In Victoria, the general rule is that a litigation guardian must act through a separate solicitor, to avoid any conflict of interest. However, in limited cases, such as where it’s cost-effective or no one else is available, the court may allow the same person to act as both solicitor and litigation guardian, provided there’s no conflict and the arrangement serves the interests of the person under disability.
The Rule
When a person involved in legal proceedings lacks capacity – due to age, illness, disability, or another reason – the law requires a litigation guardian to be appointed. This guardian acts on behalf of the person under disability, ensuring their interests are protected throughout the legal process.
In Victoria, the general rule is that a litigation guardian must act through a solicitor. That is, the litigation guardian and the lawyer representing the person must be two different people. This rule is outlined in Rule 15.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and its equivalent in the County Court rules.
The Dilemma – How Do We Reconcile This?
What happens when no one else is available, and the most willing or suitable person to act is already the lawyer? Can a solicitor also act as a litigation guardian?
This is where the problem arises. The dual role, where one person acts as both the litigation guardian and the legal representative, falls under the conflict of interest rules. These rules, found in the Legal Profession Uniform Law Application Act 2014 (Vic) (among other legislation and obligations), prohibit solicitors from acting in situations where their duties to the client may conflict with their own interests or duties to others. A solicitor acting in both roles risks making decisions that are not fully independent, which could jeopardise the fairness and integrity of the proceedings.
It is not common for one person to hold both roles. However, Victorian courts have confirmed that it is possible in limited and carefully assessed situations—particularly where it is cost-effective, practical, and free of any actual or potential conflict of interest. The solution lies in the court’s discretion under Rule 2.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which allows it to waive the requirement for a separate solicitor when appropriate.
Let’s look at how this issue has played out in real cases—and what they tell us about how the courts balance procedural rules with access to justice.
Case Studies
It is best to look at case studies and precedents in order to inform us how the law is developing.
Vishniakov v Lay (2019) 58 VR 375 (Vishniakov)
In Vishniakov, the Victorian Supreme Court considered whether Mr Song, a solicitor, could also be appointed as litigation guardian for his stepfather, the plaintiff, who lacked capacity to manage his affairs.
The Court found that while the general rule is to keep the roles of solicitor and litigation guardian separate, Rule 2.04 permits the court to waive that requirement in suitable cases. Mr Song had already done substantial work on the case, had a deep understanding of the plaintiff’s needs, and had no adverse interest. Importantly, engaging a new solicitor would have been costly and wasteful, especially as the plaintiff had limited financial resources.
The Court held that Mr Song could act in both capacities, noting that modern judicial case management allows the court to supervise proceedings and safeguard against any potential conflict of interest.
Slaveski v State of Victoria (2009) 25 VR 160 (Slaveski)
In Slaveski, the Court took a similarly flexible approach. The plaintiff, who had a disability, could not afford a lawyer. His wife, Mrs Slaveska, had been actively helping him in court and was willing to act as litigation guardian. She was intelligent, knowledgeable about the case, and showed no adverse interest.
Strictly applying the rule requiring a litigation guardian to act through a solicitor would have halted the proceedings entirely, as the plaintiff had no access to legal representation. The Court recognised that while there were concerns about Mrs Slaveska’s independence (given her personal relationship with the plaintiff), refusing to waive the rule would have effectively denied the plaintiff access to justice. In other words, the strict rule would have created an unfair barrier to pursuing a legal claim simply because of financial and personal circumstances.
Given the circumstances, and under Rule 2.04, the Court allowed Mrs Slaveska to act as litigation guardian without a solicitor, cautioning that this was an exceptional outcome, not a precedent for future cases.
Why the Court’s Discretion Matters
These cases show that while the conflict of interest principle is vital to preserving fairness in legal proceedings, the courts have tools to make exceptions when necessary. The ultimate goal remains the same: to ensure that the person under disability is protected, and that justice can be pursued.
Courts are cautious, and rightly so. A solicitor taking on both roles must demonstrate that:
- There is no conflict of interest or competing duty,
- They are acting solely in the best interest of the person under disability, and
- There is a strong practical reason, such as financial hardship or lack of alternatives, to allow the dual role.
With careful judicial oversight and a clear justification, Victorian courts may permit this arrangement in rare but important cases, where following the rule too strictly would lead to injustice.
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