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

1. 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.

2. 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”).

3. 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.

4. On 28 April 2021 the Court listed the matter for further directions on 6 May 2021. On 5 May 2021, Clayton Leist’s lawyer emailed the Court requesting a 14-day adjournment of the further directions hearing to allow sufficient time for Clayton Leist to make an application to be appointed as litigation guardian of Lloyd Leist. The Court made orders of its own motion on 5 May 2021 vacating the further directions hearing.

5. Before the Court is an Application in a Case, filed 20 May 2021, to appoint Clayton Leist, as litigation guardian of Lloyd Leist for the purposes of the litigation arising in relation to the Substantive Application. An affidavit of Clayton Leist, sworn 19 May 2021, (“Clayton Leist Affidavit”) was filed with the Application in a Case.

6. On 24 and 25 May 2021 in correspondence with Chambers, the parties consented to a decision with respect to the Application in a Case being made on the papers, and Mr Shaw confirmed that he did not oppose the appointment and, as such, did not object to the matter being determined on the papers. On 28 May 2021 Mr Shaw also confirmed that he did not intend to file any further material for the purposes of the Application in a Case. Consequently, these Reasons for Judgment have been published from Chambers.

   RELEVANT LAW

7. The rules and principles in relation to the appointment of a litigation guardian are found in Div 11.2 of the Federal Circuit Court Rules 2001 (Cth) (“FCCRules”). Division 11.2 relevantly provides:

   11.08  Person who needs a litigation guardian

   (1) For these Rules, 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 instruction for the conduct of, the proceeding.

   …

   11.10  Who may be a litigation guardian

   A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

   11.11  Appointment of litigation guardian

   (1)The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.

   (2)A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.

   (3)The Court may remove a litigation guardian at the request of the litigation guardian.

8. The principles for the appointment of a litigation guardian under the FCC Rules were considered by the Full Court of the Federal Court  in L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432; (2006) 91 ALD 258 at [23]-[27] per Black CJ, Moore and Finkelstein JJ. For the purposes of the present matter, it is worth noting that:

   (a)in substance, the purpose of the litigation guardian is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court; and

   (b)for person’s over 18, evidence of the lack of capacity or competence to engage in proceedings is generally necessary, and a medical report will often be the best evidence to demonstrate this.

   CLAYTON LEIST AFFIDAVT

9. The Clayton Leist Affidavit relevantly provides:

   (a)Clayton Leist was appointed as Lloyd Leist’s:

   (i)attorney by an Enduring Power of Attorney dated 12 March 2020; and

   (ii)guardian by an Enduring Power of Guardianship dated 12 March 2020;

   (b)Lloyd Leist:

   (i)is 79 years of age;

   (ii)was diagnosed with lung cancer several years ago;

   (iii)has since moved to palliative treatment;

   (iv)currently lives alone;

   (v)is usually only awake for about 2-3 hours each day;

   (vi)requires a walking frame;

   (vii)is slow and tires easily and quickly;

   (viii)requires oxygen regularly;

   (ix)is given care, provided almost daily, by his sons and his de facto partner;

   (x)takes a range of heavy medication;

   (xi)receives fortnightly professional medical check-ups;

   (xii)receives fortnightly in-home health and aged care services;

   (xiii)is having cognitive difficulties, such as:

   (A)short term memory loss;

   (B)confusion; and

   (C)increased stress and anxiety.

10. Annexed to the Clayton Leist Affidavit are copies of the signed Enduring Power of Attorney dated 12 March 2020 and Enduring Power of Guardianship dated 12 March 2020. Also annexed is a medical report of Doctor Warren Saint (“Medical Report”). The Medical Report:

    (a)confirms that Lloyd Leist is suffering from lung cancer;

    (b)has moved to palliative treatment;

    (c)has difficulty breathing;

    (d)requires continuous oxygen;

    (e)can only move short distances; and

    (f)spends a lot of his day and night sleeping.

11. 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

12. 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

13. 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.

14. 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.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       3 June 2021