FEDERAL COURT OF AUSTRALIA

Drummond v Canberra Institute of Technology [2020] FCAFC 131

ORDERS

THE COURT NOTES:

1.    The concession given by Counsel on behalf of the Canberra Institute of Technology that in making the orders on 28 November 2017 and in his judgment and orders of 20 September 2019 the discretion of the primary Judge miscarried in that no consideration was given to the provisions of Division 11.2 of the Federal Circuit Court Rules 2001 (Cth).

AND BY CONSENT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The Notice of Appeal be amended to incorporate:

(i)    appeals from the orders made on 28 November 2017 and the whole of the judgment in [2019] FCCA 2612; and

(ii)    an amendment to Ground 2 to include “and in failing to have regard to the provisions of Division 11.2 of the Federal Circuit Court Rules 2001 (Cth).”

3.    The appeal be allowed.

4.    The following orders be set aside:

(i)    orders 2 to 5 (inclusive) as made on 28 November 2017; and

(ii)    the orders made on 20 September 2019.

5.    The Interlocutory Applications filed on 3 and 13 July 2020 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Mark Lea Drummond is a teacher. For a period of about six years he was employed by the Canberra Institute of Technology (CIT) on a succession of fixed term contracts. On 22 May 2009 CIT notified him of its intention not to offer him any further contracts after 30 September 2009 “without a merit-based process”. In August 2009 CIT informed him that funding for his position was not available after that date. On 31 July 2015 he filed a general protections application in the Federal Circuit Court of Australia (Circuit Court), claiming that CIT had taken “adverse action” against him more than 100 times in contravention of various provisions of the Fair Work Act 2009 (Cth) because he had made a number of inquiries and complaints about a range of matters. Serious allegations were made against multiple individuals. Amongst other things, for example, Dr Drummond alleged that he has been the victim of a conspiracy to injure him in his employment, financial wellbeing, general health, and mental health in particular, involving “coercion, undue influence [and] bullying on a shocking scale”, which caused him “extreme levels of distress, torment and damage”.

2    On 24 November 2017, four days before the trial was due to begin, Dr Drummond contacted CIT and the Circuit Court to request an adjournment of the hearing. However, on the first day of the prospective trial, 28 November 2017, the Court not only vacated the hearing dates, but dismissed the substantive application and all outstanding interlocutory applications, granting Dr Drummond leave to apply to reopen within six months on certain conditions. Dr Drummond applied for leave to reopen but on 20 September 2019 his application and all outstanding interlocutory applications were dismissed “on a final basis”. In effect, leave to reopen was refused. Dr Drummond is understandably aggrieved by the Circuit Court’s decision and wants this Court to set it aside. Consequently, he applied for leave to appeal. The application for leave to appeal and any appeal were listed together for hearing by a Full Court.

3    The primary judge’s decision involved the exercise of a discretion. An appeal against the exercise of a discretion is governed by the following principles in House v The King (1936) 55 CLR 499 at 504–5:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has .been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

4    As the judgment was interlocutory, leave to appeal is required: Federal Court of Australia Act 1976 (FCA Act), ss 24(1A); 24(1D)(b).

5    The decision the primary judge made also involved a matter of practice and procedure. There are well-recognised constraints upon the ability of an appellate court to “second guess” such a decision. “Particular caution”, it has been said, should be exercised “in reviewing decisions pertaining to practice and procedure”: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

6    In general, leave to appeal will only be granted if the judgment in question is attended by sufficient doubt to warrant its reconsideration and if substantial injustice would result were leave to be refused, assuming the decision to be wrong: Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397. But this is not a rigid or inflexible rule: Décor at 399. Where an order, even though interlocutory, has the practical effect of finally disposing of a party’s rights, leave will more readily be granted. See, for example, SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 (French J).

7    At the outset of the hearing on 24 July 2020 counsel for CIT informed the Circuit Court that CIT did not oppose a grant of leave.

8    Dr Drummond also filed two interlocutory applications. One, filed on 3 July 2020, sought, amongst other things, an order enabling him to file additional evidence and restricting the disclosure of confidential matters. The other, filed on 13 July 2020, sought leave under s 27 of the FCA Act to adduce the additional evidence accompanied by an affidavit annexing that evidence. As events transpired, however, it became unnecessary to resolve either of these two applications.

