Bartucciotto v Western Health Care & Ors [2007] FMCA 26

1. The action sheet of the Privacy Commissioner in regard to my complaint to them.

2. The re-instatement of the subpoenas issued by this Court in this matter.

3. Further pro bono assistance.

What the Applicant actually seeks is more fully set out in his Affidavit sworn and filed on 20 December 2006 ("Applicant's Affidavit"):

1. For reasons stated in earlier affidavits to this Court, I ask that the Court makes an order for me to receive from the Privacy Commissioner, the "action sheet" in its entirity, (sic) in regard to my complaint to the Privacy Commissioner. This is only fair since the Commissioner now have a copy of my application.

2. I ask that the subpoenas which were originally set aside by another Magistrate of this Court, be now re-instated. Originally, the Court Registry gave me the advice that I did not have to give the subpoenaed party any attendence (sic) money.

This information might have been incorrect. I ask the Court for directions in regard to this. I ask that my subpoenas by re-instated (sic) if it is a matter of me paying the parties attendence (sic) money for the subpoenas.

3. At the hearing of 7 December 2006, my request for a pro-bono counsel was denied. The Magistrate stated that unless I had good reason, the Court would not seek to provide another lawyer. I will now provide those reasons in the attachment to this affidavit.

Discovery and production of Privacy Commissioner's "action sheet"

The Second Respondent provided the "Action Sheet" to the Applicant prior to the hearing. This part of the Interim Application was therefore not pursued and can be dismissed.

On 21 June 2006 the Applicant obtained the issue of subpoenas in this matter. In Bartucciotto v Western Health Care and Hall and Prior Aged Care & Anor[1] the Court said:

Prior to today's hearing the applicant had obtained the issue of five subpoenas directed at public bodies who have been involved in investigating his broader complaints, and sought leave under r.15.15 of the Federal Magistrates Court Rules 2001 (Cth) to request the issue of further similar subpoenas. They were framed in extremely broad terms and, as I explained in the course of the hearing today, were clearly oppressive, were probably irrelevant to the proceedings, and were being pursued by the applicant for purposes which appear collateral to the issues which could arise in the present proceedings. I therefore set aside those subpoenas, and propose to direct that no further subpoenas be issued at the request of the applicant without the Court first satisfying itself that they are properly framed and appropriate to the proceedings.[2]

The Court went on to make the following orders:

(1) The four subpoenas issued on 21 June 2006 which are addressed to Beverley Turner, State Administrative Tribunal, Maureen Moore, and Commonwealth Ombudsman are set aside.

(2) The applicant must pay $173 to the State Solicitor for Western Australia being conduct money and expenses in responding to the subpoena addressed to Beverley Turner and the Office of the Public Advocate.

(3) The applicant must pay $173 to the State Solicitor for Western Australia being conduct money and expenses in responding to the subpoena addressed to Chief Executive Officer, State Administrative Tribunal.

(4) The subpoena served on Mr Ron Baker is set aside in so far as it requires his attendance to give evidence, and in relation to the documents produced by Mr Baker is referred to a Registrar for consideration at a time and place to be notified to the parties and Mr Baker of all issues relating to access.

(5) No further subpoenas shall be issued in either of these proceedings without the prior leave of the Court.

The Court's reasons for setting aside the four subpoenas addressed to Beverley Turner, State Administrative Tribunal, Maureen More and the Commonwealth Ombudsman are clear: they were "clearly oppressive ... probably irrelevant ... and were being pursued ... for purposes which appear collateral to the issues".

The Court also made an order that no further subpoenas issue at the request of the Applicant without prior leave of the Court. Effectively, the Court's decision in Bartucciotto[3] put the supervision of the issuance of further subpoenas, and their terms, in the hands of the Court.

The Court notes that the subpoena issued to Ron Baker of Advocare on 21 June 2006 was not set aside. Documents were produced to the Court by Baker. Those documents remain in the Registry.

On 7 December 2006, following a directions hearing on that day, the Court made orders which discharged any orders of the Court made on 29 June 2006 which remained in effect.

The Court will not "re-issue" the subpoenas which it has earlier set aside. Given the reasons for the subpoenas being set aside it is not appropriate to do so. Further, it is not the role of the Court (composed of a single Federal Magistrate) to hear and determine an application which was, in essence, a de facto appeal against the decision in Bartucciotto. The Court notes that there was no appeal against the decision in Bartucciotto.

The Court observes (as it did during the hearing and in the prior directions hearing on 7 December 2006) that there is nothing presently preventing the Applicant from seeking the issuance of further subpoenas.

Any further subpoenas sought to be issued must of course comply with the provisions of Division 15.3 of the Federal Magistrates Court Rules, 2001 ("FMCA Rules"), and may be the subject of objection by the person to whom they are issued.

