section 59 of the RTW Act provides for the making of weekly payments to the dependants of the deceased. A dependent spouse or domestic partner is entitled to up to 50% of the notional weekly earnings of the deceased: s59(1)(a). Each dependent child (not being an orphaned child) is entitled to up to 12.5% of the notional weekly earnings of the deceased: s59(1)(c). The total aggregate of entitlement to weekly payments cannot exceed the deceased's notional weekly earnings and if necessary, will be proportionately reduced: s59(7).
In this case, with the 5 potential claimants, the aggregate would not exceed the notional weekly earnings and accordingly, no question of the potential for a proportionate reduction arises.
Section 61 of the RTW Act provides for the payment of a lump sum. Relevant to this case, if there is no domestic partner, the dependent children share the prescribed sum in equal shares: s61(4). If there is a domestic partner, each dependent child receives 5% of the prescribed sum, with the remainder paid to the partner: s61(6).
It is immediately apparent that in relation to lump sum entitlements, there is a conflict of interest between the claimants, requiring that each be separately represented.
The claimed dependent children being infants, they are legally incapable of instructing solicitors to represent their interests. Accordingly, it is necessary that litigation guardians be appointed for them.[1]
Rule 107 of the SAET Rules provides:
[2]
(1) Subject to sub-rule (2), the following persons are eligible to be a litigation guardian for a person under a legal incapacity:
[3]
(a) a parent or guardian of the person under a legal incapacity;
[4]
(b) a person who holds an enduring power of attorney authorising them to act on behalf of the person under a legal incapacity;
[5]
(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; or
[6]
As Rossi DPJ observed by reference to Kyrou J in Slaveski v State of Victoria and Ors_[2]__:_
[7]
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 witnesses and the settlement of proceedings.
[8]
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.[3]
[9]
At this point, I am called upon to decide various applications for the appointments of litigation guardians for JJB and PJB. Orders for the appointment of litigation guardians for RB and NRB have already been made.
In the case of JJB, application is made by JB to be appointed her litigation guardian. Having considered her affidavit in support and the lack of objection to her appointment, I am satisfied that she should be appointed as litigation guardian for JJB and so order.
In the case of PJB, there are 2 competing applications for appointment as litigation guardian.
Firstly, from RJB, the sister of the deceased and therefore PJB's aunt. At one point after TB's death, for approximately 18 months she had the day to day care and control of PJB. However, since late 2023 she has had little if any contact with her, largely because of antagonism between RJB and the applicant.
Secondly, from KM, the wife of TB's cousin who is a friend of the applicant and her de facto employer. KM has regular close contact with PJB.
While each application needs to be considered on its merits, in practical terms it does involve a comparison of the relative applications. I do not consider it necessary to address the strengths and weaknesses of each applicant in detail.
Whilst potentially each applicant may be considered to meet the criteria necessary for appointment, ultimately in my view the decisive factor is how each applicant would be able to deal with the conflict of interest between the applicant and each of the children as previously identified. PJB's guardian would need to fulfill the role of contradictor, particularly to the case presented by the applicant. I consider RJB is more suited to that role.
Accordingly, I order RJB be appointed as litigation guardian for PJB.
[10]
[1]Rule 109(1), South Australian Employment Tribunal Rules 2022 (SAET Rules)