9    During the course of argument, counsel for CIT properly conceded that the discretion of the primary judge had miscarried. Orders were then made by consent, giving effect to the concession, including an order allowing the appeal by consent. It was foreshadowed that short reasons would be provided for the making of those orders. These are those reasons.

The November 2017 orders and the September 2019 decision

The November 2017 orders

10    The orders made on 28 November 2017 (the November 2017 orders) were somewhat unusual. They were in the following terms:

1)    The Hearing listed for 4 days commencing on 28 November 2017 be vacated.

2)    All outstanding Applications be dismissed.

3)    The Applicant is at conditional liberty to seek that the matter be re-opened within 6 months of the date of today’s Orders, being by close of business on 28 May 2018.

4)    The Applicant may only seek to re-open the matter pursuant to Order 3 should the following occur:

a)    At the time of filing the Application to Re-Open, the Applicant is to file detailed medical evidence regarding his ability to conduct the litigation;

b)    At intervals of every 3 months for the duration of the litigation, the Applicant is to continue to provide (by way of filing with the Court) medical evidence that he is fit and able to conduct the litigation; and

c)    If the foregoing steps are complied with, the Applicant is required to provide the Court with a medical certificate, 5 days prior to any hearing date, demonstrating that he is fit and able to conduct the litigation.

5)    Neither party may file anything in relation to this matter during the period stipulated in Order 3, namely until 28 May 2018, without the prior leave of the Court.

6)    By consent, the Costs of both sides in relation to the preparation for trial be reserved.

11    No reasons were given and no reference was made in the orders themselves to the source of the power the Circuit Court was exercising. The orders were preceded by the following note:

A.    On 24 November 2017 the Court received correspondence from the Applicant requesting an adjournment of the trial listed for 4 days commencing on 28 November 2017;

B.     The Applicant provided significant medical evidence in relation to the impact that the proceedings were having on his mental health;

C.     The Respondent strongly opposed the request to adjourn the Hearing;

D.     There have been multiple adjournments and extensions of time granted in this matter due to, amongst other things, the Applicant’s inability to comply with timetables and provide documents;

E.     The Court e-mailed the parties with a proposal to deal with the Applicant’s situation and the future conduct of the matter; accordingly …

12    The proposal mentioned in para E of the note corresponded with the orders the Circuit Court made.

13    The November 2017 orders were not merely matters of background to the orders Dr Drummond wanted the Court to set aside. They provided the very framework from which the Circuit Court proceeded to deal with Dr Drummond’s application to reopen. Thus, while Dr Drummond’s notice of appeal did not expressly challenge the November 2017 orders, leave was granted at the hearing to enable him to do so.

The application for leave to reopen

14    Dr Drummond applied to the Circuit Court for leave to reopen on 25 May 2018, just within the six-month period the subject of order 3 of the November 2017 orders. The application was accompanied by a report from his general practitioner, Dr Helen Wessell. Dr Wessell wrote:

On review today I find that Mark Drummond has significantly improved. His workplace stressors have recently resolved and his personal family issues are much more under control. This has alleviated the stress and anxiety that he suffers and in my opinion he has the capacity to resume involvement in the court process which was adjourned in Nov 2017. However since these positive developments have only recently taken effect, to allow him time for full preparation I recommend the final hearing be delayed until at least September 2018.

15    On 29 June 2018, Dr Drummond filed an amended application to reopen supported by an affidavit. Annexed to that affidavit was a longer report from Dr Wessell dated 28 June 2018 clarifying “the reasons for his stresses and subsequent improvement”, supporting his application to reopen the case, stating that it would be “helpful for [his] complete recovery”. Dr Drummond filed another affidavit on 28 August 2018 annexing another report from Dr Wessell in which she expressed the opinion that Dr Drummond “remains fit to participate in the preparation and hearings regarding his legal matters in the Federal Circuit Court”.

16    On 20 September 2018 the primary judge ordered that by 31 December 2018 Dr Drummond file and serve a psychiatric report which provides “expert opinion regarding [his] capacity to prosecute his Applications without any delay”.

