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 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

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:	17 JULY 2012
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In the principal Originating Application filed by Mr Thompson on 10 April 2012, he seeks review under s 39B of the Judiciary Act 1903 (Cth) and the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “AD (JR) Act”) of two decisions. In the Originating Application, the first respondent is described as “Teresa Kane” and the second respondent is described as “Federal Magistrate Spelleken of the Federal Magistrates Court”. In the affidavit of Mr Thompson filed 10 April 2012 in support of the application, Ms Teresa Kane is described as the Appeals Registrar of the Family Court of Australia. The first decision under challenge is a decision of Federal Magistrate Spelleken. The particular orders in question which constitute “the decision” have not been properly identified in the affidavit. The second decision sought to be reviewed is described as a decision of “the First Respondent to deny the Applicant available legally trained assistance on 13 March 2012 and on that date, to make the orders made”.

2. The lack of clarity in the particular decisions and orders is addressed later in these reasons. 

3. An Interlocutory Application was also made by Mr Thompson seeking particular relief, in the originating proceeding, and that application was the dismissed on 8 May 2012.  Ex tempore reasons for judgment were pronounced that day:  Thompson v Kane [2012] FCA 674.

4. The present application is an application made by the Commonwealth of Australia to be joined as a respondent in the proceeding and for orders setting aside the Originating Application under r 13.01(a) of the Federal Court Rules 2011 on the ground that neither decision is a decision of an administrative character and thus not susceptible of review under the AD (JR) Act, and on the further ground that no constitutional writ likes in respect of either decision under s 39B of the Judiciary Act 1903 (Cth).

5. The Court made orders joining the Commonwealth of Australia as a party to the proceeding under r 9.05(1)(b) and s 18 of the AD (JR) Act.

6. A preliminary question arose for determination. 

7. Mr Thompson is a self‑represented litigant.  He appeared in response to the Interlocutory Application for orders dismissing the originating proceeding assisted by Mr Ian Bruce Bell.  Mr Bell, on behalf of Mr Thompson, made an application for leave to enable Mr Bell to appear on Mr Thompson’s behalf to resist the Commonwealth’s application and act generally on behalf of Mr Thompson in relation to the application.  Mr Bell says that Mr Thompson is very unwell and has recently had a number of blood transfusions.  He is not sufficiently well to appear and respond to the application on his own behalf.  Moreover, Mr Bell says that Mr Thompson is not capable of dealing with the questions which are in issue for today and relies upon Mr Bell to assist him in dealing with the merits of the matter.

8. The Commonwealth opposes leave being given to Mr Bell to represent Mr Thompson. 

9. The Commonwealth says that Mr Bell is not a fit and proper person to provide assistance in proceedings before the Federal Court of Australia.  The Commonwealth contends for that position for these reasons. 

10. On 13 May 2005, the Court of Appeal of the Supreme Court of Queensland refused Mr Bell’s application for admission as a legal practitioner:  Re Bell [2005] QCA 151, per McMurdo P, Keane JA and Wilson J. In determining that question, the Court of Appeal was required to determine, for the purposes of s 30 of the Legal Profession Act 2004 (Qld) whether Mr Bell was suitable for admission as a “fit and proper person”. That question arose in the specific statutory context and involved questions of whether Mr Bell was then a person of good fame and character, and the field of considerations relevant to the question of whether he was a fit and proper person. The Court observed, as a matter of principle, that in determining that question, the Court has consistently affirmed the important principle that an applicant for admission as a legal practitioner must be candid and act with the utmost good faith in making comprehensive disclosure of issues relevant to any matter which might reasonably be regarded as touching upon the applicant’s fitness to become a legal practitioner.

