CDN16 v Minister for Immigration and Border Protection

1. The former second appellant be identified in any documents filed or published in this appeal as "CDS16".
2. The former third appellant be identified in any documents filed or published in this appeal as "CDT16".
3. CDS16 be appointed as litigation representative for CDT16.
4. Compliance with r 9.63(2) of the Federal Court Rules 2011 (Cth) be dispensed with.
5. Any further compliance with rr 9.63 or 9.64 of the Federal Court Rules 2011 (Cth) be dispensed with.
6. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This is an interlocutory application made by a mother, who seeks to be appointed the litigation representative of her child in an appeal proceeding in this Court. There are also other consequential orders sought. 2 The substantive appeal is from the judgment of the Federal Circuit Court of Australia delivered on 20 July 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 25 July 2016. The IAA had affirmed a decision of a delegate of the respondent Minister to refuse to grant the appellant, his wife and their child, Safe Haven Enterprise (Subclass 790) visas. The appellant, his wife and their child were applicants in Federal Circuit Court proceeding in which they unsuccessfully sought judicial review of the IAA's decision. This appeal proceeding was instituted by them all as the first, second and third appellants respectively. On 17 December 2018, however, Erskine Roden, as the lawyer for the wife and the child (the second and third appellants, identified in the appeal proceeding pursuant to s 91X of the Migration Act 1958 (Cth) as "CDS16" and "CDT16") filed a notice of discontinuance on their behalf in the appeal. 3 When the appeal came on for hearing before me on 12 March 2019, only the husband appeared to pursue the appeal. For reasons that need not be set out here, the hearing was adjourned on that day. A case management hearing was held on 26 March 2019, following which the application with which I am presently concerned was filed. This interlocutory application was filed on behalf of the mother (the former second appellant) and her child (the former third appellant) seeking orders that: (1) the former second appellant (previously CDS16) be appointed as litigation representative for the former third appellant (previously CDT16); (2) the former second appellant and the former third appellant be reinstated as appellants in the appeal proceeding; and (3) that they be granted leave to advance a new ground of appeal not raised in the proceeding before the Federal Circuit Court. 4 The application for the appointment of the former second appellant as the litigation representative for the former third appellant has not been opposed. This aspect of the interlocutory application is to be dealt with on the papers pursuant to an order of the Court made on 26 March 2019. The balance of the interlocutory application will be addressed after an oral hearing. 5 The Federal Court Rules 2011 (Cth) provide that a person under a legal incapacity may start a proceeding only by the person's litigation representative: see r 9.61. (It is convenient at this point to note that the interlocutory application contains an immaterial error, in so far as it seeks an order for the appointment of the former second appellant as the litigation representative for the former third appellant under r 9.61, instead of r 9.63.) 6 Rule 9.63 of the Federal Court Rules provides: r 9.63 Appointment of litigation representative by the Court (1) A party or an interested person may apply to the Court for an order appointing a person as a litigation representative. Note: Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary. (2) A copy of the application must be served on the person under a legal incapacity. (3) The application must be accompanied by an affidavit stating: (a) that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and (b) that the proposed litigation representative: (i) has consented, in writing, to the appointment; and (ii) is a person who, under rule 9.62, may be appointed as a litigation representative. Note: For service on a person under a legal incapacity, see rule 10.09. 7 The interlocutory application is supported by an affidavit affirmed by the former second appellant, in which she deposes that she consents to being appointed the litigation representative for her son, the former third appellant, who is a child and, as such, a person under a legal incapacity. 8 On 10 May 2019, the solicitor for the former second appellant sent a letter to the Court enclosing a statutory declaration dated 4 May 2019 signed by the former second appellant stating, among other things, that she has no interest in the proceedings that is adverse to the interests of her son. 9 I am satisfied that there has been substantial compliance with the requirements of rr 9.63 and 9.64. It is also appropriate in all the circumstances to dispense with the need to comply with the requirements of these rules any further. In the circumstances of the case, I would also dispense with conformity with r 9.63(2). 10 Having regard to the above, I am satisfied that an order should be made that the former second appellant be appointed as litigation representative for her son, the former third appellant. 11 In the circumstances, the following orders should be made: (1) The former second appellant be identified in any documents filed or published in this appeal as "CDS16". (2) The former third appellant be identified in any documents filed or published in this appeal as "CDT16". (3) CDS16 be appointed as litigation representative for CDT16. (4) Compliance with r 9.63(2) of the Federal Court Rules 2011 (Cth) be dispensed with. (5) Any further compliance with rr 9.63 or 9.64 of the Federal Court Rules 2011 (Cth) be dispensed with. (6) There be no order as to costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.