AYZ v State of Western Australia (Department of Justice, Corrective Services)
[2022] FCA 1286
•25 October 2022
FEDERAL COURT OF AUSTRALIA
AYZ v State of Western Australia (Department of Justice, Corrective Services) [2022] FCA 1286
File number: WAD 224 of 2022 Judgment of: JACKSON J Date of judgment: 25 October 2022 Date of publication of reasons: 28 October 2022 Catchwords: HUMAN RIGHTS - application for interlocutory injunction pending determination of application for interim injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) - conditions in detention - basis for application and nature of orders sought unclear - doubt about authorisation of commencement of proceedings as litigation representatives required - unclear that injunction would have any benefit - injunction refused Legislation: Age Discrimination Act 2004 (Cth)
Australian Human Rights Commission Act 1986 (Cth) ss 3, 46P, 46PO, 46PP
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Court Rules 2011 (Cth) rr 9.61, 9.62, 9.63, 9.64, Schedule 1
Children's Court of Western Australia Act 1988 (WA) s 36
Young Offenders Act 1994 (WA) ss 17, 190
Cases cited: Abraham v Housing Authority [2022] FCA 1145
CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699
Frigger v Trenfield [2019] FCA 1746
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1469
VYZ by next friend XYZ v Chief Executive Officer of the Department of Justice [2022] WASC 274
Tu v Chang [2016] FCA 1567
Wilson v Britten-Jones [2019] FCA 747
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of hearing: 25 October 2022 Counsel for the Prospective Applicants: Mr B Coyne Solicitor for the Prospective Applicants: Levitt Robinson Solicitors Counsel for the Prospective Respondent: Ms CJ Thatcher SC Solicitor for the Prospective Respondent: State Solicitor's Office ORDERS
WAD 224 of 2022 BETWEEN: AYZ
First Prospective Applicant
BYZ
Second Prospective Applicant
CYZ
Third Prospective Applicant
DYZ
Fourth Prospective ApplicantEYZ
Fifth Prospective ApplicantAND: STATE OF WESTERN AUSTRALIA (DEPARTMENT OF JUSTICE, CORRECTIVE SERVICES)
Prospective Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
25 OCTOBER 2022
THE COURT NOTES THAT:
1.Issues remain as to whether or not the application has been properly commenced or may be properly continued by or on behalf of the persons named as the prospective applicants, and the following orders are without prejudice to any subsequent determination of those issues.
THE COURT ORDERS THAT:
Remote hearing orders
1.For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), counsel for the prospective applicants is permitted to deliver oral submissions by way of videolink.
2.Unless the Court otherwise orders, and apart from the Court's transcript provider, no person, including the parties and members of the public, who is observing the hearing of the proceeding by accessing any audio or video link may make any audio or video recording or photography of the hearing or any part of it.
3.Nothing in the preceding paragraph prevents any person, based on what he or she has seen or heard during the hearing:
(a)making his or her own notes of the proceeding; or
(b)publishing a fair report of the proceeding.
Programming
4.On or before 4.30pm AWST on 8 November 2022, the prospective applicants must file and serve any further affidavits on which they seek to rely and an outline of written submissions of no more than 5 pages in length on the issues referred to in the above note, including the application filed 24 October 2022.
5.On or before 4.30pm AWST on 22 November 2022, the respondent must file and serve submissions of no more than 25 pages in length and any affidavits on which it seeks to rely.
6.On or before 4.30pm AWST on 29 November 2022, the prospective applicants must file and serve any affidavits in reply and any further written submissions of no more than 5 pages in length on which they seek to rely.
7.The application for an interim injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) will be listed for hearing for an estimated duration of 1 day on a date to be fixed.
8.There is liberty to apply on 48 hours' written notice.
9.Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), and until further order, no person may:
(a)publish the name of any of the prospective applicants or any other minor referred to in the evidence in this proceeding; or
(b)communicate any such name save as is necessary for the conduct of the proceeding.
