AYZ v State of Western Australia

BANKS-SMITH J: 1 This matter was the subject of an urgent interlocutory application that came before Jackson J on 25 October 2022. The application was brought by five prospective applicants, all under the age of 18. It relates to their detention at Banksia Hill Detention Centre and within Casuarina Prison. The applicants were referred to as 'prospective applicants' by Jackson J due to the operation of Part 7 of the Federal Court Rules 2011 (Cth): orders by way of injunctive relief were sought prior to the start of a proceeding in this Court. I will continue to use that term. 2 As appears from Jackson J's reasons - AYZ v State of Western Australia (Department of Justice, Corrective Services) [2022] FCA 1286 - a preliminary issue raised by the Court was the need for litigation representatives to be appointed for the prospective applicants in order to regularise the commencement of their application. 3 These reasons address the applications for the appointment of litigation representatives, which came before me on 16 December 2022. I made orders that day and indicated I would publish short reasons.

Purpose 4 It is not necessary to repeat the various statements as to the purpose for rules of court that allow for the appointment of litigation representatives. They are well recognised: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [25] (Black CJ, Moore and Finkelstein JJ); and Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [18] (Flick, Jagot and Barker JJ).

Regime in this Court for appointment of litigation representatives for minors 5 Division 9.6 of the Rules addresses proceedings where a party is a person under a 'legal incapacity'. The Schedule 1 Dictionary to the Rules defines a person under a legal incapacity to mean a minor or a mentally disabled person. Rule 9.61 relevantly provides that a person under a legal incapacity may start proceedings only by the person's litigation representative. The Rules do not proscribe who may act as a litigation representative, save for particular exclusions under r 9.62. Those excluded are a person under a legal incapacity, a person who has a different interest in the relevant proceedings to the person under the legal incapacity, and a corporation or organisation (save for certain trustee companies, such as the Public Trustee of Western Australia). 6 Expressed broadly, there are two stages for the appointment of a litigation representative. First, r 9.63(1) provides that an application for an order appointing a person as a litigation representative must be brought by a party or interested person. The Schedule 1 Dictionary defines 'interested person'. In the case of a minor, it means 'the person's parent or guardian'. 7 Second, there are a number of procedural matters that must be addressed. The application must be served on the person under the legal incapacity. Before taking any step in the proceeding, the litigation representative must consent to being appointed and must confirm they are not excluded by r 9.62. They must produce a certificate that confirms they have no interest in the proceeding that is adverse to the interest of the person under the legal incapacity, and unless they are a lawyer, the certificate must be signed by their lawyer.

Appointments not in issue for four prospective applicants 8 As to four of the prospective applicants, despite some procedural issues along the way, by the time the matter came before me I was satisfied that an application had been brought by a parent or guardian as required under r 9.63(1), and that it was appropriate that the identified persons be appointed litigation representatives for the respective prospective applicants. Consents were secured from the litigation representatives and notice was given to the prospective applicants. The necessary certification was provided. 9 However, an issue remained with the prospective applicant CYZ. In short, neither his parents nor his guardian have brought or seek to bring an application for appointment of a litigation representative. An application was purportedly filed by his carer, who I will refer to as CYX. The State contended that the carer is neither a parent nor guardian within the meaning of r 9.63(1) and that in those circumstances no valid application has been made on behalf of CYZ.