17    Dr Drummond filed affidavits on 20 December 2018 and on 8 March 2019, which annexed reports from Dr Rodney Blanch, a consultant psychiatrist.

18    The first report, dated 16 November 2018, contained the following opinions:

He has a past history of depression that appears to have been related to his negative workplace experiences initially in 2009. He currently does not have any depressive symptoms. He does have some ongoing anxiety symptoms that can become overwhelming for short periods but has learnt multiple psychological skills that help him manage these symptoms. There is no evidence of any cognitive deficits, indeed Mr Drummond has high academic attainment completing a PhD in Business and Management from University of Canberra.

Mr Drummond does not have any mental health complaints that impair his ability to understand and process the information that will be presented in court and he understands the nature of the case that he is representing himself in. He has studied the legal framework thoroughly and is supported by a barrister in presenting his case. I believe that he has the capacity to represent himself in court.

(Emphasis added.)

19    These were the findings Dr Blanch made on examination of Dr Drummond’s mental state:

Mr Drummond was casually dressed man who looks stated age. He was well groomed and engaged well in the review process. He reports a positive mood and his affect was mood congruent, warm and reactive. He does not have any speech deficits or thought form abnormality. He describes a difficult last several years with issues in both his personal and professional worlds. He recognises that his family concerns are being adequately addressed and he has returned to teaching, a profession that he loves. He does not have any suicidal thoughts and he was able to work on the development of a safety plan. There is no evidence of any psychotic phenomena. Mr Drummond has no cognitive deficit scoring 29/30 on an MMSE and there was no deficit on a frontal assessment battery. Mr Drummond has good insight into his past mental health difficulties and his judgement with respect to his mental health care is not impaired.

(Emphasis added.)

20    The second report related to a review Dr Blanch conducted on 14 February 2019 in conformity with the Court’s order for three-monthly reviews. In that report, Dr Blanch said, amongst other things:

There is no evidence of any obvious delusional content nor any perceptual disturbances. Mr Drummond does not have any cognitive deficits. Mr Drummond has good insight into his mental health and his judgement with respect to his mental health care is not impaired.

Mr Drummond continues to have a good understanding of the case that he is presenting and he is supported by a barrister in doing so.

In my opinion Mr Drummond has a history of Depression that is currently in remission.

21    On 14 March 2019 the parties appeared before the Circuit Court on Dr Drummond’s application to reopen the proceeding. Apparently oral submissions were made but the primary judge also made the following order for written submissions:

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1.    Within 14 days of the date of these Orders, being by 28 March 2019, the parties are to file and serve:

a.    One page of submissions addressing the medical evidence submitted by the Applicant in light of the Orders made on 20 September 2018; and

b.    One page of submissions addressing the principles in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (and related cases).

THE COURT NOTES THAT:

2.    The Court intends to decide the matter on the basis of the oral submissions made today and the written submissions to be filed on a “Show Cause” basis, with the purpose being to provide the parties the opportunity to establish why the Applicant’s long running Application should not be dismissed.

22    On 20 September 2019 his Honour ordered that “on a final basis”, “all extant [a]pplications be dismissed”.

The September 2019 reasons

23    The Circuit Court’s September 2019 reasons for decision outlined the background to the proceeding, including the orders made in November 2017. The primary judge summarised the conduct of the proceedings to that date as follows:

6.    For much of the protracted litigation, the Applicant has been self-represented. Mainly, but not only, because of issues related to his mental health, there have been multiple occasions, over a long period of time, when the Applicant has been unable to comply with various filing deadlines contained in Orders. A number of these Orders were made by consent – but still there was no compliance with them by the Applicant. More recently, for certain parts of the conduct of the matter, the Applicant has retained the services of experienced Counsel.

7.     On multiple occasions, as just noted, the Applicant sought, and was granted, extensions of time in relation to the filing of various documents.

8.    On 19th April 2017, the Court made Orders fixing the matter for final hearing (over 4 days) commencing on 28th November 2017.

