SZVDJ v Minister for Immigration

[2016] FCCA 218

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 218

Catchwords:
PRACTICE AND PROCEDURE - Proceedings in which minor is applicant are commenced, maintained, and discontinued without any person being appointed litigation guardian of the minor – first respondent applies for order that the father of the applicant, being the person it is claimed commenced, maintained, and discontinued the proceedings purportedly on behalf of the minor applicant, be appointed litigation guardian – application to appoint applicant’s father as litigation guardian made for the purpose of the first respondent applying for an order that the father pay the costs of the proceedings – consent of father to be made litigation guardian not sought – whether Court should dispense with requirement that the consent of the father to become litigation guardian be obtained – whether in light of the proceedings having been discontinued it can be said there is any need for a litigation guardian to be appointed for the applicant – whether it is appropriate to appoint a litigation guardian for the purpose of having a party before the Court against whom an order for costs may be made - litigation guardian not appointed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 11.08, 11.08(1), 11.08(2), 11.11, 11.11(1), 11.11(2)

Applicant: SZVDJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2642 of 2014

Judgment of: Judge Manousaridis

Hearing date: 4 February 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

No appearance behalf of or by the applicant

Solicitors for the First Respondent: Ms A Wong of DLA Piper Australia

ORDERS

1. The application for the appointment of a litigation guardian is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2642 of 2014

SZVDJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 10 November 2015 I made orders in this matter, including an order that the proceedings stand as discontinued by reason of the filing on 4 November 2015 of a notice of discontinuance.  Before I made those orders, it had become apparent that the applicant was and continues to be a minor.  The significance of that is that the applicant was a person who needed, and who could take proceedings only through, a litigation guardian.  No such guardian had been appointed.

2. The need for the appointment of a litigation guardian arises from r.11.08 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Subrule 11.08(1) of the FCC Rules provides that a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequence of the proceeding, or is not capable of adequately conducting or giving adequate instruction for the conduct of the proceeding. Subrule 11.08(2) of the FCC Rules provides that, unless the Court otherwise orders, any minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.

3. One of the orders I made on 10 November 2015 was to grant the first respondent liberty to apply for an order for costs against such persons as the first respondent may be advised.  Given that the applicant is a minor – and I understand from the material, and from what has been submitted to me, a minor of tender years, that is to say, two years – it is obviously not open to the Court to make an order for costs against the applicant. 

4. Pursuant to the liberty granted on 10 November 2015, the first respondent applied to have this matter relisted and the matter came before me this morning. The application that was made, however, was that the Court order that the applicant’s father be appointed a litigation guardian.  The purpose of that application was to enable the first respondent to apply for an order that the applicant’s father pay the first respondent’s costs arising from the filing of a notice of discontinuance.  The basis of that application was what was submitted to be the fact that the proceedings were commenced on the instructions of the applicant’s father, and the proceedings were discontinued by way of a notice of discontinuance that was signed by the father.

5. One difficulty that confronts the application that is made by the first respondent is r.11.11 of the FCC Rules. Subrule 11.11(1) of the FCC Rules provides that 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. Subrule 11.11(2) of the FCC Rules provides that a person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding. There is no suggestion that the applicant’s father has consented to become the litigation guardian of the applicant and, indeed, there is no evidence that an application for the appointment of the applicant’s father to be litigation guardian of the applicant has been given to the applicant’s father.

6. The first respondent, however, submits that the Court should exercise the power under r.1.06 of the FCC Rules to dispense with the necessity of compliance with r.11.11(2) of the FCC Rules. In my opinion, it is not an appropriate exercise of the power conferred by r.1.06 of the FCC Rules to dispense compliance with r.11.11(2) of the FCC Rules. The factor which is of most significance in my mind is the consequences of a person being appointed a litigation guardian. One of the most significant consequences is that it exposes the litigation guardian to an order for costs. It is difficult to imagine a situation where the Court would compel a person to, in effect, become a party to a proceeding, other than as a defendant to some claim that is being made against that person.

7. There are other reasons, however, why I would not dispense with compliance with r.11.11(2) of the FCC Rules. I am not satisfied, having regard to the proceeding having already been discontinued, that there is any need for there to be a litigation guardian appointed for the applicant. It is apparent that the purpose of the first respondent’s applying for the appointment of a litigation guardian is to enable the first respondent to obtain an order for costs. That purpose seems to me to be entirely foreign to the purposes for which the Court may appoint a person a litigation guardian.

8. The real issue is that the proceedings have, in effect, been improperly commenced in the sense that a person – in this case, a minor of two years – commenced proceedings in circumstances where a litigation guardian ought to have been appointed from the outset but was not.  It is possible that the Court has power to order costs against those persons who were instrumental in the commencement and prosecution of the proceedings which ought to have been commenced through a litigation guardian.  That could well include the legal representative who, for a little while, was on the record, purportedly representing the applicant.

9. The basis of the Court exercising the power to order costs against such persons would be analogous to the power courts exercise over solicitors who commence proceedings without the authority of the person who appears as plaintiff.  It is true that the first respondent is not seeking an order for costs against a solicitor but, nevertheless, the analogy might be available to enable the Court to exercise such power.  Accordingly, if the first respondent wishes to apply for an order for costs against the father, the appropriate procedure would be for the first respondent to file an application for an order for costs and serve it on the father.

10. If the first respondent intends to pursue that course, there is one matter he might wish to bear in mind before he does so.  It is true that there is fault in those who commenced and prosecuted the proceedings on behalf of the applicant without applying for an order that there be appointed a litigation guardian.  It could be argued, however, that there is also fault with the first respondent because it would have been apparent that the applicant was indeed a minor.  Having said that, I do not in any way suggest that the first respondent was at fault.  I only point out that that may be a factor that may lead the Court, assuming it finds it does have jurisdiction, to decide not to make an order for costs or to make some modified order for costs.

11. For these reasons, therefore, the application of the first respondent for an order appointing the applicant’s father as a litigation guardian is dismissed.  I will only note that the liberty reserved in the orders I made on 10 November 2015 for the first respondent to apply for an order for costs against such persons as the first respondent may be advised is still available to the first respondent should the first respondent choose to exercise that liberty.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 February 2016