Harrison v Commonwealth of Australia (as represented by the Department of Defence) (No 3)
[2025] FedCFamC2G 312
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harrison v Commonwealth of Australia (as represented by the Department of Defence) (No 3) [2025] FedCFamC2G 312
File number(s): CAG 13 of 2024 Judgment of: JUDGE CAMERON Date of judgment: 13 February 2025 Catchwords: PRACTICE & PROCEDURE – Adjournment by reason of the applicant’s medical incapacity – orders preventing further hearing of and steps in the proceeding absent competent representation. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05 Cases: Harrison v Commonwealth of Australia (as represented by the Department of Defence) [2025] FedCFamC2G 161
Harrison v Commonwealth of Australia (as represented by the Department of Defence) (No 2) [2025] FedCFamC2G 162
Division: Fair Work Number of paragraphs: 9 Date of hearing: 11-13 February 2025 Place: Canberra Applicant: No appearance by or on behalf of the applicant Counsel for the Respondent: Ms P Bindon Solicitor for the Respondent: Mr H Chang (Minter Ellison) ORDERS
CAG 13 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RACHEL ANNE HARRISON
Applicant
AND: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF DEFENCE)
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
13 FEBRUARY 2025
PURSUANT TO r.13.06 (1)(b)(ii) OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) (GENERAL FEDERAL LAW) RULES 2021 (CTH), THE COURT ORDERS THAT:
1.There not be any hearing in this matter other than an interlocutory hearing unless:
(a)the applicant is represented by a legal practitioner; or
(b)the applicant is represented by a litigation guardian appointed under div 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); or
(c)the applicant has provided to the Court a report signed by a Fellow of the Royal Australian and New Zealand College of Psychiatrists certifying that the applicant’s mental health is such that, as at the date of that report, she is capable of representing herself in a three day trial in this matter and will be so capable for a period of 6 months from the date of that report or, failing that, a period of 3 months from the date of that report.
2.The applicant not take any steps in this proceeding other than an application under r.17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) unless:
(a)the applicant is represented in the taking of that step by a legal practitioner; or
(b)the applicant is represented in the taking of that step by a litigation guardian appointed under div 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); or
(c)the applicant has provided to the Court a report signed by a Fellow of the Royal Australian and New Zealand College of Psychiatrists certifying that the applicant’s mental health is such that, as at the date of that report, she is capable of representing herself in a three day trial in this matter and will be so capable for a period of 6 months from the date of that report or, failing that, a period of 3 months from the date of that report.
THE COURT NOTES THAT:
1.Orders 1 and 2 may be set aside under r.17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as they were made in the absence of the applicant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE CAMERON
In October last year, this matter was listed for hearing over a three day period commencing two days ago, Tuesday 11 February 2025. On 11 February 2025 and before the trial commenced, the applicant, Ms Harrison, who is unrepresented at present, applied for an eight week adjournment. Ms Harrison submitted to the Court that she had found a new legal representative, but despite subsequent references to him, the practitioner in question made no contact with the Court that would substantiate the assertion that he was accepting instructions in this matter. The application for an adjournment was refused: Harrison v Commonwealth of Australia (as represented by the Department of Defence) [2025] FedCFamC2G 161.
Subsequent to that refusal, Ms Harrison moved on an application in a proceeding filed on Friday, 7 February 2025 seeking leave to amend her statement of claim in a major way. That application was also refused. The matter was adjourned to 12 February 2025 for the delivery of reasons. When the Court returned on 12 February 2025, I gave my reasons for refusing the application to amend: Harrison v Commonwealth of Australia (as represented by the Department of Defence) (No 2) [2025] FedCFamC2G 162.
Overnight between 11 and 12 February, Ms Harrison provided a medical certificate, but it was relevantly unilluminating. She was advised by email in response that the matter would remain listed at 10.15 am on 12 February 2025 and would be conducted in person.
Ms Harrison did not attend the hearing on 12 February 2025. An email she sent to the Court at 9.56am on Wednesday, 12 February 2025 relevantly said:
Dear ACT Federal Circuit Court Registry,
I refer to matter CAG 13/2024, in which I am the Applicant, and wish to advise that I wont be appearing in court this morning or tomorrow due to my mental state, as evidenced by GP. Dr Christopher Dickie yesterday, and the medical evidence I sent to the court.
I have a follow-up medical appointment this morning at 10:30 am, with my usual GP, Dr Vasquez, and will be providing further medical evidence in support of my incapacitated mental health and state, and inability to attend court.
With this evidence, I would be grateful if the court was minded to adjourn the matter in the circumstances that my mental health as evidenced, has been heavily impacted and has deteriorated, to grant me an adjournment of 10-12 weeks, so that my mental state improves in and I am able to obtain treatment from my GP for my current mental state.
The Court adjourned until 11.41am at which time Ms Harrison appeared by telephone advising that she was medically incapacitated and would be obtaining a medical certificate to that effect. In order that Ms Harrison would have sufficient time to obtain the medical certificate she sought and then to provide it to the Court, the matter then stood over to this morning at 10.15am.