In the circumstances, the Court proposes to make an order dismissing the application to re-issue the subpoenas set aside by the Court in Bartucciotto. The Court will also (as foreshadowed in the hearing) make an order providing for the Baker documents to be uplifted, inspected and copied by the parties in the Registry, subject to any application to be made by 4.00 pm on 19 January 2007 opposing same.

In Bartucciotto the Court said:[4]

24. A further aspect of the proceedings which was discussed at today's hearing was a request made by the applicant that the Court make a referral under Part 12 of the Federal Magistrates Court Rules to the Registrar, requesting the Registrar to attempt to obtain legal assistance. In the light of the circumstances which I have sketched above, I am satisfied that it is in the interests of the administration of justice that such a referral occur, both because the issues of law arising in the matter would be significantly advanced if the applicant could be legally represented, and also because it is manifest that the applicant will have difficulty presenting his own case. I consider that the further progress of the matter, and the efficiency of its hearing, would be significantly advanced by his being legally represented.

25. There might also be merit in the making of a grant of legal aid under s.63 of the Privacy Act, particularly since if the applicant continues to be unrepresented his proceedings have a substantial risk of becoming protracted and using significant resources of this Court, as well as those of the Privacy Commissioner appearing against the applicant unrepresented. Whether such a grant should be made is, however, a matter for the Attorney-General to decide, and not for the Court.

(12) The applicant is referred to the District Registrar under r.12.03 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance. Such assistance is to be limited to advising the applicant and, if the lawyer considers it appropriate, assisting or representing the applicant in the conduct of these applications to the Court, including by the making of a request for legal assistance under s.63 of the Privacy Act 1988 (Cth). The outcome of this referral should be given to the applicant before 21 July 2006.

The Applicant's request for legal assistance under s.63 of the Privacy Act, 1988 (Cth) was unavailing.[5]

Advice (but no more than that) was provided to the Applicant under the terms of the First Pro-Bono Referral by Mr. Shanahan SC.[6]

On 19 October 2006 the Court further ordered that:

3. The applicant is referred to the Registrar under Rule 12.03 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance. That assistance is to include:

a. Advice in relation to the proceedings;

b. The drafting or settling of documents to be filed or used in the proceedings; and

c. Representation generally in the conduct of the proceedings.

On 15 November 2006, Dr. Cameron of counsel appeared for the Applicant at a directions hearing.

On 21 November 2006 Registrar Jan ordered that leave be given to Dr. Cameron to cease to provide legal assistance.

At a directions hearing on 7 December 2006 the Court indicated to the Applicant that unless a "very good reason" was given the Court was not then prepared to make a third pro-bono referral.[7] In any event, no proper application supported by affidavit[8] was then before the Court.

The Applicant now makes a formal interim application supported by the Applicant's Affidavit. The tender of the Affidavit was not objected to by either Respondent. The Affidavit contains much that is assertive and argumentative, and the Point 3 Submission is a mix of submission, argument, assertion and fact. Sifting that material the Court discerns the gist of the Applicant's case to be that:

a) neither pro-bono counsel has "given me any sort of legal advice which is of any use" to the Applicant;[9]

b) there was no opportunity to consult with Mr. Shanahan SC, and limited opportunity to consult with Mr. Cameron, and therefore neither was able to be fully conversant with the case;[10]

c) he has been otherwise unable to secure the services of a lawyer pro-bono, and evidence of attempts to do so are attached to the affidavit;[11]

d) he feels that he is unable to properly present, and do justice to, his case without the assistance of counsel (or a solicitor);[12] and

e) court resources would be better utilised if he were represented by counsel (or a solicitor).[13]

This part of the Application requires consideration of Part 12 of the FMC Rules.

The object of Part 12 "is to establish a scheme to facilitate ... provision of legal assistance to parties ... otherwise unable to obtain assistance if to do so is in the interests of the administration of justice."[14] The scheme is not a legal aid substitute,[15] and the Court is not required to make, or consider, a referral.[16]

The Court may refer a party to a Registrar of the Court for assistance "if to do so is in the administration of justice".[17] In excising the discretion to refer the Court "may take into account" a party's:

a) means; and

b) capacity to obtain assistance outside the scheme,

as well as the nature and complexity of the proceeding and any other matter the Court considers appropriate.[18]

If a referral is made by the Court it is mandatory for the Registrar to attempt to arrange legal assistance from the pro-bono panel.[19] No party can be referred to a lawyer without the lawyer's agreement[20], and if assistance is unavailable after referral, the Court may proceed to hear the matter.[21]

Rules 12.01(1) and 12.03(1) speak of the "interests of the administration of justice". In Genovese v BGC Constructions[22] the Court observed as follows:[23]

The interests of the administration of justice

24. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, ("Schultz") the High Court considered the nature of the "interests of justice": Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:

The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.