11. In responding to particular questions of Mr Bell by the Admission Board, it became apparent that Mr Bell had not fully disclosed aspects of his bankruptcy in 1991 and the discharge of that bankruptcy on 9 August 1995.  The Admission Board did not contend that Mr Bell’s bankruptcy would, on its own, make Mr Bell unsuitable for admission as a legal practitioner.  The Court of Appeal said that of more concern, however, were breaches of domestic violence orders made as part of a wider conflict between Mr Bell and his former wife.  The Court examined the evidence before it on the nature of those orders and the scope of the breaches and noted that some of the breaches may have been of a technical nature and relatively minor.  The Court also noted that the Magistrate who dealt with those matters recognised that they did not constitute assault or damage to proper but found that Mr Bell’s former wife may have felt intimidated or harassed. 

12. The Court of Appeal observed at [10] that of greater concern was material deposed to by Mr Jon Moore in an affidavit in proceedings in the Federal Magistrates Court.  Mr Moore swore in an affidavit that Mr Bell had sworn in an affidavit before that Court this observation, noted by the Court of Appeal at [11]:

    If this Court countenances any continuation of such a travesty, there will be the most severe consequences for the officers concerned. 

13. The Court of Appeal notes at [11] that in an affidavit Mr Bell swore on 3 March 2005 filed in the Family Court of Australia he deposed to this observation:

    I state here and now that if this kind of illegal brutality against my children does not now cease, then each and every person causing it will rue the day they ignored this warning. 

14. The Court of Appeal also noted at [11] that in an affidavit sworn on 29 April 2005 Mr Bell stated that in the context of the situation then prevailing in the Family Court concerning his children, the affidavits about that matter he filed were “no more than appropriate”. 

15. The Court of Appeal observed at [12] that the statements appeared to be threats to officers of the Family Court of Australia and the Federal Magistrates Court.  Recognising that Mr Bell may have been under particular stress arising out of his concern for his children’s welfare, the Court of Appeal nevertheless said this at [12]:

    Even accepting that Mr Bell made the threats when he was genuinely concerned for his children’s welfare whilst reacting emotionally and irrationally in the milieu of a traumatic family breakdown, they are not statements made by a person who is suitable for admission as a legal practitioner.  They demonstrate an inability to distinguish between vigorous but legitimate advocacy of a position and a reaction to an adverse decision of the courts which is entirely unacceptable in an officer of the court, as is Mr Bell’s evident tendency to identify a court which does not decision in his favour as part of a persecuting opposition. 
      [emphasis added]

16. The Court of Appeal observed that when questioned about these statements in the course of the hearing, Mr Bell accepted that his statements were unfortunate but did not suggest anything improper.  The Court of Appeal also observed that after further questioning, Mr Bell conceded that making threats in the terms quoted was improper but sought to justify them on the footing that he knew of “nothing else that would allow him to regain custody of his son”.  Mr Bell asserted in the admission proceedings that as a legal practitioner he would not seek to achieve an end by improper means but because he was emotionally involved in the case concerning his children, he was prepared, as the Court of Appeal observes at [13], to use even improper means to achieve an outcome in their interests.  The Court of Appeal also observed that many parents might emphasise with Mr Bell’s devotion to his children, but if all dedicated parents acted as he had acted, “the effectiveness of our society’s family law system would be dangerously undermined”.  The Court observed at [14] that:

    Mr Bell’s conduct is inconsistent with the unique and indispensable functions of a legal practitioner in the administration of justice. 

17. At [16], the Court of Appeal makes observations based upon its consideration of an affidavit of Mr Peter Byrnes, a solicitor and general counsel of the Queensland Law Society Inc.  In that affidavit, Mr Byrnes said that on 24 March 2005 he and the Admissions Board Secretary met with Mr Bell at his request to discuss why the Admission Board was opposing his application.  Mr Byrnes said that in the course of that discussion with Mr Bell, Mr Bell said this:

    … opposition to his admission could be traced to the pro‑paedophilia lobby which reaches into the court system and government of this State. 

18. The Court of Appeal observed at [16] that when questioned about this claim, described by the Court as an “extraordinary claim” Mr Bell did not seek to withdraw it or apologise but “again attempted to justify the apparently unjustifiable, claiming that he had ‘very good reason for saying that’ and he ‘could only assume that some improper influence’ was behind the opposition to his admission as a legal practitioner”. 

