Boyle v Commonwealth of Australia [2025] FCA 1310

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The applicant, Ms Sharon Boyle, commenced this action against the Commonwealth of Australia in 2024. The action is related to an earlier proceeding (Action No. SAD 44 of 2024), in which Ms Boyle's minor child was named as an additional applicant. In the related proceeding, I made an order removing the child as a party because the action had not been commenced on the child's behalf by a litigation representative. The child is not named as a party to this action.
2. On 15 October 2025 I made an order dismissing Ms Boyle's application for an order that I recuse myself in this proceeding on the grounds of apprehended bias. Oral reasons were given on that day and the parties have been provided with an unrevised transcript of those reasons.
3. The oral reasons were pronounced in circumstances where it was not desirable to stand the matter down in order for formal written reasons to be prepared and published.
4. I now provide written reasons for the order dismissing the application. For readability, these reasons approach the grounds relied upon by Ms Boyle in a different order to that appearing in the transcript. I have included some procedural background not detailed orally (but otherwise known to the parties). I have also revised my wording to elaborate and improve expression, without intending to alter the overall effect of the reasons pronounced on the day that the order was made.

1. By her statement of claim, Ms Boyle alleges that she has been the target of a criminal network in Australia and other countries, that she has been tortured and subjected to surveillance, that she has been involuntarily detained under mental health legislation, and that she has been deliberately harmed by electronic, chemical and biological warfare. The alleged acts are said to form a part of a conspiracy between government agencies and other actors to prevent her from speaking out about the wrongdoing of others. In a supporting affidavit, she has alleged that transnational criminal networks and other persons have obtained profits from the interference with her electronic devices and privacy. The Commonwealth of Australia is the only named respondent.
2. By an interlocutory application filed on 28 April 2025, the Commonwealth sought an order for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) or alternatively orders that the whole of the statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). That application had previously been set down to be heard on 30 June 2025.
3. In the lead up to the hearing date, the Court was alerted to documents lodged for filing by Ms Boyle, including an interlocutory application and an unsworn supporting affidavit.
4. By the interlocutory application, Ms Boyle sought an order that the hearing listed on 30 June 2025 be vacated, that the proceeding be stayed for three months or more, and alternatively that the Commonwealth's application be dismissed or "adjourned pending determination of the Applicant's right to proceed". The grounds Ms Boyle relied upon in support of those claims for relief included the following (the added emphasis is mine):
   1. The Applicant is currently incapacitated by injury and illness related to this claim.
   2. The Applicant has sent for filing pre-action discovery proceedings in the District Court against South Australian parties to address the issue of whether the Applicant has standing to bring these proceedings and that matter is yet to be listed and heard.
   3. There has been material non-disclosure by Commonwealth and State agencies (working in concert for a common purpose) on ex parte applications and/or determinations around capacity, which would affect the Applicant's standing to bring proceedings, a failure to disclose information on the theft of property and trust monies, a failure to advise or disclose information material to the Applicant's allegations of torture and information pertaining to her current health status, which are all matters to be examined in these proceedings. The deliberate acts or omissions for which the Commonwealth has not claimed privilege were orchestrated to impede the success of this claim and interfere in the fair administration of justice by preventing the Applicant from properly pleading the case and from considering the appropriate relief in order to draft the flagged Amended Statement of Claim and comply with orders of this Court dated 17 February 2025.
   4. The Court has an inherent power to stay proceedings either permanently or until a specified day 'in any situation where the requirement of justice demands it'.
   5. It is sufficient that the Applicant demonstrates a reason or provides a proper basis for the stay. However, it is not necessary for the Applicant to demonstrate any 'special' or 'exceptional' circumstances to warrant favourable exercise of the discretion but clearly standing is fundamental to the right of any Applicant to initiate legal action and crucial for maintaining the integrity and efficiency of the judicial system. If the Applicant does not have standing then she has no right to proceed and herein lies the problem that must be addressed before any other determination can be made by the Court including adjudicating on the Respondent's Application for dismissal. If the court proceeds to determine the Respondent's Application for dismissal or the Applicant's interlocutory Application when evidence has been filed suggesting strongly administrative orders are in place or have been during the material period then the Court is likely to fall in to appellable error.

...

