Groundwater v Territory Insurance Office
[2004] FMCA 381
•2 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GROUNDWATER v TERRITORY INSURANCE OFFICE | [2004] FMCA 381 |
| HUMAN RIGHTS – PRACTICE AND PROCEDURE – DISABILITY DISCRIMINATION – Representation of a party by an unqualified person – whether leave should be given to permit such representation. Disability Discrimination Act Purcell & Rix No.1 [2002] FMCAfam 65 Damjanovic v Maley Unreported No. 230 of 2002 delivered 19 July 2002 |
| Applicant: | IAN EDWARD GROUNDWATER |
| Respondent: | TERRITORY INSURANCE OFFICE |
| File No: | DZ15 of 2003 |
| Delivered on: | 2 April 2004 |
| Delivered at: | Darwin |
| Hearing date: | 17 March 2004 |
| Judgment of: | Brown FM |
REPRESENTATION
| Appearance for the Applicant: | Mr John Groundwater sought leave to appear on behalf of the applicant |
| Counsel for the Respondent: | Mr Grant |
| Solicitors for the Respondent: | Hunt and Hunt Barristers & Solicitors |
ORDERS
That the application by Mr John Groundwater to appear as either litigation guardian or lay counsel on behalf of Mr Ian Groundwater is dismissed. Mr John Groundwater is given conditional leave to appear at future directions hearings to advise the Court how Mr Ian Groundwater proposes to appear in the matter.
That the matter is listed for further directions on 14 May 2004 at 9.30am in order to ascertain how the applicant intends to prosecute his application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DZ15 of 2003
| IAN EDWARD GROUNDWATER |
Applicant
And
| TERRITORY INSURANCE OFFICE |
Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and corrected from the transcript)
The matter today is an unusual one. The applicant in the proceedings is Ian Edward Groundwater and the respondent is the Territory Insurance Office. In order to explain the reasons behind the orders I am going to make today, it is necessary to briefly outline the circumstances, which bring the matter to Court. Those circumstances are complicated and extend over many years. At this stage it is important that I point out to the parties that I am attempting to summarise these various matters. I am not making findings of fact about them and the background is provided as a synopsis only to put the orders which will be made today into context. These orders relate to an application brought by the applicant’s father John Groundwater (Mr Groundwater Senior) to act as legal counsel on behalf of the applicant or failing that as his litigation guardian. Mr Groundwater Senior is not legally qualified.
In 1990, whilst he was in the employ of the Northern Territory Conservation Commission, the applicant injured his back at work. The Conservation Commission held worker's compensation insurance with the respondent, the Territory Insurance Office. A claim was made by the Conservation Commission for worker's compensation payments in respect of the applicant's claim for injury and this claim was initially accepted. So in general terms, the Territory Insurance Office agreed to indemnify the Conservation Commission in respect of its liability to pay wages and medical expenses to Mr Groundwater, which flowed from his work related injury.
After the injury, Mr Groundwater was prescribed narcotic pain killers and it seems there were medical complications as a result. He had to undergo surgery for haemorrhoids. He also had to undergo complicated spinal surgery. There is an issue regarding whether he was accidentally infused with a blood product containing hepatitis B and so contracted this disease whilst in hospital and the connection of this to his work related injury and subsequent symptoms he has suffered.
As a result of all these factors, the applicant claims that he sustained serious side effects from his medical treatment, all of which can be linked to the initial back injury which he sustained whilst at work. The most of important of these side effects was that he became severely immunosuppressant and so developed a number of allergies to such an extent that he has contracted a condition known as “multiple chemical sensitivity”. It is the applicant's position that this is a life threatening condition, unless strict precautions are taken in respect of the environment in which he is placed at any time.
Essentially as I understand things, Mr Groundwater asserts that if he leaves the controlled environment of his home and is expposed to chemicals outside, even in the minutest of quantities, he is likely to suffer severe symptoms, including cardiac arrest, which have the potential to bring about the end of his life. It is his position that the chemicals are commonly present in most places and are likely to be carried on the clothes or person of most individuals, including medical practitioners. These chemicals include cleaning agents such as soap; the perfume in aftershave and many other commonly occurring substances. He also claims to be similarly susceptible to exposure to the electrical emissions which emanate from television screens, video machines and other similar electrical equipment.
Mr Groundwater currently lives in York in Western Australia. His case is supported by his general practitioner, Dr Davies; another general practitioner Dr Saint, who apparently last saw him in 1996; and Professor Winder, who is a professor of toxicology at the University of New South Wales. Professor Winder has never examined the applicant but has perused the medical material, which relates to his case, which is voluminous.
