Federal Court of Australia

Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592

ORDERS

THE COURT ORDERS THAT:

1.    By 4.30 pm on 31 January 2022, the first and second respondents (subject to any claim of penalty privilege that may be made) file and serve a concise statement in response.

2.    The matter will be listed for a case management hearing at 10.15 am on 8 February 2022.

3.    In the event that either of the respondents fails to comply with Order 1, the applicant have leave to write to the Court seeking to have the applicant’s application for default judgment filed on 7 April 2021 relisted for hearing.

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

REASONS FOR JUDGMENT

RANGIAH J:

Introduction

1    The applicant, the Secretary of the Department of Health (the Secretary), has commenced proceedings against the first respondent, Southern Cross Directories Pty Ltd (Southern Cross), and the second respondent, Dr Charles Barton. The Secretary alleges that the respondents operated a website through which they advertised certain “therapeutic goods” in contravention of s 42DLB(1) of the Therapeutic Goods Act 1989 (Cth) (the Act).

2    Dr Barton contends that he is under a legal incapacity and is unable to defend the proceedings. The Secretary’s position is that there is no evidentiary basis for Dr Barton’s contention.

3    It is necessary for the Court to determine whether Dr Barton has the legal capacity to defend the proceeding.

4    I will set out some of the background and procedural history in order to give context to the parties’ submissions.

Background

5    Dr Barton describes himself in his emails as holding a PhD and as a Minister of Religion. He is the sole director and shareholder of Southern Cross.

6    The Secretary’s concise statement alleges that the respondents operate a website at the address www.mmsaustralia.com.au. It is alleged that Southern Cross holds itself out as, “A Ministry of the Genesis II Church of Health and Healing. Genesis II Church Chapter #316”. The Genesis II Church is said to be an American organisation that promotes the use of products (or “Sacraments”), including products described as “Miracle Mineral Solution” and “Master Mineral Solution”, as a cure for a range of serious diseases such as Alzheimer’s, novel coronavirus (COVID 19), diabetes, cancer and HIV/AIDS. It is alleged that the products contain sodium chlorite (MMS), calcium hypochlorite (MMS2), dimethyl sulfoxide (DMSO) and yohimbine.

7    The Secretary alleges that from at least August 2019 to June 2020, the respondents advertised and sold products containing MMS, MMS2, DMSO and yohimbine through their website. The Secretary alleges that the products are “therapeutic goods” within s 3(1) of the Act because they were represented to be, or were otherwise likely to be taken for, therapeutic use. It is alleged that the advertising of the products contravened s 42DLB(1) of the Act. That section provides, relevantly:

42DLB Civil penalty relating to advertisements—general

(1)    A person contravenes this subsection if:

(a)    the person:

(i)    advertises, by any means, therapeutic goods; or

(ii)    causes the advertising, by any means, of therapeutic goods; and

(b)    subsection (2), (3), (4), (5), (6), (7), (8) or (9) applies to the advertisement.

Maximum civil penalty:

(a)    for an individual—5,000 penalty units; and

(b)    for a body corporate—50,000 penalty units.

Contravening provisions

(2)    This subsection applies to the advertisement if it contains a prohibited representation (whether in express terms or by necessary implication) about the goods and either of the following applies:

(a)    no permission under section 42DK is in force in relation to the prohibited representation;

(b)    a permission under section 42DK is in force in relation to the prohibited representation but the use of the prohibited representation is not in accordance with the permission or a condition of the permission.

…

(4)    This subsection applies to the advertisement if it contains a restricted representation (whether in express terms or by necessary implication) and either of the following applies:

(a)    neither an approval under section 42DF nor a permission under section 42DK is in force in relation to the restricted representation;

(b)    an approval under section 42DF or a permission under section 42DK is in force in relation to the restricted representation but the use of the restricted representation is not in accordance with the approval or permission or a condition of the approval or permission.

    …

(7)    This subsection applies to the advertisement if it refers to substances, or goods containing substances, included in Schedule 3, 4 or 8 to the current Poisons Standard but not in Appendix H of the current Poisons Standard, other than a reference authorised or required by a government or government authority (not including a foreign government or foreign government authority).

…

(9)    This subsection applies to the advertisement if it refers to therapeutic goods that are not entered in the Register and that are prescribed by the regulations for the purposes of this subsection, other than a reference authorised or required by a government or government authority (not including a foreign government or foreign government authority).

