Waller v Return to Work Corporation of South Australia [2025] SAET 74

(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; or

(d) 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

1. The relevant legal principles to be applied in an application of this type was addressed in Price v Department for Education (Price).[1] The main issue to be determined is whether Mr Waller is a person under a "legal incapacity" for the purposes of r 107 of the SAET Rules. The term "legal incapacity" is not defined in the SAET Rules. The Uniform Civil Rules 2020 (UCR) do contain a definition. It is defined, relevantly, as a person who because of a mental or physical disability or illness, is not capable of managing their participation in a proceeding.
2. In Price I noted that, at the time, there was no provision in either the Return to Work Act 2014 or the South Australian Employment Tribunal Act 2014 which concerns the appointment of a litigation guardian. I also noted that there was no express provision at the time within the South Australian Employment Tribunal Rules 2017 relating to the power of the Tribunal to appoint a litigation guardian. By reference to then existing r 7 I had regard to the then r 78 of the District Court Rules.[2]
3. Rule 78 of the District Court Rules provided that, as a general rule, a person under a disability could only take or defend the proceedings through a guardian who had authority to represent the interests of the person under a disability. In Price, I referred to the judgment of Kyrou J in Slaveski v State of Victoria and Ors.[3] and I distilled from those reasons the following principles in determining whether a litigation guardian should be appointed:
   1. 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.
   2. If an application is made then the person who alleges the contrary bears the onus of persuading the Court.
   3. 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.
   4. 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.
   5. 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.
   6. 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.
   7. 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.
   8. 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.
   9. 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.[4]
4. Those principles continue to have relevance to an application pursuant to s 107 of the SAET Rules, in determining whether a litigation guardian should be appointed for a person under a legal incapacity.

1. In this case Mr Waller, suffered multiple physical injuries when he fell to the ground from a ladder. He has also been diagnosed as suffering from a post-traumatic stress disorder. On 27 March 2025, Mr Waller had a consultation by telephone with consultant psychiatrist Dr Nick Ford. The doctor forwarded a letter to Chief Psychiatrist Dr John Brailey that day. In the letter Dr Ford referred to the physical injuries and a chronic post-traumatic stress disorder. Dr Ford listed a series of events which were consistent with ongoing dysfunctional behaviour and raised with Dr Brailey the possibility of a treatment order.
2. On 21 May 2025, Mr Waller was assessed by consultant psychiatrist Dr Michael Schirripa. That was arranged by Mr Waller's solicitors. He was asked to set out his diagnosis and his opinion as to whether Mr Waller has the capacity to understand legal terms and the concepts if explained and whether he has the mental capacity to provide instructions in relation to legal matters and understand that the consequences of those decisions.
3. Dr Schirripa provided a detailed report in which he noted that he had previously assessed Mr Waller. Dr Schirripa attempted to ascertain Mr Waller's views with regards to the potential need for a litigation guardian to be appointed and, despite several attempts, was unable to obtain an adequate response. Dr Schirripa noted significant concentration, attention, and memory problems. He considered that Mr Waller presented with a complex combination of disorders, including a post-traumatic stress disorder, which rendered him quite dysfunctional.
4. His answers to the two relevant questions raised by Mr Waller's solicitors were:

Mr Waller does not currently have the mental capacity to understand legal terms and concepts. Given his current mental state, he has an inability to effectively listen to any new information, especially regarding legal matters, and would have an inability to retain any new information for any reasonable length of time. This is due to a combination of psychiatric, personality and substance use factors.

...When asked, Mr Waller was unable to provide me with any information about his current legal matters and the status of his Return to Work claim, his judgement is significantly impaired... He has also ceased to engage with his mental health treatment providers which (a) would inhibit him from receiving further needed treatment and (b) would remove needed layers of support he would require as he continues with any legal process.

As such it is my opinion that Mr Waller does not currently have the mental capacity to provide instructions in relation to his legal matters nor to understand that the consequences of those decisions.[5]

1. Dr Schirripa then recommended that a litigation guardian be appointed on the basis that Mr Waller is not capable of making decisions himself, nor being effectively engaged in his legal proceedings. The latter statement is also consistent with the observations of Mr Waller's solicitor, Simone Marie Cureton. She has provided an affidavit sworn on 17 July 2025. Ms Cureton has also referred to discussions she has had with counsel, Mr Sean Richter. Both Ms Cureton and Mr Richter are experienced legal practitioners who regularly appear in the South Australian Employment Tribunal. Ms Cureton refers to the difficulties that she has experienced in being able to obtain instructions from Mr Waller and the factual basis of her conclusion that Mr Waller does not have the mental capacity to understand or provide instructions in relation to his legal matters.[6] Whilst Mr Waller appears to have been in a de facto relationship, Ms Cureton refers to that relationship as now being strained and, in the circumstances, she urges the Tribunal to appoint the Public Trustee as litigation guardian and not the de facto partner.
2. Some of the comments recorded by Dr Schirripa, attributed to Mr Waller, also support a conclusion that the relationship between Mr Waller and his de facto partner is strained and she would not currently be an appropriate litigation guardian.
3. I have considered whether I should direct Mr Waller to appear before me, but I find that is likely to cause him distress and, given the other evidence, may not assist, and is not necessary. The evidence has persuaded me that Mr Waller does not currently understand the nature of the litigation in this Tribunal, its purpose and its possible outcomes including the risks with respect to costs. He is, relevantly, under a legal incapacity, a litigation guardian should be appointed, and I am satisfied that the most appropriate person to be appointed litigation guardian is the Public Trustee.
4. Mr Waller will be given liberty to apply to revoke the order I will make appointing the Public Trustee as his litigation guardian. The evidence indicates that if Mr Waller were to be more compliant with treatment, he may improve to an extent that a litigation guardian may no longer be required.

1. The Public trustee be appointed to act as litigation guardian for the applicant in the proceeding, Simon Waller, until further order.
2. Liberty is granted to Mr Waller to apply to revoke Order 1 should his mental state improve so as to no longer require a litigation guardian.

[1] [2020] SAET 43 (Rossi DPJ). See also Kafley v Ingham's Enterprises Pty Ltd [2021] SAET 203 (Crawley DPJ); Sellen v Dillon [2024] SADC 88 (Deuter J).

[2] Rule 7 of the SAET Rules now provides that subject to any contrary order made by the Tribunal, where an issue or procedure is not provided by the SAET Rules, the South Australian Employment Tribunal Act 2014 or other relevant act, the UCR apply.

[3] [2009] VSC 596.

[6] Paragraph 37 of Ms Cureton's affidavit.