Klewer v National Disability Insurance Agency

1. No order be made as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 6 October 2020, the Court ordered that these proceedings be stayed until such time as a litigation representative for Mr Klewer was appointed by the Court. The reasons for that order are set out in Klewer v National Disability Insurance Agency (Litigation Representative) [2020] FCA 1430. These reasons assume a familiarity with those reasons which should be read alongside. 2 The Court also ordered that the matter be stood over to a further case management hearing on 1 December 2020 to consider at that time whether the Court should dismiss the proceeding for want of prosecution and make various orders relating to costs and potentially the commencement of a proceeding against Ms Klewer under s 37AO of the Federal Court of Australia Act 1976 (Cth). 3 The matter yesterday had to be adjourned to today due to technology related issues. When the matter was called on today, Ms Klewer appeared with her son, Robert, on his behalf, and Ms Fisher of counsel appeared for the First Respondent. Ms Klewer put a series of materials before me to which I will more precisely refer in a moment in an endeavour to persuade me that the order staying the proceeding pending the appointment of a litigation representative ought to be set aside. 4 The order which was made was a stay pending the appointment of a litigation representative. That order is properly characterised as an interlocutory order. Consequently, the Court has a power under r 39.05(c) of the Federal Court Rules 2011 (Cth) ('FCR') to revoke that on application. I indicated my intention to treat Ms Klewer's application as an application under FCR r 39.05(c). Ms Fisher for the First Respondent drew to my attention the fact that the materials upon which Ms Klewer relied in that regard had only been provided to the First Respondent very recently and she had not had an opportunity to take instructions about those materials. Ms Fisher did not formally apply for an adjournment and proceeded to make, as best she could, submissions about those materials. 5 The materials upon which Ms Klewer relied first consisted of a report by a Dr Kalband, who recently examined Robert in relation to his seizures. As I understood it, Dr Kalband is an expert in epilepsy. Having examined Robert, Dr Kalband formed the opinion that there should be a change in Robert's medication regime and, as I understood it, it was the anticipation that if the regime were so to change that this was likely to have a beneficial effect upon the incidences of seizures to Robert, perhaps. This is no doubt welcome news for all concerned. 6 The relevance of Dr Kalband's evidence on an application to set aside an order is necessarily confined by the principles which govern such applications. Those principles were clearly defined by McLelland J in Brimaud v Honeysett Print Proprietary Limited (1988) 217 ALR 44. There is no need to set out the relevant passage from his Honour's well-known judgment. The basic principle is that interlocutory orders will not be revoked unless there has been some change in the circumstances which obtained at the time the earlier order was made justifying the court in revoking the order. 7 The rationale for that approach is the public interest in the finality of litigation. Were it otherwise, interlocutory orders could be perpetually litigated, even where they had been substantially argued and determined. It seems to me to follow from that principle that in order for Ms Klewer's application under FCR r 39.05(c) to succeed, it has to be demonstrated that the material now put before the Court brings about what can be described as a change of circumstances. Another relevant principle, so it seems to me, concerns whether this material was actually used or was available at the previous hearing. The Court ought not to encourage a state of affairs in which material can be called up a second time or now used when it could have been used before. That approach gives parties an incentive to put all their cards on the table at the first hearing. 8 In light of those principles, I then turn to the significance of Dr Kalband's report. The critical findings in the earlier reasons appear at [6] of those reasons. The Court had on that occasion the benefit of the testimony of Dr Ashkar, and some reports which he had prepared. Dr Ashkar was extensively cross-examined by Ms Klewer at the previous hearing. At [6] of the reasons, I set out five points which emerge from Dr Ashkar's report of 14 July 2020. I did so on the following terms: In his third report of 14 July 2020 Dr Ashkar explained the relationship that Mr Klewer had to the present suit. First, he thought that Mr Klewer might not recognise that he required legal advice in relation to the proceeding unless that need was brought to his attention and explained to him. Secondly, Mr Klewer had the intellectual skills to arrange an appointment with a lawyer but he might not know when to do so without external support. Thirdly, Mr Klewer would be unable to instruct a legal adviser with sufficient clarity to enable the adviser to advise him appropriately. Fourthly, although he had sufficient intellectual skills to understand and make decisions and otherwise give effect to legal advice he may receive, he required that such advice be simplified and that he be assisted by a support person. Finally, in the absence of supports to address weaknesses in his cognitive functioning he will face many difficulties in the present proceeding and will not be able to act as a litigant in the case. 9 It seems to me that accepting Dr Kalband's evidence at its highest, that is to say that a change in Robert's medication regime is likely to have a beneficial effect upon his seizures, that evidence does not impact upon any of the five points which appear in [6]. I raised this with Ms Klewer and Mr Klewer and Ms Klewer submitted that the effect of the evidence was that one should wait and see whether the alteration in the regime brings about an increased clarity of mind and focus on Robert's part. I do not think that the possibility that that might occur, which is not adverted to, I should say, in Dr Kalband's report, is a matter which can be properly said to meet any of the five points which appear at [6]. 10 Consequently, I do not accept that there would be utility in reopening the orders of 6 October 2020 to permit an examination of the opinions of Dr Kalband. To put it another way, I do not accept that Dr Kalband's evidence is relevant to the assessment which appears at [6] of the Court's reasons. Reopening the orders would, therefore, be a procedure which lacked utility. 11 The second matter upon which Ms Klewer relied was her report to me of some remarks made by Judge Letherbarrow in the District Court of New South Wales in 2016. I was not provided with a copy of the decision of Judge Letherbarrow, but it is apparent, accepting the truth of the contents of Ms Klewer's emails for the sake of argument, that his Honour had before him an application by her to appear in the District Court as her son's McKenzie friend. That application appears to have been refused by Judge Letherbarrow on the basis that Robert appeared to him to be able to run the case for himself. I assume the procedural consequence of that, therefore, was that the McKenzie friend procedure was not thought to be appropriate. 