L v Human Rights and Equal Opportunity Commission

The course of proceedings before the Federal Magistrate 4 The hearing before the Federal Magistrate at which the orders now challenged were made took place on 29 April 2004, commencing at 9.40am. The matter had been listed as a directions hearing. The Commission entered a submitting appearance. Mr Armstrong appeared for the Commission and Mr Markus appeared for the Minister for Family and Community Services ('the Minister'), the successor to the Minister for Social Security, who had been joined as a respondent by an earlier order of the Federal Magistrate. 5 The appellant submitted that the Minister should not have been joined because the reasons for decision of the Commission did not refer to any matters of substance which would require any response from the parties against whom she had made complaints to the Commission. His Honour explained that he felt it was necessary to join the Minister so that there could be a contradictor, certain complaints by the appellant having been directed against members of the Social Security Appeals Tribunal, a tribunal under the authority of the Minister. At the time of the hearing the appellant had not complied with an order to serve relevant documents on the Minister. The appellant also submitted that the Commission's affidavit 'ignored' the application and submitted that in failing to 'file evidence' the Commission had, by omission, conceded the appellant's application. 6 The Federal Magistrate then referred to the declaration sought by the appellant, and said: I wouldn't be prepared to grant that relief in the absence of some professional medical opinion and, frankly, and I want this to be on the record, having read your most recent affidavits, in particular the affidavit of 13 April 2004, I have a real concern about your capacity to conduct litigation without a litigation guardian. 7 The appellant asked the Federal Magistrate to explain what he meant. In reply the Magistrate offered to direct the appellant to the relevant provisions in the Federal Magistrates Court Rules 2001 ('the Rules'). The appellant then asked what, in her affidavit, had given rise to his concern, to which the Federal Magistrate responded: You say: "I continue to be administered medication and treatment non-consensually and unlawfully." … You say you're being deprived of sleep. You say people are waking you up. That leads me to have concern about your state of mind. 8 The appellant then explained her efforts to ascertain who was responsible for prescribing and administering treatment to her and attempting to diagnose her without her consent. These efforts included making freedom of information requests to many agencies. She said that the onus was not on her to prove that she did not have a psychiatric disorder but on 'whoever [had] been imputing it to me' and that it was for them to 'justify their conduct' which, she submitted, they had not. At this point the Federal Magistrate asked the appellant to take a seat and called for submissions from the respondents. 9 The Federal Magistrate explained that in circumstances where the appellant had filed voluminous amounts of material and had made clear that she would not comply with a court order, it was open to him to dismiss the application. He went on: [The appellant], after the last directions hearing has filed voluminous additional affidavit material which has given me cause for concern on the issue of whether she needs a litigation guardian. … So there are two issues before me: (1) should this application be permitted to proceed any further; and (2) if it is to proceed any further, what, if any, steps I should take to address the need for a litigation guardian. 10 Mr Armstrong raised a concern about the Commission adopting an adversarial role as it was the decision-maker to whom the matters might be remitted. He suggested that it was inappropriate for the Commission to seek the dismissal of the matter and indicated that he was not able to 'make a recommendation one way or the other' about whether a litigation guardian should be appointed. 11 After making submissions relating to the substance of the appellant's application, Mr Markus, who appeared for the Minister, contended that certain of the appellant's claims had previously been dealt with by the Court and gave rise to an estoppel by res judicata. He submitted that the proceedings should be dismissed because of the appellant's failure to comply with the direction that relevant documents be served on the Minister and because of the difficulties in the way the application was drafted. Finally, he asked for a direction that the appellant not be permitted to commence a proceeding in the Court without its leave. 12 The transcript then records the following exchange: HIS HONOUR: That is rather a broad order, I think if I was going to make such an order it would have to be directed to something more specific. MR MARKUS: Yes, I am sorry your Honour, I should have thought through a bit more about how such a direction ought to be made and I have not your Honour. There is an issue whether this applicant ought to be permitted to continue these proceedings or to bring new proceedings in relation to these matters without either a litigation adviser or being assisted at least by a solicitor. One of the difficulties I have your Honour is that, as the applicant herself says, there is no diagnosis as it were. There is no medical reports that formally address the applicant's capacity. There is material which raise very serious concerns about that issue but if a solicitor is prepared to take instructions from the applicant, then I do not know whether, without further evidence, I can make submissions that the applicant is not competent to instruct a solicitor. HIS HONOUR: No, I am unwilling to make that judgment at this stage. MR MARKUS: Yes, I am willing to make that submission your Honour but it seems to me that the applicant acting in person does raise a difficulty in the absence of there being some clear medical evidence about her competence in light of the material that has already been filed and I do not think that your Honour needs to get to that because, in my submission, the appropriate order is to dismiss the present proceeding as presently drafted and there ought to be some direction made about further proceedings. The Federal Magistrate gave the appellant an opportunity to respond before he adjourned the matter until later in the morning. The appellant submitted that 'these sorts or arguments', presumably those of Mr Markus, would have been better put in writing to allow her to check the legislation, consider the arguments and respond to them. At 10:21am the matter was adjourned. 13 When the hearing resumed at 12:01pm, his Honour said to the appellant: I'm able to give you approximately 15 minutes further for your submissions and then I will make a decision on the immediate future of your application. The appellant made a submission that additional parties should be joined and that: In relation to one of the matters that the Commission's legal representative raised, I haven't had a chance to look at the law on that yet. If that needs to be addressed I would request perhaps that it be put in writing so that I can read it and check it with the law and perhaps respond in relation to the particular section that my complaint was made under. I didn't grasp the argument, basically, and I haven't had the law in front of me. The following exchange then took place: HIS HONOUR: Essentially, what I understood Mr Markus to be saying was that your complaint made is not so much about what the HREOC did as what it failed to do and different sections of the ADJR Act are relevant. THE APPELLANT: Yes, that would be correct to say that, certainly along with my case, but he did raise other issues - - - HIS HONOUR: Yes. The ADJR Act applies to decisions under an enactment and if there was no decision under an enactment then there's nothing to attack. THE APPELLANT: So you were saying that decisions made under the Human Rights and Equal Opportunities Act do not consider a complaint to be a complaint. HIS HONOUR: Yes, is that a decision made under the Act or is it not. THE APPELLANT: Yes, it is and its subject to the Administrative Decisions Commission [?] as well. HIS HONOUR: That's your position, yes. THE APPELLANT: If need be I can provide further response to that. HIS HONOUR: I don't need it at this stage. 14 The appellant then advised the Federal Magistrate of the specific complaints she had against particular individuals concerning unlawful discrimination, victimisation and privacy breaches. She added: And unless a psychiatrist can give evidence to say a condition exists, and I know it doesn't, I honestly believe and I know it doesn't, and I also know that it hasn't been diagnosed. HIS HONOUR: Of course, if you have a condition your mental processes that lead you to the view that you don't have a condition may be defective. THE APPELLANT: That is why I have said I recognise intellectually obviously, I recognise that's the case. That's the one reason I keep referring to psychiatrists, not because I'm not sure because, as a lawyer, I can see that if someone wants to dispute that they're going to have to come up with a diagnosis and I only keep raising it not because I'm not sure, I know very well within myself that I don't, but if someone wants to dispute that they must come up with a diagnosis by a psychiatrist. 15 The appellant continued to make submissions, until his Honour interrupted: I will need to stop you there, [the appellant]. Mr Armstrong and Mr Markus, I don't need to hear from you unless there was something further that you felt you needed to put to me. 16 His Honour then gave his reasons for the direction and orders which he formally pronounced, and which are the subject of this appeal. As entered, the direction and orders were: THE COURT DIRECTS THAT:

