In this case the Court of Appeal was asked to consider the
parens patriae jurisdiction for a child who suffered
catastrophic injuries, including brain damage and as such was a
protected person required a tutor to carry on his proceedings.
Parens Patriae is an old English common law doctrine
that allows the court to protect the rights of persons who do not
have capacity to represent themselves.
Carroll & O'Dea acted for the child who was the
successful plaintiff / appellant.
The appeal arose out of injuries the child sustained in a motor
accident on 7 September 2004. The decision in question, however, is
an interlocutory decision (a decision during the course of a case
being prepared for hearing) dealing with the appointment of a tutor
on behalf of the child appellant.
Court of Appeal proceedings were commenced on behalf of the
appellant child by his father who acted as tutor. Due to a conflict
of interest, the father of the child was removed as tutor and an
application was made seeking the court to exercise its parens
patriae jurisdiction with a view to having the President of
the Law Society nominate an independent solicitor who would act as
tutor on behalf of the plaintiff. The effect of a tutor being
removed in proceedings involving a minor brain injured child is
that there was a stay of proceedings until an appropriate tutor
could then be appointed to act on the child's behalf.
The general proposition for the appointment of an independent
tutor was not opposed by the insurer, the NRMA. However in
circumstances where the appointment would carry with it an
indemnity, or protection against the new tutor as to the question
of costs, the NRMA defended the application.
His Honour Justice Gleeson considered the function of
Uniform Civil Procedure Rules (UCPR) 7.18 providing for
the appointment and/or removal of a tutor in proceedings. His
Honour acknowledged that the court had a direct responsibility for
those who could not look after themselves, including infants, as
well as those of unsound mind. His Honour suggested that it is the
function of the court in exercising its parens patriae
jurisdiction to consider not only the protection of the person with
the disability but also the processes of the court.
The real question in this interlocutory application was whether
or not it would be appropriate in this case and if the Court would
have jurisdiction to appoint an independent tutor with a view to
also indemnifying that independent tutor for costs regardless of
the outcome of the substantive appeal.
His Honour acknowledged there is no explicit provision to limit
the effect of such an order and in fact suggested that it is the
jurisdiction of the Court to do whatever is necessary to enable it
to act effectively within its jurisdiction and to control its own
processes and proceedings. In summary his Honour suggested that [at
"In my view, an order protecting a tutor from
personal liability for costs may be made as an incidental term of
an order appointing a tutor under UCPR Rule 7.18(1)(b), or in
reliance on the power conferred by UCPR Rule 2.1. Alternatively, if
there be any doubt as to power to make such an order, it is not in
dispute that the Court has inherent power under its parens patriae
jurisdiction to appoint a tutor on terms protecting the tutor from
personal liability for costs."
Ultimately his Honour Justice Gleeson was satisfied that this
was an appropriate case to appoint an independent tutor on the
condition that a protective costs order be made in respect of the
solicitor tutor appointed.
The practical implications of this case are that when acting on
behalf of the estate of a protected person, in circumstances where
there is no willing and able tutor to be appointed, that the Court,
in exercising its functions under the UCPR and/or
parens patriae jurisdiction will appoint an independent
tutor, nominated by the Law Society on the basis that a protective
costs order be made in respect of the appointed tutor.
It is however important to note that the Court will balance
competing interests in making such an appointment and it is likely
this type of appointment would be limited to very specific
circumstances such as those that occurred in this matter. The
relevant circumstances in this case were such that in circumstances
where a brain injured minor would have a permanent stay of
proceedings if an independent tutor were not appointed that this
outweighs any prejudice that might be caused to the insurer having
rights in respect of costs should they be successful in the
The decision does leave open the prospect that if the appellant
is unsuccessful in the substantive appeal that it would possibly
still be open to a Court to award costs in favour of a successful
respondent against the estate of the incapacitated appellant or
party to the proceedings.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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