1. The Applicant filed evidence in her 3rd Affidavit which the court could be satisfied questions the Applicant's standing where medical opinions and 'care arrangement' documents cannot be unseen and which give weight to the necessity of resolving the question of standing before these proceedings are determined. But for the material non-disclosure of the Commonwealth, the case would have been pleaded properly at first instance and procedural issues such as standing addressed by the Applicant as a priority.

...

1. The Respondent's Application for dismissal should be dismissed on the basis that there is a genuine question as to the Applicant's right to proceed and the Applicant has a prima facie case against the Commonwealth, which is probative, compelling and likely to succeed if procedural fairness, due process and natural justice is afforded to the Applicant.

1. The unsworn affidavit and interlocutory application otherwise referred to an "intervening event" said to have occurred on 21 June 2025, whereby the applicant and her child were alleged to have been the subject of a physical attack rendering the applicant physically incapacitated. The event was described in the accompanying unsworn affidavit as follows:
   1. On the evening of Saturday, 21 June 2025 whilst watching a movie in bed with [the child] on our smart TV, we were assaulted with directed energy at such frequency and wavelength that the penetration power caused us both head trauma, respiratory distress and acute radiation poisoning.
   2. I suffered bruising and swelling to the left frontotemporal area of my head and a lung injury causing significant respiratory distress.
   3. [The child's] symptoms were consistent with a concussion like injury with [the child] experiencing dizziness, multiple bouts of vomiting, respiratory illness and fatigue. As a result of the assault on[the child], she was unable to participate in her mid-year dance concert and has been at home recovering and in isolation.
   4. The assault on [the child] on 21 June 2025 was the first and showed a new level of depravity and desperation by the Commonwealth (alone or in company with the United States), and a moral flexibility which I will never condone by people I do not respect. I do not respect any person who would engage in the relentless targeting and harm of a woman and [the child] and I will never respect them; no matter how much they threaten and intimidate. I will not deal with these people. They are not recognised. The law is clear that Australia is responsible for the torture of citizens committed or commissioned by Commonwealth Officers and liable for harm committed to Australian citizens committed by foreign governments or foreign state actors (alone or in company with Australian authorities).
2. The affidavit also contained the following (at [16]):

I verily believe there are administrative orders in place which were obtained ex parte and in bad faith which would impact my right to proceed in the interim. No reasonable person would determine that I am mentally incompetent or lack mental capacity to make decisions about my own life and affairs. The making of such orders is at complete odds with the 9 independent assessments of senior forensic and clinical psychologists and psychiatrists including a court appointed expert one of which assessed that my intellectual capacity was in the high average to superior range with a previous IQ test of 156 undertaken in 2009 as part of a university course in forensics.

1. The unsworn affidavit annexed a letter of 24 June 2025 printed on the letterhead of the Hill Cove Medical Centre and in the name of Dr Ghulam Mustafa. The letter stated that Ms Boyle was unfit to attend and participate in the proceeding from 24 June 2025 until 18 August 2025. The letter then stated:

On Saturday evening of the 21st of June Ms Boyle and [the child] were the victims of a radiation event in their home causing serious illness. Ms Boyle suffered a head injury with acute respiratory distress. [The child] suffered a concussion like injury with dizziness, multiple bouts of vomiting and acute respiratory illness.

1. After describing Ms Boyle's medical condition, the letter continued:

This case deeply troubles me with the assaults by cyber means now escalating to the targeting of [the child]. I am not a lawyer, I am a doctor but I don't believe any reasonable doctor would assess this conduct to be legal or necessary. I understand Ms Boyle has reported the matter to the Federal Police without response or assistance which raises serious concerns as to who is responsible for the relentless and unacceptable assaults.

...

I don't believe Ms Boyle should suffer any further detriment including the removal of [the child] from her care in circumstances where Ms Boyle has taken reasonable measures to protect herself and [the child] but the government has failed to protect them or address the root cause of those responsible. It is apparent that as a result of Ms Boyle reporting the abuse, both her and [the child] have been inflicted with severe pain and suffering, deprivation and other retaliatory coercive measures.

The situation is totally unacceptable. I am a GP and can only do so much but hope that my reporting assists the court resolve this very serious matter where Ms Boyle and [the child] are afforded protection medical care as required.

