Federal Court of Australia

Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an adjournment of the hearing listed for 10.15 am on 23 September 2022 is dismissed.

2.    The time for filing and service of the Appeal Books by the respondent be extended to 4.30 pm on 16 September 2022.

3.    The time for filing and service of the applicant’s submissions be extended to 4.30 pm on 19 September 2022.

4.    The time for filing and service of the respondent’s submissions be extended to 1.30 pm on 21 September 2022.

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

REASONS FOR JUDGMENT

THE COURT:

1    The applicant has applied for leave to appeal against the judgment in Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646. By that judgment, a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) ordered that a litigation guardian be appointed for the applicant.

2    The application for leave to appeal and any appeal have been listed for hearing on Friday, 23 September 2022. The applicant is self-represented.

3    The applicant now applies for an adjournment of the hearing. His application is supported by a medical certificate from the applicant’s general practitioner, Dr Helen Wessell, which states:

This letter is to confirm that Dr Mark Drummond is suffering from a medical condition of emotional and physical burnout and will be unfit to attend to court matters from 13/09/2022 to 13/10/2022 (inclusive) pending review in early October.

4    The respondent opposes any adjournment.

5    The matter has a long history before the FCFCOA, having been commenced in 2015. The applicant has, or has had, a psychiatric condition, which seems to have contributed to delays in the finalisation of the matter. In Drummond v Canberra Institute of Technology [2020] FCAFC 131, the Full Court referred at [20] to a report of a consultant psychiatrist, Dr Rodney Blanch, dated 14 February 2019 describing the applicant as having, “a history of Depression that is currently in remission”.

6    The order for appointment of a litigation guardian was made after the matter had been part-heard in the FCFCOA over two days on 26 and 27 July 2022. The applicant was then represented by direct access counsel, Mr Duc. On the morning of the third day, 28 July 2022, the applicant notified the Court that he was, “in a state of complete exhaustion and burnout”, and was, “unable to continue in the Court Hearing today or tomorrow, or participate in this matter to instruct Mr Duc or otherwise”. The primary judge then indicated that he would consider appointing a litigation guardian and submissions were later made.

7    On 4 August 2022, the primary judge ordered the appointment of a litigation guardian. That order was made under r 11.07 and r 11.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), on the basis that the applicant, “is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”. His Honour also ordered that the applicant was not permitted to file anything with the Court for the remainder of the litigation and that only his counsel or litigation guardian could do so.

8    The applicant filed his application for leave to appeal on 18 August 2022. The applicant seeks, inter alia, to have the primary judge’s order for the appointment of a litigation guardian set aside.

9    On 1 September 2022, in Drummond v Canberra Institute of Technology [2022] FCA 1030, Banks-Smith J ordered that the hearing of the application for leave to appeal and any appeal be expedited. That order was influenced by the primary judge having listed the hearing to recommence on 6 October 2022 and having indicated that he would not otherwise be able to hear the matter until late 2023.

10    On 12 September 2022, the applicant sent an email to the Court requesting an extension of time for one day for compliance with case management orders made by Banks-Smith J. Later on 12 September 2022, the applicant sent another email to the Court stating:

I further inform that I’ve made an appointment to see my very down to earth GP Dr Helen Wessell for 12.15 pm tomorrow Tuesday as I do feel very run down and close to burn out again right now, but as per my email overnight, I honestly believe that just a single extra day to have the Appeal book done is all that will be needed. I’m not seeking a letter saying that I’m completely unfit for work or Court participation, but I do believe that some sort of follow up from the 1 August 2022 letter as attached is in order around about now, because I certainly haven’t had the chance to recover anywhere near as well as recommended, hoped, envisaged. etc, in that letter.

11    The “1 August 2022 letter” referred to by the applicant was from Dr Wessell stating that the applicant was, “unfit to continue participation in the court hearing from 28/07/2022 to 29/07/2022 due to exhaustion”. That letter noted that the applicant had, “weathered an intense grilling”, in the hearing before the FCFCOA and that he would, “benefit from a couple of weeks of mental rest and recuperation”.