10.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 224 of 2022 BETWEEN: AYZ
First Prospective Applicant
BYZ
Second Prospective Applicant
CYZ
Third Prospective Applicant
DYZ
Fourth Prospective ApplicantEYZ
Fifth Prospective ApplicantAND: STATE OF WESTERN AUSTRALIA (DEPARTMENT OF JUSTICE, CORRECTIVE SERVICES)
Prospective Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
1.Paragraph 9 of the orders made on 25 October 2022 is vacated.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the ground that it is necessary to prevent prejudice to the proper administration of justice, without the leave of the Court no person may publish the name of any prospective applicant or any other minor person referred to in the evidence in this proceeding, including those persons named in the list on page 105 of the affidavit sworn by Angelique Gebrayel on 20 October 2022.
3.Without the leave of the Court, no person other than the parties is entitled to inspect any document on the court file.
4.In any transcript of the proceeding (including the hearing on 25 October 2022) and henceforth in documents filed and oral submissions made in the proceeding, references to any prospective applicant on an individual basis must be anonymised as follows:
(a)the first prospective applicant: AYZ;
(b)the second prospective applicant: BYZ;
(c)the third prospective applicant: CYZ;
(d)the fourth prospective applicant: DYZ; and
(e)the fifth prospective applicant: EYZ.
5.Liberty to apply to vary the above orders on 24 hours' written notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
Five people under the age of 18 have been named as the 'prospective applicants' in an application filed in this Court. The application is for an interim injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA). The orders sought are wide ranging. They relate to the detention of the prospective applicants variously at Banksia Hill Detention Centre and at a place within the Casuarina Prison complex known as Unit 18.
Since the prospective applicants are minors who have, or are alleged to have, committed criminal offences, their names will be anonymised in this judgment and orders suppressing their names will be made. It is necessary to prevent prejudice to the proper administration of justice to make those orders so that the processes of this Court do not result in the undermining of important confidentiality protections found in state legislation such as s 36 of the Children's Court of Western Australia Act 1988 (WA) and s 17 and s 190 of the Young Offenders Act 1994 (WA).
The proceeding was commenced last week, on Wednesday 19 October 2022. It was said to be urgent, so it was listed for mention on Tuesday 25 October 2022. At the mention hearing, counsel who appeared on the basis that he represented the prospective applicants moved for injunctive orders pending the final determination of the s 46PP application. By that time the respondent, the State of Western Australia, had been served and appeared by senior counsel. After hearing argument, I indicated that I would not be making any orders for injunctive relief on that day, and made directions programming the matter to a final hearing. These are my reasons. Since the matter will be the subject of fuller argument and evidence at the final hearing, it is appropriate to express the reasons in a general manner. But in order to understand them, it is necessary first to describe the genesis of the application and the basis on which it was put, as well as some difficulties with it.
The procedural background to the mention
The complaint to the Australian Human Rights Commission
Section 46PP of the AHRCA empowers the Court to grant an interim injunction if a complaint to the Australian Human Rights Commission has been lodged. It may be granted in order to maintain the status quo as it existed immediately before the complaint was lodged (s 46PP(1)(a)), or the rights of any complainant, respondent or affected person (s 46PP(1)(b)).
The present application is expressly put on the second of these grounds. I will describe below the rights which, it is said, need to be maintained. There has been a complaint to the Commission which does engage s 46PP. It was made on 29 September 2022, apparently by each of the prospective applicants, against the State including by way of the emanation named as respondent to this proceeding, the Department of Justice, Corrective Services.
The thrust of the complaint is that some of the prospective applicants have been transferred from Banksia Hill to Unit 18, and that this has involved discrimination against them on the basis of disability and age and, in the case of four of the five prospective applicants, on the basis of race, each of those four being Indigenous. As will be seen, it is not necessary in these reasons to describe the alleged discrimination in any detail, because the application for an interlocutory injunction was not based on it. The complaint also relied on or made reference to alleged breaches of the Young Offenders Act, as well as a large number of other asserted rights that are the subject of several international treaties such as the International Covenant on Civil and Political Rights (ICCPR).
On 11 October 2022, the Commission notified the solicitors for the prospective applicants that it had accepted the complaint, albeit not in respect of breaches of the Young Offenders Act or most of the rights said to arise under the international treaties, and not against other State government departments that had been named as respondents.
The basis on which the injunctions are sought
The complaint incorporates an annexure that is a long, discursive document which refers to a very large number of alleged rights. It is not clear from it what rights, it is said, need to be maintained by an order under s 46PP. Nor is it clear from the originating application exactly what injunctive relief is sought, whether after final determination of the s 46PP application or on an interlocutory basis before that final determination. I therefore directed the prospective applicants to file a minute of the orders they sought at the mention and particulars of the rights sought to be maintained if no injunction is granted.