1. By an earlier application dated 29 May 2025, Ms Boyle had sought an order that the matter be "placed in moratorium". That application was supported by a further unsworn affidavit to which was annexed another letter bearing the name of Dr Mustafa, dated 27 May 2025. It included the following:

I have been Ms Sharon Boyle's general practitioner for over 12 months. Ms Boyle attends my clinic every 3 weeks and she has presented on numerous occasions with visible injuries to her forehead including bruising, swelling and haemorrhaging consistent with what she has described to me as acts of torture. As I understand the situation, the court is aware that this is occurring.

She has persistent pain in the targeted region of her forehead (L/S) and also in her spine, ribs and endometrium with reported metabolic activity, left breast lump and enlarged lymph nodes. I have referred Ms Boyle for several investigations and received multiple reports with incorrect or misleading indications.

Ms Boyle is systemically ill and has not been advised of her diagnosis or treated for her injuries and illness. In my opinion, Ms Boyle has been deliberately incapacitated which involves a physical incapacitation and has caused her emotional distress and psychological harm.

Seeing Ms Boyle regularly, I have assessed that her injuries and illness have not impacted her ability to make decisions about her own life and affairs. Ms Boyle remains competent and I am at a loss to understand why there would be administrative orders in place or supported decision making in this case. Ms Boyle presents as very astute with good insight into her complex clinical picture and robust in her advocacy for the provision of proper medical care.

There appears to be no clinical reason why she has not received appropriate medical treatment or why decisions have been made to withhold information from her around her health status.

It is highly recommended that Ms Boyle's care team advise her of her diagnosis and treatment pathways and facilitate the appropriate treatment in accordance to her wishes. I am happy for her care team to coordinate with me for her GP care.

Ms Boyle is currently unwell after recent attacks and is not medically fit to attend court on 2 June 2025. The lack of improvement in Ms Boyle's health is due to the ongoing attacks and decisions made by others to refuse to provide her adequate medical care.

I am concerned about my patient's health and safety and I hope that in bringing these matters to the courts attention that it prompts urgent action to be taken to ensure Ms Boyle is afforded proper medical treatment and care including lifesaving interventions.

(emphasis added)

1. At an earlier hearing on 5 February 2025 Ms Boyle had told the Court that there was an issue as to whether there were guardianship orders in force or decisions made in relation to her "capacity". At that time, I informed the parties at that hearing that "nothing of that kind has been brought to my attention".
2. Considered in their context, the documents lodged by Ms Boyle in advance of the hearing date of 30 June 2025 were accordingly understood by the Court to include both an application for an adjournment by reason of the asserted physical injuries as well as an application for a stay pending resolution of the question of whether there was an "administration" order in place based on Ms Boyle's mental competency. In South Australia, the legal framework for the making of such an order includes the Guardianship and Administration Act 1933 (SA).
3. On 27 June 2025 I caused the South Australia District Registry to send an email to the parties to:

(1) confirm that I had directed the Registrar to accept for filing the material lodged by Ms Boyle;

(2) confirm my present satisfaction that the material had been transmitted by Ms Boyle notwithstanding that the email used for the transmission was not the same as the email address on the record for Ms Boyle (a fact since confirmed by Ms Boyle herself);

(3) advise that the Court may act on an unsworn affidavit as an out of court statement, admissible on an interlocutory application; and

(4) direct the parties' attention to [16] of Ms Boyle's unsworn affidavit (which asserted her subjective belief that there was an administration order in place).

The Court of its own initiative is considering whether there exists a factual basis upon which it can be satisfied that the applicant is a person under a legal incapacity within the meaning of r 9.61 of the Federal Court Rules 2011 (Cth). The issue arises because the applicant has made a statement to the effect that there is in existence an order that impacts upon her a right to proceed specifically relating to her mental competency. Should the Court conclude that there is such an order, it would give rise to a question as to whether this matter should be stayed on the basis that it cannot be continued by the applicant other than by litigation representative.

The application for a stay medical grounds will not be considered until the issue concerning the applicant's mental capacity has been addressed.

