Thompson v Kane (No. 2) - [2012] FCA 763

FEDERAL COURT OF AUSTRALIA
Thompson v Kane (No. 2) [2012] FCA 763

Citation: Thompson v Kane (No. 2) [2012] FCA 763

Parties: PETER JAMES THOMPSON v TERESA KANE and FEDERAL MAGISTRATE SPELLEKEN

File number: QUD 206 of 2012

Judge: GREENWOOD J

Date of judgment: 16 July 2012

Date of Publication of Reasons: 17 July 2012

Catchwords: PRACTICE AND PROCEDURE – consideration of an application by a non‑legally qualified person for leave to assist and represent the applicant in the proceedings in addressing an Interlocutory Application by the Commonwealth of Australia (the third respondent) for orders dismissing the applicant’s Originating Application – consideration of the circumstances taken into account in determining whether the person seeking leave is a fit and proper person to assist a litigant before the Court – consideration of principles taken into account in determining whether, in the circumstances of the present application, leave ought to be granted

Legislation: Administrative Decision (Judicial Review) Act 1977 (Cth), s 18
Federal Court Rules 2011, r 9.05(1)(b), r 13.01(a)

Cases cited: Thompson v Kane [2012] FCA 674 – cited
Re Bell [2005] QCA 151 – cited and quoted
Batey‑Elton & Elton (No. 2) [2010] FamCA 271 – cited and quoted
Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd [2010] NSWSC 284 – cited and quoted
Prentice & Bellas and Anor [2012] FamCA 108 – cited and quoted

Date of hearing: 16 July 2012

Date of last submissions: 16 July 2012

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 57

Counsel for the Applicant: The applicant appeared in person and sought leave to be assisted by a person not admitted as a legal practitioner

Solicitor for the First and Second Respondents: Australian Government Solicitor

Counsel for the Commonwealth of Australia seeking to be joined: Ms E Ford

Solicitor for the Commonwealth of Australia seeking to be joined: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 206 of 2012

BETWEEN:
PETER JAMES THOMPSON
Applicant

AND:
TERESA KANE
First Respondent

FEDERAL MAGISTRATE SPELLEKEN
Second Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

16 JULY 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Commonwealth of Australia be joined as a third respondent in the proceeding.
2.Leave is refused for Mr Ian Bruce Bell to appear on behalf of Mr Thompson on the Interlocutory Application for dismissal of the Originating Application filed on 10 April 2012.
3.The Interlocutory Application filed on 21 June 2012 is adjourned.
4.The costs of the Interlocutory Application are reserved.
5.Leave is given to file the affidavit of Martin Edward Hanson sworn 16 July 2012.
6.The order made on 8 May 2012 is varied so as to read “The Interlocutory Application be dismissed with costs”.
7.Mr Thompson be referred to a lawyer for legal assistance by the Court causing a Referral Certificate under r 4.12 of the Federal Court Rules 2011 to issue in accordance with Form 9 directed to the question of whether the Originating Application filed on 10 April 2012…

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 Thompson v Kane (No. 2)

Details

AGLC: Thompson v Kane (No. 2) [2012] FCA 763
Case: [2012] FCA 763
Decision Date: 16 July 2012

CaseChat Overview and Summary

In the matter of Thompson v Kane (No. 2), the Federal Court of Australia considered an application by Mr Ian Bruce Bell, a non-legally qualified person, to represent Mr Thompson in proceedings against the Commonwealth of Australia. The dispute involved an interlocutory application by the Commonwealth for dismissal of Mr Thompson's originating application, which sought judicial review of decisions made by a Federal Magistrate and a police officer. The primary legal issues were whether Mr Bell was fit and proper to assist a litigant before the Court and whether leave should be granted for him to represent Mr Thompson.

The Court examined the circumstances surrounding Mr Bell's application and considered the principles relevant to determining whether leave should be granted. The Court found that Mr Bell had not demonstrated that he was a fit and proper person to represent Mr Thompson. The Court was concerned with the lack of formal legal qualifications and experience in representing litigants before the Court, which was critical in complex judicial review proceedings. Consequently, the Court refused leave for Mr Bell to appear on behalf of Mr Thompson.