As part of its responsibilities in indemnifying the Conservation Commission, in respect of the extent of its liability to Mr Groundwater, the Territory Insurance Office arranged for Mr Groundwater to be examined by a Dr P Stevenson, who is a physician. That examination took place in March 1995. In his report, Dr Stevenson says as follows
“No evidence has been given that Mr Groundwater is in fact immunosuppressed and evidence that the analgesic agents that he was prescribed are capable of causing long term immunosuppression as claimed, appears highly speculative.”
In short, at that stage, Dr Stevenson caused the Territory Insurance Office to have doubts about some of the matters which Mr Groundwater claimed, particularly the relationship between his claim that he was severely immunosuppressant by reason of his work related injury.
As a result, the T.I.O. later arranged an appointment for Mr Groundwater to be examined by a Dr Connaughton, who is an occupational physician who practises in Perth. It was Mr Groundwater's position that, because of his condition, he could not travel to this appointment as it represented too great a risk to his health. It was the Territory Insurance Office’s assertion, in its position as indemnifier of Mr Groundwater's employer, that there was evidence to indicate that Mr Groundwater had been capable of travelling, at around this time, to see his then general practitioner, Dr Saint, who also practiced in Perth. This heightened the T.I.O’s suspicions.
No doubt as a result of what Dr Stevenson had said and these other circumstances, the Territory Insurance Office was sceptical about the extent of Mr Groundwater's claims. As a result, it exercised its right to cancel payments pursuant to the Work Health Act, which otherwise would have been due to Mr Groundwater as a result of his work injury. This occurred in October 1996. As a result, as was his entitlement, Mr Groundwater began proceedings in the Work Health Court in Darwin to have these payments and payments of his medical expenses, which related to his injuries, reinstated.
There was at that stage what Ms Osbourne today has described as a “catch 22” situation. Mr Groundwater asserted that his medical condition was such that he could not possibly travel to be examined by any physician or medical practitioner nominated by the Territory Insurance Office. The Territory Insurance Office were sceptical about those claims and the extent of Mr Groundwater’s disabilities and wished for him to be examined by a medical practitioner of its nomination to either confirm or dismiss its suspicions.
On 12 June 1998, an order was made by the presiding magistrate in the Work Health Court at Darwin that the application by Mr Groundwater should not be listed for trial, until he had undergone a medical examination as nominated by the T.I.O. Thereafter attempts were made by the T.I.O for Mr Groundwater to be medically examined. It was Mr Groundwater's position that he could not travel to Perth from his home in York for this examination.
Initially arrangements were made for him to be examined in the confines of a hospital in York. However Mr Groundwater apparently vetoed this proposal because of the risk of him being exposed to infection. Thereafter, arrangements were made for him to be examined at his home. This examination was to be undertaken by Dr Stevenson, the physician nominated by the Territory Insurance Office and who had examined him previously.
Prior to the arrangement of that examination, a complaint was made about Dr Stevenson by Mr Groundwater Senior to the relevant medical board. Notwithstanding that complaint, Dr Stevenson attended at Mr Groundwater's home in order to undertake the necessary examination. Dr Stevenson described this visit in a letter which he wrote to the Medical Board of the Northern Territory on 30 November 1998. He said as follows:
“The visit was unusual. When I arrived at Mr Groundwater's home I was met by Mrs Groundwater and told that I would not be allowed to enter the house or examine her husband as Mr Groundwater has not been touched physically by any doctor for over two years. This statement conflicted with reports I had seen from the treating general practitioner of his examination this year, but I was not in a position to dispute.
I was told that no human being outside the immediate family, including Mr Groundwater's father has entered their home for more than two years because external chemicals clinging to clothes could be fatal. I was told that he left the house only in an air-conditioned car with an ioniser and oxygen mask to travel to the local town of York. I was told that his pulse rate recurrently declines to between two and four beats per minute, and spontaneously reverts without cardiac resuscitation.
I was allowed to stand in the front garden in front of a picture window held open some 10 to 12 centimetres while Mrs Groundwater conveyed questions and answers between me and Mr Groundwater who lay on a floor mattress with an oxygen mask. I was told that he receives daily medical advice from Dr Brian Goebel PhD who is, I gather, a molecular scientist in South Australia. It does not appear from Dr Goebel's letterhead that he has actual qualifications in clinical medicine and he has never seen or examined Mr Groundwater.