1. The material giving rise to the issue identified by the Court was the material that had been provided to the Court by Ms Boyle herself.
2. Ms Boyle did not attend the hearing on 30 June 2025.
3. At that hearing, the Court informed the Commonwealth that it would not proceed to hear the Commonwealth's application because I had been alerted to materials that gave rise to a question as to whether or not the applicant was a person to whom r 9.61 of the Rules applied. That rule provides:

9.61 Proceeding by or against person under a legal incapacity

A person under a legal incapacity may start, or defend, a proceeding only by the person's litigation representative.

1. The expressions "litigation representative" and "person under a legal incapacity" are defined in Sch 1 to the Rules as:

litigation representative means a person who has been appointed for a proceeding, as a litigation representative for a person under a legal incapacity.

...

person under a legal incapacity means:

(a) a minor; or

(b) a mentally disabled person.

mentally disabled person means a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding.

1. The orders made on 30 June 2025 include a note to the effect that on the materials before the Court, an issue had arisen as to whether Ms Boyle was a person under a legal incapacity (described as the "legal incapacity issue"). The correspondence Ms Boyle had sent to the South Australia Registry was marked for identification. I also marked for identification draft subpoenas addressed to Dr Mustafa and the Public Trustee sought to be issued by Counsel for the Commonwealth. I granted leave to the Commonwealth to issue the subpoenas and adjourned the Commonwealth's application because the legal incapacity issue had arisen. I ordered that Ms Boyle be provided with a copy of the transcript of the hearing, fixed a program for the filing of further materials and set the matter down for argument in relation to the legal incapacity issue. The parties were granted liberty to apply.
2. Ms Boyle attended at the next hearing on 21 August 2025. By that time, Dr Mustafa had produced documents in response to the subpoena addressed to him. For reasons discussed below, that hearing was adjourned to resume today, 15 October 2025.
3. On 14 October 2025, Ms Boyle filed the interlocutory application seeking an order that I recuse myself on the grounds of apprehended bias. In support of that application, Ms Boyle relied on written and oral submissions as well as a further unsworn affidavit. She informed the Court that she could not attend to the swearing of the affidavit because she did not have a working car to go before a Justice of the Peace. Ms Boyle had previously informed the Court she had not been able to attend to the swearing of her earlier affidavits because of difficulties presented by a suppression order previously in force. The outcome of the recusal application would be the same whether or not Ms Boyle's affidavits were duly sworn.
4. The recusal application is brought in circumstances where the Court has raised an issue with respect to the competency of a party to the proceeding of its own initiative, that is, absent any application by another party. The Court's power to make orders of its own initiative is conferred under r 1.40. In addition, r 1.32 provides that the Court may make any order that it considers appropriate in the interests of justice. Prior to the filing of the recusal application, the Commonwealth filed written submissions and affidavit material. Its present position is that it is open to the Court to find that Ms Boyle is a person to whom r 9.61 applies. Necessarily, the recusal application must be determined before resuming any hearing related to the capacity issue.
5. The test for apprehended bias is well established. As I said in Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197:
   1. The test for apprehended bias is sometimes referred to as the 'double might test'. It is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Offıcial Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]- [36] (Allsop CJ, Kenny and Griffiths JJ).
   2. The first 'might' concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second 'might' concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.
   3. Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at and the cases cited therein. Each 'might' in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have 'a vague sense of unease or disquiet' on the question: ; () at [100] (Weinberg J).
6. The circumstance that the Court has raised a question of its own initiative does not of itself give rise to an apprehension of bias as to what the answer to that question might be.
7. I have nonetheless considered Ms Boyle's submissions in the context of the whole of the proceeding, having regard to the background set out in the previous pages, including the circumstance that the Court refused to proceed further with a hearing of the Commonwealth's application until questions relating to Ms Boyle's mental capacities had been considered and resolved.
8. Ms Boyle submitted that a recusal order was warranted on multiple grounds. Broadly summarised, they allege a "pattern of behaviour" constituted of words, acts and omissions over the history of this proceeding and in the earlier related proceeding (Action SAD 44 of 2024), comprising:

(1) an allegation that I have acted in concert with the Commonwealth to secretly arrange for an assessment of her mental health to be conducted by medical practitioners with a view to ensuring that she would be subject to administrative arrangements, including for the purposes of using the mental health system to frustrate the exercise of her rights in this proceeding or more generally;

(2) an allegation that, contrary to my remark on 5 February 2025, I have actual knowledge of a guardianship order in fact being in place;

(3) my persistent refusal of her requests to refer her for pro bono legal assistance by the issue of a certificate under r 4.12 of the Rules;

(4) my prioritisation of the legal capacity issue whilst ignoring or otherwise taking no action to remedy serious and harmful acts of the Commonwealth whilst at the same time exhibiting a blatant disregard for her rights; and

(5) my use of words and phrases in the course of hearings that are said to be disparaging of her character and that otherwise disclose a biased attitude against the merits of her case in favour of the Commonwealth.