CYZ and his 'parent or guardian' 10 CYZ's solicitors have deposed to his circumstances. CYZ is 17 years old. He has been in the care of the Chief Executive Officer (CEO) of the Department of Communities since he was 3 years old. He is subject to a protection order under the Children and Community Services Act 2004 (WA). A protection order gives the CEO 'parental responsibility' for the period specified in the order: s 54. 'Parental responsibility' in relation to a child is defined in s 3 of the Children and Community Services Act to mean 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. The CEO has responsibility for the day-to-day care, welfare and development of the child to the exclusion of any other person: s 29(2), s 54(2), s 57(2). Having regard to these statutory provisions, I accept that for the purpose of r 9.63(1) and the definition of 'interested person', the CEO is the guardian of CYZ. 11 CYZ's solicitors ascertained that CYZ's biological father is in a correctional facility in New South Wales. They provided copies of the application for appointment of a litigation representative for CYZ on his father by email addressed to him at that facility, and received confirmation that they were provided to him. The solicitors were unable to locate CYZ's biological mother. 12 CYZ's solicitors received instructions from CYX to bring the application for appointment of a litigation representative. One of CYZ's solicitors has spoken directly to CYZ who told her that he wanted CYX to bring an application that CYX be appointed as his litigation representative. 13 The Court has received an affidavit from CYX, including a copy of her curriculum vitae. She deposes to her history and knowledge of CYZ over a six year period. She states that CYZ has no meaningful relationship with his biological parents, and explains why that is the case. It is not necessary to record these matters fully. CYX's employment history includes years spent working with the Disability Services Commission as a social trainer; the Department for Child Protection & Family Support, as a residential care officer; and the School of Special Educational Needs: Behaviour and Engagement, as a student support officer.

