Is the applicant a mentally disabled person?
16 The expression 'person under a legal incapacity' is defined in the Dictionary of the Rules to mean, relevantly, a mentally disabled person. The expression 'mentally disabled person' is, in turn, defined to mean 'a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding'.
17 In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; 233 ALR 432 the Full Court (Black CJ, Moore and Finkelstein JJ) made the following relevant observations concerning the appointment of a litigation guardian under the Federal Magistrates Court Rules 2001 (Cth):
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 193 at [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).
18 Insofar as determining whether a person is not capable of managing the person's own affairs in a proceeding it is important to focus upon the person's ability to bring or defend a proceeding rather than whether the person is able to manage his or her affairs generally or in relation to some other transaction: Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 at [53]-[61] (Edmonds J). As Edmonds J explained in Cross, that approach is consonant with the common law approach to capacity in that the law does not prescribe any fixed standard of sanity as a requisite for the validity of all transactions. It requires, in relation to each particular matter, that the person have such soundness of mind as to be capable of understanding the general nature of what the person is doing by his or her participation: Gibbons v Wright [1954] HCA 17; 91 CLR 423 at 437 (Dixon CJ, Kitto and Taylor JJ). After referring to Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at [74] (Chadwick LJ), citing Re C (an adult) (Refusal of Medical Treatment) [1994] 1 All ER 819, Edmonds J observed that 'the exigencies of bringing or defending the proceedings are the focal point of the test of capacity for the purposes of the [Rules], the next question is what are the considerations to which the Court should have regard in applying that test?' Justice Edmonds then considered Masterman-Lister and other authorities before formulating the relevant consideration to which he had regard for determining capacity in the case before him.
19 Drawing on the discussion in Cross and the authorities to which Edmonds J referred, the following are relevant to determining Jason Neave's capacity in this case:
(1) whether he has the ability to understand that he required advice in respect of the Minister's decision not to revoke the cancellation of his visa;
(2) whether he had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, that he could arrange an appointment of his own accord;
(3) whether he had ability to instruct his advisor with sufficient clarity to enable his advisor to understand the situation and to advise him appropriately; and
(4) whether he had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as he might receive.
20 There is no medical evidence before the Court addressing these considerations. Such evidence as there is includes the following.
(1) Clinical notes that refer to 'increased confusion with [memory] loss' and a referral for a 'CT scan of brain'.
(2) A NSW Justice Health New Health Problem Notification Form that refers to 'Mental Illness - History of harm to self'.
(3) Jason Neave's personal circumstances form and other documents that refer to him having a stroke in 2015, a blocked artery from his heart to his brain, mental problems, short term memory loss and brain damage.
21 Mr Jahanandish deposes that he is the solicitor for the 'applicant' in the proceedings. The applicant is 'Jason Neave (By His Litigation Representative, Valerie Jane Neave)'. Therefore, it is unclear whether Mr Jahanandish is the solicitor of Jason Neave or Valerie Neave or both. If he is the solicitor for Jason Neave, that is somewhat inconsistent with the notion that he is not capable of managing his affairs in the proceeding.
22 Mr Jahanandish also deposes facts relating to telephone conversations he had with Jason Neave on 6 March 2024. Mr Jahanandish deposes to hearsay statements Jason Neave made to him to the effect that Jason Neave had a stroke that has resulted in short-term memory loss. Mr Jahanandish deposes to an initial conversation on 6 March 2024 that was interrupted. He then spoke to Valerie Neave. He later spoke again with Jason Neave and it is evident from Mr Jahanandish's evidence of that conversation that Jason Neave had no recollection of the earlier telephone conversation that day. Mr Jahanandish then deposes a number of facts on information and belief including that he believes that Jason Neave is under a legal incapacity and is not capable of managing his affairs in the proceeding. Further, he is instructed that Jason Neave made the power of attorney because of that incapacity and needs Valerie Neave to help make important decisions in his life for him.
23 I accept that Jason Neave had a stroke that caused some damage to his brain and brain function and that he has short-term memory loss. I also accept that short-term memory loss will impair his ability to instruct legal representatives and make decisions based on, or otherwise give effect to, such legal advice as he may receive. However, the extent of that impairment is not clear on the evidence. Unassisted by expert medical evidence, I am not persuaded that Jason Neave is not capable of giving instructions and understanding, with the assistance of legal representatives and his mother, the matters upon which his consent, decision or instruction is likely to be necessary in the course of the proceeding.
24 The exhibits to Mr Jahanandish's affidavit include a statement of the Minister's reasons and documents referred to in the reasons. The documents include a request for revocation of the mandatory cancellation of the visa and personal circumstances form that is completed in handwriting and signed by Jason Neave on 26 August 2020. It does not nominate any migration agent. In the absence of any evidence to the contrary, I infer the form was completed by Jason Neave. It contains a significant amount of historical information relating to Jason Neave including his offending. There are also two handwritten letters signed by Jason Neave one dated September 2020 and the other undated. I infer that these were prepared by Jason Neave. The documents indicate that Jason Neave obtained the assistance of a migration agent in June 2021 as, on 7 June 2021, he signed a declaration of appointment of that migration agent. All these documents suggest that Jason Neave has the capacity to understand that he required advice, he took steps to obtain advice, he appointed a migration agent to give him that advice and he acted on that advice. Further, before he obtained the assistance of a migration agent, he had capacity to manage his application for the revocation of the cancellation of his visa himself. Further, in 2010, he evidently had capacity to understand the need for and to appoint his mother as his power of attorney.
25 The onus is on Valerie Neave to demonstrate that Jason Neave is under a legal incapacity and, relevantly, that he is person who, because of a mental disability or illness, is not capable of managing his own affairs in the proceeding. She has not discharged that onus on the material filed in support of the application.
26 As already mentioned, the application for the appointment of the litigation representative was served personally on Jason Neave. He has not sought to be heard on the application or to oppose it. It appears, therefore, that Jason Neave, as a person evidently capable of managing his affairs in the proceeding, does not oppose Valerie Neave having authority to instruct his legal representatives and conduct the proceedings on his behalf.