12    On 13 September 2022, the applicant emailed the Court stating:

… I hereby also notify that I do believe I can file my submissions due for this matter by 10 am next Monday 19 September, but probably not before the weekend as currently due under extant Orders at due to my current state of progress and exhaustion. In short, I’m not completely burnt out, but I believe I’ll need the upcoming weekend to finalise my submissions, which will in substantial part be updated versions of the attached from earlier this year (which I prepared with assistance from my barrister friend Anton Duc), updated and tailored to the present application for appeal.

13    Later on 13 September 2022, the applicant sent an email to the Court stating:

Further to the below, at my medical appointment today my GP Dr Helen Wessell wrote a medical certificate for me saying she believed that I wasn’t fit for Court matters for a month from now…

14    On 14 September 2022, the applicant sent an email to the Court stating:

And sorry, but I DO seek an adjournment, but am going to take a few more days of good sleep to even be able to think straight to be frank, just being so damned exhausted after such gruelling recent days, weeks, months etc without any real recovery break at all ...

15    Later on 14 September 2022, the applicant sent another email to the Court stating:

… I really have tried in good faith to make this work but it just hasn’t worked I'm sorry due to how severely burnt out I've been for what is now such an extended period (really going on for years, not just days, weeks and months) ... on grounds including reaching a state of burnout which appeared to reach a new low yesterday when I discovered some of my capacities for basic things were not working - i.e. concentration problems, and freezing up, and blacking out, and taking quite a while to gather my thoughts a few times, and I experienced some physical symptoms in addition to exhaustion and headaches which I took to be some sort of warning signs that I needed to back off, akin to taking my foot off the throttle to avoid blowing a head gasket in a car, so to speak ...

16    On 16 September 2022, the applicant sent another email to the Court stating that there were exams at his school on 9 and 12 September 2022 which he felt he could not be away for. He added that if it were not for those exams and his conscientious belief that he had to be present for the exams and for quality teaching delivery in the lead up to the exams, he felt he could have better coped with efforts to prepare for the hearing.

17    Both the applicant and Dr Wessell gave evidence at the hearing of the application for an adjournment.

18    The applicant’s evidence was consistent with the terms of the emails he had sent to the Court. He indicated that his condition had worsened since 13 September 2022, when he started to experience heart palpitations, blackouts and headaches. He felt that he had “hit a wall”.

19    Dr Wessell gave evidence in support of the application for an adjournment. Under cross-examination, she was taken to her report dated 31 January 2022 where she had noted the applicant’s diagnosis of an adjustment disorder and had indicated that the applicant’s ability to prepare for legal proceedings was affected by the demands of his work as a teacher and his family circumstances, as well as the strain and traumatising effect of attending to the proceedings. In her evidence, she accepted that she did not “have a crystal ball” indicating whether the applicant would be well in a month if proceedings were adjourned.

20    In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, the Full Court observed at [42]:

In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the [Federal Court of Australia Act 1976 (Cth)] …

21    In Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149, Flick J observed at [10]:

Difficult questions invariably arise where any litigant is self-represented, especially where a litigant suffers from a medical condition. Inevitably a Court must proceed upon the basis of evidence that is before it and, to a lesser extent, upon its own assessment of the ability of a litigant to properly advance a case for hearing.

22    Having accepted that the applicant was suffering from a medical condition, described as depression and anxiety, Flick J continued at [12]:

But any such condition, it has been concluded, is not sufficient to deny him a real and meaningful opportunity to present his appeal for resolution.

23    In Kennedy, Mortimer and Bromwich JJ observed at [36]:

The history of the appeal proceedings is an important consideration in deciding whether or not to delay further the hearing of the appeal. When, as in this case, there has already been substantial delay since the handing down of the decision under appeal, there would ordinarily need to be a compelling reason to delay further the hearing of an appeal.

24    Their Honours also observed at [39]:

Reliance was placed on Mr Kennedy not having legal representation and, as an unrepresented person, feeling highly anxious about the litigation. As noted, while we do not doubt that Mr Kennedy feels burdened by and anxious about his litigation, he has been given more than adequate time to prepare for the appeal. Further delay would not relieve him of the perceived burdens of the litigation.    

