Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA

1. Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), the Public Trustee of Western Australia is appointed as the litigation representative for the applicant, with effect from the date of the filing of the originating application on 21 August 2020.
2. Henceforth, the applicant is to be referred to as 'Michelle Lee Rowe (by her litigation representative, the Public Trustee of Western Australia)'.
3. To the extent necessary, the requirements of r 9.63 of the Federal Court Rules are dispensed with.
4. By no later than 4.30 pm on 21 September 2021, the respondent must file and serve a defence to the amended statement of claim.
5. The proceeding is listed for a case management hearing on 6 October 2021 at 9.30 am. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is an application for the appointment of a litigation representative for the applicant in this proceeding. The applicant, Ms Rowe, purported to start the proceeding in August 2020. That was done by her stepfather, Randall Guscott, who was styled her 'next friend'. In broad terms Ms Rowe claims against her former employer, the respondent Mr Barton, for allegedly failing to make superannuation contributions on her behalf. This is said to mean that Ms Rowe did not have insurance cover through her superannuation that she would otherwise have had. It is alleged that Ms Rowe suffered a catastrophic stroke. She pursues Mr Barton for, among other things, damages equivalent to the total and permanent disablement benefits which, she says, she would have received but for Mr Barton's alleged default. 2 I say that Mr Guscott purported to start the proceeding because r 9.61 of the Federal Court Rules 2011 (Cth) provides that a person under a legal incapacity may start a proceeding only by the person's litigation representative. As the designation of Mr Guscott as next friend implies, and on the basis of other matters referred to later in these reasons, it appears that Ms Rowe is a 'person under a legal incapacity'. That term is relevantly defined in Schedule 1 to the Federal Court Rules to include a mentally disabled person, which 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'. Mr Guscott has never been appointed as Ms Rowe's litigation representative. That being so, under r 9.61 she was not permitted to commence the proceeding by him. 3 Hence the present interlocutory application, which seeks the appointment of the Public Trustee of Western Australia as Ms Rowe's litigation representative. It is made under the framework of the following provisions of the Federal Court Rules. Rule 9.62(2)(d) provides that the Public Trustee of Western Australia may be a litigation representative. Rule 9.63(1) provides that a party or an 'interested person' may apply for an order appointing a person as a litigation representative. 'Interested person' for a person under a legal incapacity by reason of being a mentally disabled person means the person's guardian: Schedule 1 Dictionary. 'Guardian' includes a person entrusted under a law of a State with the care or management of a mentally disabled person or their estate: Schedule 1 Dictionary. 4 Rule 9.63(2) provides that a copy of the application for the appointment of a litigation representative must be served on the person under the legal incapacity. Under r 9.63(3), the application must be accompanied by an affidavit stating 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 that the proposed litigation representative has consented in writing to the appointment and is a person capable of being appointed as a litigation representative under r 9.62. The litigation representative must not take a step in the proceeding unless they file a certificate providing their consent to act as the representative and stating that the representative has no interest in the proceeding that is adverse to the person under a legal incapacity: r 9.64. 5 While the interlocutory application says that it is made by the applicant (that is, Ms Rowe), it is supported by an affidavit sworn by Shaun Conlin, who is the Director of Trustee Services for the Public Trustee of Western Australia. The affidavit says that Mr Conlin is applying on behalf of the Public Trustee to be appointed as litigation representative. It annexes an order of the State Administrative Tribunal of Western Australia (SAT) dated 9 June 2021 provisionally appointing the Public Trustee as Ms Rowe's plenary administrator under s 65 of the Guardianship and Administration Act 1990 (WA) (Guardianship Act). The Public Trustee is thus Ms Rowe's guardian within the meaning of the Federal Court Rules and an interested person authorised to apply for the appointment of a litigation representative for her. I will treat the application as having been made by the Public Trustee. 6 Mr Conlin's affidavit further says that he believes Ms Rowe to be a person under a legal incapacity as defined in the Federal Court Rules. Presumably this is on the basis that she falls within that part of the definition which refers to a mentally disabled person. The order of SAT dated 9 June 2021 annexed to the affidavit was made because the presiding SAT member was satisfied that Ms Rowe may be a person in respect of whom a declaration should be made under s 64 of the Guardianship Act, and was also satisfied that it was necessary to make immediate provision for the protection of Ms Rowe's estate. Section 64 applies where SAT is satisfied that the relevant person 'is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate': s 64(1)(a). 7 There is also a subsequent SAT order, not annexed to the affidavit. It is dated 9 July 2021. I receive it into evidence pursuant to s 155 and s 156 of the Evidence Act 1995 (Cth). In it, SAT declared that Ms Rowe is 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate'. SAT then revoked the 9 June 2021 order and replaced it with an order appointing the Public Trustee plenary administrator of Ms Rowe's estate with all the powers and duties conferred by the Guardianship Act. The administration order is to be reviewed by 9 July 2024. 8 On the basis of these matters I am therefore satisfied that Ms Rowe is a person under a legal incapacity and the Public Trustee is her guardian within the meaning of the Federal Court Rules, and that the Public Trustee is a suitable person to act as her litigation representative in this proceeding. 9 My chambers has communicated about the application with Mr Barton (who is self-represented) and he has not appeared today so I take it he does not oppose the application. Mr Conlin's affidavit annexes the certificate of consent and no adverse interest that is required under r 9.64. There is no evidence that a copy of the application has been served on Ms Rowe as required by r 9.63(2), although Mr Conlin's affidavit says that subsequent to the filing of the application, all attempts will be made to provide her with a copy. In any event, under r 10.09(3), service on a person under a legal incapacity who is a mentally disabled person and does not have a litigation representative must be served on the mentally disabled person's guardian, that is, the Public Trustee. So I am satisfied it is appropriate to dispense under r 1.34 with the requirement for service on Ms Rowe. 10 It is well established that an order for the appointment of a litigation representative may be made retrospective with effect from the date of the originating application so as to remedy any irregularity in the commencement of the proceedings: see Tu v Chang [2016] FCA 1567 at [12]; CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [178]. Orders appointing the Public Trustee as Ms Rowe's litigation representative with effect from the commencement of the proceeding will be made. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.