…

8    On 3 June 2020, Reeves J granted the Secretary an interim injunction restraining the respondents, until further order, from promoting, advertising or offering for supply and supplying any products containing MMS, DMSO (whether or not diluted), or yohimbine. On 9 June 2020, Reeves J extended that order by consent.

9    On 24 July 2020, I made an order by consent for the filing of an amended originating application. On 31 August 2020, I conducted another case management hearing. The respondents were represented by a solicitor, Mr Buckley. At one point, Dr Barton addressed the Court and asserted that he was not in a state to make proper and competent decisions, as he had sustained brain damage in a motor vehicle accident some 20 years earlier. I ordered the provision of a concise statement in response and the conduct of a mediation.

10    At the next case management hearing, on 23 October 2020, the respondents were represented by a different solicitor, Mr Ballard. The respondents had failed to file their concise statement in response. Mr Ballard stated that he held concerns about whether Dr Barton had capacity to give instructions and whether he needed a litigation guardian. Dr Barton had an appointment scheduled with his general practitioner, with a view to referral to a psychiatrist. I ordered that, by 13 November 2020, Dr Barton file and serve a report from a medical practitioner concerning the question of whether he was or was not under a legal incapacity.

11    Dr Barton filed a report from Mr Killoran, a psychologist, dated 25 November 2020. Mr Killoran expressed the view that Dr Barton was not capable of managing his own affairs in a proceeding and that he required a litigation guardian. The explanation provided for that conclusion was that Dr Barton had some short term memory loss and moderately impaired judgment, decision-making and social competence.

12    At a case management hearing on 17 December 2020, Mr Ballard informed the Court that Dr Barton intended to file an application for the appointment of a litigation representative to defend the proceeding. I ordered that Dr Barton file and serve the proposed application and that the application be heard on 4 March 2021.

13    The foreshadowed application for the appointment of a litigation representative was not filed, and the matter was listed for another case management hearing on 17 February 2021. Dr Barton was no longer represented by Mr Ballard. Dr Barton asserted that he was not claiming to be under a legal incapacity, and had never instructed Mr Ballard to claim that he was under a legal incapacity.

14    I then made orders requiring the respondents to file and serve a concise statement in response. I also gave the Secretary leave to file an application for default judgment if the respondents failed to comply with that order.

15    The respondents failed to comply, and the Secretary duly applied for default judgment. The application was listed for hearing on 5 May 2021. The night before that hearing, Dr Barton served a report from a psychiatrist, Dr Milad, which stated there was a history of post-concussion syndrome as a result of a previous head injury and traumatic concussion which had left Dr Barton with executive brain dysfunction and difficulty with memory recall, problem-solving, decision-making and various other high cognitive abilities. The Secretary then indicated that the application for default judgment would not be pressed that day.

16    Dr Barton asserted that he lacked capacity to defend the proceeding. In the absence of any application from Dr Barton for the appointment of a litigation representative, it was necessary to consider how the question of his capacity would be determined. On 5 May 2021, I ordered that the Registrar write to Dr Milad to ascertain whether he was willing to be appointed as a Court expert. I ordered that if Dr Milad was willing to be so appointed, he provide a report on the question of whether or not Dr Barton is under a legal incapacity. Dr Milad failed to respond to inquiries made by the Registrar, and, on 10 June 2021, the parties were so advised by the Court.

17    Another case management hearing was held on 16 July 2021. The Secretary proposed that Dr Barton be examined by an independent psychiatrist identified by the Secretary, or if he was unwilling to consent to such an examination, that the Court determine the question of capacity from the material before the Court. Dr Barton was not willing to consent. I made orders requiring the filing and service of any further material, and indicated that I would determine the question on the papers.

18    After two extensions of time for compliance with my orders of 16 July 2021, the parties eventually filed all their further material. It is, accordingly, necessary for me to determine the question of Dr Barton’s capacity on the basis of the material before the Court.

The Rules and the principles relevant to capacity

19    Rule 9.61 of the Federal Court Rules 2011 (Cth) (the Rules) provides:

A person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative.

…

20    Further, r 9.66(1) of the Rules provides that:

Anything in a proceeding that is required or authorised by these Rules to be done for a person under a legal incapacity by the person may only be done by the person’s litigation representative.

…

21    Rule 9.63(1) provides that a party or an interested person may apply to the Court for an order appointing a person as litigation representative.