19. Further, the Court observed that Mr Bell had failed to comply with an order requiring him to re‑advertise his application for admission as a practitioner and when questioned about that failure, Mr Bell sought to justify his non‑compliance on the ground that the Chief Justice had suggested to him that the requirement for re‑advertising would not be waived only because the application was being adjourned to a date to be fixed.  The Court of Appeal observed at [17] that “[a] perusal of the transcript reveals nothing to this effect”.  At [18], the Court observed that Mr Bell had not made a full and frank statement about particular breaches; he lacked proper regard for the authority of the judicial system and was prepared to act improperly to achieve an end which he thought desirable; and was prepared to make “unsubstantiated, scandalous claims about those involved in the administration of justice”. 

20. The Court concluded that Mr Bell’s conduct was inconsistent with Mr Bell being a fit and proper person to undertake “the obligations and functions of a legal practitioner in the administration of justice”. 

21. The Court of Appeal also observed that the rejection of Mr Bell’s application did not forever preclude him from realising his goal of admission as a legal practitioner.  The Court observed that human experience is that people sometimes behave irrationally, emotionally, unwisely and atypically when involved in a discordant marital breakup especially where the custody and welfare of children is concerned. 

22. On 15 February 2010, Cronin J in the Family Court of Australia considered questions in relation to Mr Bell’s conduct before that Court in Batey‑Elton & Elton (No. 2) [2010] FamCA 271. In that matter, Cronin J made orders excluding Mr Bell from being present in the Courtroom on 15 February 2010 and made injunctions against him being present in any future Courtroom involving the particular proceedings. Cronin J at [3] described Mr Bell as a disruptive influence. In August 2009, Cronin J was presiding in proceedings relating to parenting orders between Ms Batey‑Elton and Mr Elton. At that time Mr Bell was providing assistance to the wife. As to Mr Bell’s conduct, Cronin J observed that he respectfully joined with the Court of Appeal’s observation that Mr Bell’s conduct was inconsistent with the unique and indispensable functions of a legal practitioner in the administration of justice. In Cronin J’s judgment published on 24 August 2009, his Honour observed that no‑one had objected to Mr Bell’s presence at the Bar Table. However, Cronin J observed that he had expressed concern that Mr Bell’s interruptions were noticeable including his agitations when counsel spoke and his consistent and loud discussions with the wife which were a distraction. Cronin J observed at [22] that Mr Bell had interrupted on a number of occasions and refused to be seated or leave the Bar Table when directed. Cronin J observed at [23] that Mr Bell’s interruptions included statements by him to the effect that he was present “to ‘ensure’ that I complied with the law”. Cronin J observed at [24] that in the course of the proceedings Mr Bell said that he “would not be ‘defamed from the bench’” and that Cronin J was “running a star chamber”. Cronin J observed at [24] that he requested Mr Bell to leave the Court but he refused. Mr Bell observed that the wife was not capable of arguing the case and it was unfair to make her do so. Mr Bell observed, “Why don’t you comply with the law?”

23. Cronin J observed at [25] that Mr Bell wanted to be an advocate for the wife and not simply provide assistance to her and at [26] that the particular difficulty had become pronounced because of Mr Bell’s interruptions and his refusal to recognise the rulings and authority of the Court.  Cronin J at [26] described Mr Bell’s presence as “distracting and time‑wasting”.  At [30], Cronin J described Mr Bell’s behaviour as “nothing short of contemptuous”.  Cronin J excluded Mr Bell so that the “long‑standing issues between the parties could proceed”.  At [37], Cronin J observed:

    Mr Bell shows contempt for the Court and disrupts its processes.  He refuses to comply with directions to desist.  There is no sign of his behaviour abating.  There is no alternative other than to exclude him [from] the court room. 

24. The Court of Appeal decision and the decision of Cronin J examine a range of factual matters.  The purpose of referring to these decisions extensively is not to descend into a re‑adjudication of the facts before each Court but simply to provide the factual foundation upon which those Courts expressed observations about the disposition, demeanour and conduct of Mr Bell. 