25. Gummow J observed that the interests of justice "are even-handed"; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to "do equal justice": CLR at p.492, HCA at par [258].

26. Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).

28. In assessing the "interests of the administration of justice" similar considerations to those in Schultz apply, with the qualification related to "administration of justice". Administration means "management": Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.

Although these observations were made in bankruptcy proceedings, the law and principles are equally applicable to these privacy and judicial review proceedings.

In _Taylor v Minister for Immigration & Multicultural & Indigenous Affairs[24]_in considering the not dissimilar Order 80 of the Federal Court Rules Justice French said[25]:

10. In deciding whether to refer a matter to the Registrar under O 80 r 4, a judge undertakes an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation [2000] FCA 1734. The decision whether to issue a referral certificate does not depend necessarily upon any assessment of the strength of the case. Indeed as O 80 r 1(4) makes clear, a referral under O 80 is not an indication that the Court has formed any opinion on the merits of a litigant's case. Where a case is patently hopeless then that might form a basis for refusing an O 80 certificate. The 'interests of justice' is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.

11. ...If a practitioner is able to be found to assist the appellant even at this late stage, that would no doubt be of assistance to the appellant and to the Court. But if no practitioner can be found within a reasonable time then the appellant will no doubt have to argue his appeal unrepresented.

12. ... Referral under O 80 does not amount to a guarantee of representation.

Is it in the interests of the administration of justice for the Court to refer the Applicant to the Registrar for a pro bono referral?

The Court notes that there have been two prior referrals. This is a matter to be taken into account under r.12.03(2)(d) of the FMCA Rules, but does not automatically preclude a referral.

There is no particular evidence in the Applicant's Affidavit as to his means.

Capacity to obtain assistance outside the scheme

a) legal aid by Legal Aid Western Australia[26];

b) legal aid under s.63 of the Privacy Act 1998 (Cth)[27]; and

c) assistance by the Northern Suburbs Community Legal Centre, and a "number of lawyers" whom he has contacted[28].

The Court accepts that the Applicant appears to be unable to obtain assistance outside the scheme.

In Bartucciotto[29] the Court expressed the view that the significant issues of law and the Applicant's limited capacity to properly present his case meant that the proceedings would be better advanced by the presence of Counsel.

The Court (as currently constituted) considers that the issues of law to be raised may be "of some complexity"[30], and that the Court would be aided by Counsel's presentation of relevant facts, which may be contentious.

The Court (as currently constituted) has had the Applicant before it on a number of occasions in recent months, and does not consider the Applicant incapable of presenting the case himself. If the Applicant does so the proceedings will probably be slower, the presentation less clear, and a great deal more explanation might be required from the Court to ensure the proceedings stay on track (all generally good reasons for the referral of the matter and the assistance of counsel). But, if no pro bono assistance is forthcoming the Applicant can, in the Court's view, present his case with sufficient adequacy. In that regard, the Court notes that counsel for the Second Respondent has agreed that the Second Respondent will act as a "model litigant". Further, the Court can and will have regard to principles established to allow courts to deal with self-represented litigants and diminish (so far as possible) disadvantage suffered by an unrepresented litigant vis-à-vis a represented litigant[31], but not so as to have the presiding judicial officer "get into ... [the unrepresented litigants] corner and provide them with tactical and other advice as to the consequences of certain actions"[32].

The nature and complexity of the proceedings are such that it would be preferable, but not essential, for counsel to appear for the Applicant at hearing, and to assist with pre-hearing procedures and documents. Thus this factor favours a referral being made.

In deciding whether to make a third referral, the Court must take into account the fact that there have been two prior referrals. The number of prior referrals does not preclude further referral if a further referral is in the interests of the administration of justice.

The Applicant was trenchant in his criticism of the counsel to whom he had previously been referred. It is not necessary, and not appropriate, in the circumstances to deal with or make findings about that criticism. Suffice to say the Applicant did not see Mr Shanahan SC. Mr Shanahan SC did provide an opinion on the matter, in accordance with the terms of the referral[33], but never saw or conferred with the Applicant. Dr. Cameron appeared at a directions hearing, again in accordance with the terms of the referral. Dr. Cameron did see the Applicant, albeit briefly, before that directions hearing. An application by Dr. Cameron to cease providing legal assistance was granted by the Registrar. Because of the confidentiality which attaches to such an application[34], and because the application for leave is not part of those proceedings or the Court file[35] the Court does not, and can not in any event, draw any inference of any kind from the granting of leave to cease providing assistance.

This factor is neutral in the Court's assessment, and if the interests of the administration of justice otherwise favour a further referral, it is open to the Court to make a further referral, notwithstanding the prior referrals.

