Lawrance v Federal Magistrate Driver

[2005] FCA 394

FEDERAL COURT OF AUSTRALIA

Lawrance v Federal Magistrate Driver [2005] FCA 394

PRACTICE AND PROCEDURE – application for extension of time – application for leave to appeal – whether judgment of Federal Magistrate attended by sufficient doubt to warrant reconsideration – whether substantial injustice would arise if leave were refused – order by Federal Magistrate the applicant take no further steps in the proceedings until a litigation guardian is appointed or the applicant furnishes psychiatric evidence a litigation guardian need not be appointed – time extended and leave to appeal granted.

Federal Magistrates Court Rules 2001 Rule 11.11

Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 referred to
Dalle-Molle by his Next Friend Public Trustee v Manos [2004] SASC 102 referred to
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

AROHA LAWRANCE v FEDERAL MAGISTRATE DRIVER AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND MINISTER FOR FAMILY AND COMMUNITY SERVICES
NSD 1148 OF 2004

MOORE J
15 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1148 OF 2004

BETWEEN:

AROHA LAWRANCE
APPLICANT

AND:

FEDERAL MAGISTRATE DRIVER
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

MINISTER FOR FAMILY AND COMMUNITY SERVICES
THIRD RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

15 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The requirement that the application for leave to appeal be filed within 21 days, be dispensed with.

2.The applicant be given leave to appeal from the judgment of the Federal Magistrate of 29 April 2004 in proceedings SYG 288 of 2004.

3.The first respondent be removed as a party to these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1148 OF 2004

BETWEEN:

AROHA LAWRANCE
APPLICANT

AND:

FEDERAL MAGISTRATE DRIVER
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

MINISTER FOR FAMILY AND COMMUNITY SERVICES
THIRD RESPONDENT

JUDGE:	MOORE J
DATE:	15 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This judgment concerns an application for an extension of time in which to seek leave to appeal against a judgment of a Federal Magistrate of 29 April 2004 and for leave to appeal.  The applicant seeks to challenge, in particular, an order of the Federal Magistrate staying the proceedings before the Federal Magistrates Court until a litigation guardian is appointed or the applicant has furnished psychiatric evidence that a litigation guardian need not be appointed.

2. Subsection 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal against an interlocutory decision of the Federal Magistrates Court shall not be brought unless leave to appeal is granted and O 52 r 5 of the Federal Court Rules requires that an application for leave to appeal be filed within 21 days unless an order is made dispensing with that requirement. The applicant was required to file and serve the application for leave to appeal by 20 May 2004. On 26 July 2004, the applicant filed an application seeking leave to appeal, an application for an extension of time to make that application, an affidavit in support and a document entitled particulars detailing the grounds and merits of the application.

3. Initially the applicant elected to present her case in writing under O 52 r 15A (see O 52 r 3(2)) though she later sought to resile from that election.  Ultimately I heard the applicant who made brief submissions orally on 28 October 2004 and then written submissions.

   The proceedings before the Federal Magistrate

4. The applicant's application in the Federal Magistrates Court was an application under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking an order for review of a decision of the second respondent, the Human Rights and Equal Opportunity Commission ("the Commission"), to terminate her complaint under s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The complaint by the applicant before the Commission concerned allegations of discrimination by Centrelink and IPC Employment on the basis of an imputed disability. The relief sought by the applicant before the Federal Magistrate was set out at [2] of his Honour's reasons for judgment:

   …the applicant seeks both interim and final relief in the form of a declaration that she is a person who does not have a psychiatric disorder or disability and is a person who has never been diagnosed with a psychiatric disorder or disability and that her rights are to be respected accordingly.  Further, the applicant seeks relief in the form of an order restraining the respondents to the applicant's complaint before [the Commission] and any New South Wales state based agency or individual from acting in relation to the applicant on the mistaken premise that she has a psychiatric disorder or disability and restraining the administration of treatment, including that allegedly begun on 4 April 2003, and taking the necessary steps to cease immediately all treatment including that allegedly begun on 4 April 2003.

5. The Federal Magistrate noted at [13] and following that:

   …since the directions hearing on 5 April 2004, I have become concerned that the applicant may require a litigation guardian.  The matters which give rise to that concern are, first, the nature of the relief sought by the applicant.  She has herself put her mental health in issue.  Secondly, the affidavit material filed by the applicant during April 2004 include assertions that she is being administered medication and treatment non‑consensually and unlawfully.  Her affidavit material also includes assertions that she has appeared on television without her consent and that she has been photographed undressed at the former Grace Bros department store.