Dispensing with the requirement of an application 14 It is well recognised that the Court may dispense with compliance with the procedural requirements of Division 9.6 of the Rules: Hudson at [17]. 15 There are many authorities where it is apparent that procedural steps such as service or formal consent to act as a litigation representative have been dispensed with. However, the parties were unable to point to an authority where the Court had dispensed with the requirement of r 9.63(1) that a party, parent or guardian bring an application in the case of a minor. 16 There are a number of ways in which an application might be brought that would seem to comply with the Rules. First, the CEO as guardian could bring the application. The parties seemed to assume that there would be an inappropriate conflict of interests if the CEO brought an application under r 9.63(1), having regard to the CEO's responsibilities towards CYZ, and in circumstances where the proposed action is against the State. I am not sure that would be the case, particularly where the CEO's conduct involves bringing an application where it is intended that a third party be the litigation representative, and where the State has no real reason to oppose such an application being brought. However, it is not necessary to resolve that question at present. The CEO did not offer to bring an application in this case and elected not to be heard on this application. 17 Presumably the CEO would take legal advice as to available options in a circumstance such as this where a protection order is in place. I was told by senior counsel for the State that the CEO might approach the Public Trustee to bring an application. To be fair, senior counsel indicated that she did not act for the CEO and had not taken instructions on the point. It is unclear, without more, how the Public Trustee would meet the definition of a parent or guardian for the purpose of r 9.63(1). I also note that in the circumstances of this case there was information before the Court from the CEO to the effect that the Public Trustee had declined to act as CYZ's litigation representative. It is therefore unlikely that the Public Trustee would have brought any application under r 9.63(1), assuming it could do so. 18 Second, the State as a party could bring the application. It is not uncommon in matters proceeding under the Migration Act 1958 (Cth) for the Minister, usually a respondent to such proceedings, to apply for the appointment of a litigation representative in the case of an applicant or appellant who is a minor. A parent is often appointed as the litigation representative. Hudson provides an example of this course. In Hudson the respondent Minister sought an order that the mother be appointed the litigation representative of a 4-year-old appellant child: at [12]. I accept that an argument might arise in this case as to whether a party to a prospective proceeding (as against to a proceeding that has been formally started) is a party for the purpose of r 9.63(1). But at minimum the State is a party to the injunction application. 19 Third, and subject to the same argument that I have referred to in [18], it may be open for another prospective applicant as a party to bring the application with respect to CYZ, by that prospective applicant's duly appointed litigation representative. 20 Fourth, there is the potential for the Court to dispense with the requirement that an application be brought by a parent or guardian (r 1.34) and to exercise the power to appoint on its own initiative (r 1.40). 21 In the end, I have decided in the circumstances of this case to implement this fourth course. I might add that I have done so reluctantly. In a matter involving a minor, great care should be taken before exercising a power where there are persons who could have applied to the Court under r 9.63(1) and who have knowledge of the applicant and contact with him. 22 But in this case I have decided to dispense with the formal requirement that an application be brought by a parent or guardian for the following reasons. 23 First, CYZ is in the sad circumstance of having no parent present in his life. His mother's whereabouts are unknown. His father has been located but has not responded to service of the application. I do not infer from the fact that his father has not responded to communications from CYZ's solicitors that he is opposed to the application or appointment of CYX. The inference is equally open on the facts that the father takes no interest in the application or that he is not in a position to form any view or implement any step. 24 Second, the CEO as guardian, and no doubt aware of the absence of an engaged parent and with knowledge of the State's contention that the proceeding should be dismissed unless a litigation representative is appointed, has not sought to bring an application on his behalf. There is therefore no-one who fits within the description of 'parent or guardian' seeking to bring an application on his behalf. 25 Third, the nominated litigation representative, CYX, is a person who seems suitable to act in that role, and the CEO has indicated that they neither consent to nor oppose her appointment. On that basis the State also indicated at the hearing that it did not oppose the Court dispensing with the formal requirement that an application be brought by a parent or guardian. 26 Fourth, all other procedural requirements with respect to the appointment of CYX have been met. I am satisfied that there has been appropriate service, consents, legal representation and certifications as required. 27 Fifth, r 9.65(1) provides for an application to the Court for removal of a litigation representative. That course could be adopted if any substantive issue arises. 28 Sixth, and of particular significance, CYZ is now 17 years old. I consider that his own views should be given some weight, albeit that the appointment of a litigation representative is clearly required. There was evidence, which I accept, to the effect that he has expressed to his solicitors the desire that CYX act as his litigation representative. 29 Seventh, this is not a case where I need to assess whether or not an applicant is or is not under a legal incapacity, in contrast to where the legal incapacity is said to arise from a mental disability. Under the Rules, CYZ's age determines that he is under a legal incapacity. The Court's decision to appoint a litigation representative is simpler in such circumstances. 30 Eighth, although the Rules of this Court do not expressly provide for the Court of its own motion to appoint a litigation representative, such a power is provided for in the rules of other courts: see for example r 11.07 and r 11.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); and the discussion in Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169 at [95]-[102] (Rangiah, Charlesworth and Banks-Smith JJ). I recognise and acknowledge the differences in these statutory regimes, and it goes without saying that I must act in accordance with the Rules of this Court, but it is interesting to observe that that other courts do have the express power to appoint litigation representatives without a formal application from a party, parent or guardian, and the court is expected to consider the exercise of such power in appropriate circumstances: Drummond v Canberra Institute of Technology [2020] FCAFC 131; (2020) 278 FCR 436 at [41]-[47] (Flick, Katzmann and Charlesworth JJ). 31 Accordingly, in the particular circumstances of this case, I consider it appropriate to order that CYX be appointed the litigation representative for CYZ, despite the absence of an application from a parent or guardian under r 9.63(1). 32 I should add that counsel for CYZ submitted that I should interpret 'parent' in the Schedule 1 Dictionary broadly. In this case it was said that the term should include a person with parental responsibilities such as a carer. Without deciding the issue for all purposes, it seems to me that in circumstances where, under the statutory regime for protection orders referred to above, the CEO has responsibility for the day-to-day care, welfare and development of the child 'to the exclusion of any other person', it would not be appropriate to interpret the term 'parent' in the definition of 'interested person' in the Rules in the manner contended for by counsel.

Suppression 33 The prospective applicants sought suppression orders that have the effect of anonymising the names of the respective litigation representatives. As all prospective applicants are minors, and the naming of their litigation representatives might tend to identify them, I consider it in the interests of the administration of justice that such orders be made, pending further order. Accordingly there will be suppression orders made under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground set out in s 37AG(1)(a), on the basis that the order is necessary to prevent prejudice to the proper administration of justice that may occur by the disclosure of the names of the litigation representatives.

Conclusion 34 The litigation representatives identified on behalf of the prospective applicants are accordingly appointed, with retrospective effect. It was not in issue that such orders may have retrospective effect: CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [178] (Kenny J); and Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1469 at [25] (Wigney J).

Costs 35 The parties agreed that there should be no costs of the application for appointment of the litigation representatives. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.