Unfortunately those documents as filed did not bring clarity. The orders to be sought, putatively by way of interlocutory injunction at the mention, were wide ranging and vague. They included an order restraining the State from using Unit 18 as a youth detention centre, and from 'taking any actions (including failures to act or omissions) that interfere with or impair the maintenance of the rights (including the natural rights, human rights and legal rights) of any of the Prospective Applicants or any Group Members or Affected Persons'. The reference to Group Members is made because the complaint to the Commission purports to be made as a representative complaint on behalf of a 'wider class of people' which seems (the drafting is not clear) to be comprised of all current or former detainees of Banksia Hill Detention Centre and/or of Unit 18 who have experienced the claimed discriminatory treatment and/or harassment. And 'affected person' is a term used in the AHRCA to designate a person on whose behalf the complaint was lodged.
In oral argument at the mention it did not appear that counsel for the prospective applicants pressed for orders in the precise terms of the injunctions in the minute and it did appear, with respect, that he did not have in mind a clear formulation of precisely what injunctions his clients sought to be made on that day. I therefore directed him to return after a half hour adjournment with a minute setting out the orders sought on that day, 'word for word'. He did so, and apart from programming directions, the order sought was confined to an order restraining the State from detaining the first, third and fifth prospective applicants within Unit 18.
Turning to the particulars filed, in effect they stated the rights said to form the basis of both the interim injunction sought by way of final order in this proceeding, and also the interlocutory injunction for which counsel moved at the mention hearing. They appeared to include a 'right to be lawfully detained pursuant to the Young Offenders Act'. This was said to be 'constituted' by 'numerous express and implied rights in the YO Act' which were listed non-exhaustively in a footnote, and were numerous indeed, and 'other rights listed in the "relevant international instruments as defined in the AHRC Act and the common law"'. These were said to include:
right to life, right to access medical care, right to be free from Cruel Unusual and Degrading Treatment, Right to Dignity and Humanity while detained, right to be segregated from adults and be accorded treatment appropriate to their age and legal status and the right to be free from unlawful discrimination …
These are said to be 'just some of the rights that inform the right to lawful detention'.
The particulars also made reference to the decision of the Supreme Court of Western Australia in VYZ by next friend XYZ v Chief Executive Officer of the Department of Justice [2022] WASC 274, in which Tottle J declared that the confinement of a person to his sleeping quarters at the Banksia Hill Detention Centre on numerous dates was unlawful. It was not entirely clear how the prospective applicants relied on the declaration for the purpose of this proceeding; they appeared to submit that it showed what would be the standard to maintain the 'right to lawful detention' and that the continuing practice of 'lockdown' breaches the right.
The particulars then went on to state how most of the rights described in the passage just quoted are said to have been violated in the case of the prospective applicants, as well as a right not expressly described in that quote, namely the right to education. They make disturbing allegations of self‑harm and suicide attempts, and assault by prison officers. These things are said to have occurred both at Banksia Hill and Unit 18. They also allege that one of the prospective applicants had been subjected to sedation and physical restraints (shackles) when he was transferred to Unit 18 and that another was subjected to prolonged periods of solitary confinement and physical restraints there. These allegations are supported, at least to some extent, by purely hearsay affidavit evidence, which is said to have the prospective applicants as its ultimate source. There is no direct evidence from any of the prospective applicants. Nevertheless, allegations of this kind are obviously very troubling.
I have said that the particulars deal with 'most of the rights' identified in the quoted passage because, with the possible exception of one instance of alleged racial vilification, what was not particularised was any breach of the 'right to be free from unlawful discrimination'. That may be significant. The complaints that can be made to the Commission are complaints of unlawful discrimination: AHRCA s 46P(1)(b). Unlawful discrimination is defined in s 3(1) of the AHRCA to mean any acts, omissions or practices that are unlawful under specified parts of the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth), and the Racial Discrimination Act 1975 (Cth) (as well as of the Sex Discrimination Act 1984 (Cth)) and includes offences under specified parts of the same Acts. Section 46PP(1)(b) does not say expressly that the 'rights of any complainant, respondent or affected person' that may be maintained by an injunction are rights that are protected by that Commonwealth discrimination legislation. But there is, at least, a question about whether they are indeed limited to rights of that kind. In Wilson v Britten-Jones [2019] FCA 747 at [42] Nicholas J said (emphasis added):
Section 46PP(1) is the source of the Court's jurisdiction to grant an interim injunction in respect of a complaint lodged under s 46PP(2) of the AHRC Act before it has been terminated. However, it does not confer jurisdiction on the Court to grant an interim injunction in support of the applicant's case on grounds unrelated to the complaint lodged by the applicant with the Commission. The Court may only grant an injunction under s 46PP(1) in order to maintain the status quo, as it existed immediately before the complaint was lodged (subpara (a)), or to maintain the rights of any complainant, respondent or affected person (subpara (b)). It is clear that 'the rights' referred to in subpara (b) of s 46PP(1) are rights under the AHRC Act which may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4).