   In addition, during the directions hearing earlier this morning, Mr Markus drew my attention to a letter annexed to the applicant's affidavit filed on 22 March 2004 from Dr Rob McMurdo who, I understand, is a psychiatrist who has previously treated the applicant.  In that letter, which I do not need to read in full, Dr McMurdo refers to his treatment of the applicant and states that he was concerned about the applicant's thinking processes and feared that she was having a reactive paranoid psychosis.  He recommended certain medication.

   Division 11.2 of the Federal Magistrates Court Rules deals with litigation guardians. Rule 11.08(1) provides that a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding, or is not capable of adequately conducting or giving adequate instructions for the conduct of the proceeding. Rule 11.09 provides that a person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian. I am not qualified to express an opinion about the applicant's mental health. However she has, by her application, put her mental health in issue and the material she has herself filed has given me cause for concern that she may need a litigation guardian.

   In the light of that concern, I have decided to make orders requiring a litigation guardian or, alternatively, a psychiatric assessment that the applicant does not need one.  Until either a litigation guardian is appointed or the assessment is made available, the applicant should not be permitted to take these proceedings any further.  If the proceedings do go further it may be that other respondents may need to be joined.  In the meantime, I am content to leave the Minister (properly named) as the second respondent.

6. The Federal Magistrate made the following direction and orders:

   1.The Court directs that transcript of today’s directions hearing is to be obtained and placed on the court file.

   2.The name of the second respondent is to be amended to the Minister for Family and Community Services.

   3.The Minister has leave to uplift from the court file and photocopy any documents filed in the proceedings, provided that such documents are returned to the court file.

   4.The Minister shall be taken to have been served with the application and information sheet and other documents filed in support of the application 14 days after the date of these orders.

   5.No further steps are to be taken by the applicant in these proceedings until:

   a.    a litigation guardian is appointed for her pursuant to Division 11.2 of the Federal Magistrates Court Rules 2001 (Cth); or
   b.    the applicant tenders an opinion by Dr Rob McMurdo or some other qualified psychiatrist, who has been supplied with a copy of these orders and the reasons of the Court, that a litigation guardian is not required;

   whichever occurs first.

   6.The parties have liberty to apply on seven days notice for further directions or orders.

   7.There shall be no order as to costs of the proceedings to this point.

   8. No further application by the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) directed to the decisions identified in the application filed on 5 February 2004 is to be accepted for filing, except by leave of the Court.

   The applicant seeks leave to appeal against those orders, in particular orders 5 and 8.

   The submissions of the applicant

7. The written and oral submissions of the applicant were somewhat discursive. However the general thrust of them, insofar as they appeared to be relevant, may be summarised as follows.  In support of an order to dispense with the requirement to file and serve an application for leave to appeal within 21 days, the applicant submitted the delay was not excessive.  She submitted her application was out of time because she had no litigation experience, was unaware of the rules relating to time in which to seek leave to appeal, was in a state of astonishment and was stunned by the orders made by the Federal Magistrate.  Further, seven days after judgment was handed down, the applicant sought a copy of the transcript but experienced considerable difficulty in obtaining a copy.  The applicant claimed a real injustice would occur were an extension of time not granted.

8. In support of the application for leave to appeal, the applicant referred to the absence of any impairment or diagnosis upon which to base the orders, the nature of the proceedings (which concern unlawful discrimination and breaches of human rights) and the impact the orders have on her substantive rights.

   The submissions of the third respondent

9. The third respondent submitted it was inappropriate for the first respondent to be a party to these proceedings and sought an order that the first respondent be removed.  That is plainly correct.  The second respondent entered a submitting appearance.  The third respondent opposed the grant of leave to appeal on three bases. First, the reasons for judgment of the Federal Magistrate did not disclose any error of principle.  The applicant put her mental health in issue.  Evidence before the Federal Magistrate from the applicant and a psychiatrist suggested the applicant's competence to bring or maintain the proceedings was potentially in issue.  Secondly, the orders of the Federal Magistrate did not cause a substantial injustice as the orders did not prevent the applicant pursuing her application provided there was evidence before the Federal Magistrates Court that she was competent to maintain proceedings or a litigation guardian was appointed.  Thirdly, had the Federal Magistrate not made the orders and in light of the evidence before the Federal Magistrates Court, there was the potential that the respondents would suffer a real injustice. 

   The application and its disposition

10. The Court, in determining whether to grant leave to appeal is to consider, among other factors, whether in all the circumstances the decision from which leave is sought to appeal is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether any substantial injustice would result if leave were refused supposing the decision to be wrong:  see generally Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. As to the extension of time, the extent of the delay, the explanation for the delay and the prospects of success in any appeal are relevant.

