FEDERAL COURT OF AUSTRALIA

Finch v Heat Group Pty Ltd (No 2) [2015] FCA 88

THE COURT ORDERS THAT:

1.    Subject to the following orders, the further conduct of this proceeding be stayed until further order of the Court.

2.    Any application by the applicant for the lifting of the said stay be filed by 4:00 pm on 2 March 2015, be returnable at 9:30 am on 5 March 2015 and be supported by a certificate of a medical practitioner:

(a)    stating that, notwithstanding the statement of Dr Byron Rigby dated 8 March 2014, the applicant is able, without risk to her health and without risk of the consequences of participation in court proceedings referred to by Dr Rigby:

(i)    to provide her solicitor and counsel with instructions sufficient for them, on her behalf, to conduct a case in court involving the allegations set out in her Further Amended Statement of Claim filed on 7 October 2014; and

(ii)    should it be necessary, to represent herself in the conduct of that case; and

(b)    stating his or her opinion as to the mental state of the applicant on 5 February 2015 and whether, on that day, she was in a condition to represent herself in court.

3.    If the said stay has not been lifted by 5 March 2015, subject to any further order made on proper cause demonstrated, this proceeding stands dismissed pursuant to rules 1.40(a) and 5.23(1)(b) of the Federal Court Rules 2011 (Cth).

4.    The further hearing of the respondents' interlocutory application filed on 28 November 2014 be adjourned to a date to be fixed.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

1    The idea that the interlocutory application now before the court, and the proceeding itself, should be stayed because of the applicant’s medical condition, and her lack of legal representation, came to me only in the course of receiving her submissions today. The nature and scope of those submissions, and the terms of the affidavits upon which she relied, gave me cause to call for the evidence upon the strength of which I made Order 2 on 14 March 2014. That evidence, which is contained in a report by Dr Byron Rigby of 8 March 2014, appears to be, even now, the most recent statement as to the applicant’s condition, and its consequences for her as a self-represented litigant (and possibly also as a represented litigant).

2    I am concerned at what might be the consequences, both for the applicant and for the court, if I were to permit the case to proceed without any further evidence by way of qualification of that tendered over the name of Dr Rigby. I know that this is an unsatisfactory situation for the parties, and it certainly is for the court, but the nature of the material upon which the applicant relies today provides, if anything, further grounds for disquiet as to the risks that might be presented by allowing the proceeding to go ahead according to the normal forensic procedures – which can at times be quite bruising, even for the most robust of litigants – unless some further evidence is presented by way of qualification of what Dr Rigby said.

3    In the circumstances, what I propose to do is to take a modified form of the approach which I took on 14 March 2014. I shall give an indication of what I have in mind, so that you can address me on the actual nuts and bolts of it, lest in some way it would not be workable.

4    I propose to stay the conduct of the proceeding until further order, subject only to the other orders which I propose to make, and then to give the applicant a day by which she should file and serve a certificate of a medical practitioner that, notwithstanding the statements of Dr Rigby, she is able, without risk to her health, and without risk of the consequences of participation in court proceedings referred to by Dr Rigby, to provide instructions to her solicitors and counsel sufficient for them, on her behalf, to conduct a case involving the allegations set out in her Further Amended Statement of Claim filed on 7 October 2014 or, should it be necessary, to represent herself in the conduct of such a case.

5    There will be two limbs to the certificate which I will require from a medical practitioner. The first will relate to a situation in which the applicant is represented by counsel (even then, of course, she has to be in a condition to give instructions). The second will relate to a situation in which she represents herself. In both instances, the certificate which I have in mind will contemplate that the medical practitioner will have had the chance to read the Further Amended Statement of Claim. It will be the applicant’s obligation to make sure that her doctor is not simply talking about her participation in court proceedings, but that he knows the nature of the case she is running. I want her doctor to see a copy of the Further Amended Statement of Claim, and the certificate which I will require will embody that condition.

6    I will also make it a requirement of the medical certificate that, as far as possible, it deal with the subject of the applicant’s condition today and, therefore, with the reliability of the submissions which she has made.

7    I will make an order similar to Order 3 which I made on 14 March 2014, namely, that, if the stay has not been lifted by a particular date the proceeding will be dismissed under the Federal Court Rules 2011 (Cth).

8    On this occasion, I do not propose to say anything about what will happen if the stay is lifted, because then there will have to be, I would imagine, at least some kind of communication as between the court and the parties as to what should happen next. There is a range of things that might then happen next, depending upon what the applicant comes up with. One of them, quite clearly, is that I should simply give judgment on the security application by reference to what has been put to me today. Another is that, if counsel is briefed, he or she might want to say something about that application.

9    I appreciate that this is accumulating costs for the respondents, but, the way it has come about, it seems to me to be unavoidable.

Associate:

Dated:    17 February 2015