Guy v Commonwealth of Australia
[2021] FedCFamC2G 188
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guy v Commonwealth of Australia [2021] FedCFamC2G 188
File number(s): MLG 3427 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 15 October 2021 Catchwords: HUMAN RIGHTS– order for the appointment of a litigation guardian – requirement to take certain steps – no steps taken – dormant proceeding – application dismissed. Legislation: Disability Discrimination Act 1992 (Cth) ss 5, 6, 11, 39, 42.
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.16.
Federal Circuit Court Rules 2001 (Cth) rr 11.09, 17.05(2)(a), 27.01.
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 15 October 2021 Date of hearing: 15 October 2021 Place: Melbourne The Applicant: No Appearance Solicitor for the Respondent: Mills Oakley ORDERS
MLG 3427 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CAMERON GUY
Applicant
AND: COMMONWEALTH OF AUSTRALIA (SERVICES AUSTRALIA, FORMERLY KNOWN AS THE DEPARTMENT OF HUMAN SERVICES)
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application filed 17 September 2019 is dismissed pursuant to rule 13.16 of the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
AND THE COURT NOTES THAT:
A.Pursuant to rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicant may seek leave to set aside these orders within 28 days upon filing an application and affidavit setting out his failure to participate in the proceeding and why these orders should be set aside.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)
JUDGE MCNAB
INTRODUCTION
By way of an application filed on 20 August 2021, the Respondent seeks orders that the Applicant’s originating application filed on 17 September 2019 (and amended on
11 November 2019) be dismissed. The application for dismissal is made pursuant to r13.16(2) of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the 2021 Rules”), on the basis it was a dormant proceeding.
These proceedings were last listed on 15 February 2021 when the Court made orders
(“the Orders”) pursuant to rule 11.09 of the Federal Circuit Court Rules 2001 (Cth)
(“the 2001 Rules”) that:
(1)Pursuant to r11.09 of the 2001 Rules the Applicant must not take any strep or continue in this proceeding except via litigation guardian.
(2)If a litigation guardian is appointed pursuant to r27.01 of the 2001 Rules, the proceeding will be referred to mediation on a date to be agreed by the parties.
(3)Pursuant to r27.01, proceeding be adjourned until the mediator reports to the court.
(4)Subject to satisfaction of r13.12(2) and 13.12(3) of the 2001 Rules, pursuant to r13.12 of the 2001 Rules, if no step is taken by the litigation guardian within six months of the date of the appointment of the litigation guardian, the proceeding will be dismissed with no order as to costs.
Between 15 February 2021 and 20 August 2021, the Respondent, did not receive any correspondence in relation to these proceedings from either the Application or any litigation guardian appointed by the Applicant to take a step or continue these proceedings pursuant to order 1 of the Orders. Accordingly, the proceedings have not been referred to mediation pursuant to order 2 of the Orders.
On 27 August 2021, the Court wrote to the parties to the proceeding and provided the parties with notice pursuant to r13.12(3) of the 2001 Rules, that the Court was considering making an order to dismiss the proceedings.
The matter came before the Court on 15 October 2021, and judgement was delivered ex tempore. A number of attempts were made to contact the Applicant by telephone prior to and shortly after the time the matter was fixed for hearing, however there was no appearance by the Applicant.
PROCEDURAL HISTORY
This matter comes before the Court by way of an application on 17 September 2019 and an amended application filed on 11 November 2019. By that application, the Applicant claims the Managed Service Plan (“the MSP”) has discriminated against the Applicant on the ground of disability. The Applicant was placed with the MSP by the Respondent in or around
November 2011, and was amended on 5 November 2019.
The Applicant claims that, by reason of the contravention of ss 5, 6, 11, 39 and 42 of the Disability Discrimination Act 1992 (Cth), he is entitled to:
(a)the removal of the MSP or restricted services arrangement;
(b)an apology in writing from the Respondent; and
(c)compensation in the amount of approximately $80,000 or $320,000 for damage to reputation, slander and defamation.
The Applicant advised the Court on December 17 2019 that he had suffered permanent frontal lobe damage as a result of the involvement in a serious car accident when he was aged seven.
Due to the disability that resulted from the accident, the Court ordered on that same day, that:
(1)Within 60 days of the date of this Order, the applicant attend a medical examination with a psychiatrist nominated by the President or Head of the College of Psychiatrists (NSW) for the purpose of preparing a report to the Court in relation to the Applicant’s capacity to understand the nature and possible consequences of the proceeding and whether he is capable of adequately conducting or giving adequate instructions for the conduct of the proceedings.
The Applicant subsequently attended an examination with a psychiatrist on 28 September 2020, and on the basis of a report provided by that psychiatrist, on 6 November 2020, orders were made for the appointment of a litigation guardian.
On 20 August 2021, the solicitors for the Respondent wrote to the Court and informed the Court that the Applicant had not taken steps in these proceedings for six months since
15 February 2021. For that reason, it was requested by the Respondent that subject to satisfaction of r13.12(2) and 13.12(3) of the 2001 Rules, the Court on its own initiative pursuant to r13.12(1) of the 2001 Rules, dismiss the proceeding.