Since the Court adjourned yesterday, it has received the following emails from Ms Harrison. Yesterday at 5.43 pm she wrote to my associate saying:
I wish to advise that I have rang [sic] the medical practice of Dr Vasquez today 6 times or more, following up in relation to this matter, and am advised by his medical receptionist that he was busy all day in a medical procedure, and that I am yet to receive the medical report, Dr Vasquez is currently writing for tomorrow morning in court, and the medical practice will send it to me tomorrow.
This morning at 8.31, Ms Harrison wrote again to my associate, saying:
…
I wish to advise that yesterday I saw GP Dr Tony Vasquex [sic] who has forgotten to provide me with my requested medical letter as I was advised by the medical practice that Dr Vasquez was in a procedure all day yesterday after my appointment with him.
After following up all day yesterday over 6 times ringing the practice, requesting the medical letter, I was then phoned after 5.30pm yesterday from the receptionist who advised me Dr Vasquez had gone home and forgotten to send me the medical letter, and he is not in today, which is the truth and my explanation as to why I was unable to provide to the court yesterday my medical letter, and that I cannot produce more comprehensive medical evidence other than what I have already provided to the court any earlier than before 10am this morning. As soon as I receive the medical letter evidence from the GP, I will send a copy to the court.
I've now had to book another medical appointment due to this today before the Hearing and have requested the medical letter with evidence to provide to the court at the Hearing this morning for HIs [sic] Honour Judge Cameron, in support of my medical incapacity.
At 8.48am Ms Harrison wrote once more to my associate saying:
Dear Associate,
I refer to matter CAG 13/2024 in which I am the Applicant, and also wish to provide the facts and the truth further below to assist the court:
In relation to the issue in court the other day when I phoned Mr Alex Rashidi, solicitor, and specifically instructed him to ring the Associate of His Honour, Judge Cameron, I did speak to Ms Alex Rashidi and, and he confirmed over the phone he would do so, and he failed to do so, and his response was that he was waiting for the adjournment, and was currently in court.
I cannot go on acting for myself as this is severely affecting my mental health, which is the truth, and therefore I will provide my medical evidence to the court at the earliest before court this morning.
At 10.39 am, Ms Harrison again wrote to my associate saying:
I wish to advise the court that I am currently seeing GP, Dr Sajeeva in person and am extremely unwell, order to provide evidence in court this morning in support of my medical incapacity an medical conditions, which prevents me from attending court to give evidence and safely give evidence.
Given my usual GP, Dr Vasquez is not available today, I have booked a follow-up appointment at the earliest time with Dr Vasquez tomorrow also to assist the court.
I should observe that the Court did sit at approximately 10.15 am this morning but was adjourned at the time the 10.39am email was received to permit the Department's legal representatives to take instructions on how to approach Ms Harrison’s absence from Court.
At 11 am, Ms Harrison sent a further email to my associate enclosing a medical report signed by a Dr Sajeeva Polgolla who stated that, in his opinion, Ms Harrison was medically incapacitated due to her medical condition, which was described. The report stated that Ms Harrison would not be able to attend court, to be a safe witness whether in person or remotely, and that participation in the proceeding might increase the risk of Ms Harrison’s hospitalisation or exacerbation of her condition. Condition was referred to in the letter.
Given that evidence, there seems no alternative but to adjourn the hearing pending Ms Harrison's return to good mental health. That being so, the Department has sought an order under rule 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that the matter not proceed to a hearing unless Ms Harrison can demonstrate that her mental health is such that she is capable of presenting her case, noting that it will run for approximately three days.
Ms Harrison should not be shut out from the Court, but I accept that some of her behaviour has been onerous for the Department. I also understand that Ms Harrison has also made frequent contact with the Registry. Given her apparent condition and unconventional prosecution of this case, Ms Harrison should not be given unfettered access to the Court until she can demonstrate that she is capable of pursuing her action with a greater degree of efficiency than she has manifested to date. Consequently, I make the following orders:
1.There not be any hearing in this matter other than an interlocutory hearing unless:
(a) the applicant is represented by a legal practitioner; or
(b)the applicant is represented by a litigation guardian appointed under div 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); or
(c)the applicant has provided to the Court a report signed by a Fellow of the Royal Australian and New Zealand College of Psychiatrists certifying that the applicant’s mental health is such that, as at the date of that report, she is capable of representing herself in a three day trial in this matter and will be so capable for a period of 6 months from the date of that report or, failing that, a period of 3 months from the date of that report.
2.The applicant not take any steps in this proceeding other than an application under r.17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) unless:
(a)the applicant is represented in the taking of that step by a legal practitioner; or
(b)the applicant is represented in the taking of that step by a litigation guardian appointed under div 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); or
(c)the applicant has provided to the Court a report signed by a Fellow of the Royal Australian and New Zealand College of Psychiatrists certifying that the applicant’s mental health is such that, as at the date of that report, she is capable of representing herself in a three day trial in this matter and will be so capable for a period of 6 months from the date of that report or, failing that, a period of 3 months from the date of that report.
There will be a notation that orders 1 and 2 may be set aside under r.17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as they were made in the absence of the applicant.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 9 April 2025
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