1. Transcript of today's directions hearing is to be obtained and placed on the court file. THE COURT ORDERS THAT:
2. The name of the second respondent is to be amended to the Minister for Family and Community Services.
3. The Minister has leave to uplift from the court file and photocopy any documents filed in the proceedings, provided that such documents are returned to the court file.
4. The Minister shall be taken to have been served with the application and information sheet and other documents filed in support of the application 14 days after the date of these orders.
5. No further steps are to be taken by the applicant in these proceedings until: (a) a litigation guardian is appointed for her pursuant to Division 11.2 of the Federal Magistrates Court Rules 2001 (Cth); or (b) the applicant tenders an opinion by [Dr M] or some other qualified psychiatrist, who has been supplied with a copy of these orders and the reasons of the Court, that a litigation guardian is not required; whichever occurs first.
6. The parties have liberty to apply on seven days notice for further directions or orders.
7. There shall be no order as to costs of the proceedings to this point.
8. No further application by the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) directed to the decisions identified in the application filed on 5 February 2004 is to be accepted for filing, except by leave of the Court. 17 In his reasons, the Federal Magistrate explained why he made the order that is central to this appeal, Order 4: '[S]ince the directions hearing on 5 April 2004, I have become concerned that the applicant may require a litigation guardian. The matters which give rise to that concern are, first, the nature of the relief sought by the applicant. She has herself put her mental health in issue. Secondly, the affidavit material filed by the applicant during April 2004 include assertions that she is being administered medication and treatment non‑consensually and unlawfully. Her affidavit material also includes assertions that she has appeared on television without her consent and that she has been photographed undressed at the former Grace Bros department store. In addition, during the directions hearing earlier this morning, Mr Markus drew my attention to a letter annexed to the applicant's affidavit filed on 22 March 2004 from [Dr M] who, I understand, is a psychiatrist who has previously treated the applicant. In that letter, which I do not need to read in full, [Dr M] refers to his treatment of the applicant and states that he was concerned about the applicant's thinking processes and feared that she was having a reactive paranoid psychosis. He recommended certain medication. Division 11.2 of the Federal Magistrates Court Rules deals with litigation guardians. Rule 11.08(1) provides that a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding, or is not capable of adequately conducting or giving adequate instructions for the conduct of the proceeding. Rule 11.09 provides that a person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian. I am not qualified to express an opinion about the applicant's mental health. However she has, by her application, put her mental health in issue and the material she has herself filed has given me cause for concern that she may need a litigation guardian. In the light of that concern, I have decided to make orders requiring a litigation guardian or, alternatively, a psychiatric assessment that the applicant does not need one. Until either a litigation guardian is appointed or the assessment is made available, the applicant should not be permitted to take these proceedings any further. If the proceedings do go further it may be that other respondents may need to be joined. In the meantime, I am content to leave the Minister (properly named) as the second respondent.' 18 The appeal raises two issues, one being the fairness of what occurred at the hearing and the other being the propriety of the stay order.