It will be necessary to return below to the argument about this which counsel for the prospective applicants put at the mention hearing.
Counsel for the prospective applicants expanded on the above contentions in oral submissions. He put the case in a very broad way, referring to a 'deluge of deplorable rights violations' and a 'litany of egregious violations', seemingly at both Banksia Hill and Unit 18. He referred to the evidence that had been compiled of various criticisms of the circumstances at both places, including judicial criticisms. He relied on what he said was an 'overarching right to lawful detention' that arises under the Young Offenders Act. He referred to what he said were numerous attempts at suicide and self-harm and relied on the 'right to life' under the ICCPR including a requirement for states to take adequate measures to prevent suicides among people in vulnerable situations, including those deprived of their liberty.
Whether the proceeding has been properly brought on the prospective applicants' behalf
One final aspect of the matter needs to be described. The prospective applicants are all minors and so are persons under a legal incapacity for the purposes of, at least, the Federal Court Rules 2011 (Cth): see Schedule 1 Dictionary, definition of 'person under a legal incapacity'. Rule 9.61 provides that a person under a legal incapacity may start a proceeding only by the person's legal representative. Rule 9.62 sets out who may be a litigation representative and r 9.63 makes provision for a party or 'an interested person' to make application for an order appointing a litigation representative. For a minor, the Dictionary defines an interested person under a legal incapacity to mean the minor's parent or guardian. A copy of any such application must be served on the person under a legal incapacity: r 9.63(2). A litigation representative must not take a step in the proceeding unless they have filed a copy of their consent and, relevantly here, a certificate from their lawyer stating the litigation representative has no interest in the proceeding that is adverse to the interest of the person under a legal incapacity: r 9.64.
Despite these requirements, the originating application was not preceded or accompanied by any application for the appointment of litigation representatives for the prospective applicants. After my Chambers raised this with the solicitors on the record, an application was filed, supported by an affidavit of a solicitor, Angelique Gebrayel, sworn 24 October 2022. According to the affidavit, the application to appoint litigation representatives was made by the prospective applicants, and so by parties and not interested persons. But there was no evidence that any prospective applicant had actually authorised the making of the application. The persons to be appointed as litigation representative under the application were variously the grandmother of one prospective applicant, the mothers of two others, the carer of another and the aunt of another. In only one case did Ms Gebrayel say that she certifies that the proposed litigation representative has no interest in the proceeding that is adverse to the interest of the prospective applicant; in relation to the other four prospective applicants she just says she is instructed that the proposed litigation representative has no adverse interest. There was evidence that the applications had been served on the prospective applicants, but only on the day of the affidavit, that is the day before the mention, and in some cases by registered post. In addition, senior counsel for the State submitted on the basis of references elsewhere in the evidence that two of the prospective applicants are in the care of the Department of Communities and so the Chief Executive Officer of that department is their legal guardian.
These matters led the State to submit that there were so many doubts about whether the proceeding had been properly commenced or was being properly continued that it should be summarily dismissed. I will return to all this below.
Why no injunction was granted
Having laid out the background it is now possible to explain in summary form why I did not grant the injunction sought. It is not necessary to describe in any detail the well-established principles on which interlocutory injunctions are granted. The two main considerations are whether there is a serious question to be tried, and the balance of convenience, with those two considerations being interdependent in the sense that the stronger one is, the lower the level to which the other may need to rise: see the summary in Frigger v Trenfield [2019] FCA 1746 at [6]. It must be acknowledged, however, that these considerations may need to be modified to meet the particular statutory context: see generally Abraham v Housing Authority [2022] FCA 1145 at [37]‑[42]. The order of the following points is not dictated by the usual order of the two main considerations, but rather by reference to the importance of the points to the outcome.