11. In my opinion, the issue raised in these proceedings is potentially an important one.  It is possible to identify at least five situations where an issue might arise about the capacity of a litigant to maintain proceedings on his or her behalf in circumstances where the litigant may be suffering from a mental disability:

    (i)The proceedings were of substance and the litigant was seemingly suffering from a mental disability and was so disabled as to require the appointment of a litigation guardian given the nature of the proceedings.

    (ii)The proceedings were of substance and the litigant was seemingly suffering from a mental disability but was not so disabled as to require the appointment of a litigation guardian given the nature of the proceedings.

    (iii)The proceedings were on their face apparently vexatious or an abuse of process and the litigant was seemingly suffering from a mental disability (and perhaps additionally those proceedings were a manifestation of the mental disability) and the litigant might require the appointment of a litigation guardian. 

    (iv)The proceedings on their face were apparently vexatious or an abuse of process and the litigant was seemingly suffering from a mental disability (and perhaps additionally the proceedings constituted a manifestation of the mental disability) but the litigant probably did not require the appointment of a litigation guardian.

    (v)The court simply does not know and is unable to assess whether the litigant requires a litigation guardian given the nature of the proceedings.

12. A person is presumed to be competent.  As Debelle J noted in Dalle-Molle by his Next Friend Public Trustee v Manos and Anor [2004] SASC 102 at [17], in a case in which his Honour was considering whether a plaintiff was competent to prosecute an action in his own right:

    All persons who have reached the age of majority are presumed to have the capacity to enter into contracts or other transactions so that those who assert the contrary bear the onus of proof: Borthwick v Carruthers (1787) 1 TR 648, 99 ER 1300. The principle applies with equal force where it is alleged that a person lacks the required mental capacity: Re Cumming (1852) 1 De GM & G 537 at 557 , 42 ER 660 at 668; Masterman-Lister v Brutton & Co [2003] 3 All ER 162 at [17]. The plaintiff, therefore, has no onus of proof to discharge. The burden is on those who assert incapacity.

13. In the present case, the Federal Magistrate may have viewed the proceedings as falling into the fifth category above though perhaps suspected they fell into the third or fourth category. His Honour may have thought that the orders he made provided a practical solution to the situation he confronted. However, at least arguably, the orders suffer from two or perhaps more vices. The first is that, at least in terms, order 5(b) requires the psychiatrist to form an opinion about the ultimate legal issue the Court must decide under Division 11.2 concerning whether a litigation guardian should or should not be appointed. While s 80 of the Evidence Act 1995 (Cth) authorises opinion evidence about the ultimate issue, there is authority which indicates it cannot be evidence concerning the ultimate legal issue the Court must determine: Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83 (there are later authorities approving this approach). The second is that order 5(a) may create what might be described as a stalemate. A litigation guardian is, under Rule 11.11, appointed by the Court of its own motion or at the request of a party. The respondents probably have no interest in seeking the appointment of a litigation guardian. If the applicant is suffering from a mental disability, she may not appreciate the need to apply. It appears, by the order and the Federal Magistrate's reasons, the Court does not propose to ascertain whether a guardian should be appointed. It may be that by making those orders, the Court is effectively disposing of what, on proper analysis, may prove to be a vexatious application or an application that is an abuse of process. However, arguably that should be achieved by confronting directly, and at the outset, the character of the application and not, arguably, indirectly by making orders of the type actually made.

14. Against these considerations has to be weighed the considerable delay in challenging the orders and the possibility that the applicant will not be able to assist the court in any real way in determining the appeal in circumstances where the third respondent is a reluctant contradictor.  I put it that way because the solicitor appearing for the third respondent, Mr Markus, adopts the position, as I understand it, that while the third respondent was joined as a party by the Federal Magistrate, the third respondent really had no interest in the proceedings beyond a remote and dated connection with the applicant who used to be a member of the Social Security Appeals Tribunal.  Nonetheless, Mr Markus has, on the third respondent’s behalf, helpfully acted as contradictor to this point.  Additionally, there is the prospect that the third respondent will incur additional costs if involved in the appeal.

15. I have decided, on balance, that time should be extended and leave should be given.  Unless this course is opposed by the applicant, it would be appropriate to make an order for legal representation for the applicant under O 80 of the Federal Court Rules.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             15 April 2005

The Applicant appeared in person.
Solicitor for the Second Respondent:	Human Rights and Equal Opportunity Commission
Solicitor for the Third Respondent:	Australian Government Solicitor
Date of oral submissions:	28 October 2004
Date for filing written submissions:	11 November 2004
Date of Judgment:	15 April 2005