On 9 September 2021, the Applicant had still not appointed a litigation guardian in accordance with order 1 of the Orders, but requested by email for:
(a)an amendment to order 1 and order 2 of the Orders with times extended to allow the Applicant to continue the proceedings by way of an advocate from Brain Injury South Australia; and
(b)an extension of time until December 2022 to comply with the Orders.
On 9 September 2021, the solicitors on behalf of the Respondent opposed the amendment to order 1 and order 2 together with the extension of time sought by the Applicant.
On 9 September 2021, both parties were advised by the Court, that the proceedings would be listed for the hearing of an application to dismiss the application, on the grounds it was a dormant proceeding. That application would be listed for hearing on 15 October 2021 to deal with that issue.
CONSIDERATION
I am satisfied that this is a matter that ought to be dismissed. I refer to the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 (“the 2021 Rules”) that have been in place since 1 September 2021. These rules are, in effect, the same rules that are referred to in the outline of Respondent’s submission, but there is simply a change in numbering.
There is no evidence before the court that the Applicant has appointed a litigation guardian or taken a step within six months of the Orders to appoint a litigation guardian.
On 28 September 2021, the Court corresponded with both parties to provide the necessary details and links for the parties to attend the hearing by way of Microsoft Teams. The Applicant responded to that email on the same day providing his email details. On 11 October 2021, the Court forwarded details of the hearing to the parties and on 12 October 2021, the Applicant was served with the Respondent’s outline of submissions.
The Applicant did not appear on 15 October 2021 despite efforts by Court staff on that day to call him on the mobile phone number that had previously been provided by him for contact purposes.
In my view, the requirements of r13.16(2) of the 2021 Rules have been satisfied on the basis that:
(a)pursuant to r13.16(2)(a) there is no future listing of the proceeding or part of the proceedings and the proceedings are presently adjourned pursuant to order 3 of the Orders;
(b)pursuant to r13.16(2)(b) there is no application in the proceeding which has not been determined; and
(c)pursuant to r13.16(2)(c) the Applicant cannot satisfy the Court that the proceeding should not be dismissed in circumstances where no evidence has been provided of a compliance with the order 1 of the Orders.
Consideration has also been given to the fact that the Applicant has failed to appoint a litigation guardian following the receipt of the Court’s notice pursuant to r13.12(3) of the 2001 Rules on 27 August 2021. The Applicant has received notice of the hearing by reason of the notification by correspondence from the Court on 27 August 2021 and the subsequent email on
9 September 2021. The Applicant has not satisfied the Court that the proceeding should not be dismissed as required by r13.16(2)(c).
The Applicant sought in an email on 9 September 2021 as set out above, amendments to the Orders. The Applicant raised requests to have the wording of the Orders modified to provide for the appointment of an advocate rather than a litigation guardian. The Applicant identified the Covid-19 pandemic as a mitigating reason for the request of the proposed amendments:
The COVID outbreak and constant restrictions [in] place on everyone that it is not fair that the respondent demands that matters are closed. I asked the Associate to consider extending beyond the original date because the extraordinary circumstances that have made it to achieve any outcome because of the pandemic and COVID.
The Applicant also states he has been busy upon his return to university, commencing a Bachelor of Theology on 2 August 2021 and that he was living in a remote town in South Australia, isolated from any major town or city. The Applicant states the closest town to him is Port Lincoln which is 145 kilometres away, and then Adelaide which is 600 kilometres away. The Applicant also mentioned his change in circumstances, where he and his wife had bought a house and are subsequently paying off a mortgage. Due to the aforementioned circumstances, the Applicant asked the Court to take into account the isolation and financial hardship that ensued.
The Court bears in mind the Applicant’s extenuating circumstances set out above, however the Applicant has failed to establish to the Court’s satisfaction, that he has taken any sufficient steps to satisfy the Orders. There is no evidence on behalf of the Applicant that the Respondent has ever been contacted by anyone from Brain Injury South Australia, and the Applicant has otherwise taken no step in the proceeding as required by the Orders. In relation to the Applicant’s statements about the isolating and financially burdensome impact of the Covid-19 pandemic, the Respondent pointed that the Applicant has been able to take other significant steps in his life, which has included in enrolling and commencing study at university, purchasing a house, and moving interstate. Whilst I accept that the Covid-19 pandemic and the restrictive measures arising from it has caused significant difficulties for people generally, I do not accept that the Applicant was unable to take the steps set out in the Orders because of the pandemic, particularly given that he says he was able to undertake many other activities.
In my view, the conditions under r13.16 of the 2021 Rules are satisfied and the notice provisions of the 2021 Rules have also been satisfied. The Applicant has been given proper notice of the hearing.
CONCLUSION
For these reasons, this matter will be dismissed with no order as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 25 October 2021
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