Barton v Secretary, Department of Health

Before the primary judge 7 The respondents had repeatedly failed to comply with orders requiring them to file and serve a concise statement in response to the Secretary's concise statement, instead filing numerous interlocutory applications with supporting affidavits. The Secretary applied for default judgment, which was listed for hearing on 5 May 2021. The night before the hearing, Dr Barton filed a report from a psychiatrist, Dr Milad. That report stated Dr Barton had a history of post-concussion syndrome as a result of a head injury and traumatic concussion some 20 years ago, which had left him with executive brain dysfunction and difficulty with memory recall, problem-solving, decision-making and various other high cognitive abilities. The Secretary did not press the application for default judgment that day. 8 The primary judge described the active process that his Honour adopted on and from 5 May 2021, being the date upon which the default judgement application was to have been heard, to address the question that Dr Barton had raised of legal incapacity. This is important given the grounds advanced both for the application for an extension of time and leave to appeal, and as proposed grounds of appeal. His Honour said: [16] Dr Barton asserted that he lacked capacity to defend the proceeding. In the absence of any application from Dr Barton for the appointment of a litigation representative, it was necessary to consider how the question of his capacity would be determined. On 5 May 2021, I ordered that the Registrar write to Dr Milad to ascertain whether he was willing to be appointed as a Court expert. I ordered that if Dr Milad was willing to be so appointed, he provide a report on the question of whether or not Dr Barton is under a legal incapacity. Dr Milad failed to respond to inquiries made by the Registrar, and, on 10 June 2021, the parties were so advised by the Court. [17] Another case management hearing was held on 16 July 2021. The Secretary proposed that Dr Barton be examined by an independent psychiatrist identified by the Secretary, or if he was unwilling to consent to such an examination, that the Court determine the question of capacity from the material before the Court. Dr Barton was not willing to consent. I made orders requiring the filing and service of any further material, and indicated that I would determine the question on the papers. [18] After two extensions of time for compliance with my orders of 16 July 2021, the parties eventually filed all their further material. It is, accordingly, necessary for me to determine the question of Dr Barton's capacity on the basis of the material before the Court. 9 The reasons why Dr Barton was not willing to consent to an independent examination of him, were contained in an email sent by him to the primary judge's associate on 6 July 2021. The email made allegations of bias because of the proposed involvement of the Secretary in the selection of an appropriate independent, court-appointed, expert. In a departure from that stance, or perhaps as an additional but apparently uncommunicated reason, he now contends the examination of him should have been conducted by a psychologist, rather than a psychiatrist, because he is not claiming any mental illness, but rather cognitive impairment due to traumatic injury. Dr Barton's email also made reference to other alternatives for obtaining the necessary expert evidence, but it would seem that this was not raised at the 16 July 2021 case management hearing. Whatever the reason, there was no independent expert examination and accordingly the primary judge had to proceed on the available evidence and other information. 10 The primary judge summarised concisely the relevant rules and principles relevant to legal capacity. No suggestion was made that the primary judge misdirected himself on the relevant principles to be applied, as set out above, or otherwise. To the limited extent that his Honour's approach and reasoning, as opposed to conclusion, was criticised, it concerned the application of those principles. It is therefore convenient to reproduce that part of his Honour's judgment, noting the emphasis added to [23(2)] as to the rebuttable presumption of competence and at [23(3)] as to the onus: [19] Rule 9.61 of the Federal Court Rules 2011 (Cth) (the Rules) provides: A person under a legal incapacity may start, or defend, a proceeding only by the person's litigation representative. … [20] Further, r 9.66(1) of the Rules provides that: Anything in a proceeding that is required or authorised by these Rules to be done for a person under a legal incapacity by the person may only be done by the person's litigation representative. … [21] Rule 9.63(1) provides that a party or an interested person may apply to the Court for an order appointing a person as litigation representative. [22] The expression "person under a legal incapacity" is defined in the Dictionary in Sch 1 of the Rules to mean either a minor, or "a mentally disabled person." The Dictionary defines the expression "mentally disabled person" to mean: a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding. [23] In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114, a Federal Magistrate had made an order preventing the appellant from taking any further steps until either a litigation guardian was appointed, or the appellant provided a psychiatric opinion indicating that a litigation guardian was not required. The now repealed Federal Magistrates Court Rules 2001 (Cth) prescribed that a person needed a litigation guardian, where the person either did not understand the nature and possible consequences of the proceeding, or was not capable of adequately conducting or giving instruction for the conduct of the proceeding. The Full Court traced the history of the law relating to the appointment of a litigation guardian and drew the following principles from the authorities: (1) The purpose of the power to appoint a litigation guardian is to ensure that litigants who would otherwise be at a disadvantage are properly protected, as well as to protect the processes of the Court: at [25]. (2) There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: at [26]. (3) When it is alleged that a person is incompetent, the onus of proof is on those so asserting: at [26]. (4) The means by which the Court will determine whether a guardian should be appointed can vary from case to case. In