9.     On 15th August 2017, the Respondent filed an Application in a Case seeking Orders to strike out many parts of Mr Drummond’s Amended Statement of Claim dated 2nd July 2017. In written submissions, filed 5th September 2017, the Respondent pointed out, not for the first time, that most if not all of Mr Drummond’s complaints related to events that occurred prior to 1st July 2009. In my view, fairly, the Respondent pointed out the constant delay by the Applicant in filing material and the ongoing prejudice to the Respondent and its potential witnesses. Among other complaints, the Respondent pointed out also how large tracts of the Applicant’s pleadings were embarrassing and in some instances scandalous. Other parts of the pleadings were vague, significantly general and ambiguous. I generally agree with and accept these characterisations.

10.     In 2017, the Applicant sought leave to re-plead. Similar leave had previously been granted to him in 2016 and again pursuant to Orders made on 19th April 2017.

11.     On 24th November 2017, the Court received correspondence from the Applicant in which he sought an adjournment of the final hearing. In support of that request, the Applicant provided certain medical evidence in relation to the impact the proceedings were having on his mental health. The Respondent opposed any adjournment.

24    The primary judge referred to Dr Drummond having made an application for an adjournment of the final hearing, supported by medical evidence about the impact the proceedings were having on his mental health. The primary judge said (at [12]):

The Court granted the adjournment and made Orders (dated 28th November 2017) that required the Applicant to provide a range of information before the Court would consider re-listing the matter for hearing.

25    That is not a correct statement of the effect of the orders of 28 November 2017. Those orders did not operate to adjourn the trial to a date to be listed in the future. Rather, they had the collective effect of dismissing the originating application and erecting conditions to be satisfied before any application could be made by Dr Drummond to reinstate it.

26    After setting out the terms of the earlier November 2017 orders, the primary judge stated (at [13]) that “all outstanding Applications must be dismissed” for reasons summarised by his Honour as:

(a)    the Applicant failed to comply with the Orders made on 28th November 2017;

(b)    the evidence the Applicant has provided has not alleviated the Court’s very strong concern that, were the litigation to be resumed and the pressure of it came to bear upon him again, he would be unable to prosecute his Application without again falling into significant mental ill-health (e.g. a state of depression (and worse)) as he has done in the past;

(c)    the undue burden upon the Respondent and its many witnesses (some of whom have now retired) of not knowing when, if ever, the litigation will be able to be prosecuted without the risk of interruption and ongoing delay as on previous occasions, bearing in mind too that the issues raised by the Applicant refer to events that took place in 2009 and earlier;

(d)    the consideration the Court must have of the potential and ongoing impact on other matters of the significant resources already expended in the current proceeding, and the further risk of the ongoing consumption of scarce public resources of the Court.

27    The reasons then set out what is characterised as the “Documentary Evidence” (at [15] -[37]). That included reference to a number of affidavits in which Dr Drummond described his personal difficulties and to which were annexed reports from medical practitioners. After briefly summarising the oral submissions made on 14 March 2019 (at [39]–[40]), the parties’ written submissions (filed in accordance with the order made that day) were extracted in their entirety, save for citations.

28    Under the heading “Consideration and Disposition”, the primary judge quoted s 14 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), adding emphasis as follows:

In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:

(a)    absolutely, or

(b)    on such terms and conditions as the Federal Circuit Court of Australia thinks just;

All remedies to which any of the parties appears to be entitled in respect of a legal or equitable clam properly brought forward by him or her in the matter, so that, as far as possible;

(c)    all matters in controversy between the parties may be completely and finally determined; and

(d)    all multiplicity of proceedings concerning any of those matters may be avoided.

29    His Honour also referred to s 42 of the FCCA Act, which provides that in proceedings before it, the Federal Circuit Court must proceed without undue formality and must endeavour to ensure that proceedings are not protracted. He went on to summarise the principles stated by the High Court in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303.

30    The reasons continued:

59.    In the light of the principles referred to, the evidence provided, and the submissions of the parties, I note the following.

60.    First, as earlier recorded, these proceedings have been on foot since July 2015. They relate to events that occurred in 2008 and 2009.

61.    Secondly, there has been a very significant number of adjournments and extensions of time granted to the Applicant, who has consistently promised to comply with directions of the Court to file relevant documents but more often than not has failed in this regard. Not only have they been late when eventually filed, but the Applicant's documents have also been unnecessarily and unfortunately prolix and confusing. It must be said here that prolixity and lack of clarity of documents are not confined to just this Applicant or to self-represented litigants more generally.