Procedural fairness 19 The appellant submitted that she was given inadequate notice of the basis for the stay order and of its terms, with the result that she was denied an adequate opportunity to be heard. 20 It is not in dispute that procedural fairness requires that before a person's rights or interests may be adversely affected he or she must be given notice of that possibility, adequate details of the basis on which that may occur and an appropriate opportunity to be heard. The relevant principle was described in the joint judgment of Dixon CJ and Webb J in Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 in these terms: 'For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard.' Moreover, if it is necessary to adjourn a proceeding so as to give a person an adequate opportunity to prepare or to present their case, that must be done, even if an adjournment is not sought: Sullivan v Department of Transport (1978) 20 ALR 323 at 343; 1 ALD 383 at 402 (Deane J). 21 In our view, the appellant was given too little notice that the Federal Magistrate was concerned about her capacity to conduct the proceedings or that an order might be made effectively staying the proceedings. The transcript indicates that the appellant was taken by surprise when her capacity was called into question. The Federal Magistrate did grant a short adjournment (about one hour and forty minutes) to enable the appellant to prepare submissions. But this was insufficient time for her to research the point and prepare submissions in response. 22 It may be accepted (and we do accept) that the circumstances which confronted the Federal Magistrate were unusual. Nevertheless, in our view, the appellant was denied procedural fairness.

THE Appointment of litigation guardians 23 The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity. 24 The law developed in the context of property disputes. In 1891, Kekewich J observed that it was 'undoubted' that the Chancery Division of the High Court had jurisdiction 'to protect the estates of those who, though not found lunatic, are yet incompetent, by reason of a weakness of intellect, to take proceedings themselves - that is to say, to instruct their solicitors to take proceedings on their behalf': Howell v Lewis (1891) 61 LJ Ch 89 at 89. 25 There are valuable statements about the court's power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]): 'In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained'. Chadwick LJ (at [65]) said: 'The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend'. 26 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: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314. 27 The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]): 'even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists'. Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers' Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).

