Harwood v State of New South Wales (Department of Education and Training)

[2012] FCA 264

FEDERAL COURT OF AUSTRALIA

Harwood v State of New South Wales (Department of Education and Training) [2012] FCA 264

Citation:		Harwood v State of New South Wales (Department of Education and Training) [2012] FCA 264
Parties:		ANTHONY HARWOOD ON BEHALF OF TYRON HARWOOD v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)
File number:		NSD 1453 of 2011
Judge:		ROBERTSON J
Date of judgment:		21 March 2012
Catchwords:		PRACTICE AND PROCEDURE – litigation representative – whether appropriate to dispense with requirements under r 9.63 of the Federal Court Rules 2011
Legislation:		Human Rights Commission Act 1986 (Cth) s 46P and s 46PO Federal Court Rules 2011 Division 9.6, r 9.63
Cases cited:		Stephens-Sidebottom v State of Victoria (Department of Education and Early Childhood Development) [2011] FCA 893 distinguished
Date of hearing:	21 March 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Solicitor for the Applicant:	Mr P French of Australian Centre for Disability Law
Counsel for the Respondent:	Ms K Edwards
Solicitor for the Respondent:	Moray & Agnew

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1453 of 2011

BETWEEN:	ANTHONY HARWOOD ON BEHALF OF TYRON HARWOOD Applicant
AND:	STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	21 MARCH 2012
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The applicant's legal representatives apply to the Court for an order appointing a person as a litigation representative in accordance with the procedures set out in rule 9.63 of the Federal Court Rules2011.

THE COURT ORDERS THAT:

1.The orders made on 21 March 2012 approving the agreement which is Annexure 1 to the affidavit of Anthony Harwood affirmed on 7 March 2012 be revoked.

2.The matter be listed for directions or the making of orders at 9:30am on 4 April 2012.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION		NSD 1453 of 2011
BETWEEN:	ANTHONY HARWOOD ON BEHALF OF TYRON HARWOOD Applicant

AND: STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)
Respondent

JUDGE:	ROBERTSON J
DATE:	21 MARCH 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. It is submitted on behalf of the applicant that for the purposes of the proceedings before the Court, the applicant, Anthony Harwood, is Tyron Harwood’s litigation representative within the meaning of Division 9.6 of the Federal Court Rules 2011 (Federal Court Rules). It is said that this follows from s 46P(2)(c) of the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act) which provides that a written complaint may be lodged with the Commission “by a person… on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.”

2. I do not accept that this consequence follows from the terms of that section. The section is directed to who may lodge a complaint with the Commission. In my view it has nothing to say about who is a litigation representative for the purposes of the Federal Court Rules. Neither does it render unnecessary the procedural steps required by r 9.63 by which a party or an interested person may apply to the Court for an order appointing a person as a litigation representative.

3. Section 46PO, rather than s 46P, of the Australian Human Rights Commission Act is directed to an application to the Court. On the facts of the present case that application is not made by Anthony Harwood as a person who was an “affected person” in relation to the complaint but by Anthony Harwood on behalf of Tyron Harwood. An “affected person” is defined in s 3 of the Australian Human Rights Commission Act to mean, in relation to a complaint, “a person on whose behalf the complaint was lodged.”

4. I also note that an agreement between “the parties” dated 6 February 2012 states as clause 1:

   The Applicant’s legal representatives will take all reasonable steps to ensure that Mr Anthony Harwood is appointed as Tyrone (sic) Harwood’s litigation representative for the purpose of Division 9.6 headed “Persons Under Legal Incapacity” of the Federal Court Rules 2011.

5. In light of the agreement between the parties it would be inappropriate for the Court to dispense with compliance with r 9.63. I note that in different circumstances Tracey J dispensed with similar requirements under O 43 r 2(2) of the Federal Court Rules 1979; see Stephens-Sidebottom v State of Victoria (Department of Education and Early Childhood Development) [2011] FCA 893 at [10]. His Honour also noted, at [11]:

   In the circumstances, it may be that the proceeding should have been commenced by a tutor.  The absence of a tutor is an irregularity only and does not affect the efficacy of the proceeding which has continued without objection by the respondent: see Spellson v George (1987) 11 NSWLR 300.

6. In these circumstances I direct the applicant's legal representatives to apply to the Court for an order appointing a person as a litigation representative in accordance with the procedures set out in r 9.63 of the Federal Court Rules.

7. For the avoidance of doubt I revoke the orders I made on 21 March 2012 approving the agreement which is Annexure 1 to the affidavit of Anthony Harwood affirmed on 7 March 2012. That order was made on the mistaken assumption that Anthony Harwood was the litigation representative of Tyron Harwood.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       21 March 2012