62.    Thirdly, the evidence provided by the Applicant is, in my view, compelling but, I suspect, not in the way he would wish. It points quite strongly to there being a significant risk that, were the litigation to resume, with all its attendant pressures, the Applicant's well-being (including his psychological state) will suffer. It also points quite strongly to his capacity [to] prosecute his claims being seriously compromised once more.

63.    In turn, this would inevitably mean that the Respondent and its witnesses (assuming them all to be available) will once more be required to prepare for a hearing that may very well, and more likely than not, never occur. …

(Emphasis added.)

31    The primary judge said that he based “these assessments” on a summary of some of the evidence, which he stated (erroneously) had been set out in full earlier in the reasons. His Honour proceeded to identify the parts of the evidence upon which he relied. The effect of the findings was that the litigation had exacerbated Dr Drummond’s mental health problems and that, whilst his symptoms had improved, that improvement was explained by the vacation of the trial dates. “Put another way,” his Honour said “once the stress of litigation was removed, Dr Drummond’s mental health correspondingly improved. Presumably, the converse is also true” (at [63(h)].

32    His Honour continued:

[64]    This evidence from the Applicant provides me with no confidence that, if the litigation was resumed, he would not again suffer mental health stress to such a degree that he would be incapable of prosecuting the litigation to its completion. Among other things, he would be forced to confront matters not only now of many years ago but which, in his view, are completely inaccurate. Those inaccuracies have already caused him to be "re-traumatised". They would very likely do so again, perhaps even more traumatically, especially in the witness box.

[65]    Further, his own medical evidence confirms that his mental health issues are currently in remission. It may reasonably be inferred that if the litigation were to be resumed his mental health would, very likely and significantly, deteriorate. This same evidence confirms that his mental health improved noticeably when the litigation was effectively “put on hold”. As already noted, the converse must necessarily follow.

[66]    I need not repeat, or summarise, the High Court's comments from AON regarding considerations of justice to other litigants as well as to the parties, the impact on witnesses and employees of delay, the efficient use of public resources, and the efficient and speedy resolution/conclusion of litigation.

[67]    Nothing in the current matter has ever been either efficient or speedy. It is not a criticism of the Applicant that he has simply been unable, physically and mentally, to prosecute his Application properly or efficiently, even with the assistance in more recent times from Counsel. I cannot see him ever being in a position of doing so.

[68]    I am acutely conscious of the importance and significance of preventing a party from continuing with litigation initiated by him (or her).

[69]    However, the evidence provided by the Applicant has not only not discharged his responsibility to the Court (and to the Respondent) to confirm that he will be able to prosecute his claims appropriately and expeditiously to finality this time around. More concerningly, his evidence, in my view, clearly outlines that there are, and remain, very significant risks (a) to his mental health if the litigation were to resume, and in turn (b) to his ability to prosecute his claim to its finality.

(Emphasis added.)

The discretion miscarried

33    Counsel for CIT submitted that the primary judge should be understood to have dismissed the proceedings (both in November 2017 and on a “final basis” in September 2019) in the exercise of the power conferred by r 13.03(B)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). It relevantly provides that the Court may dismiss a proceeding in whole or in part if the applicant is in default. Counsel for CIT pointed to a series of past defaults, including the defaults summarised by the primary judge and referred to earlier in these reasons.

34    The suggestion that the proceedings were dismissed because of Dr Drummond’s defaults must be rejected.

35    First, the past defaults had been remedied such that there were no further steps to be taken by either party preparatory to trial at the time that Dr Drummond made his application for an adjournment. To the extent that there had been months of argument concerning the inadequacy of Dr Drummond’s pleadings (drafted as they were by a self-represented litigant), those arguments had been overtaken by a more appropriate procedure for defining the contentious issues. As at November 2017, CIT had not complained that the trial could not proceed by reference to any past instances of non-compliance that were prejudicial to it. To the contrary, it opposed Dr Drummond’s application for an adjournment and was itself ready to proceed with the trial. In the ordinary course, there was nothing more to be done by either party for the trial to proceed.