Firstly, and fundamentally, as matters stood at the mention hearing, there was no sound basis to think that the injunction ultimately sought would have helped anyone. Although in form it is put as a restraint from doing something, namely keeping certain applicants in Unit 18, in practice it would have been a requirement to do something, namely take them out of Unit 18. But to do what then? That is something the order would leave entirely at large. Counsel for the prospective applicants candidly accepted that his clients were not in a position to adduce cogent evidence of any acceptable alternative.
Perhaps the obvious alternative would be to return those prospective applicants to Banksia Hill. But the prospective applicants' evidence and submissions put some emphasis on what were said to be bad conditions and ill treatment at Banksia Hill. Many of the reported incidents of attempted suicide and self-harm are said to have taken place at Banksia Hill. Relying on a report of the Office of the Inspector of Custodial Services, Counsel submitted that Banksia Hill 'is not fit for purpose'.
The only other place named as a possible alternative was an adolescent inpatient mental health service at Bentley. But the only evidence to go on there was a hearsay report that one of the prospective applicants had been in 'high spirits' and 'genuinely happy' when he was treated there at an earlier time. Counsel for the prospective applicants was right to say that evidence of a suitable alternative place of detention was not before the Court 'other than suggesting the Bentley adolescent clinic perhaps'. He referred to other medical facilities but came back to saying of Banksia Hill, 'maybe that is the lesser of two evils'.
In truth, there was no evidence that any place was in a position to house and care for each of these young persons, or for how long. There was no evidence, let alone qualified expert evidence, as to what would be best for them. Counsel for the prospective applicants submitted that it was very difficult, if not impossible, for the prospective applicants to obtain evidence as to alternative places of detention. Given their current positions and likely lack of financial and other resources, that submission may well be correct. But to require the Department to move three apparently vulnerable young people, with what is said in the evidence to be multiple mental health issues, to another place on such a flimsy evidential basis, would have been to act blindly and, in my view, irresponsibly.
On the terms of s 46PP(1)(b) of the AHRCA, the power to grant an injunction at the final hearing of this proceeding is conferred in order to maintain rights. It was not clear how the injunction sought at the mention hearing would achieve that or how, for example, an interlocutory injunction granted so soon after the commencement of the proceeding was necessary to ensure that any final relief granted was not futile or undermined. This could be put in terms of the balance of convenience, or it could be put in terms of protecting the effectiveness and utility of the processes of the Commission: see Abraham at [46]. Either way, there was no real basis to think that the proposed order would make things better.
Second, and also fundamentally, the State had not had a proper opportunity to respond to the application. The mention hearing was on a Tuesday, the proceeding had only been commenced on the preceding Wednesday, and it appears that the State was not served until 21 October 2022, the Friday before the mention hearing. The materials filed and served by the applicants ended up being five affidavits, two of which were quite voluminous with annexures, the minutes of orders and particulars already mentioned, plus an outline of written submissions of some 25 pages in length which was provided less than an hour before the hearing. The State had had no real opportunity to comprehend those materials, let alone prepare its reply.
It is fundamental that a respondent is given a proper opportunity to be heard, save where an ex parte injunction is granted for a short period of time because justice requires it, for example, because there is reason to believe that the subject matter of the injunction will disappear if the respondent is given any warning. This is not a case of that kind. Of course, what is required in order to give a proper opportunity can depend on the inherent urgency of the circumstances. Here, there was no evidence that there was any imminent risk of anything adverse to the applicants occurring within any given time frame. The transfers of some of the prospective applicants to Unit 18 that seem to have led to the complaint and this application took place in July and August 2022 and the evidence of self-harm and suicide attempts all pertained to the period around or before those months. The complaint to the Commission was made at the end of September 2022. No evidence as to current conditions in Unit 18 was before the Court apart from general evidence that one of the prospective applicants hates it there. There is no evidence of any recent incident or that any incident was imminent. As troubling as the claims of self‑harm are, it was impossible to know on the evidence how likely it was to happen again or whether it would be rendered less or more likely if any of the (vaguely put) steps urged by counsel for the prospective applicants were to be taken.