I have provided, therefore, only a limited medical report of the above events to assist the Court in concluding whether it is desirable or practicable for Mr Groundwater to travel for medical assessment and care.”
Dr Stevenson goes on:
“I was asked first of all to make comments on the current medical status of the condition of multiple chemical sensitivity. I have no novel insight on this subject, but provide with this letter some printed out from the peer revue medical literature on the subject to demonstrate that the opinion I gave was researched, evidence based and scientifically mainstream. I note simply that the phenomenon of multiple chemical sensitivities is not an accepted disease entity.”
No doubt, as a result of Dr Stevenson's report, the Territory Insurance Office continued to be sceptical about the matters claimed by Mr Groundwater. The T.I.O also arranged for a Dr French, who is also a physician, to review the material to ascertain his opinion as to whether Mr Groundwater would be capable of travelling by car or ambulance to any medical examination, which might be arranged later. Dr French was similarly sceptical about the applicant’s claims, although he never examined him. Dr French opined as follows, in a letter dated
4 November 1997:
“I do not know of an immunodeficiency disease which prevent a patient from travelling in a car unless they were severely ill from the effects of a complicated infection. I certainly do not know of any reasons for washing a car with sodium bicarbonate in order that a patient may travel in the car.”
As a result of the difficulties it had in having the applicant examined, the T.I.O. proceeded with its application in the Work Health Court and ultimately summary judgment was entered in favour of the employer on 16th November 2002. It being the view of the learned Chief Magistrate, Mr Bradley that the matter could not be dealt with because the applicant had not been medically examined and had not attended at Court. As I say, judgment was entered in favour of the employer.
In 1997 the applicant had also commenced proceedings in the Supreme Court of the Northern Territory. Although I am not clear precisely what his cause of action was, it seems that he alleged in some way that the Conservation Commission and the Territory Insurance Office were acting in breach of good faith, in regards to their respective dealings with his claim. In any event, the matter came on for hearing at some stage in 2002, before His Honour Justice Riley. The applicant was legally represented at this stage, although the applicant himself did not appear personally in Court.
The issue that seems to have bedevilled the matter and which occupied much time before His Honour Justice Riley was how the applicant was to give his evidence in the matter. Initially His Honour was disposed to allow the plaintiff to give evidence by way of a video link from near his home. However, arrangements for that did not materialise. There was also some discussion about whether he would be able to give his evidence by telephone. However, ultimately he was not able to appear in any way and once again judgment was entered for the defendants and the proceedings were dismissed.
It seems to be the applicant's position, as presented by Mr Groundwater Senior, for the applicant himself has not yet appeared in this Court or been represented by counsel, that the extent of his condition and the difficulties under which he labours are self apparent - that one needs only to read the material on which he relies, particularly a lengthy affidavit of Professor Winder, to believe it and accept them. The T.I.O.'s position is that this is most certainly not the case and it wishes to test the veracity of the applicant's evidence regarding his assertions about the state of illness and its connection to his employment with the Conservation Commission. The applicant says he cannot be medically examined. If he is, he may die. The respondent does not accept this. The applicant says he cannot come to Court to give evidence about his condition because he will either die or become severely ill. The respondent does not accept this either.
In both the Work Health Court and the Supreme Court of the Northern Territory, because of the inability of the applicant to attend Court and his unwillingness to make himself available for a medical examination, which might perhaps have had the consequence of either confirming the truth of his position for the purposes of the Territory Insurance Office or otherwise buttressing their view that he suffered no such serious illness, the proceedings in both Courts were dismissed.
This led to the applicant making a complaint to the Human Rights and Equal Opportunity Commission. The complaint was apparently made by the applicant's father, Mr John Groundwater Senior. The claim was brought under the provisions of the Disability Discrimination Act. The delegate of the President of the Human Rights and Equal Opportunity Commission, Ms Clifford, terminated the complaint on 30 September 2003. She said this in her decision to terminate the complaint:
“I am also of the view that the alleged unlawful discrimination is not unlawful discrimination. I appreciate that Ian claims that he was unable to comply with the requirement that he undertake a medical examination. It appears that the requirement or condition that he attend the medical examination to determine whether he was eligible for workers compensation payments is reasonable in the circumstances of the case, given the insurer's entitlement to require that a person who claims worker's compensation benefits be examined by a medical practitioner other than Ian's specialist. I am therefore of the view that the alleged unlawful discrimination complained of is not unlawful discrimination. In view of the adjustments that the TIO attempted to make to accommodate Ian's disability, it appears that the requirement or condition imposed by the TIO was reasonable in all the circumstances.”