25. In Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd [2010] NSWSC 284 on 14 April 2010, Biscoe AJ in the Equity Division made these observations at [1] and [2]:

    1.When this matter was called on for hearing this morning Mr Ian Bruce Bell applied orally for leave to appear today on behalf of the second defendant [Mr Harding].  No prior notice of this application was given to the plaintiff or the Court. 

    2.Mr Bell has not been admitted to practice as a legal practitioner.  He described his occupation as a consultant.  He informed me from the bar table that he obtained a law degree in Queensland in 2004, that he holds a Queensland Bar practice course certificate, that he has an application pending in Queensland for admission as a legal practitioner, and that he has experience in litigation. 

1. The Commonwealth in these proceedings contends that the representations recited at para 2 are not correct as Mr Bell’s application for admission as a legal practitioner had been adjourned generally by the Chief Justice in the Supreme Court of Queensland and no step had been taken by Mr Bell to prosecute that application for over two years.  However, the application is not struck out and remains on foot, generally adjourned. 

2. In Prentice & Bellas and Anor [2012] FamCA 108, Murphy J made a series of observations in relation to Mr Bell’s conduct concerning his role in proceedings conducted between an applicant father (concerning final orders which provided relevantly that the child, the subject of the proceeding, live with him since 2002) and the mother of the child. The father sought orders from the Court that Mr Bell be compelled to immediately take down a particular website or alternatively remove offending material from that website as detailed in an affidavit and annexures. At [9], Murphy J described the website as “vile and offensive”. At [10], Murphy J observed that the orders sought against Mr Bell “can be seen to emanate from the fact that the same website reveals a postal address of …, and telephone numbers which are said to be the address and phone numbers of Mr Bell”. Murphy J at [11] described an article on the website concerning judicial corruption as containing “vile and baseless allegations”. Murphy J also described some of the observations on the website as reflecting “bizarre contentions”. The Commonwealth relies upon an affidavit of Mr Hanson sworn 16 July 2012 which exhibits screen prints from the website.

3. Each page of the screen shots exhibits a reference to: 

   realjustice?  RJ will follow process to uncover a chronic corruption network this week … wait more from the desk of Mr Bell. 

4. The website also says this:

   HIGH COURT CORRUPTION CHALLENG[ED]

   HIGH COURT CORRUPTION CHALLENGED For the first time in Australian history two High Court judges are being prosecuted …

   READ MORE

5. On the second last page of the screen shots an article appears:  “HIGH COURT CORRUPTION CHALLENGED”.  Next to the article is a repeat of the reference to Mr Bell quoted earlier.  In the article, these observations are made:

   For the first time in Australian history, two High Court judges are being prosecuted for defying the Constitution and refusing to assist parents of sexually abused children betrayed by Family Court judges.

   The Real justice lobby group last week submitted for filing Constitutional writs against High Court judges Kiefel and Bell for their refusals to file such writs against corrupt Family Court judges and magistrates. 

6. The article goes on to observe that as a result of “this Constitutional protection against corruption section 75(v) is being treated with contempt thus allowing corruption to flourish even to the extent that judges in lower courts are never dealt with for misconduct in matters dealing with sexual abuse of children”.  The article goes on to deal with that topic more extensively.  The website in question is described as realjustice.org.au. 

7. Murphy J ultimately made orders requesting that officers of the Queensland Police Service take all such steps as might be reasonably available to them to investigate whether any criminal offences, pursuant to the Queensland Criminal Code, had been committed by the mother or Mr Bell or any other person. 

8. Mr Bell strongly disputes any wrongdoing in respect of any of the matters mentioned by Murphy J.  Mr Bell also says that he is concerned that particular websites may have been attacked resulting in the posting of unauthorised matter or comments. 