In addition to refusing leave to Mr Bell, the Court made several other orders. It joined the Commonwealth as a third respondent, adjourned the interlocutory application, and reserved the costs of the application. The Court also granted leave to file an affidavit by Martin Edward Hanson and varied an earlier order to dismiss the interlocutory application with costs. Furthermore, the Court directed Mr Thompson to file an affidavit detailing the decisions or orders sought to be reviewed and ordered that Mr Thompson be referred to a lawyer for legal assistance. This referral was to determine whether the originating application should be set aside based on the Commonwealth's contention that neither decision was of an administrative character or subject to constitutional writ.

Orders

Orders of the court

1. The Commonwealth of Australia be joined as a third respondent in the proceeding.

2. Leave is refused for Mr Ian Bruce Bell to appear on behalf of Mr Thompson on the Interlocutory Application for dismissal of the Originating Application filed on 10 April 2012.

3. The Interlocutory Application filed on 21 June 2012 is adjourned.

4. The costs of the Interlocutory Application are reserved.

5. Leave is given to file the affidavit of Martin Edward Hanson sworn 16 July 2012.

6. The order made on 8 May 2012 is varied so as to read “The Interlocutory Application be dismissed with costs”.

7. Mr Thompson be referred to a lawyer for legal assistance by the Court causing a Referral Certificate under r 4.12 of the Federal Court Rules 2011 to issue in accordance with Form 9 directed to the question of whether the Originating Application filed on 10 April 2012 ought to be set aside under r 13.01(1)(a) of the Federal Court Rules 2011 on the ground, as the Commonwealth contends, that neither decision the subject of the application is a decision of an administrative character for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and on the further ground that no constitutional writ lies in respect of either decision under challenge under s 39B of the Judiciary Act 1903 (Cth), as the Commonwealth further contends.

8. The applicant, Mr Thompson, is directed to file an affidavit by 10 August 2012 setting out each of the decisions or orders made by Federal Magistrate Spelleken which are sought to be reviewed under the description of decision number 1 in the Originating Application filed on 10 April 2012 together with a short description of the application giving rise to each decision or order and Mr Thompson is further ordered to identify in that affidavit the terms of each order or direction made on 13 March 2012 by Ms Teresa Kane which are sought to be reviewed under the description of decision number 2 in the Originating Application filed 10 April 2012 together with a short description of the application giving rise to each order or direction of Ms Kane.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:	Thompson v Kane (No. 2) [2012] FCA 763
Parties:	PETER JAMES THOMPSON v TERESA KANE and FEDERAL MAGISTRATE SPELLEKEN
File number:	QUD 206 of 2012
Judge:	GREENWOOD J
Date of judgment:	16 July 2012
Date of Publication of Reasons:	17 July 2012
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application by a non‑legally qualified person for leave to assist and represent the applicant in the proceedings in addressing an Interlocutory Application by the Commonwealth of Australia (the third respondent) for orders dismissing the applicant’s Originating Application – consideration of the circumstances taken into account in determining whether the person seeking leave is a fit and proper person to assist a litigant before the Court – consideration of principles taken into account in determining whether, in the circumstances of the present application, leave ought to be granted
Legislation:	Administrative Decision (Judicial Review) Act 1977 (Cth), s 18 Federal Court Rules 2011, r 9.05(1)(b), r 13.01(a)
Cases cited:	Thompson v Kane [2012] FCA 674 – cited Re Bell [2005] QCA 151 – cited and quoted Batey‑Elton & Elton (No. 2) [2010] FamCA 271 – cited and quoted Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd [2010] NSWSC 284 – cited and quoted Prentice & Bellas and Anor [2012] FamCA 108 – cited and quoted
Date of hearing:	16 July 2012
Date of last submissions:	16 July 2012
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Applicant:	The applicant appeared in person and sought leave to be assisted by a person not admitted as a legal practitioner
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Counsel for the Commonwealth of Australia seeking to be joined:	Ms E Ford
Solicitor for the Commonwealth of Australia seeking to be joined:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 206 of 2012

JUDGE:	GREENWOOD J
DATE OF ORDER:	16 JULY 2012
WHERE MADE:	BRISBANE