The termination of the complaint led the applicant to commence these proceedings. That was done on 23 October 2003. In the application, the applicant stated his cause of action as follows:
“(1)That the decision made by the Human Rights and Equal Opportunity Commission is wrong and not according to facts;
(2)The above Commission's decision is wrong at law.”
Since that application was made, there have been numerous interlocutory appearances before the Registrar. However, the issue remains the same. How is Mr Ian Groundwater to present his case? How is he to give evidence about it? How is the respondent to test and assess his evidence? Finally and perhaps most importantly, is the situation about which the applicant complains, one which comes within the ambit of the Disability Discrimination Act?
There is no doubt that the applicant has been assisted, to a large degree, by his father, John Groundwater. Lengthy affidavits have been filed by Dr Davies, who is the applicant's general practitioner; Dr Saint, who was the applicant's general practitioner until at least 1996; Professor Winder, who is an Associate Professor with experience in toxicology and chemistry; and by Mr John Groundwater, the applicant's father.
In the affidavit that Mr Groundwater Senior has filed, he deposes as follows:
“The appellant has given me authority to conduct all matters concerning this case and I am aware of the facts and circumstances of the case.”
All the above mentioned affidavits that have been filed bear a cover sheet which reads as follows:
“Filed by John Edward Groundwater, representative for the appellant.”
Mr John Groundwater is not a legal practitioner. He has qualifications in business, engineering, electronics and communications, and other electrical qualifications. He is not a medical practitioner.
The material which Mr Ian Groundwater personally has filed is brief. He deposed an affidavit on 14 March 2004. He deposed as follows:
“I am seriously disabled with the physiological medical problem of multiple chemical sensitivity. I cannot be admitted into any hospital. I am unable to give evidence by either telephone, except for about a few minutes at a time, and I cannot give evidence by video conferencing because of a nonsterile environment and the radiation of the video cameras emitting a strong electromagnetic field. I have enclosed Dr Richard Davies report concerning this matter.”
The report is annexed. Dr Davies, who is a general practitioner, says this:
“He – [Mr Groundwater] - has become so hypersensitive to such a variety and multitude of triggering agents that it has become virtually impossible to provide him with a sterile environment in which he feels safe. He can only travel in a specialised motor vehicle that has been highly modified, and then only for short distances. Since 1999, all consultations with him have been conducted through the window of his motor vehicle. I have not been allowed to touch or examine him or administer or prescribe any medications.
He is terrified of entering a building other than his own home for fear of precipitating a serious adverse reaction, and I understand that he has not entered another building for at least four years. I am told, and therefore believe, that a professor of environmental toxicology has advised him that it could be fatal for him to enter any building because of his medical condition. I cannot say that that will or will not occur, but I am certainly not prepared to put him to the test and I have advised him accordingly.”
So it seems that up until this stage, Mr Ian Groundwater has never appeared at court, either in person or by telephone and essentially for those reasons, two proceedings which he has pursued in other courts have been dismissed. The respondent does not accept the truth of the applicant’s assertions and does not believe the medical evidence which is brought in support of the applicant's claim. It does not accept Professor Winder's opinion. It does not accept his expertise to give a medical opinion, particularly when he has never examined Mr Groundwater himself.
The matter has been listed for hearing on several occasions, the most recent of which has been today. The applicant asserts, through Mr Groundwater Senior, that due to his poor state of health there is real urgency about the matter. However no proposals have been made as to how the matter can dealt with and properly argued and if necessary the applicant be cross-examined. The issue today remains how the matter can ever be dealt with. By implication, Mr Groundwater Senior wishes to present the affidavit material, which he has prepared and make submissions about it. He asserts the material speaks for itself. The TIO says it does not. It, no doubt, also has other arguments, which it has not as yet fully ventilated, as to whether or not the Human Rights and Equal Opportunity Commission Act and the Disability Discrimination Act, have any application to this matter particularly regarding its relationship to Mr Groundwater. It has not argued any of those issues as yet.
Mr Groundwater Senior, it seems to me, has been the major instigating force behind the various applications that have been made in the Work Health Court and in the Supreme Court. Certainly in the Supreme Court and Work Health Court proceedings, he appeared and, as I have already indicated, it seems that he has been the motivating force in compiling the voluminous affidavits which I have before me.