almost every case, a Court hearing an application to appoint a litigation representative will need medical evidence: at [27]. (5) There are, however, cases in which no medical evidence is available, for example where a litigant refuses to submit to a medical examination. There will also be cases in which the lack of capacity is so clear that medical evidence is not called for. In those cases, the Court is entitled to rely on its own observations to make an assessment about the capacity of a party: at [27]. (6) Whether the Court is satisfied of the need for a litigation guardian in the absence of medical evidence will depend upon the circumstances of the particular case: at [33]. [24] The Full Court observed at [28] that the Federal Magistrate had the power, either on application or on the Federal Magistrate's own motion, to consider whether a party needed a litigation guardian. The Full Court held that the Federal Magistrate had erred, relevantly, by placing an onus upon the appellant to prove her own capacity: at [30]. The Full Court also observed at [33] that where a party is unrepresented and the opponent does not raise any point about the party's competence, but the Court has serious doubts about that matter, the Court should consider the matter on its own motion. [25] In Burnett v Browne (No 2) [2021] FCA 373 at [3], O'Callaghan J referred with approval to the principles identified by Derham AsJ in Vishniakov v Lay (2019) 58 VR 375. In addition to the principles identified above, Derham AsJ noted at [30]: (a) The words in the relevant Court rule "in relation to the proceeding" were important as they focus on the person's ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction. (b) The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another. (c) A person will be incapable of managing their affairs in relation to the proceeding if they do not have the mental capacity to understand the nature of the acts or transactions in respect of which they need to give instructions to the lawyer. [26] In Burnett v Browne, O'Callaghan J observed at [43] that where psychiatric evidence or a diagnosis is relied upon, the evidence must demonstrate why it is that the diagnosis compromises the litigant's ability to provide instructions, seek advice and to participate, if necessary, in a hearing. His Honour noted that the relevant matters include the litigant's ability to understand the nature and possible consequences of the proceeding, and ability to instruct an advisor with sufficient clarity to enable the advisor to understand the situation and advise the litigant appropriately. [27] In Dauguet v Centrelink [2015] FCA 1212, the appellant appealed a decision to refuse the appointment of a litigation guardian. The application was refused at first instance, in part because no medical evidence in relation to capacity was provided and also because the applicant's behaviour in Court suggested that he understood and could follow the proceedings. In rejecting the appeal, Murphy J considered the following matters to be of relevance: (1) The appellant's appearance before the primary judge, and his affidavits, indicated that he was not incapable of managing his own affairs in the proceeding. The affidavits in the proceeding which he said were in his own words indicated that he understood the proceeding (both before the primary judge and on appeal): at [23]. (2) The appellant understood the nature of the application to appoint a litigation guardian and the basis for the application: at [25]. (3) The applicant followed the arguments, went to the relevant paragraphs of the authorities put against him, and he managed to put his case: at [25]. [28] In Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at 413 at [61], Edmonds J identified a number of factors relevant to whether a person is under a legal incapacity. Those factors included the following: (1) Whether the person has the ability to understand that he or she requires advice in respect of the relevant legal proceeding. (2) Whether the person has the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord. 11 The primary judge then applied the above principles, including in considering the available medical evidence and the lay witness evidence that was before his Honour, as well as considering Dr Barton's written and oral communications with the Court. The latter included what he had said at case management hearings, some of which were described to give an indication of the topics they covered. The medical evidence considered by the primary judge comprised: (a) two certificates and a report from Dr Barton's general practitioner, Dr Somander, which did not address Dr Barton's ability to manage his affairs in the proceeding; (b) two reports from a psychiatrist, Dr Milad, which established that Dr Barton's capacity to manage his affairs in the proceeding was impaired, but did not express any opinion as to the extent to which his condition impacts upon his ability to manage his affairs in the proceeding; (c) a report from Mr Killoran, a psychologist, which his Honour found carried little weight because of, in substance, its material deficiencies; (d) a report from Dr Leathern, a psychologist, which indicated that Dr Barton performed at above average levels on most measures of verbal ability so long as he was free from distraction and did not have to remember too much at once, but once he had to process several levels of information at once, he forgot some of the elements and in everyday life may reach a conclusion that is not based on all of the facts, and that his information processing speed was reduced when he had to involve hand/eye (coordination) and thinking; (e) a report from Dr Shaw, a general practitioner, stating that Dr Barton has a PhD in Philosophy, and is writing a book and prior to his injury he could hold the thread of a 200-page book in his head, but now he is unable to do this and has constantly to refer back to pages he has already read, and has substantial memory loss. 12 Based on the foregoing, the primary judge reached the following conclusions about the medical evidence before his Honour: [40] As a result of a motor vehicle accident in 1997, Dr Barton sustained a head injury. The medical evidence indicates, and I accept, that Dr Barton has experienced significant impairment of his cognitive and executive functioning. This includes short-term memory loss, difficulty in organisation, difficulty with processing information, and impairment in his ability to make decisions. I accept that the effect of the medical evidence is that Dr Barton will have some difficulty in managing his own affairs in the present proceeding. However, the issue to be determined is whether Dr Barton "is not capable of" managing his own affairs in the present proceeding. While the medical evidence indicates that Dr Barton's capacity to manage his own affairs in the proceeding may be impaired, it does not go so far as to indicate that he is incapable of doing so. [41] In the absence of any medical opinion adequate to satisfy me that Dr Barton is under a legal incapacity, it is necessary to examine whether other material before the Court may affect the issue. 