Dauguet v Centrelink

Case [2015] FCA 1212

FEDERAL COURT OF AUSTRALIA

Dauguet v Centrelink [2015] FCA 1212

Citation: Dauguet v Centrelink [2015] FCA 1212
Appeal from: Dauguet v Centrelink [2015] FCA 395
Parties: ALAIN DAUGUET v CENTRELINK
File number: VID 260 of 2015
Judge: MURPHY J
Date of judgment: 11 November 2015
Catchwords:

PRACTICE AND PROCEDURE – Application to appoint a litigation representative – whether the appellant suffers a mental disability or illness such that he is not capable of managing his own affairs in the proceeding – not satisfied that the appellant suffers a legal incapacity

PRACTICE AND PROCEDURE – Application to review Registrar’s discretion to have the appeal case managed

PRACTICE AND PROCEDURE – Application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) – whether an order dismissing a proceeding under r 5.23 of the Federal Court Rules 2011 is interlocutory or final – whether the appeal has no reasonable prospect of success because the appellant did not seek leave to appeal – whether the appeal has no reasonable prospect of success on the merits – judgment entered for the respondent

PRACTICE AND PROCEDURE – Objection to competency of appeal – whether single judge sitting in appellate jurisdiction has power to determine an objection to competency of appeal
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Cases cited: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507
C v Commonwealth of Australia [2015] FCAFC 113
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
General Steel Industry Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114
National Mutual Life Association of Australasia Ltd and Ors v Grosvenor Hill (Qld) (formerly Hillier, Parker (Qld) and Anor Pty Ltd (2001) 183 ALR 700; [2001] FCA 237
O’Donoghue v Department of Immigration and Citizenship [2012] FCA 1162
Prime Property Investment Pty Ltd v Van der Velde (2011) 199 FCR 34; [2011] FCA 1397
Re Luck (2003) 203 ALR 1; [2003] HCA 70
Date of hearing: 14 October 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 77
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr P Cadman
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 260 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ALAIN DAUGUET
Appellant
AND:

CENTRELINK
Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

11 NOVEMBER 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Appellant’s interlocutory application dated 31 July 2015 for a hearing date in the appeal and to strike out the objection to competency of the appeal is dismissed.

2.The Appellant’s interlocutory application dated 17 September 2015 to appoint Natasha Peric to be his litigation representative in the proceeding is dismissed.

3.Judgment be entered for the Respondent pursuant to s 31A of the

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AGLC
Dauguet v Centrelink [2015] FCA 1212
Case
[2015] FCA 1212
Decision Date

CaseChat Overview and Summary

Dauguet v Centrelink was a case before the Federal Court of Australia, involving an appeal by Mr Dauguet against a decision of Centrelink. The primary issues in this case included Mr Dauguet's application to appoint his de facto partner, Ms Peric, as his litigation representative, the competency of the appeal, and an application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth).

The court found that Mr Dauguet's application to appoint Ms Peric as his litigation representative must be refused. The court considered Mr Dauguet's affidavit, in which he did not depose that he suffered from a mental disability or illness that would render him incapable of managing his own affairs in the proceeding, as required under r 9.63(3). Additionally, there was no medical evidence to suggest that the pain medication Mr Dauguet took had caused him to suffer a mental disability rendering him incapable of managing his own affairs in the proceeding.

Furthermore, the court concluded that Mr Dauguet's appeal had no reasonable prospect of success on the merits, as he did not seek leave to appeal. The court decided that the parties should not be forced to incur the costs of preparing for and conducting a lengthy trial. Judgment was entered for the respondent, and Mr Dauguet was ordered to pay the respondent's costs of the appeal.

In summary, the Federal Court of Australia dismissed Mr Dauguet's application to appoint Ms Peric as his litigation representative, found that his appeal had no reasonable prospect of success, and ordered him to pay the respondent's costs.

Orders

Orders of the court

1. The Appellant’s interlocutory application dated 31 July 2015 for a hearing date in the appeal and to strike out the objection to competency of the appeal is dismissed.

2. The Appellant’s interlocutory application dated 17 September 2015 to appoint Natasha Peric to be his litigation representative in the proceeding is dismissed.

3. Judgment be entered for the Respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

4. The Respondent’s objection to the competency of the appeal dated 23 June 2015 is dismissed, being unnecessary to decide.