Like any respondent, the State is entitled to a proper opportunity to prepare and present its case. Once again, this could be put in terms of balance of convenience and justice: to make orders against a party without giving it an opportunity to be heard would be unjust.
In the end, the prospective applicants' legal advisers realised, with respect prudently, that they themselves would need two weeks to marshal further evidence. In particular, they sought that time in order to seek to obtain direct evidence from the prospective applicants, including, if possible, evidence about current conditions in Unit 18. They did not oppose a similar timeframe being accorded to the State. That was sensible.
Third, I had doubt about whether the asserted rights on which the applicants relied properly founded an application for an injunction to be granted under s 46PP of the AHRCA, and so whether they would found any injunction granted interlocutory to such an application. I have described the statutory provision and set out the observations of Nicholas J in Wilson v Britten‑Jones above. Save for one unparticularised claim of racial vilification, nothing on which the prospective applicants relied in their particulars answered the description of unlawful discrimination.
Their submission in response to this doubt, as best I understood it, was that because, as Nicholas J pointed out, the rights to be maintained are those that may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4), and because the range of remedies the Court can grant under that subsection is wide, it follows that the power is generally broad and the category of rights that can be relied on is wide.
On the face of things, though, that does not follow. There is a distinction between the rights that may exist and the remedial powers that may be exercised to vindicate them. On the face of the AHRCA, those remedial powers can only be exercised to vindicate rights not to be subjected to unlawful discrimination. I express these views tentatively because this issue may be the subject of fuller argument at a final hearing of this proceeding. But it was cause to doubt that the prospective applicants were seeking the injunction on a basis contemplated by the legislation. This goes to whether there is a serious question to be tried.
For completeness, I should also mention that the prospective applicants put their application in the alternative on what they called the parens patriae jurisdiction of the Court. But it was not clear how, exactly, that jurisdiction was said to have been engaged here, assuming the Federal Court does have that jurisdiction. Senior counsel for the State was not in a position to make any submissions on whether the Court does have that jurisdiction. None of that gave the Court a sound basis on which to make orders of the kind sought without fuller argument.
Fourth, I have described the issues surrounding the application for appointment of litigation representatives. In Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 Flick, Jagot and Barker JJ said at [18] (citations omitted):
An order for the appointment of a person as the 'litigation representative' of a person under a legal incapacity assumes more than formal significance. Such an order serves at least two purposes. First, it ensures that the resolution of the proceeding binds the person under the disability. And, second, an order serves to secure to an opposing party the benefit of any order as to costs. In circumstances where proceedings are commenced without a next friend, the solicitors who commenced such proceedings may be held liable for the costs incurred.
The proper appointment of a litigation representative ensures that the person under a disability is bound by the result and by extension that the application has been properly commenced or continued on the person's behalf. The requirement for service of the application on the person under an incapacity gives that person an opportunity to tell the Court if he or she does not want that appointment to occur or has other concerns about it. The requirement for a legal practitioner to certify that the litigation representative has no adverse interests to the person is not just a procedural nicety; it reflects the Court's view of the importance of that being confirmed by a suitably responsible person, in this case an officer of the Court.
Orders for the appointment of a litigation representative can be made with retrospective effect (see Tu v Chang [2016] FCA 1567 at [12]; CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [178]; Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1469 at [25]) and I did not accept the State's submission that the doubts identified required the summary dismissal of the proceeding at this early stage. That would be a drastic step which would be likely to produce inefficiency and waste. The programming orders made give the prospective applicants an opportunity to rectify any deficiencies in that regard. But doubt about whether the application had been properly brought on behalf of the named prospective applicants was another reason why I decided to exercise caution before granting injunctive relief of the kind sought. This does not necessarily go to either a serious question to be tried or to the balance of convenience. It is more fundamental than that: has the proceeding been instituted with the proper authority of those in whose names it is brought?
Conclusion
None of this is to discount the serious and disturbing nature of the allegations made in the proceeding. But for the Court to intervene it must be persuaded that to do so is within the scope of the particular powers that it has been granted and, crucially, that the order sought is likely to make things better. The Court does not have a roving commission to right wrongs, but it must be said that at times that is what counsel for the prospective applicants was urging it to do. For the above reasons, I did not consider it appropriate for the Court to act as urged, but rather to program the matter to a final hearing with due expedition.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 28 October 2022
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