Wood v Lee-Joe (No.3) - [2015] FCCA 354

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOOD v LEE-JOE (No.3)

[2015] FCCA 354

Catchwords:
PRACTICE AND PROCEDURE – Appointment of litigation guardian – whether person who purportedly on behalf of another person commenced proceedings under s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act) should be appointed litigation guardian in relation to that other person – whether a person who has experienced intermittent and unpredictable periods of incapacity to adequately instruct the conduct of proceedings is a person in need of a litigation guardian – litigation guardian not appointed.

HUMAN RIGHTS – Person (Carer) as carer for another (Complainant) lodges a complaint of unlawful discrimination with the Australian Human Rights Commission (Commission) – complaint before the Commission terminates on 18 November 2013 – Carer commences proceedings, purportedly as carer for the Complainant, pursuant to s.46PO(1) of the Act within the 60 day period provided for by s.46PO(2) – whether Complainant should be substituted for the Carer as applicant in the proceedings commenced by the Carer – whether the Complainant should be allowed to bring her application to be substituted as the applicant in the proceedings even though 60 days have passed after the termination of the complaint for unlawful discrimination before the Commission.

PRACTICE AND PROCEDURE – Whether proceedings for contempt should be dismissed on the ground the applicant has no reasonable prospects of successfully prosecuting those proceedings.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PH(2), 46PO, 46PO(1), 46PO(2), 46PO(3), 46PP(1)

Disability Discrimination Act 1992 (Cth) s.42

Federal Circuit Court Rules 2001 (Cth), rr.1.05(2), 11.08(1), 11.09(1), 11.11(1), 13.10(a)
Federal Court Rules 2011 (Cth), r.8.22

Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432
Low v Commonwealth of Australia [2001] FCA 702
Masterman-Lister v Brutton & Co; Masterman-Lister v Jewell & Anor [2002] EWCA Civ 1889
Wood v Lee-Joe [2014] FCCA 309

Applicant:

HARRY WOOD, CARER FOR ELSIE LYNNE NEILSON

Respondent:

ANDREW MARK LEE-JOE

File Numbers:

SYG 3226 of 2013 & SYG 225 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

7 July 2014

Delivered at:

Sydney

Delivered on:

20 February 2015

REPRESENTATION

Solicitor for the Applicant:

Dr R Spence of Integrity Criminal Legal

Counsel for the Respondent:

Mr T Brennan

Solicitors for the Respondent:

P A Keith, Solicitor

ORDERS

SYG 3226 of 2013

Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the proceedings are dismissed.
The applicant pay the respondent’s costs as agreed or taxed.

SYG 225 of 2014

The application in a case to file an amended application showing that the application is brought by Elsie Lynne Neilson by her litigation guardian Harry Wood is dismissed.
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the proceedings are dismissed.
The applicant pay the respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3226 of 2013 & SYG 225 of 2014

HARRY WOOD,…

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.

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Details

Case: [2015] FCCA 354
Decision Date: 20 February 2015

CaseChat Overview and Summary

In *Wood v Lee-Joe (No.3)*, the applicant, Ms. Wood, sought to be appointed as a litigation guardian for Ms. Lee-Joe in proceedings commenced under section 46PO(1) of the *Australian Human Rights Commission Act 1986* (Cth). Ms. Wood, who had been a carer for Ms. Lee-Joe, had lodged a complaint of unlawful discrimination with the Australian Human Rights Commission on Ms. Lee-Joe's behalf. Following the termination of that complaint, Ms. Wood initiated proceedings within the prescribed 60-day period, purportedly acting as carer for Ms. Lee-Joe. The proceedings were heard by Judge Manousaridis in the Federal Court of Australia.

The central legal issues before the court were whether Ms. Wood should be appointed as a litigation guardian for Ms. Lee-Joe, and consequently, whether Ms. Lee-Joe should be substituted as the applicant in the proceedings. A further issue arose regarding whether Ms. Lee-Joe should be permitted to bring her application for substitution as the applicant, notwithstanding that the 60-day period for commencing proceedings after the termination of the Commission complaint had expired. The court also considered whether proceedings for contempt, initiated by Ms. Wood, should be dismissed due to a lack of reasonable prospects of success.

Judge Manousaridis determined that Ms. Lee-Joe was not a person in need of a litigation guardian, as she had not demonstrated intermittent and unpredictable periods of incapacity to adequately instruct the conduct of proceedings. The court found that Ms. Lee-Joe had the capacity to instruct her legal representatives. Consequently, Ms. Wood's application for appointment as a litigation guardian was dismissed. As a result, the court also refused to substitute Ms. Lee-Joe as the applicant in the proceedings, and the contempt proceedings were dismissed on the basis that Ms. Wood had no reasonable prospects of successfully prosecuting them.

Orders