22    The expression “person under a legal incapacity” is defined in the Dictionary in Sch 1 of the Rules to mean either a minor, or “a mentally disabled person.” The Dictionary defines the expression “mentally disabled person” 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.

23    In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114, a Federal Magistrate had made an order preventing the appellant from taking any further steps until either a litigation guardian was appointed, or the appellant provided a psychiatric opinion indicating that a litigation guardian was not required. The now repealed Federal Magistrates Court Rules 2001 (Cth) prescribed that a person needed a litigation guardian, where the person either did not understand the nature and possible consequences of the proceeding, or was not capable of adequately conducting or giving instruction for the conduct of the proceeding. The Full Court traced the history of the law relating to the appointment of a litigation guardian and drew the following principles from the authorities:

(1)    The purpose of the power to appoint a litigation guardian is to ensure that litigants who would otherwise be at a disadvantage are properly protected, as well as to protect the processes of the Court: at [25].

(2)    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: at [26].

(3)    When it is alleged that a person is incompetent, the onus of proof is on those so asserting: at [26].

(4)    The means by which the Court will determine whether a guardian should be appointed can vary from case to case. In almost every case, a Court hearing an application to appoint a litigation representative will need medical evidence: at [27].

(5)    There are, however, cases in which no medical evidence is available, for example where a litigant refuses to submit to a medical examination. There will also be cases in which the lack of capacity is so clear that medical evidence is not called for. In those cases, the Court is entitled to rely on its own observations to make an assessment about the capacity of a party: at [27].

(6)    Whether the Court is satisfied of the need for a litigation guardian in the absence of medical evidence will depend upon the circumstances of the particular case: at [33].

24    The Full Court observed at [28] that the Federal Magistrate had the power, either on application or on the Federal Magistrate’s own motion, to consider whether a party needed a litigation guardian. The Full Court held that the Federal Magistrate had erred, relevantly, by placing an onus upon the appellant to prove her own capacity: at [30]. The Full Court also observed at [33] that where a party is unrepresented and the opponent does not raise any point about the party’s competence, but the Court has serious doubts about that matter, the Court should consider the matter on its own motion.

25    In Burnett v Browne (No 2) [2021] FCA 373 at [3], O’Callaghan J referred with approval to the principles identified by Derham AsJ in Vishniakov v Lay (2019) 58 VR 375. In addition to the principles identified above, Derham AsJ noted at [30]:

(a)    The words in the relevant Court rule “in relation to the proceeding” were important as they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction.

(b)    The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another.

(c)    A person will be incapable of managing their affairs in relation to the proceeding if they do not have the mental capacity to understand the nature of the acts or transactions in respect of which they need to give instructions to the lawyer.

26    In Burnett v Browne, O’Callaghan J observed at [43] that where psychiatric evidence or a diagnosis is relied upon, the evidence must demonstrate why it is that the diagnosis compromises the litigant’s ability to provide instructions, seek advice and to participate, if necessary, in a hearing. His Honour noted that the relevant matters include the litigant’s ability to understand the nature and possible consequences of the proceeding, and ability to instruct an advisor with sufficient clarity to enable the advisor to understand the situation and advise the litigant appropriately.

27    In Dauguet v Centrelink [2015] FCA 1212, the appellant appealed a decision to refuse the appointment of a litigation guardian. The application was refused at first instance, in part because no medical evidence in relation to capacity was provided and also because the applicant’s behaviour in Court suggested that he understood and could follow the proceedings. In rejecting the appeal, Murphy J considered the following matters to be of relevance:

(1)    The appellant’s appearance before the primary judge, and his affidavits, indicated that he was not incapable of managing his own affairs in the proceeding. The affidavits in the proceeding which he said were in his own words indicated that he understood the proceeding (both before the primary judge and on appeal): at [23].

(2)    The appellant understood the nature of the application to appoint a litigation guardian and the basis for the application: at [25].

(3)    The applicant followed the arguments, went to the relevant paragraphs of the authorities put against him, and he managed to put his case: at [25].

28    In Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at 413 at [61], Edmonds J identified a number of factors relevant to whether a person is under a legal incapacity. Those factors included the following:

(1)    Whether the person has the ability to understand that he or she requires advice in respect of the relevant legal proceeding.

(2)    Whether the person has the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord.

Application of the principles to the present case

29    As was explained by the Full Court in L v HREOC at [26], a person in Dr Barton’s position is presumed to be competent to prosecute or defend a proceeding until the contrary is proved.