9. I have had regard to the observations in these judgments for the purposes of s 144 of the Evidence Act 1995 (Cth).

10. In the present proceeding, Mr Thompson filed an affidavit on 10 April 2012 in support of his application for review of the two decision in question.  Mr Bell accepts that he drafted this affidavit.  In that affidavit, extravagant language is used to describe various matters.  That emphatic or extravagant language fails to reflect the balance and proportionality to be expected of a person seeking to assist a party in litigation and especially a person with a law degree from a University and a Bar Practice Course Certificate who, although not admitted to legal practice, seeks to assist litigants in litigation. 

11. For example, at para 4 Mr Thompson says this:

    … the First Respondent [which, in this paragraph, is a reference to Federal Magistrate Spelleken] subsequently on 13 March 2012, simply refused to allow it and harangued me very nearly into a nervous breakdown.  So bad was her harassment, malicious, badgering and needling of me, that I was astounded, until I later discovered that the directions conference we were at, was not being audio recorded.

    [emphasis added]

12. At para 5, Mr Thompson describes events concerning Federal Magistrate Spelleken in these terms:

    … everything went off the rails, legally, and all significant orders made were – through four successive, substantiative hearings – conducted in defiance and Contempt of my Right to Procedural Fairness and denied me the assistance at court to which I was properly entitled.  These hearings also saw scads of hearsay accepted as fact without me having any opportunity to be heard or to rebut a litany of false and hopeful statements made from the bar table for the other side.  These were encouraged by and characterised and accepted by the First Respondent [which, in this paragraph, is a reference to Federal Magistrate Spelleken] as actual Evidence. 

    [emphasis added]

13. At para 8, reference is made to a decision of Justice May of the Family Court which is said to have involved “flagrant bias”.  Justice May is said, in reaching the relevant decision in question, to have “arbitrarily ignored the [particular] fact and arbitrarily and capriciously dismissed my appeal without a hearing”.  Although I would not necessarily characterise as exaggerated or unorthodox, a person’s description of a decision (or conduct) as arbitrary or capricious, the use of those terms in connection with a decision or the conduct of a judicial officer would ordinarily be supported by a sequence of facts which are said to support the conclusion.  Paragraph 8 of Mr Thompson’s affidavit does not make that clear at all. 

14. At para 10, Mr Thompson criticises the position put by the other party in the proceedings before Federal Magistrate Spelleken and does so in this way:

    … whilst the litany of baseless assertions and lies from the other side at the bar table continued and were, in my absence, simply adopted as evidenced fact by [Federal Magistrate Spelleken].  So obscene was this travesty that …

    [emphasis added]

15. At para 12, a reference is made to Ms Kane in these terms:

    At the Directions hearing on 13 March 2012, the First Respondent, in flagrant and personally nasty bias, angrily insisted, despite my protestations and that of my then present legally trained friend, that the appeal index in MY appeals, would not be the perfectly correct 56 items in the draft index, but the 24 items in the wife’s draft index. 
      [emphasis added]

16. At para 13, Mr Thompson says (as drafted by Mr Bell):

    I was so disgusted at all of the travesties occurring on that day that my companion and I did indeed leave early in complete disgust.  Far more relevantly, I draw the court’s attention to this lame intention to provide some patina of propriety to the disgraceful legal improprieties listed in part, above …
      [emphasis added]

17. At para 14, Mr Thompson describes Ms Kane’s decisions as “absurd and unlawful” and as matters reflecting “subterfuge” and at para 14(d) “subterfuge … fuelled by clear bias”.  At para 15, the phrase “absurdly ridiculous” is used in the context of appearing in that paragraph. 

18. As already mentioned, Mr Thompson’s affidavit was formulated by and thus the language was selected by Mr Bell, as language Mr Bell thought appropriate for the drafting of Mr Thompson’s affidavit and appropriate as a proper description of the conduct about which complaint is made. 