Some case management issues have been discussed above.[36] This is a case which the Court has actively case managed over the last four months. A hearing date was set for April 2007 not because of the state of the list, but to ensure that the Applicant, whether represented or self-represented, had adequate time to prepare for hearing and to comply with the various orders to facilitate the hearing. This is therefore a factor which is at best neutral, and possibly slightly against a further referral.

Having considered the various factors the Court considers that an order for further referral for pro bono assistance ought to be made.

The principal factor in that consideration, and the one which prevailed over all others, was the nature and possible complexity of the proceedings, and the assistance as to the law, procedure and general conduct of the proceedings that counsel can render.

The order for referral does not affect other orders presently in place. Those orders must still be complied with, as, in the case of the Applicant, the Court has formed the view that, notwithstanding a preference for counsel to do so, the Applicant can still prepare and appear in the matter. Indeed, the Applicant must do so if the Registrar's "attempt to arrange for [pro bono] legal assistance"[37] is unsuccessful. Thus the order for referral is not an excuse for further delay in proceedings which are already protracted, and which the interests of justice, and of the administration of justice (including general case management principles)[38] require be heard sooner rather than later.

a) That the application for discovery and production of the Privacy Commissioner's "Action Sheet" be dismissed;

b) That the application to re-issue the subpoenas directed to Beverley Turner, State Administrative Tribunal, Maureen Moore and the Commonwealth Ombudsman, and which were set aside by the Court on 29 June 2006, be dismissed;

c) The parties have leave to uplift, inspect and copy in the Registry documents produced in answer to the subpoena to Ron Baker of Advocare, subject to any application opposing uplifting, inspection and copying, which application must be filed by 4.00 pm on 19 January 2007;

d) The Applicant is referred to the Registrar under Rule 12.03 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance. That assistance is to include:

i)

Advice in relation to the proceedings;

ii)

The drafting or settling of documents to be filed or used in the proceedings; and

iii)

Representation generally in the conduct of the proceedings;

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Lucev FM

[1] [2006] FMCA 973 ("Bartucciotto").

[2] Bartucciotto, para. 23 per Smith FM.

[3] And especially the final sentence of para. 23.

[5] Applicant's Affidavit, Submission to Point 3 of the Affidavit ("Point 3 Submission"), p.2.

[6] Applicant's Affidavit, Point 3 Submission, p.1.

[7] Transcript of Proceedings, 7 December 2006, p.7.

[9] Applicant's Affidavit, Point 3 Submission, p.1.

[10] Applicant's Affidavit, Point 3 Submission, pp.1-3.

[11] Applicant's Affidavit, Point 3 Submission, p.2.

[12] Applicant's Affidavit, Point 3 Submission, pp.2-3.

[13] Applicant's Affidavit, Point 3 Submission, p.3.

[22] [2006] FMCA 1507 ("Genovese").

[23] Genovese at paras.24-26 and 28 per Lucev FM.

[24] [2005] FCA 319 ("Taylor").

[25] Taylor, paras. 10-12 per French J.

[26] Applicant's Affidavit, point 3 Submission, p.2 and copy letter from Legal Aid Western Australia to the Applicant, 9 November 2006.

[27] Applicant's Affidavit, Point 3 Submission, p.2.

[28] Applicant's Affidavit, Point 3 Submission, p.2.

[30] Schokker v Commissioner of Taxation (No. 2) [2000] FCA 1734; (2000) 106 FCR 134 at 137 per French J; [2000] FCA 1734 at para. 8 per French J.

[31] Re. F: Litigants in Person Guidelines [2001] FamCA 348; (2001) 27 Fam LR 517 at 554 per Nicholson CJ, Coleman and O'Ryan JJ; [2001] Fam CA 348 at para. 253 per Nicholson CJ, Coleman and O'Ryan JJ; Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931 at para. 7 per Beaumont J. See also Justice Ipp "Judicial Intervention in the Trial Process" (1995) 69 ALJ 365 at 370, and Justice Wilson "Expert Evidence, Self-Represented Litigants and The Evidence of Children" (Address to Queensland Industrial Relations Commission, 2 September 2005) pp. 11-15.

[32] Kousal v Tack [2002] FamCA 1152; (2002) 30 Fam LR 581 at 590 per Nicholson CJ; [2002] Fam CA 1152 at para. 47 per Nicholson CJ.

[33] The Applicant asserts that he has "given the Court a copy of that legal opinion": Applicant's Affidavit, Point 3 Submission, p.1. The Court has not seen the opinion. Upon notification by a Registrar that the opinion had been received in the mail, the Court directed (without seeing the opinion or being told of its contents) that the opinion be placed in a sealed envelope in the Registry, where, presumably, it remains.

[38] The State of Queensland & Anor. V JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 at 154-155 per Dawson, Gaudron and McHugh JJ, and at 171-172 per Kirby J.