13 The primary judge then turned to lay witness evidence, including communications that had taken place between Dr Barton's legal representatives to the Secretary and the Court, and statements made at case management hearings. His Honour then recorded the following findings and ultimate conclusion: [47] I have accepted that the medical evidence demonstrates that Dr Barton suffers some psychiatric and cognitive impairment, and that he has some difficulties with memory, organisation and decision-making. However, in Dr Barton's own words, as long as he is not rushed to make decisions, "I am otherwise perfectly able to function". His difficulties in dealing with the litigation can be managed and accommodated by providing him with adequate time and opportunity to make and respond to submissions. I consider that Dr Barton's impairment has only a limited effect upon his capacity to manage his own affairs in the proceeding. [48] Dr Barton's communications with the Court demonstrate an ability to understand the Court's processes, including the need to meet deadlines and comply with orders, the concept of being served with documents, the need to respond in writing to the Secretary's allegations, and the requirement for leave to be granted to appear by video and to appear for Southern Cross. Dr Barton has demonstrated an understanding of legal concepts, including the Court's jurisdiction, the concept of separate legal personalities, the Secretary's statutory powers and procedural fairness. [49] Dr Barton has filed written submissions. He has also demonstrated an understanding of submissions filed by the Secretary. Dr Barton has emphasised that the written submissions were prepared with the assistance of others. However, the submissions contain information provided by him and ultimately reflect his decisions as to their contents. His communications with the Court demonstrate an understanding (albeit limited, consistently with his not being a lawyer) of the legal processes and legal issues involved. [50] Dr Barton's communications demonstrate that he understands the nature of the proceeding, including the nature of the claims made by the Secretary, the issue of the appointment of a litigation representative and the Secretary's default judgment application. Dr Barton makes reference to communications with his previous legal advisors which are indicative of an ability to communicate instructions. [51] The course of proceedings demonstrates that Dr Barton is capable of putting forward arguments to advance his own interests, including by seeking adjournments and seeking variations of timetables and the interim injunctions currently in place. At the case management hearing of 3 June 2020 before Reeves J, Dr Barton was capable of engaging with the substance of questions posed to him by the Court concerning whether a injunction should be granted. [52] Dr Barton understands that he requires legal advice in respect of the current proceeding. Notably, he has engaged legal representation on three separate occasions, and has sought an adjournment on several occasions for this purpose. [53] Dr Barton, as sole director and shareholder of Southern Cross, administered a website through which products claimed to have therapeutic qualities were offered for sale. During the hearing of the application for an interim injunction before Reeves J, Dr Barton accepted that the respondents provided products through the website, but asserted that the products were harmless. He apparently has the ability to understand matters of business and manage his business affairs, and that provides some indication that he is likely to be capable of managing his own affairs in the proceeding. [54] The Court must have regard to the nature of the litigation in determining whether Dr Barton has legal capacity. The litigation pertains to Dr Barton's business affairs, matters of which he has intimate knowledge. The nature of the legislative regime is of some complexity. However, the issues are fairly narrow and confined. The issues seem to be primarily whether the products were "therapeutic goods" and whether any of subsections (2)-(9) of s 42DLB of the Act applied. [54] Dr Barton submits that: …His Honour's attention is drawn to all my mumbling and fumbling around at hearings, frequently not understanding what is going on, and my many failings to retain and adequately process important information, and failing repeatedly to raise important matters for consideration at hearings that were intended to be raised, as evidence by the submissions that were prepared beforehand with other people's help. The Applicant appears to ignore and unduly discount all such signs of impaired capacity, so I must rely on His Honour giving these their due weight in deliberations. [56] Dr Barton seeks an order that the proceedings be dismissed by reason of what he asserts is his impaired capacity and has capably advocated for that position. I have not observed any indication that Dr Barton is incapable of managing his own affairs in the proceeding. He has presented intelligible and responsive submissions to submissions made by the applicant. He has appeared to understand my questions during case management hearings and has provided lucid and responsive answers. I can accept that he is somewhat impaired in his ability to prepare and present his submissions, but not that he is incapable of doing so. Conclusion [57] I am not satisfied that there is a sufficient evidentiary basis to displace the presumption that Dr Barton is not a person who, because of a mental disability or illness, is not capable of managing his own affairs in the proceeding. Accordingly, Dr Barton can defend and otherwise conduct the proceeding without the appointment of a litigation representative.