36    Second, it is plain that the primary judge considered that the past defaults of Dr Drummond and the application for the adjournment were largely explained by a mental illness. So much is apparent from the note to the orders made on 28 November 2017.

37    Third, the liberty to apply to “reopen” was not conditional upon Dr Drummond rectifying any past default. Rather, it was conditioned upon a requirement that the proceeding not be set down for trial unless Dr Drummond were to first establish that he had the mental capacity to conduct his case.

38    The effect of the orders made in November 2017 was to impose on a litigant with a history of mental illness a duty to satisfy the Court that he was competent to conduct the proceeding at the time he applied for leave to reopen or at the time any such application was considered. The assumption underlying the orders made in September 2019 was that, unless a litigant with such a history could satisfy the Court that he had completely recovered from his illness and would never relapse or be susceptible to future episodes, he should not be permitted to pursue his case, regardless of what merit it might have. Both propositions are extraordinary.

39    The primary judge concluded that the evidence Dr Drummond adduced on his application to reopen “has not alleviated the Court’s very strong concern that, were the litigation to be resumed and the pressure of it came to bear upon him again, he would be unable to prosecute his action without again falling into significant mental ill-health … as he has done in the past”.

40    Whether the primary judge was correct in those conclusions of fact is unnecessary to decide. For the disposition of the appeal, it is sufficient to conclude that the proceedings were not dismissed because of any past default per se. Rather, they were dismissed on the basis that the primary judge was not satisfied that Dr Drummond had, or would in the future have, the capacity to present his case at a trial.

41    The error conceded by CIT lies in the failure of the primary judge to give any consideration to the provisions contained in Div 11 of Pt 11 of Ch 1 to the FCCA Rules.

42    Subrule 11.08(1) provides:

For these Rules, 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 instruction for the conduct of, the proceeding.

(Emphasis added)

43    An applicant party who needs a litigation guardian may start or continue a proceeding only by his or her litigation guardian: r 11.09(1).

44    These rules presuppose that an applicant party may need a litigation guardian even though he or she is capable of understanding the nature and subject matter of the proceedings and capable of taking some steps on his or her own behalf preparatory to trial. The occasion for appointing a litigation guardian does not depend on proof of infancy or mental disability giving rise to legal incompetency as that narrow concept is understood in the general law. The rules are wide enough to require a litigation guardian to be appointed for a party who although legally competent is unable to adequately conduct a part of the proceeding, particularly the conduct of a trial. What is “adequate” in a given case must depend on all of the circumstances. The phrase “adequately conduct” permits consideration to be given to the Court’s case management principles and the legitimate need to protect the interests of other parties and the Court itself from the expense, delay and inconvenience caused by conduct that is the manifestation of a mental illness of a litigant.

45    In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [25], the Full Court (Black, Moore and Finkelstein JJ) said of the power of the Chancery Division of the High Court of England and Wales to appoint litigation guardians:

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 [in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511] (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’.

46    The Full Court went on to say (at [26] – [27]):

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.

The means by which the court will determine whether a litigation 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.

47    The primary judge did not refer to this line of authority or to any of the provisions contained in Div 11.2 of Pt 11 of Ch 1 of the FCCA Rules. That is notwithstanding an apparent acceptance on the part of the primary judge (as evidenced by the orders and accompanying note) that Dr Drummond’s inability to conduct the trial in November 2017 was due in large part to the effects of a mental illness.

48    The nature of Dr Drummond’s asserted difficulties in 2017 was not so much an inability to understand the subject matter of the proceedings, but rather an inability to attend to the practicalities of the trial (and to withstand its attendant pressures) without exacerbating an existing mental health condition to a debilitating degree. Implicitly, the primary judge accepted that to be the case in November 2017. His Honour plainly perceived that Dr Drummond’s mental illness may again cause disruption and delay, prejudicial to CIT and wasteful of the Court’s administrative and judicial resources.

49    The rules contained in Div 11.2 reflect the principle that a person with a history of mental illness is as entitled to access to justice as any other person. To the extent that a mental illness affects a party’s capacity to conduct a proceeding, there are measures available to the Court to protect the interests of other parties and the administration of justice generally. The rules are protective of the litigants themselves. In the case of a litigant in Dr Drummond’s asserted position, the appointment of a litigation guardian is a measure that protects the litigant from the consequence that a claim may be dismissed in accordance with the principles stated in AON and Armstrong by reference to delays and defaults that might otherwise occur.