5. The Appellant pay the Respondent’s costs of the appeal including the interlocutory applications referred to in Orders 1, 2 and 3 above.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It is appropriate to deal first with Mr Dauguet’s interlocutory application seeking the appointment of Ms Peric, his de facto partner, as his litigation representative in the proceeding.The procedural background Mr Dauguet was self-represented in the proceeding below, and is self-represented in the appeal. Having said this, I note that the primary judge reached the view that Ms Peric sought to take over Mr Dauguet’s case. Her Honour said (at [123]):… in all senses what she really wants to do is to take over the litigation and run it instead of Mr Dauguet. She has sought to take that role in her dealings with Centrelink and the Ombudsman, as the evidence to which I refer above amply demonstrates. She treats Mr Dauguet’s social security payment as her own, and speaks about it in those terms. She pretends to be Mr Dauguet in correspondence and moves interchangeably between describing what she does in his name as “I” and referring to him in the third person. Her Honour inferred (at [8] and [96]) that documents in evidence which purported to be written by Mr Dauguet were in fact written by Ms Peric. Her Honour extracted various statements by Ms Peric and said (at [105]) that they demonstrated:…the extent to which Ms Peric conducts herself as if Mr Dauguet’s Newstart allowance is her own, not only in her dealings with Centrelink, but in terms of how she speaks about the monies paid by the Commonwealth to Mr Dauguet. In the proceeding below Ms Peric sought to appear for Mr Dauguet at the first directions hearing. The primary judge refused to allow her to do so and said that Ms Peric could not conduct the directions hearing on behalf of Mr Dauguet unless he was under a legal incapacity within the meaning of r 9.63 of the Rules and she was appointed as his litigation representative (at [21]). In the appeal before me Mr Dauguet failed to appear at the first case management conference on 24 July 2015, either personally or through a lawyer. Ms Peric sought to appear on his behalf and she asserted that he was sick and could not run the appeal himself. Rule 4.01 provides that a party may be represented in the Court by a lawyer or may be unrepresented. As Ms Peric is not legally qualified I did not allow her to appear for Mr Dauguet. I adjourned the hearing and listed the respondent’s objection to competency of the appeal for hearing on 17 September 2015. I warned Ms Peric that Mr Dauguet’s appeal was liable to be dismissed if he did not appear in person or through a lawyer. My chambers wrote to Mr Dauguet informing him that if he did not appear at that hearing in person or through a lawyer his appeal may be dismissed. Despite the warning, on 17 September 2015 Mr Dauguet again failed to appear, either personally or through a lawyer. Initially there was no appearance by any person, but after a short adjournment Ms Peric tried to appear on his behalf. When I questioned her as to Mr Dauguet’s whereabouts she stated that he was “in the car downstairs…he’s feeling dizzy. He’s not well, at all.” I reminded Ms Peric of my earlier warning and I asked that she inform Mr Dauguet that if he wanted his appeal to proceed he should immediately attend the Court.

Evidence

Evidence Before The Court

The expression “person under a legal incapacity” is defined in the Dictionary in Schedule 1 of the Rules to mean either a minor or “a mentally disabled person.” The Dictionary defines the expression “mentally disabled person” to mean “a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding.”The evidence In the application Mr Dauguet relied on an affidavit affirmed by him on 17 September 2015. He deposed that he suffered from lumbar central canal stenosis with nerve root compression and L5-S1 spondylosis and that he had been taking OxyContin and OxyNorm pain medication for eight years. He attached a series of medical certificates and a short medical report by Dr Thac (Thomas) Phan dated 8 July 2014 which confirmed the pain medication which Mr Dauguet was taking and stated that he was unfit for work by reason of his long-standing back condition. Neither the medical certificates or the medical report said anything about any mental disability or illness but Mr Dauguet deposed that the strong pain medication he took “affected [his] mental capacity to adequately conduct the proceeding”. In oral submissions Mr Dauguet said that the OxyContin was very strong and that he slept all the time. He deposed that he wished to appoint Ms Peric as his litigation guardian because she had been his nominee at Centrelink since he fell ill in 2005 and she knew his case well, having dealt with Centrelink on his behalf. In submissions he said that Ms Peric knew “our” case better than him. He said that “we” could not find a lawyer and it was very hard for him to conduct the case by himself.Consideration While I broadly accept Mr Dauguet’s evidence as to his back condition and the pain medication that he takes for it, I consider the application to appoint Ms Peric as his litigation representative must be refused. I say this because, first, in his affidavit in support of the application Mr Dauguet did not depose that he suffered from a mental disability or illness such that he was not capable of managing his own affairs in the proceeding, as required under r 9.63(3). He did not expressly state that he was incapacitated from managing his own affairs because of the medication he takes, as opposed to just being affected by it. Second, it is significant that there is no evidence from a medical practitioner to the effect that the pain medication Mr Dauguet takes has caused him to suffer a mental disability rendering him incapable of managing his own affairs in the proceeding. The medical certificates and the short medical report said nothing about any mental disability or illness, let alone a mental disability rising to the level of legal incapacity. In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 at [26]-[27] (Black CJ, Moore and Finkelstein JJ) (“L v Human Rights”) the Full Court indicated that, in almost every case, a Court hearing an application to appoint a litigation representative would need medical evidence. The Full Court said:…When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence.