1. Ms Boyle alleges that the Commonwealth (by its solicitor on the record in this action) has unlawfully shared information about this proceeding with the South Australian Department of Child Protection (DCP), resulting in DCP employees attending at the clinic of her general practitioner (Dr Mustafa) on 7 July 2025 to make enquiries about the care of her child. She otherwise alleged that I have actual knowledge of a guardianship order presently in force. She further alleged (without giving particulars) that I had some involvement in that order being made. She alleges that I have been involved in ex parte procedures relating to her mental capacity that have been kept secret, albeit known to the Commonwealth in its capacity as the respondent. Those allegations were relied upon as relevant to the other grounds for recusal, specifically in the sense that a fair minded lay observer might conclude that I was managing the whole of the proceeding in a fashion designed to denude Ms Boyle of her rights.
2. The factual allegations directed toward the Court are serious. If true, they would plainly provide a foundation for the recusal of a presiding judge on the grounds of apprehended bias, indeed actual bias.
3. When asked to point to the evidentiary foundation for the factual allegations concerning the secret ex parte procedures and knowledge of administration orders, Ms Boyle submitted that they are matters about which a reasonable lay observer would draw an inference. She pointed to an unsworn affidavit where it is asserted that on 7 July 2025 she had been told by persons that they have been ordered to conduct the medical evaluations on an application made by the Commonwealth.
4. I do not make any finding of fact as to whether or not the events of 7 July 2025 indeed occurred. It is not necessary for me to do so. I would not recuse myself on the basis of apprehended bias even if they did occur. The affidavit does not support any reasonable inference that the Court itself has had a hand in any of the events described in it, nor that it has knowledge of the alleged events.
5. The factual allegations directed towards the Court are the subjective beliefs of Ms Boyle having no proper foundation in the evidence. For the purposes of the test for apprehended bias, I am not satisfied that the lay observer could reasonably form the belief that the allegations of wrongdoing directed to the Court were objectively true, even if non-parties had told Ms Boyle that they were acting on orders made on the Commonwealth's application.

1. Ms Boyle has on several occasions sought to have the Court issue a certificate under r 4.12 of the Rules. In exercising the discretion conferred by that rule, the Court may take into account the nature and complexity of the proceeding, the financial means of the party, the capacity of the party to obtain legal assistance and any other matters the Court considers appropriate.
2. A party is not entitled to apply to the Court for a referral under r 4.12: Rules, r 4.13. However, in the present case, Ms Boyle has made requests for a referral and I have in fact made remarks in open court in response to them. The response of a Judge to requests for the issue of a certificate may be relied upon in support of a recusal application, notwithstanding that the party alleging bias has no right to apply for a referral.
3. The submissions on this topic were made in conjunction with the allegation that I have been involved in secret ex parte procedures and that I have refused to issue the certificate as part of an overall strategy to ensure that the Commonwealth succeeds in the action. I have already rejected the submissions based on allegations of secret ex parte procedures.
4. Ms Boyle's submissions were otherwise to the effect that I had erred in the exercise of the discretion, by failing to have regard to matters warranting the issue of the certificate and that I had made disparaging remarks toward her, evidencing an attitude of pre-judgment. As to the relevant considerations, she submitted that I had failed to have regard to her financial circumstances, the complexity of her case and the circumstance that, although she had legal qualifications, she had become "disconnected" from the legal profession. She submitted that I had erroneously considered irrelevant considerations (which she contended included the limited resources of the pro bono panel).
5. To succeed on a recusal application founded on the principles of apprehended bias, it is not sufficient to allege that an error has been made in the exercise of a discretion.
6. I do not consider that the reasons for refusing Ms Boyle's requests give rise to an apprehension of bias, even if affected by error of the kind alleged. The reasons are to be considered against a context in which Ms Boyle's written materials made reference to her considerable legal qualifications, including the circumstance that she has previously worked as an admitted legal practitioner and that she has been awarded several post-graduate qualifications including in law related areas of study. In refusing to issue the certificate I referred to those qualifications, by observing that she had more qualifications than legal representatives who appeared in this Court. I remarked that I had taken into account that Ms Boyle had told the Court that she commenced the action after receiving pro bono legal advice. I said this:

