Lawrance v HREOC
[2004] FMCA 263
•29 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v HREOC & ANOR | [2004] FMCA 263 |
| ADMINISTRATIVE LAW – Judicial review of HREOC decision terminating a complaint due to passage of time and refusing to accept other complaints. PRACTICE AND PROCEDURE – Whether applicant needs a litigation guardian considered – mental health of the applicant put in issue by her own material. |
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.16
Disability Discrimination Act 1992 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
| Applicant: | AROHA ANNE LAWRANCE |
| First Respondent: Second Respondent: | HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION MINISTER FOR FAMILY AND COMMUNITY SERVICES |
| File No: | SZ288 of 2004 |
| Delivered on: | 29 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the First Respondent: | Mr J Armstrong, Human Rights and Equal Opportunity Commission |
| Solicitors for the Second Respondent: | Mr A Markus Australian Government Solicitor |
ORDERS
The Court directs that transcript of today’s directions hearing is to be obtained and placed on the court file.
The name of the second respondent is to be amended to the Minister for Family and Community Services.
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.
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.
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.
The parties have liberty to apply on seven days notice for further directions or orders.
There shall be no order as to costs of the proceedings to this point.
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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ288 of 2004
| AROHA ANNE LAWRANCE |
Applicant
And
| HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
First Respondent
MINISTER FOR FAMILY AND COMMUNITY SERVICES
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) against the Human Rights and Equal Opportunity Commission (“HREOC”). The application seeks both interim and final relief. The application is conventional to the extent that it seeks relief under s.16 of the ADJR Act quashing certain decisions of HREOC made earlier this year. It is apparent that the applicant is concerned about the alleged refusal by HREOC to inquire into complaints apparently made by the applicant against a range of individuals and organisations.
There is an unconventional element to the application in that 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 a order restraining the respondents to the applicant’s complaint before HREOC 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.
The applicant has filed a very substantial amount of material in support of her application. The application initially came before Federal Magistrate Raphael who made interlocutory orders on 3 March 2004, including an order that the matter be transferred to me. The matter came before me on 5 April 2004. It was not clear to me at that time whether the Court would have jurisdiction to deal with the application in terms of the relief sought and whether the application was properly framed.
However, it was apparent that the applicant had made a series of complaints to HREOC, one of which had been terminated on the basis that the events complained of had occurred more than 12 months previously and that HREOC had declined to investigate other complaints. HREOC entered a submitting appearance on 2 March 2004, save as to costs. It was therefore apparent to me that as at
5 April 2004 there was no active respondent.
I formed the view that there needed to be an active respondent and that given the role of HREOC in investigating and attempting to conciliate complaints, HREOC was right to file a submitting appearance. On the basis of what was presented in court up to that time and on that day I formed the view that an appropriate respondent was likely to be the Minister for Social Security. Due to administrative changes, the Minister’s correct title is the Minister for Family and Community Services.
On 5 April 2004, I ordered that the Minister be joined as the second respondent and ordered the applicant to serve on the Minister a copy of her application and information sheet and other documents filed in support of her application by ordinary pre-paid post. The service order was not complied with. I surmise from further affidavit material filed by the applicant shortly following that hearing that the applicant considers that it was inappropriate for the Court to join the Minister as the second respondent.
The applicant maintains that other individuals or office holders would be appropriate respondents, including the National Convenor of the Social Security Appeals Tribunal, of which the applicant is a former member, and officers of the Refugee Review Tribunal and the Commonwealth Rehabilitation Service. The applicant has, it seems, made complaints to HREOC about all three agencies. The applicant has filed substantial further affidavit material since the directions hearing on 5 April 2004.
Although the Minister has not been served as required by my earlier order, Mr Markus appeared for the Minister today and made submissions in an effort to assist the Court. Those submissions included submissions that the application is misconceived and that the application ought properly to be dismissed both because it is misconceived and because the applicant has not complied with the service order of the Court. Mr Markus did, however, submit that the Minister for Family and Community Services may in fact not be the most appropriate respondent. Mr Markus’ attendance today establishes, of course, that the Minister, through her lawyers, is aware of the proceedings.
Rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) relevantly provides that if a party fails to take a step required by an order of the Court, the Court may, on its own motion, make an order to end the proceeding or alternatively to require the step to be taken within a stated time. I have considered whether I ought to dismiss the application for non-compliance with my service order. I have decided that I should not do so.
My reasons are first that, although the applicant in her affidavit material and in her oral submissions earlier today, disputed my order joining the Minister, she subsequently stated that she would abide by any service order imposed upon her. Secondly, Mr Markus has, through the intervention of Mr Armstrong, representing HREOC, become aware of the joinder of the Minister and appeared today. It is open to Mr Markus to inspect the court file to obtain whatever documents would have been served on the Minister if the service order had been complied with.
Thirdly, it is not possible for me to determine at this point that there is no substance to the application brought. The applicant has made a significant number of complaints about individuals and agencies. There may be an issue whether HREOC has acted lawfully in dealing with those complaints or in refusing to deal with them.
That said, I have some doubt whether the applicant's proceedings are an appropriate vehicle to deal with all of her concerns. There is a risk that the proceedings might become a vehicle to ventilate not simply the applicant’s concerns about the lawfulness of the actions of HREOC but rather a vehicle to further ventilate her complaints about the range of individuals and institutions which have given her cause to complain previously. One complaint was terminated by HREOC. It is open to the applicant to pursue what further rights she may have under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as a consequence of that termination. For example, her complaints include complaints that a mental disability has been improperly imputed to her. This might involve a breach of the Disability Discrimination Act 1992 (Cth).
More importantly, 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.
I see no need to further enforce the service order I made on the last occasion. I will give the Minister the opportunity to uplift and copy from the court file all documents filed in the proceedings so that the Minister's legal advisers are properly aware of the documents that have been filed and the significance of them.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 May 2004
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