Decision

Reasons for decision

Recently, in C v Commonwealth of Australia [2015] FCAFC 113 at [57] to [59] (Tracey, Buchanan and Katzmann JJ) the Full Court summarised the relevant principles in relation to summary judgment under s 31A, as follows:[57] In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Gordon J noted (at 406) that s 31A was introduced in order to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”. Even so, the power is to be exercised cautiously: Spencer v The Commonwealth (2010) 241 CLR 118 at 141. [58] As both sections expressly provide, an applicant may have “no reasonable prospect of successfully prosecuting [a] proceeding” even if the application cannot be characterised as either hopeless or bound to fail. These provisions, as Lindgren J held in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, were designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Deyv Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30. In determining whether the claim has “no reasonable prospect” of success weight must be given to the expression as a whole and expressions such as “untenable” or “groundless”, whether or not used in conjunction with “intensifying epithets” such as “clearly” or “manifestly” should not be adopted as substitutes for the statutory language: Spencer at 141.[59] The Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M of the FCA Act. In circumstances in which, as a matter of law, an applicant lacks the necessary status or standing to commence or prosecute a particular proceeding that person’s application for relief can have no reasonable prospect of success. That is the position here. The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial. Mr Dauguet’s submissions in opposition to summary judgment Mr Dauguet’s written submissions did not properly engage with the respondent’s grounds for summary judgment. His submissions were cast in broad terms and amongst other things, he contended that:(a)the application to dismiss the appeal before going to trial was unfair and unjust. He argued that he had a right to be heard within the Court process;(b)Centrelink was “in the wrong” which is why it was trying to avoid trial;(c)Centrelink had a duty of care to pay him Newstart allowance given that it was fully aware of his permanent medical conditions;(d)Centrelink was in a position of power, and it knew that he was vulnerable and relied upon the Newstart allowance; and(e)his appeal had good prospects of success.Consideration

Ratio Decidendi

Legal Principle Established

He deposed that he wished to appoint Ms Peric as his litigation guardian because she had been his nominee at Centrelink since he fell ill in 2005 and she knew his case well, having dealt with Centrelink on his behalf. In submissions he said that Ms Peric knew “our” case better than him. He said that “we” could not find a lawyer and it was very hard for him to conduct the case by himself.Consideration While I broadly accept Mr Dauguet’s evidence as to his back condition and the pain medication that he takes for it, I consider the application to appoint Ms Peric as his litigation representative must be refused. I say this because, first, in his affidavit in support of the application Mr Dauguet did not depose that he suffered from a mental disability or illness such that he was not capable of managing his own affairs in the proceeding, as required under r 9.63(3). He did not expressly state that he was incapacitated from managing his own affairs because of the medication he takes, as opposed to just being affected by it. Second, it is significant that there is no evidence from a medical practitioner to the effect that the pain medication Mr Dauguet takes has caused him to suffer a mental disability rendering him incapable of managing his own affairs in the proceeding. The medical certificates and the short medical report said nothing about any mental disability or illness, let alone a mental disability rising to the level of legal incapacity. In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 at [26]-[27] (Black CJ, Moore and Finkelstein JJ) (“L v Human Rights”) the Full Court indicated that, in almost every case, a Court hearing an application to appoint a litigation representative would need medical evidence. The Full Court said:…When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. Third, Mr Dauguet’s appearance before the primary judge and the affidavits he swore in that proceeding indicate that he was not, at that time, incapable of managing his own affairs in the proceeding. The affidavits in the proceeding which he said were in his own words indicate that he understood the proceeding. The primary judge noted (at [22]) that at the first directions hearing Mr Dauguet was responsive to questions put by the Court and was able to put his position. Her Honour concluded (at [24]) that:…there was no obvious inability on Mr Dauguet’s part to represent himself at this directions hearing, nor in this proceeding. Nor did Mr Dauguet maintain he had any difficulty expressing himself. On being asked if he required a French interpreter, when he explained English was not his first language, the applicant said:No, I don’t need an interpreter, because I speak – I understand.