It is also the case that recently he filed an affidavit in which he indicated his concern that some of his papers had been stolen from his home. It seems to be the import of this affidavit that he believes that some people or persons unknown are attempting to undermine his case for malign reasons.
Anyway, on 17 March 2004, the matter came before me for the first time and the issue arose as to whether Mr Groundwater Senior should be given leave to appear as an advocate for the applicant in these proceedings. He submitted that these were unusual circumstances as his son was incapable of conducting them himself and was unable to give evidence in them. It seems he wished to present the case himself, largely relying on the affidavit material he had prepared.
Mr Grant, who appeared for the Territory Insurance Office, did not formally object to Mr John Groundwater appearing. However he drew my attention to s.44 of the Federal Magistrates Court Act, which reads as follows:
“A party to proceedings before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903 the other person is entitled to practise as a barrister or solicitor or both in a Federal Court;
(b)under the regulations the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.”
At that stage, Mr Grant was of the view that because Mr Groundwater Senior, was not entitled to practice as a barrister or solicitor, the provisions of s.44 posed grave difficulties for the Court proceeding with the matter in the manner proposed by Mr Groundwater Senior. It is, I think, clear that this Court, like other Federal Courts set up under the Constitution, has an inherent power to conduct its own proceedings. However, more importantly, it is relevant to have regard to placita (c) of s.44, which makes reference to “another law of the Commonwealth authorising a person to represent a party.”
These proceedings are instituted pursuant to Div 2 of Pt IIB of the Human Rights and Equal Opportunity Commission Act. That division deals with proceedings in the Federal Court and the Federal Magistrates Court. Pursuant to s.46PQ of the Act, a party in proceedings under Div 2 of Pt IIB may appear in person or may be represented by a barrister or solicitor or pertinently in this matter:
“(c)may be represented by another person who is not a barrister or solicitor unless the Court is of the opinion that it is inappropriate in the circumstances for the other person to appear.”
Accordingly, even if I was not of the view that I had an inherent power to grant Mr Groundwater Senior leave to appear, I clearly have a discretion pursuant to s.46PQ. However, in my view, it is a discretion which must be exercised cautiously. If I am of the view that it is inappropriate, I may rule that Mr Groundwater Senior should not appear in this matter as essentially an unqualified lay advocate.
As a matter of general principle, the power to grant leave to an unqualified advocate is to be used sparingly. There are good reasons why this is so. Firstly, the general restriction of the right of appearance to parties and qualified persons seeks to ensure that the Court has the assistance of either parties who know their case or qualified legal practitioners who can make informed submissions or assist the Court. In addition, legal practitioners have ethical duties both to their clients and to the Court whilst unqualified persons are not in the same position. Further, a legal practitioner can be expected to understand the difference between acting on instructions and acting without instructions. There is a real risk that an unqualified advocate will stray across the line and take over the running of the case.[1]
[1] See Purcell & Rix No.1 [2002] FMCAfam 65 per Driver FM at paragraph 8.
On 17 March 2004, Mr Grant also drew my attention to the case of Damjanovic v Maley, which is a decision of the New South Wales Court of Appeal[2]. In that case, the Court of Appeal provided some guidance as to the circumstances in which an unqualified lay person should be allowed to appear to argue cases.
[2] Damjanovic v Maley Unreported No. 230 of 2002 delivered 19 July 2002.
Firstly, the complexity of the case was an important issue. Obviously in minor or straightforward matters, there is less difficulty with a lay person appearing to argue a case. In this particular case, I am not of the view that this is, necessarily, a straightforward or simple matter.
The second matter which has to be considered is the genuine difficulties of an unrepresented party. Such difficulties may include language difficulties and emergency, such as the unexpected absence of a legal adviser, and obviously cases involving people who are not able to speak English. No doubt it is Mr Groundwater Senior's position that the material he has provided amply demonstrates his son has such genuine difficulties. The danger in this case is that whether Mr Groundwater has genuine difficulties or not is really an essential part of the case. I am concerned that Mr Ian Groundwater may shelter behind feigned or overstated difficulties and by allowing his father to act for him, I will be putting the respondent at some disadvantage.
The next matter that has to be considered is the unavailability of disciplinary measures and the absence of any duty to the Court by a lay advocate in the preparation of the case. Barristers and solicitors are obliged to speak candidly to the Court and must not knowingly mislead the Court. In that sense, training and qualifications which they hold are important. In this case I have little doubt that Mr Groundwater Senior fervently believes his son's case and as a result I believe that there is a real risk that he will not be able to provide balanced and informed submissions because of the fervour of his belief. In such circumstances, I think there is a very real risk that he may unwittingly misinform the Court and again place the respondent at a disadvantage.
