Shaw v Leist - [2021] FCCA 1236

FEDERAL CIRCUIT COURT OF AUSTRALIA
Shaw v Leist [2021] FCCA 1236

File number(s): PEG 368 of 2020

Judgment of: JUDGE LUCEV

Date of judgment: 3 June 2021

Catchwords:
INDUSTRIAL LAW – alleged misrepresentation of employment as contracting arrangement – alleged dismissal in contravention of a general protection

PRACTICE AND PROCEDURE – Appointment of litigation guardian – factors for consideration – where medical report provided

Legislation:
Fair Work Act2009 (Cth) ss 340 and 357

Federal Circuit Court Rules 2001 (Cth) Div 11.2, rr 11.08, 11.10 and 11.11

Cases cited: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432; (2006) 91 ALD 258

Number of paragraphs: 14

Date of last submission/s: 20 May 2021

Date of hearing: On the papers

Place: Perth (published from Chambers)

Solicitor for the Applicant: DPSK Lawyers

Solicitor for the Respondent: Culshaw Miller Lawyers
ORDERS

PEG 368 of 2020

BETWEEN:
RONALD MARK SHAW

Applicant

AND:
LLOYD LEIST

Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

3 JUNE 2021

THE COURT ORDERS THAT:
1.Pursuant to Rule 11.11 of the Federal Circuit Court Rules 2001 (Cth), Clayton Leist be appointed as litigation guardian for the Respondent in these proceedings.
2.Within 7 days of the date of these orders the litigation guardian give notice of his appointment as litigation guardian to the Applicant.
3.The costs and expenses of the litigation guardian, including the costs of the Application in a Case for the appointment of the litigation guardian, be paid from the income or assets of the Respondent.
4.The matter be listed for directions on 18 June 2021 at 2pm.

REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION AND BACKGROUND

The applicant, Ronald Mark Shaw (“Mr Shaw”), filed an originating application in the Court on 10 December 2020 (“Substantive Application”) alleging that the respondent, Lloyd Leist, misrepresented his employment as an independent contracting arrangement in contravention of s 357 of the Fair Work Act2009 (Cth), and that he was dismissed from his employment for exercising a workplace right in contravention of s 340(1) of the FW Act.
The matter was listed for a directions hearing on 28 January 2021. Lloyd Leist’s sons, Clayton Leist and Jordan Leist, appeared on behalf of their father by leave of the Court. Mr Shaw appeared on behalf of himself. Orders were made at the directions hearing which, among other things, referred the matter to mediation with a Registrar of the Court (“Directions Orders”).
On 11 February 2021 Mr Shaw filed a notice of address for service which indicated that he was now represented by a lawyer in the matter. A notice to appear was filed by Jordan Leist on behalf of, but without the authorisation of, Lloyd Leist on 19 February 2021. On 19 April 2021, the matter was referred back to the Court from the Registry, without any mediation taking place, on the basis of non-compliance with the Directions Orders.
On 28 April 2021 the Court listed the matter for further directions on 6 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shaw v Leist

Details

AGLC: Shaw v Leist [2021] FCCA 1236
Case: [2021] FCCA 1236
Decision Date: 3 June 2021

CaseChat Overview and Summary

In the matter of *Shaw v Leist*, heard by Lucev J, the dispute concerned the capacity of Lloyd Leist to conduct proceedings or provide adequate instructions for their conduct. Mr Shaw was the applicant and Mr Leist was the respondent.

The court was required to determine whether it was appropriate to appoint a litigation guardian for Mr Leist. This involved assessing Mr Leist's physical and cognitive capacity to participate in the proceedings, the suitability of Clayton Leist (Mr Leist's son) to act as litigation guardian, and whether the appointment would cause prejudice to Mr Shaw.