I must take into account that - I have litigants come before the court very, very often, all of whom are deserving of pro bono legal advice and assistance. But the resources for its provision simply don't exist. It is not a world in which I have a queue of lawyers ready and willing and able to give pro bono advice and assistance.

I'm not satisfied that you are the kind of person who needs legal advice or, if you were to receive legal advice that you weren't satisfied with, that you would necessarily follow it.

1. I am not satisfied that the remarks provide a basis for my recusal in accordance with the principles discussed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. The lay observer must be taken to consider the remarks of a Judge in their proper context. The context was one in which Ms Boyle had very considerable legal qualifications, had worked as a legal practitioner, and she had told the Court that she had prepared her case with the assistance of another lawyer. To the extent that Ms Boyle submitted that the remarks might give rise to an apprehension that I might have pre-judged her substantive claims (or any issue related to her mental capacity) I do not accept the submission. My reference to her not being the "kind of person" who needed legal advice would be understood by the lay observer to be a reference to the fact that she was not a person who suffered from the well-known disadvantages that flow from a lack of legal knowledge and experience.

1. Ms Boyle relied on several other procedural decisions that she contended were adverse to her interests. Her submissions were to the effect that the decisions were demonstrative of actual bias. I have considered the submissions by reference to the lower threshold of apprehended bias as discussed in Ebner.

Decisions relating to Ms Boyle's child as a party or potential party

1. Ms Boyle relied on my decision to remove her child as a party to the earlier proceeding. She submitted that I had predetermined the question of whether she could act as the child's litigation representative. That submission misrepresented the events that occurred in the earlier proceeding and in this proceeding.
2. The child was removed as a party to the earlier proceeding because the proceeding had been commenced in a minor's name other than through a litigation representative. The order was made at an ex parte hearing, the Commonwealth not then being in attendance. It was explained to Ms Boyle that she could apply to act as the litigation representative for the child if the child was to be joined as a party. It was also explained that I would not entertain such an application at a hearing at which the Commonwealth was not present, that the Commonwealth should be given an opportunity to be heard, and that the interests of Ms Boyle and her child may not necessarily coincide.
3. When Ms Boyle commenced this proceeding, the child was not named as a second applicant. No application has been made to join the child as a party and hence no occasion has arisen to consider the question of whether Ms Boyle should be appointed to be the child's litigation representative.
4. The circumstances I have described do not give rise to an apprehension of bias. They are an orthodox application of legal principle. The question of whether Ms Boyle's interests as an applicant in the proceeding coincided with those of her child was mentioned by the Court in the context of explaining why I would not determine the substantive question at an ex parte hearing when the Commonwealth was not present.

Alleged failure to hold the Commonwealth to account

1. Ms Boyle submitted that I had exhibited a pattern of behaviour by which I had refused to hold the Commonwealth to account for the acts referred to in her pleading. Among the matters complained of was an order dispensing with the requirement that the Commonwealth file a defence to her claims. Again, the submissions on that topic do not accurately record what in fact has occurred. In earlier case management hearings, Ms Boyle informed the Court that she was preparing an amended statement of claim. She was heard in respect of the time in which that amended pleading should be filed and the deadline has been extended on several occasions at Ms Boyle's requests. The order dispensing with the requirement to file a defence is explained by the circumstance that an amended statement of claim was to be filed. As explained at the hearing at which the order was made, the Commonwealth should not be put to the expense of filing a defence to answer a claim that was to be recast. The dispensation is not permanent and its continuation will depend on whether (and if so when) an amended statement of claim is filed.