12 I do not accept that this evidence, such as it is, would provide a basis for reopening the orders of 6 October 2020. This is for a number of reasons, and the first is that it does not meet any of the matters which are set out in [6] of the reasons for judgment, that is to say it does not involve expert testimony contradicting the position of Dr Ashkar. It is in that sense irrelevant. Secondly, it is plainly the case that this material was available in 2016 because that is the date of the judgment to which reference has been made. Ms Klewer was present at the time that the McKenzie friend application was made. It therefore follows that this is a matter which could have been put before the Court on the occasion that the application was argued, which for completeness I note was 4 September 2020. It would not be in the interests of justice to permit the reopening of orders to put forward evidence before the Court now which could have been put before the Court at that time. 13 The third reason is, assuming all of that is wrong, the evidence, in fact, takes the form of hearsay on hearsay; it is Ms Klewer's report of what Judge Letherbarrow said. When one adds to that the fact that Judge Letherbarrow is not a medical practitioner in the same area as Dr Ashkar, even if I thought there was something in the point, the evidence is clearly inadmissible. 14 The third matter which Ms Klewer and Mr Klewer relied upon was something said by Campbell J in the New South Wales Supreme Court in some medical negligence proceedings. I was not taken to any judgment of Campbell J and I do not understand the point which is being sought to be made in relation to it, but even so one can see that a number of the problems which apply in the case of Judge Letherbarrow also apply in the case of Campbell J. In particular it is apparent from what Ms Klewer says that Campbell J's remarks were made in 2017, three years before the present application and the material was, therefore available for the first hearing of this case. I do not think it would be appropriate now to permit it to be used when it had not been used at any earlier stage. In any event, it is also the case that not only do I not understand exactly what the point being made by Campbell J is, but again it is Ms Klewer's report of what Campbell J said in another case; consequently it is inadmissible. 15 The next matter which was relied upon was an email from Mr Charles Lucas which was, as I understood it, dated sometime in 2018. Mr Lucas explained in this email that he thought that the process of being examined by Dr Ashkar was likely to be a stressful one for Robert which I accept, and that this was likely to give rise to anxiety which in turn was likely to impact negatively upon the assessment process. The difficulty with this material, as with that of Judge Letherbarrow's and Campbell J's materials, is that it was available at the time that the matter was argued in September of this year. I do not think it would be appropriate, therefore, to receive it on the present application. 16 So they are the four matters upon which reliance was placed in order to justify an order under r 39.05(c). It will follow from what I have said that I do not regard any of those materials as providing a proper basis to reopen the orders. I, therefore, refuse the application under r 39.05(c) and the orders of 6 October 2020 will remain in place. 17 That then brings me next to the question of what should happen with these proceedings. In an exchange with me this morning, Ms Klewer told me that the state of affairs was that about five persons had been approached to act as a litigation representative and each had declined. I asked her whether she thought it was possible that a litigation representative might be appointed in the foreseeable future and she very frankly told me that she did not think that was the case. In answer to a question from me as to whether in that event the proceeding might rather have reached the 'end of the line', she replied that she agreed with that. 18 A point she endeavoured to make was that I should set aside the earlier order and allow Robert to be represented in this proceeding either by a disability advocate or that I should alternatively refer him for legal assistance. Neither of those steps would be a useful step to take unless I had set aside the order requiring the appointment of a litigation representative. As I just explained, I am not minded to do that. That means the proceedings are now in the situation where they are stayed pending the appointment of a litigation representative, but it is agreed that there is no reasonable prospect of a litigation representative ever being appointed. There are, therefore, two possible futures for this case, one is that it remains perpetually stayed, the other is that the Court may dismiss it. It seems to me that the former state of affairs is not a desirable one. 19 In relation to the second, I had initially conceived that the failure by Ms Klewer to obtain the appointment of a litigation representative for her son might amount to a want of prosecution with the meaning of FCR r 5.22(d). However, upon mature reflection, I do not think that what has happened can be characterised as involving a want of prosecution. One thing that is clear is that Ms Klewer has made concerted efforts to get a litigation representative, and her inability in the future to get one does not spring from a desire not to do so, but rather from the fact that a roadblock has effectively been reached which she cannot surmount. 20 I previously indicated in the reasons of 6 October 2020 that I would not be minded to accept the appointment of Ms Klewer herself as a litigation representative which would be the ordinary course. It is not necessary for me to speculate upon why it is that each of the persons who have been approached to act as a litigation representative has declined to do so. It is instead merely sufficient for me to observe that I do not think that a litigation representative is ever likely to be appointed in this proceeding. 21 The fact that the proceeding is not properly characterised as involving a want of prosecution under FCR r 5.22(d) does not mean that the Court has no power to deal with the matter. In the, perhaps, somewhat unusual circumstance of a stay being in place pending an appointment which it is now accepted is not likely ever to occur, it seems to me that the Court must have an inherent power to dismiss the proceedings. This is what I propose to do. The proceeding will be dismissed. 22 Following the delivery of the above reasons at the hearing, Ms Fisher indicated that the First Respondent did not seek costs. I therefore make no order as to costs. Although I floated the possibility at an earlier of hearing of considering on the present application whether I should direct the Registrar to commence proceedings against Ms Klewer seeking to have her declared a vexatious litigant, in the end I do not think her conduct of the present proceeding quite warrants taking that course. The case had a serious point to it and Ms Klewer, in her own way no doubt, did seek to procure the appointment of a litigation representative. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.