Lucev J reasoned that Mr Leist was not capable of adequately conducting the proceedings or giving instructions due to his poor physical health and cognitive difficulties stemming from medication. The court found Clayton Leist to be a suitable candidate, noting he held a valid power of attorney, had no adverse interests, and had consented to the role. The court also considered that Mr Shaw did not oppose the appointment and would not suffer significant prejudice as he was legally represented. Consequently, the court ordered pursuant to Rule 11.11 of the Federal Circuit Court Rules 2001 (Cth) that Clayton Leist be appointed as the litigation guardian for Lloyd Leist, with his costs to be paid from Mr Leist's assets. The matter was then listed for directions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the Clayton Lesit Affidavit and the documents annexed thereto, the Court considers that this is an appropriate case in which to appoint a litigation guardian for the following reasons:(a)Lloyd Leist:(i)is not of sound physical health to attend Court, and his physical health will impair his ability to give instructions in relation to the proceedings; and(ii)is on medication and suffering cognitive difficulties which will impair his ability to give instructions in relation to the proceedings;(b)Clayton Leist:(i)has been validly appointed as Lloyd Leist’s Attorney: Clayton Leist Affidavit, annexure CL1;(ii)as Lloyd Leist’s son, and by the actions he has taken in relation to the matter thus far, Clayton Leist has no interests in the proceeding adverse to Lloyd Leist; and(iii)has filed an affidavit consenting to be litigation guardian for Lloyd Leist: Clayton Leist Affidavit at [1]; (c)the opinion expressed in the Medical Report is that Lloyd Leist is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding; (d)Mr Shaw does not oppose the appointment of Clayton Leist as litigation guardian; and(e)Mr Shaw is being represented by a lawyer and will therefore not suffer significant prejudice by the appointment of a litigation guardian for Lloyd Leist.CONCLUSION AND ORDERS The Court has concluded that it is appropriate to appoint Clayton Leist as the litigation guardian of Lloyd Leist. The Court considers that the proposed orders in the Application in a Case, which address the issue of costs, and which are not opposed by Mr Shaw, to be appropriate, with certain additions and amendments. The Court will make orders in the following terms:(a)pursuant to Rule 11.11 of the Federal Circuit Court Rules 2001 (Cth), Clayton Leist be appointed as litigation guardian for the Respondent in these proceedings;(b)within 7 days of the date of these orders the litigation guardian give notice of his appointment as litigation guardian to the Applicant;(c)the costs and expenses of the litigation guardian, including the costs of the Application in a Case for the appointment of the litigation guardian, be paid from the income or assets of the Respondent; and(d)the matter be listed for directions on 18 June 2021 at 2pm.

Ratio Decidendi

Legal Principle Established

The opinion in the Medical Report as to whether Lloyd Leist is capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding is as follows:In my view Lloyd is NOT capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding.CONSIDERATION – LITIGATION GUARDIAN On the basis of the Clayton Lesit Affidavit and the documents annexed thereto, the Court considers that this is an appropriate case in which to appoint a litigation guardian for the following reasons:(a)Lloyd Leist:(i)is not of sound physical health to attend Court, and his physical health will impair his ability to give instructions in relation to the proceedings; and(ii)is on medication and suffering cognitive difficulties which will impair his ability to give instructions in relation to the proceedings;(b)Clayton Leist:(i)has been validly appointed as Lloyd Leist’s Attorney: Clayton Leist Affidavit, annexure CL1;(ii)as Lloyd Leist’s son, and by the actions he has taken in relation to the matter thus far, Clayton Leist has no interests in the proceeding adverse to Lloyd Leist; and(iii)has filed an affidavit consenting to be litigation guardian for Lloyd Leist: Clayton Leist Affidavit at [1]; (c)the opinion expressed in the Medical Report is that Lloyd Leist is not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding; (d)Mr Shaw does not oppose the appointment of Clayton Leist as litigation guardian; and(e)Mr Shaw is being represented by a lawyer and will therefore not suffer significant prejudice by the appointment of a litigation guardian for Lloyd Leist.CONCLUSION AND ORDERS The Court has concluded that it is appropriate to appoint Clayton Leist as the litigation guardian of Lloyd Leist. The Court considers that the proposed orders in the Application in a Case, which address the issue of costs, and which are not opposed by Mr Shaw, to be appropriate, with certain additions and amendments. The Court will make orders in the following terms:(a)pursuant to Rule 11.11 of the Federal Circuit Court Rules 2001 (Cth), Clayton Leist be appointed as litigation guardian for the Respondent in these proceedings;(b)within 7 days of the date of these orders the litigation guardian give notice of his appointment as litigation guardian to the Applicant;(c)the costs and expenses of the litigation guardian, including the costs of the Application in a Case for the appointment of the litigation guardian, be paid from the income or assets of the Respondent; and(d)the matter be listed for directions on 18 June 2021 at 2pm.

File number(s):	PEG 368 of 2020
Judgment of:	JUDGE LUCEV
Date of judgment:	3 June 2021
Catchwords:	INDUSTRIAL LAW – alleged misrepresentation of employment as contracting arrangement – alleged dismissal in contravention of a general protection PRACTICE AND PROCEDURE – Appointment of litigation guardian – factors for consideration – where medical report provided
Legislation:	Fair Work Act2009 (Cth) ss 340 and 357 Federal Circuit Court Rules 2001 (Cth) Div 11.2, rr 11.08, 11.10 and 11.11
Cases cited:	L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432; (2006) 91 ALD 258
Number of paragraphs:	14
Date of last submission/s:	20 May 2021
Date of hearing:	On the papers
Place:	Perth (published from Chambers)
Solicitor for the Applicant:	DPSK Lawyers
Solicitor for the Respondent:	Culshaw Miller Lawyers

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	3 JUNE 2021