19. I mention these matters because the language used is not language consistent with balance, proportionality, measure and reduction.  It is inflammatory and its emphatic character does not advance the analysis of the merits of the contention which is entirely obfuscated by the extravagance of the language.  Mr Bell’s approach to these matters is reminiscent of the observations in the Court of Appeal to this effect:

    [Mr Bell’s statements] demonstrate an inability to distinguish between vigorous but legitimate advocacy of a position and a reaction to an adverse decision of the courts which is entirely unacceptable in an officer of the court, as is Mr Bell’s evident tendency to identify a court which does not decide in his favour [or the litigant who Mr Bell is assisting] as part of a prosecuting opposition. 

20. The question in issue is whether the interests of justice are served by enabling Mr Bell to represent, advise and be an advocate for Mr Thompson on the present application on the question of jurisdiction. 

21. Having regard to the way the application has been framed by Mr Bell and the way in which the affidavit in support of the application has been framed, taking into account the general concerns about Mr Bell’s manner and conduct in seeking to support, assist and act for litigants, but in particular, Mr Thompson, I am not satisfied that the interests of justice are served by granting leave to Mr Bell to represent Mr Thompson. 

22. At least, so far as this proceeding is concerned, it seems to me that a person who is not admitted as a legal practitioner but who seeks the leave of the Court to assist a litigant (who may be physically unwell, infirm, emotional or depressed) must by conduct, demeanour, attitude or disposition be willing to and capable of advancing the interests of justice by helping the Court to quell the controversy in question by assisting the litigant to organise his or her papers; to isolate the material facts in a disciplined and dispassionate way; to isolate the relevant issues to be dealt with; and to respond to questions from the Court the answers to which might help to address the issues relevant to the litigant being assisted.  Even then, it would be exceptional to grant leave as such a person may not be analytically equipped or have the necessary experience (or both) to assist the litigant and therefore the Court in this way.  If so, there is then no utility in granting leave in such circumstances as the potential waste of Court time and resources would be significant.  Legal and factual argument that might be dealt with efficiently might then become lengthy and unnecessarily circular. 

23. Moreover, the essential characteristics inherent in the notion of “fit and proper person” apply with equal force to such a person seeking leave even though the particular question in issue is not a question of admission to legal practice. 

24. Accordingly, leave will be refused. 

25. However, the following order will be made.

26. The Court will refer Mr Thompson to a lawyer for legal assistance by 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 AD (JR) Act and on the further ground that no constitutional writ lies in respect of either decision under s 39B of the Judiciary Act 1903 (Cth), as the Commonwealth contends.

27. In order to assist in the provision of legal advice to Mr Thompson on the questions the subject of the Certificate, it will be necessary for Mr Thompson to more precisely identify the decisions under challenge in the Originating Application.  The decisions are described in this way in the Originating Application: 

    1.Review the decision of the Second Respondent to make all of the orders she has made in the Applicant’s matter.

    2.Review the decision of the First Respondent to deny the Applicant available legally trained assistance on 13 March 2012 and on that date, to make the orders made.

28. Accordingly, Mr Thompson needs to identify precisely each of the particular decisions of Federal Magistrate Spelleken or each of the orders made by Federal Magistrate Spelleken which are sought to be reviewed in this Court.  In doing so, Mr Thompson needs to identify the date of each order, the terms of each order and a short description of the application giving rise to each order.  As to the second decision, Mr Thompson should also identify each of the orders or directions made on 13 March 2012 by Ms Kane which are sought to be reviewed in this Court and in doing so, Mr Thompson needs to identify the terms of each order or direction and, contextually, the application which was being dealt with on that day by Ms Kane.  Mr Thompson will be ordered to file a further affidavit briefly setting out these matters by 10 August 2012. 

29. The Interlocutory Application will be adjourned to enable Mr Thompson to obtain that legal advice. 

30. The costs will be reserved. 

31. A further order will be made varying the order made on 8 May 2012 so as to reflect the correct position which is that the applicant’s Interlocutory Application was on that day dismissed not the Originating Application. 

32. Leave is given to file and read the affidavit of Mr Hanson sworn 16 July 2012.  The print‑out (18 pages) under the description forums.altnews.com.au is marked as Exhibit 1 in the Interlocutory Application. 

I certify that the preceding fifty‑seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        17 July 2012