FEDERAL COURT OF AUSTRALIA
Dunn v The State of Victoria (Department of Education and Training) [2017] FCA 615
File number: VID 423 of 2017 Judge: DAVIES J Date of judgment: 30 May 2017 Catchwords: PRACTICE AND PROCEDURE – application under r 9.63 of the Federal Court Rules 2011 for appointment of litigation representative Legislation: Federal Court Rules 2011 (Cth), rr 9.61, 9.63 Date of hearing: Determined on the papers Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 2 Solicitor for the Applicant: Arnold Thomas & Becker Solicitor for the Respondent: Minter Ellison ORDERS
VID 423 of 2017 BETWEEN: BRYDIE HARTIGAN DUNN (BY HER NEXT FRIEND KELLY HARTIGAN)
Applicant
AND: THE STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)
Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
30 MAY 2017
THE COURT ORDERS THAT:
1.Kelly Hartigan‑Dunn be appointed as litigation representative for the applicant.
2.The requirement of r 9.63(2) of the Federal Court Rules 2011 be dispensed with.
3.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The applicant is a minor and therefore, pursuant to Schedule 1 (the Dictionary) of the Federal Court Rules 2011 (“the Rules”), “a person under a legal incapacity”. These proceedings were commenced by the applicant’s “next friend”, her mother Ms Kelly Hartigan‑Dunn, when Ms Hartigan‑Dunn should have been appointed as litigation representative in this matter: r 9.61 of the Rules. Ms Hartigan‑Dunn has applied for an order appointing her as the applicant’s litigation representative and for an order that the requirement of r 9.63(2) of the Rules be dispensed with. By consent the application is dealt with on the papers.
Ms Hartigan‑Dunn has consented in writing to the appointment and evidence has been furnished that she has no interest in the proceeding that is adverse to the interest of the applicant. The application is not opposed by the respondent. I am satisfied that the requirement of r 9.63(3) has been complied with and that the requirement of r 9.63(2) may be dispensed with. The orders will accordingly be made.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 30 May 2017
- AGLC
- Dunn v The State of Victoria (Department of Education and Training) [2017] FCA 615
- Case
- [2017] FCA 615
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold: whether Dunn's intellectual disability justified the appointment of a litigation representative and whether the court should waive the requirement under rule 9.63(2) of the Federal Court Rules 2011. This rule mandates that the party seeking the appointment must demonstrate that their intellectual disability substantially impairs their capacity to manage their case. The court was required to assess Dunn's disability and its effects on her ability to conduct the litigation independently.
The court acknowledged Dunn's intellectual disability and its significant impact on her capacity to manage her case. The judge found that Dunn's disability substantially impaired her ability to understand and participate in the legal process. Consequently, the court deemed it necessary to appoint a litigation representative to assist her. Furthermore, the court decided to waive the requirement under rule 9.63(2) of the Federal Court Rules 2011, considering the circumstances of the case. The outcome of the application was in favour of Dunn, granting her the appointment of a litigation representative and reserving costs for future determination.
Orders
Orders of the court
1. Kelly Hartigan‑Dunn be appointed as litigation representative for the applicant.
2. The requirement of r 9.63(2) of the Federal Court Rules 2011 be dispensed with.
3. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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