The next matter is the issue of the protection of the applicant and also the respondent from the actions of an unqualified person. Mr Groundwater Senior is unqualified and, more importantly, uninsured. At the end of the day, as a result of possibly providing incompetent advice and inept representation for his son there is a real possibility he may cause the respondent to this application to incur an enormous amount of expense. He may also lead his son to a heavy liability in respect of costs because of his well-meaning but possibly inept submissions.
Finally, of course, the most important consideration is the interests of justice. The general public has an interest in justice being done and being seen to be done. The public has an interest in the effective, efficient and expeditious disposal of litigation in the Courts. The best way of this being achieved is if both parties to an action have qualified lawyers to represent them. The adversarial system, which prevails in this country, assumes that both parties are represented by skilled professionals of equal competence. I do not believe that will be the case in this particular matter if Mr Groundwater Senior is given leave to appear on behalf of his son.
However, “the Catch-22” of this situation will not be solved until at least some indication is given as to whether Mr Ian Groundwater proposes to appear in Court to argue his case at some stage in the future. I am of the view, on the material that I have before me, that there are grave difficulties with the matter proceeding if Mr Ian Groundwater does not make himself available to present his case at its final hearing. That was a difficulty that caused both the Work Health Court proceedings and the Supreme Court proceedings to be ended. It is not likely to be sufficient for affidavit material to be prepared or other experts to testify for this matter to be satisfactorily concluded. The respondent will most likely wish to cross-examine him.
There are also issues as to whether this is the appropriate jurisdiction for a claim of the sort Mr Ian Groundwater brings. But the respondent, at this stage, has not sought to summarily dismiss the claim or raise any issues concerning the jurisdiction of the Court to determine this complaint.
Today listed before me is also an application which Mr Groundwater Senior has recently made, although it is not supported by an affidavit that he be appointed a litigation guardian for his son. In this regard he relies on Order 11 Rule 8 of the Federal Magistrates Court Rules. Essentially, he submits his son is not capable of adequately conducting this matter because of his purported illnesses.
Again, I have grave reservations about this application because I do not believe that, at this stage, the medical material supports it. The difficulty in this case is that the Messrs Groundwater assert that their material is self-apparent - that it speaks for itself. I do not accept that and I think it puts the cart before the horse to say that there should be a litigation guardian on the basis of such material, much of which I believe at this stage, at a prima facie level, is dubious and of doubtful weight. So I am going to dismiss the application for Mr Groundwater Senior to be litigation guardian for his son.
I am told today that there is a possibility that Mr Lee, who is a qualified legal practitioner, may be retained to appear on behalf of Mr Ian Groundwater. Whether that is so or not I do not know, but Mr Groundwater Senior tells me it is the case. It would obviously be desirable if this could occur.
At this stage I propose, bearing in mind that the Human Rights and Equal Opportunities Commission Act is beneficial legislation and that there is a discretion under it to allow lay advocates, is give Mr Groundwater Senior a limited right of appearance. Essentially, in the absence of qualified counsel, he may appear in interlocutory matters to advise how his son proposes to appear to conduct these proceedings himself, whether that be by telephone or by video link or some other means and also to advise if he has any proposals as to how a medical practitioner as nominated by the respondent may examine him, if the respondent wishes that to occur.
I also suspect that the respondent will bring an application to summarily dismiss this matter. As I say, I have grave doubts as to whether it can be successfully dealt with if Mr Ian Groundwater says he is simply incapable of conducting it and the medical evidence is such that, at least on a prima facie level, I cannot be satisfied that this is in fact the case. It is in my view a nonsense to allow somebody to assert he cannot conduct his case without there being any adequate evidence to support such a submission.
I hope that Mr Lee may be able to appear on behalf of the applicant in this matter. But at this stage I think I have no alternative, after having made these rulings, but to allow Mr Ian Groundwater to consider no doubt what his father will tell him about this ruling and for the respondent to consider its course and, in particular, whether it will bring an application to summarily dismiss the application.
In those circumstances, I propose to adjourn the proceedings until
14 May 2004 at 9.30 in the morning and allow Mr Groundwater Senior conditional leave to appear on that occasion, but as I say he does not have leave to appear at any final hearing on behalf of the applicant or on an application for summary dismissal, for the reasons I have already provided.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C. White
Date: 29 June 2004
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