Alleged wrongful prioritisation of the legal capacity issue

1. Ms Boyle also submitted that an apprehension of bias arose because I had prioritised the resolution of the legal capacity issues without acting on the wrongdoing committed by the Commonwealth, including acts of torture. She said that the question of her mental capacity had been litigated over some years in proceedings relating to the care of her child, and resolved in her favour in 2022. She submitted that the focus of the Court should be on the wrongdoing of the respondent. She described the raising of the issue concerning her legal capacity as forming a part of the Commonwealth's ongoing persecutory course of conduct.
2. Since 27 June 2025, the Court has indeed prioritised the resolution of questions relating to r 9.61 over and above all other issues, including the Commonwealth's application and the progress of the matter to trial. The lay observer must be understood to have knowledge of the materials filed by Ms Boyle on that day and referred to by the Court in its correspondence to the parties. The materials giving rise to the issue are materials filed by Ms Boyle herself, including her allegation that there was an administration order in place.
3. Quite apart from the existence of such an order, the matters to be considered in resolving the legal capacity issue have since expanded in ways that have been explained to Ms Boyle.
4. By her own applications and submissions, Ms Boyle has sought to have the whole of the action "placed in moratorium" or "stayed" whilst an issue as to her "standing" or "right to proceed" is investigated by her. She has herself submitted that the question of whether there is an administration order in place must be resolved in order for the Court to proceed any further, and that it would be an appealable error for the Court to do otherwise.
5. The lay observer may otherwise be taken to have some understanding of the nature of the Court's task. It forms no part of the Court's task to conduct an investigation into Ms Boyle's substantive claims against the Commonwealth. The Court's task is to adjudicate the controversy before it, as articulated through the originating application and accompanying pleadings (when filed).
6. As I have said on previous occasions, r 9.61 has a protective purpose. One of those purposes (although not the only one) is the protection of the person who is the subject of the order. The power may be exercised to protect a litigant from the consequences of making decisions and taking steps in the proceeding that would not otherwise be taken if they did not suffer from the mental disability of the kind that forms the foundation for the order.
7. The facts and circumstances in which decisions might be informed and influenced by such a disability are too numerous to be mentioned here. The consequence of permitting a litigant to continue to prosecute or to commence a proceeding where such a disability exists may include the exposure of the litigant to adverse costs orders, or orders summarily dismissing proceedings as being vexatious (in the sense of being incomprehensible or troublesome). In turn, those orders might lend support to a vexatious proceedings order being made against the litigant personally. In addition, the Court may visit consequences on a party for all manner of defaults in a proceeding, including the exercise of its powers to deal with a litigant in contempt. Ordinarily, the Court exercises its powers on the presumption that the person subject to those powers does not suffer from a mental disability within the meaning of the Rules. A mental disability may include a compromised ability in a person to understand the consequences of their acts and omissions in the commencement and conduct of a proceeding, but it is not limited to that.
8. At an earlier case management hearing I referred to the question of Ms Boyle's capacity as the "elephant in the room", in the sense that it is an obvious issue requiring prioritisation. In this action the Commonwealth has sought orders for summary dismissal of the proceeding, and an order as to costs. Orders of that kind should not be made in circumstances where an applicant party is a person to whom r 9.61 applies and in respect of whom no litigation representative is appointed.
9. The lay observer may be taken to understand those imperatives, not least of all because I have articulated them in open court when explaining to the parties why no other interlocutory issue will be heard or determined until the legal capacity issue is resolved. The proper manner of its resolution is not a subject that need be discussed further in the context of the present application for recusal, other than to say that Ms Boyle has been assured that she bears no burden of proof in respect of it.
10. I do not accept that the prioritisation of the legal capacity issue might cause a lay observer to conclude that I was turning a blind eye to Ms Boyle's substantive allegations in this proceeding. The Court's statements are to be understood in the context of the materials Ms Boyle herself had lodged with the Court, and upon a proper understanding of the Court's adjudicative task.
11. No apprehension of bias arises by reason of the Court proceeding to deal with the legal capacity issue before all other issues.

1. Ms Boyle submitted that an apprehension of bias arose from words I had spoken in the course of the case management of the proceeding that were critical of her or otherwise disparaging of her character. They included my remark that I was not satisfied that Ms Boyle was the "kind of person" who should be referred for legal assistance under r 4.12. I have dealt with that submission above. Considered in its proper context, the remark would not be understood by the lay observer to be disparaging of Ms Boyle's character.