Whether the Federal Magistrate's approach was erroneous 28 If a litigant appears to be lacking capacity such as to require the appointment of a litigation guardian, Div 11.2 of the Rules provides a mechanism by which that issue may be dealt with. Under r 11.11, the Federal Magistrate, either on the application of a party or on the Federal Magistrate's own motion, may consider whether the party needs a litigation guardian. If he or she does not, the case proceeds. If a litigation guardian is required, the Court may appoint one pursuant to r 11.11. The rule does not, however, contemplate the course adopted by the Federal Magistrate. 29 Rule 11.08 prescribes the circumstances in which a person 'needs' a litigation guardian. The circumstances, expressed as alternatives, are that 'the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding'. Rule 11.09(1) is then quite specific in its requirement that a person who needs a litigation guardian 'may…continue…as a party to a proceeding only by his or her litigation guardian'. (Our emphasis) 30 The Federal Magistrate did not follow the course provided for by the Rules. Instead he made orders, in particular Orders 4 and 7, that did not in terms conclude the proceedings, but which had that practical effect. To escape from the operation of these orders, the onus was placed on the appellant to prove her capacity. 31 We do not think that the Federal Magistrate was entitled to make orders which had that effect. His discretion in that regard miscarried. If the Federal Magistrate entertained serious doubts about the capacity of the appellant to conduct the proceedings, and the respondents were not prepared to make any application in that regard, the Federal Magistrate should have proceeded directly under the relevant rule. 32 For the future, some general comments about the operation of Div 11.2 may be of assistance. In proceedings in which the need for a litigation guardian is a potential issue and the party whose capacity is in question is represented by a legal practitioner, the discharge of that practitioner's duties to their client and to the Court should ordinarily mean that a litigation guardian will be appointed if, within the meaning of r 11.08(1) the client in fact 'needs' one. If the concern arises on the part of a represented party in an opposing interest, that party may be expected to raise the issue before the Court. In either case, it may be expected that, as a practical matter, medical evidence bearing upon the issue of 'need' will be placed before the Court. 33 Where, as here, the applicant is unrepresented and the respondent does not wish to raise any point about competence but the court nevertheless has serious doubts about the applicant's capacity, the court should consider of its own motion the factual issue of 'need'. In such a case the court should, of course, raise the issue squarely and should give the applicant and any other affected party a proper opportunity to be heard and to place relevant material before the court. Whether, in the absence of medical evidence as to capacity, the court could be satisfied of the 'need' such that it should act on its own motion under r 11.11(1) to appoint a litigation guardian will of course depend upon the circumstances of a particular case. 34 Without making any comment about the merits of the present proceeding, we would observe that the fact that a litigant has put forward a case that reveals no reasonable cause of action may say nothing at all about the litigant's capacity to present such a case. The presumption that an adult person is capable of managing their own affairs is hardly likely to be displaced merely because a case has been commenced that has no prospect of success. In such circumstances, if no serious question about capacity arises, the application of the commonplace and objective criteria for determining whether an action should be summarily dismissed will ordinarily provide the appropriate means for disposing of it. 35 Difficulties may arise when a respondent submits that it would be appropriate for the court to dismiss a proceeding summarily on the ground that it is vexatious or an abuse of process or for some other reason, and an issue of capacity emerges at the same time. Then, a judge or magistrate would need to consider whether the question of capacity would be more appropriately resolved before considering summary dismissal. In some situations, the utter hopelessness of an action may make it a proper case for summary dismissal, without there being any need to consider the litigant's capacity to conduct it. The appropriate course for a judge or magistrate to take will of course inevitably depend on the circumstances of the case, bearing in mind that the threshold for the summary dismissal of a proceeding is a high one.

PROCEDURAL MATTERS 36 It is necessary to address three procedural matters. It is appropriate, as submitted by the appellant, that an order be made under s 50 of the Federal Court of Australia Act 1976 (Cth) ('Federal Court of Australia Act') to ensure that the identity of the appellant is not published. Also, these reasons have been prepared in a way that does not reveal the identity of the various actors in the complaints made by the appellant. The second matter is that the appellant sought a ruling about the admissibility of a medical report. This is a question for the Federal Magistrate. Lastly it is necessary to consider the role of the Commission in this appeal. It is a named respondent in the proceedings before the Federal Magistrates Court and complaints are made about its conduct. However, in this appeal it has appeared, and helpfully sought to make submissions restricted to the way in which a court should deal with cases where there may be a question about the capacity of a litigant to conduct the proceedings. If leave be necessary for it to make those submissions, we give it leave. CONCLUSION 37 For the reasons we have given, the appeal must be allowed in part and Orders 4, 6 and 7 made by the Federal Magistrate be set aside. The remaining orders are procedural only and cause no injustice to the appellant. The Federal Magistrate made a direction that the transcript of the proceeding before him be placed on the Court file. We think that the Federal Magistrate should order that the transcript not be inspected without the leave of a Federal Magistrate. We would make such an order ourselves but doubt whether we have power to do so. Costs should lie where they fall. The Commission appeared in essentially a non-adversarial role and the Minister appeared as a reluctant party. 38 As noted, we are satisfied that an order should be made under s 50 of the Federal Court of Australia Act prohibiting the publication of the name of the Appellant. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the First Respondent Human Rights and Equal Opportunity Commission

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 17 November 2005