25    We accept that the applicant suffers from what he describes as “burnout”. This apparently reflects an underlying psychological or psychiatric condition of some kind. His symptoms seem to include difficulties with concentration, fatigue and headaches. It appears that his symptoms fluctuate in severity and are affected by matters including the stresses of his ongoing litigation.

26    The applicant evidently believes that he will not be able to adequately prepare for and present his application for leave to appeal on 23 September 2022. The applicant’s view is supported by Dr Wessell.

27    Although the applicant was represented before the FCFCOA, he has decided to represent himself in his application for leave to appeal. It can be accepted that he may face difficulties and disadvantage in preparing for the application and in presenting his case both because he is self-represented and because of his medical condition. What must be determined is whether the interests of justice require that an adjournment be granted because of that disadvantage.

28    For a number of reasons, we are not persuaded that an adjournment is warranted.

29    First, Dr Wessell’s evidence that the applicant, “will be unfit to attend to court matters”, is unpersuasive. She told the Court that the applicant’s symptoms include poor sleep, poor concentration, feeling overwhelmed and blackouts (of concentration). Her evidence indicates that the applicant may have difficulty in preparing and presenting his case, but not that he is incapable of doing so.

30    Second, the applicant’s detailed and lengthy correspondence with the Court indicates that he is able to attend to “court matters”. It is evident that the applicant understands what is required to prepare for the hearing and was able to apply concentration and focus to addressing his application for an adjournment. The applicant logically and lucidly presented his submissions in support of his application for an adjournment. In addition, the applicant appears to have been able to carry out his demanding work as a mathematics teacher. There is no adequate reason to suppose that his submissions in respect of the substantive hearing would be less competent. We are not satisfied that the applicant’s condition would deny him a real and meaningful opportunity to present his case.

31    Third, the amount of preparation required to be undertaken by the applicant is limited. The case management orders accommodate any difficulties with preparation faced by the applicant by requiring the respondent to prepare the Appeal Books and a joint list of authorities. The applicant has indicated that he will substantially rely upon submissions prepared earlier in the year with the assistance of counsel who appeared for him before the FCFCOA, although updated and tailored for the present application.

32    Fourth, even if the hearing were adjourned to a later date, there would be a distinct possibility that the applicant, again confronted with the pressures of preparing for and presenting his argument, would experience similar symptoms of “burnout”. Delaying the hearing will not relieve the applicant of the stresses of the litigation, but will prolong them. It is unlikely that granting an adjournment will ultimately allow the applicant to better prepare for and conduct his application.

33    Fifth, Dr Wessell’s evidence was to the effect that she considered that the applicant could continue (and indeed had continued) to attend to his duties as a teacher. It emerged in re-examination that the applicant has the benefit of an ongoing medical certificate to the effect that he may have 20 hours each week away from the workplace, and may end his work days (or at least days on which there is a staff meeting) at 3.30pm. The applicant’s evidence was to the effect that he had not taken any substantial time away from his workplace in the previous fortnight, as he was entitled to do. He instead sought to attend to the needs of his students over what he told the Court was an examination period. Whilst that is admirable, it does support an inference that the applicant prioritised the needs of his students over his responsibilities in these proceedings. We are not satisfied that Dr Wessell’s opinion that the applicant had suffered from burnout took into account the circumstance that he had not taken time away from the workplace as he was entitled to do.

34    It is also necessary to take into account the disadvantage and inconvenience that will be caused to the respondent and the wastage of Court resources if an adjournment is granted. In particular, the hearing in the FCFCOA is to resume on 6 October 2022, and an adjournment will guarantee that the dates will be lost. The litigation has been limping along for some seven years, and the respondent has an evident and understandable interest in having it finalised.

35    We are not satisfied that it is in the interests of justice to adjourn the hearing.

36    However, the applicant will be granted an extension of time allowing him to file his outline of submissions by 4.30 pm on 19 September 2022. The time for the respondent to file its outline of submissions will be extended to 1.30 pm on 21 September 2022.

37    The Appeal Books were not filed on the date ordered by the Court. However, the respondent has indicated that they will be filed by 4.30 pm on 16 September 2022. We are satisfied that the respondent’s delay in filing the Appeal Books is due in part by attempts to accommodate the applicant’s requests concerning its contents.

Associate:    

Dated:    16 September 2022