The nature of appellant review 14 The need to establish error on the part of the primary judge in order for an appeal to succeed, and therefore the need to identify arguable error for the purposes of the grant of leave to appeal is generally critical, and particularly indispensable in the circumstances of this case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25] per Allsop J, with whom Drummond and Mansfield JJ agreed; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45]-[46] per Perram J, with whom Allsop CJ and Markovic J agreed. The approach taken by the primary judge, and the reasons given, are on their face thorough and comprehensive. The Secretary correctly submits that his Honour's decision was evaluative in nature, rather than involving the exercise of judicial discretion, because there can be only one correct outcome: that is, either the presumption of legal capacity has been rebutted, or it has not. 15 In relation to the line to be drawn between discretionary and evaluative decisions, the Secretary relies upon the observations of Gageler J, overtly based upon more than a century of case law on an appeal by way of rehearing, in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [29] and following, concluding at [49]: The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable. 16 It will not suffice to point to a different conclusion that might have been reached on the material that was before the primary judge, although error in the conclusions reached may sometimes be established by fresh evidence, which in turn may, relatively rarely, impugn the decision upon the basis of material that was not before the primary judge: see SZVFW at [31].

(2018) 264 CLR 541

(2006) 233 ALR 432

(2019) 58 VR 375

(2006) 153 FCR 398

[2018] FCAFC 93

[2021] FCA 373

[2015] FCA 1212