1. At the hearing of 21 August 2025, Counsel for the Commonwealth informed the Court that the documents produced by Dr Mustafa did not include the letter of 27 May 2025 bearing his name. At that hearing I explained to Ms Boyle some of the issues that may arise, so as to notify her of issues she may wish to consider and make submissions about. I explained that a finding that a litigant was a person to whom r 9.61 applied could be made even if there was no administration order in place relating to the person.
2. I explained that the absence of the letter among Dr Mustafa's documents returned in response to the subpoena might support different inferences. They included an inference that the document was not authored by the general practitioner but instead might have been authored by a person who was not of sound mind, or an inference that there had been non-compliance with the subpoena.
3. It was in that context that I referred to the protective purposes of an order under r 9.61. I am not satisfied that a lay observer might apprehend that the Court might not bring an open mind to bear on the issues it is to decide by reference to those remarks, considered in their proper context. The remarks were not a threat of coercive action against Ms Boyle. Rather, they were the articulation of an issue that may arise for the Court's consideration, made for the purpose of explaining the protective purpose of the rules relating to legal capacity and its prioritisation over other issues.

1. Ms Boyle further relied on remarks I made in open court concerning the documents she had filed on 27 June 2025. As I have mentioned, those documents alleged that Ms Boyle and her child had been the subject of a physical attack at the hands of agencies of the Commonwealth, resulting in injuries rendering her physically injured and unable to attend Court.
2. At the hearing of 30 June 2025, I said the following:

And so it seemed to me that the order in which the court should proceed to organise the proper conduct of this matter is to first to ask whether or not it can and should today do anything about the information that is before it in the absence of the applicant. Depending on the outcome of that, the question then is whether or not the court should consider, in the absence of the applicant the factors that she has put forward as justifying the adjournment. I will call it an adjournment rather than a stay of this hearing on the basis of what she asserts to be a temporary medical episode, then depending on the outcome of that application, turn to consider the respondent's application.

(added emphasis)

1. Ms Boyle submitted that by the emphasised passage I had disparaged her in her character by using the word "asserts". I do not accept the word is disparaging, nor do I accept that the lay observer would understand the word to have been used in a disparaging way. In addition, Ms Boyle submitted that by using the word "asserts" together with the phrase "temporary medical episode" I had ignored the circumstances giving rise to the assault described in her written materials and so diminished their importance. She submitted that there was no temporary episode but rather a serious and ongoing physical injury inflicted by the Commonwealth or its agencies.
2. I am not satisfied that the lay observer would place the meaning or significance on the words for which Ms Boyle contends. Again, the lay observer would understand the words in the context of the matters then being considered by the Court. The matters then under preliminary consideration included the claims for relief made by Ms Boyle on her interlocutory application, including an adjournment for medical reasons for a period of some months, as well as an order staying the proceeding by reason of a legal capacity issue she herself had identified. The word "temporary" did not carry with it any substantive finding of whether any physical injury had been suffered at all or, if so, the likely duration of any impairment. Rather, the phrase "temporary medical episode" distinguished the adjournment application from the stay application and reflected the circumstance that Ms Boyle had sought an adjournment until August 2025 for medical reasons. Even if the phrase "temporary medical episode" did not precisely capture the factual grounds alleged to support the adjournment, it would not follow that an apprehension of bias might arise.
3. The Court has made no finding as to whether the assault alleged to have occurred on 21 June 2025 in fact occurred. The occasion for making such a finding has not arisen.

1. I am not satisfied that an apprehension of bias arises by reason of the matters upon which Ms Boyle relies, given the substantive allegations raised in her pleading. They include allegations of harm committed in the past by governmental agencies, including allegations of the wrongful weaponisation of mental health legislation and compulsive processes in order to remove her child from her care, and to deprive her of her liberty. I am mindful that in raising the competency issue and inviting submissions in connection with it, there may be a later occasion where it is appropriate to recuse myself from presiding further in this action, given the extent to which the issue may overlap with substantive issues to be tried. It remains open to the applicant to make a further recusal application based on subsequent events. The Court may make a disqualification order of its own motion if and when future circumstances warrant such an order.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.