Snell v The State of Victoria Department of Education and Training

[2018] FCA 657

FEDERAL COURT OF AUSTRALIA

Snell v The State of Victoria Department of Education and Training [2018] FCA 657

File number:	VID 1251 of 2017
Judge:	KENNY J
Date of judgment:	9 May 2018
Catchwords:	PRACTICE AND PROCEDURE – application under r 9.63 of the Federal Court Rules 2011 for appointment of litigation representative
Legislation:	Federal Court Rules 2011 (Cth), rr 9.61, 9.63
Date of hearing:	Determined on the papers
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	8
Solicitor for the Applicant:	Arnold Thomas & Becker
Solicitor for the Respondent:	Allens

ORDERS

VID 1251 of 2017

BETWEEN:

MATTHEW SNELL (BY HIS LITIGATION REPRESENTATIVE GEOFFREY SNELL)

Applicant

AND:

THE STATE OF VICTORIA DEPARTMENT OF EDUCATION AND TRAINING

Respondent

JUDGE:	KENNY  J
DATE OF ORDER:	9 MAY 2018

THE COURT ORDERS THAT:

1.Geoffrey Snell be appointed as litigation representative for the applicant, Matthew Snell.

2.Compliance with r 9.63(2) of the Federal Court Rules 2011 be dispensed with.

3.Henceforth, the applicant be described in the title heading to documents filed in this proceeding as “Matthew Snell (by his litigation representative Geoffrey Snell)”.

4.There be no order as to costs.

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

REASONS FOR JUDGMENT

KENNY J:

1. On 8 March 2018, Mr Geoffrey Snell filed an interlocutory application seeking an order under r 9.63 of the Federal Court Rules 2011 (Cth) (the Rules) that he be appointed as litigation representative for his son, Matthew Snell, who is the applicant in this matter. The Rules provide that a person under a legal incapacity may start a proceeding only by the person’s legal representative: see r 9.61. The application is dealt with on the papers pursuant to an order of the Court made on 15 March 2018.

2. Rule 9.63 of the Rules provides:

   r 9.63 Appointment of litigation representative by the Court

   (1)A party or an interested person may apply to the Court for an order appointing a person as a litigation representative.

   Note:Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary.

   (2)A copy of the application must be served on the person under a legal incapacity.

   (3)The application must be accompanied by an affidavit stating:

   (a)that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

   (b)       that the proposed litigation representative:

   (i)has consented, in writing, to the appointment; and

   (ii)is a person who, under rule 9.62, may be appointed as a litigation representative.

3. Mr Geoffrey Snell’s application is supported by an affidavit of Ms Claire Pirie, who is a solicitor with the care and conduct of the matter on the applicant’s behalf. The affidavit is filed in conformity with r 9.63(3).

4. It appears from a report of Ms Karin Steinhoff, psychologist, dated 2 March 2018 and annexed to Ms Pirie’s affidavit, that Matthew Snell has a significant intellectual disability and is on the Autism Spectrum. On the basis of this report, I accept that he is a person under a legal incapacity within the meaning and for the purposes of the Rules.

5. It further appears from Ms Pirie’s affidavit and a form of consent, dated 20 November 2017 and also annexed to Ms Pirie’s affidavit, that his father, Geoffrey Snell, has consented to the appointment as his son’s litigation representative and he has no interest in the proceeding adverse to his son’s interest. The requirements of r 9.63(3) are satisfied.

6. Although a copy of the current application has not been served on Matthew Snell as the applicant in accordance with r 9.63(2) of the Rules, I am satisfied that it is appropriate in the circumstances to dispense with compliance with this rule: r 1.34.

7. The respondent does not oppose the current application.

8. Having regard to the above, I am satisfied that an order should be made that Geoffrey Snell be appointed as litigation representative for Matthew Snell. Henceforth, the applicant will be described in documents filed in this proceeding as “Matthew Snell (by his litigation representative Geoffrey Snell)”. There will be no order as to costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:        9 May 2018