Tu v Chang

1. The NSW Trustee and Guardian be appointed as the applicant's litigation representative pursuant to rule 9.63 of the Federal Court Rules 2011 (Cth) with effect from the date of the filing of the application on 10 June 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The following short reasons were delivered ex tempore at the commencement of the hearing of this matter in response to an application that the NSW Trustee and Guardian be appointed as the applicant's litigation representative pursuant to r 9.63 of the Federal Court Rules 2011 (Cth). These reasons do not go to the applicant's substantive application to set aside a bankruptcy notice pursuant to s 41 of the Bankruptcy Act 1966 (Cth). 2 Rule 9.61 of the Federal Court Rules provides that: A person under a legal incapacity may start, or defend, a proceeding only by the person's litigation representative. [note omitted] 3 The Dictionary to the Federal Court Rules defines "litigation representative" as meaning a person who has been appointed for a proceeding as a litigation representative for a person under a legal incapacity, and a "person under a legal incapacity" as meaning a minor or a mentally disabled person. 4 Rule 9.62 provides who may be a litigation representative. Rule 9.63 provides for the appointment of a litigation representative by the Court. Rule 9.64 provides that a litigation representative must not take a step in the proceedings unless there has been filed that litigation representative's consent together with a certificate that the litigation representative has no interest in the proceedings that is adverse to the interest of the person under a legal incapacity, signed by the litigation representative if that person is a lawyer, or, if that person is not a lawyer, by the litigation representative's lawyer. 5 On 10 June 2016, the present application to set aside the bankruptcy notice served on the applicant was filed. That application also sought interim relief by way of an order under r 9.63 of the Federal Court Rules that the NSW Trustee and Guardian be appointed as the applicant's litigation representative. 6 Rule 9.62(2)(a) provides that the NSW Public Trustee and Guardian may be a litigation representative. It seems that the word "Public" has been dropped from the title. However, r 9.62(2)(i) provides that a trustee company that, under a law of a State or Territory, is authorised to act as a trustee, executor or administrator, may be a litigation representative. 7 Section 5 of the NSW Trustee and Guardian Act 2009 (NSW) provides that there is constituted by that Act a corporation with the corporate name of the NSW Trustee and Guardian. Section 3(1) of that Act provides that the corporation can be referred to by that name or as the NSW Trustee. Sections 11(1)(a) and 11(1)(b) of that Act provide that the NSW Trustee may be appointed to act in the capacity of trustee, or executor, or administrator. It follows that the Federal Court Rules expressly provide for the NSW Trustee to be appointed as a litigation representative. 8 Also filed on 10 June 2016 was the necessary consent of the NSW Trustee to act as the applicant's litigation representative and the necessary certificate by a delegate of the NSW Trustee signed by its lawyer as required by r 9.64. 9 The interim application to support the NSW Trustee as the applicant's litigation representative was supported by an affidavit of a delegate of the NSW Trustee sworn 27 April 2016. That affidavit deposed to the need for that appointment to take place, including annexing evidence of the 27 February 2013 order and reasons of the then Guardianship Tribunal, now a division of the NSW Civil and Administrative Tribunal (NCAT), by which it made a financial management order committing the management of the estate of the applicant to the NSW Trustee. 10 The reasons for the decision of the Guardianship Tribunal refer to the facts, medical evidence and legal authority considered by it, leading to the conclusion that the applicant was not capable of managing his ordinary affairs as a result of mental disability. The Tribunal was satisfied that there was a need to appoint someone to manage his affairs, and that it was in his best interests that such an order be made. 11 There is nothing before me to indicate that the applicant's circumstances have changed in the period since 27 February 2013. The reasoning of the Tribunal, now NCAT, in making the financial management order on that date establishes to my satisfaction, without any subsequent change being evidenced, that the applicant was and remains a "person under a legal incapacity", as that term is defined in the Dictionary already referred to. 12 I am satisfied that the Rules have been complied with and that it is necessary and appropriate that the appointment sought be made. Being satisfied that the applicant is a person under a legal incapacity, under r 9.63 I appoint the NSW Trustee and Guardian as the applicant's litigation representative with effect from the date of the filing of the application on 10 June 2016 to ensure that there can be no question of the validity of the commencement or carriage of those proceedings up to today's appointment. 13 I then proceeded to hear the application and reserved judgment, to be delivered at the same time as publishing these reasons. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.