50    Without giving any consideration to those available measures, the primary judge dismissed Dr Drummond’s substantive application, with a conditional opportunity to “reopen”. As CIT conceded, the error in the 2017 orders lies in the failure of the primary judge to have regard to the provisions of the rules relating to the appointment of a litigation guardian. The appeal is allowed on that basis.

51    No doubt the prospect of dealing with Dr Drummond’s claim was a daunting one. No doubt, too, the primary judge was frustrated by Dr Drummond’s repeated failures to meet the Court’s deadlines for the filing of documents. But as counsel for CIT acknowledged in argument, contrary to what his Honour said in his September 2019 reasons, Dr Drummond had not made “a very significant number” of adjournment applications. The application he made on 24 November 2017 was the first and only one. It was made in part on mental health grounds and in part on the basis that he had been served with CIT’s evidence only two weeks earlier. While CIT was in compliance with the orders of the primary judge, at least in retrospect his Honour should have realised that two weeks was insufficient time for someone in Dr Drummond’s position to be able to prepare for a hearing.

52    The enquiry the primary judge subsequently undertook in September 2019 appears to have been directed to the question of whether Dr Drummond’s mental health condition had improved so as to justify the reinstatement of the proceeding and the re-listing of the originating application for trial. It is a vexed question whether the primary judge erroneously reversed an onus of proof of the kind to which the Full Court referred in L, but that is not the basis upon which CIT conceded the appeal and it is unnecessary to express a concluded view on the question.

53    The error affecting the 2019 orders lies in the primary judge proceeding from the assumption that Dr Drummond’s failure to alleviate the Court’s concerns about his mental capacities warranted the dismissal of the originating application “on a final basis” by reference to the principles stated in AON and Armstrong, again without any consideration being given to the merits of the claim or to the rules contained in Div 11.2.

54    The reliance sought to be placed by CIT and the primary judge upon r 1.03 of the FCCA Rules is misplaced. That rule provides as follows:

Objects

(1)    The object of these Rules is to assist the just, efficient and economical resolution of proceedings.

(2)     In accordance with the objects of the Act, the Rules aim to help the Court:

•    to operate as informally as possible

•    to use streamlined processes

•    to encourage the use of appropriate dispute resolution procedures.

(3)    The Court will apply the Rules in accordance with their objects.

(4)    To assist the Court, the parties must:

•    avoid undue delay, expense and technicality

•    consider options for primary dispute resolution as early as possible.

(5)    If appropriate, the Court will help to implement primary dispute resolution.

That rule has its counterpart in s 37M(1) of the FCA Act.

55    Obligations of this kind “do not displace the need for the court to safeguard the administration of justice”: Rozenblit v Vainer (2018) 262 CLR 478 at [76] (Gordon and Edelman JJ). With reference to s 37M, it has been said that although the “overarching purpose of the civil practice provisions” include as an objective “the just determination of all proceedings” and not merely a determination which is quick and inexpensive, no “procedure should be encouraged, be it by way of ex tempore judgments or otherwise, which sacrifices the need for any Court to achieve a ‘just determination’ of a proceeding before it and a determination ‘according to law’”: BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 at [16] (Flick J). What is required for the just determination of a proceeding in a given case will depend on all of the circumstances, including the availability of measures to protect respondent parties and the Court’s resources from delays and disruption caused in whole or in part by the mental illness of a party.

56    In all of the circumstances, the orders made in November 2017 were draconian. So, too, were the orders made in September 2019. Both the orders and the reasons were affected by appealable error. Both were based on the misconception that a litigant suffering from a mental illness sounding in incapacity should have his or her originating application dismissed without any consideration being given to its substantive merits or the power of the Court to appoint a litigation guardian at any time.

57    For these reasons it is unnecessary to deal with the other grounds upon which Dr Drummond relied, including the grounds impugning the factual findings of the primary judge in relation to the causes and effects of Dr Drummond’s mental illness.

Associate:

Dated:    31 July 2020