30    There is no application for a litigation guardian presently before the Court. Rules 9.61 and 9.66 of the Rules require that a person under a legal incapacity may only start, defend or conduct a proceeding by a litigation representative. As L v HREOC makes clear, the Court may act of its own motion to satisfy itself that a party has the capacity to conduct a proceeding.

31    In circumstances where Dr Barton asserts that he lacks capacity, it is necessary for the Court to determine whether he needs a litigation representative to defend and conduct the proceeding. Accordingly, there is limited utility in the principle that the onus of proof lies upon the person alleging incompetence. Dr Barton must be presumed to be competent unless and until the Court is provided with evidence which satisfies it that Dr Barton is not capable of managing his affairs in the proceeding.

Medical evidence

32    Dr Barton has produced a certificate of his general practitioner, Dr Somanader, which states that Dr Barton was, “being currently investigated for [a] medical condition”, and needed further investigation for his, “ongoing cognitive issues”. Dr Barton has also provided a certificate with a brief report from Dr Somanader dated 2 November 2020, saying that he had seen Dr Barton in the context of memory issues and that Dr Barton had an appointment with a psychologist and geriatrician. This material does not address Dr Barton’s ability to manage his affairs in the proceeding.

33    Dr Barton relies upon the report of Dr Milad, a psychiatrist, dated 14 April 2021. Dr Milad’s conclusions can be summarised as follows:

    Dr Barton has long-term health issues as a result of a motor vehicle accident which occurred in 1997.

    Dr Milad states:

He most likely suffered a concussion and a possibility of post concussion syndrome that left him with significant cognitive impairment and executive dysfunction that cost him his academic job… Even though the accident happened twenty years ago he continued to experience difficulty in his executive and cognitive function. He found it very difficult to retain information or recall learnt information … he lost a lot of his higher cognitive abilities, maintain employment [sic] and experienced changes to his mental state and quality of life.

    As a result of the ongoing court proceedings, Dr Barton has been experiencing a significant amount of stress, reporting symptoms indicative of generalized anxiety. He has milder depressive symptoms.

    Dr Milad diagnoses Dr Barton with:

Mixed symptoms of generalized anxiety disorder of moderate to severe, combined with depressive disorder of mild to moderate, most of which is happening as a result of his ongoing stress. There is a history of post-concussion syndrome as a result of a previous head injury and traumatic concussion which left him with executive brain dysfunction and difficulty with memory, recall, problem solving, decision making and various other higher cognitive abilities.

34    Dr Milad provided a further report addressed to Dr Somanader dated 14 April 2021. In that report, Dr Milad stated:

    Mr Barton has long-term health issues as a result of a motor vehicle accident that happened in New Zealand in 1997. He most likely suffered a concussion and a possibility or post concussion syndrome that left him with significant impairment and executive dysfunction.

    Even though the accident happened twenty years ago he continues to experience difficulty in his executive and cognitive function.

    Dr Barton found it very difficult to retain information or recall learnt information. He struggled with connecting information or coherently manipulating information in a book or do research.

    As a result of the accident, he lost a lot of his higher cognitive abilities, and experienced changes to his mental state and quality of life.

    Dr Barton found it difficult to continue with writing due to his memory difficulties.

    Dr Barton described issues with decision-making, problem solving, sequencing and planning and recalling information.

    As a result of an ongoing court process Dr Barton has been experiencing a significant amount of stress, reporting symptoms indicative of generalized anxiety, like feeling nervous, anxious and on edge.

    Dr Barton has also has depressive symptoms in the form of feeling low in mood and not being able to sleep. He has milder depressive symptoms and the history does not indicate a previous diagnosis of mania or hypomania.

    Dr Barton presented with mixed symptoms of generalized anxiety disorder (moderate to severe) combined with depressive disorder (mild to moderate), most likely as a result of his ongoing stress.

    There is a history of post concussion syndrome as a result of a previous head injury and traumatic concussion which left him with executive brain dysfunction and difficulty with memory, recall, problem solving, decision making and various other higher cognitive abilities.

    Dr Barton has underlying cognitive changes as a result of the motor vehicle accident that may have influenced his ability to judge risk and to make well informed decisions.

35    It can be accepted from Dr Milad’s reports that Dr Barton’s capacity to manage his own affairs in the proceeding is impaired. However, Dr Milad does not express any opinion as to the extent to which the condition impacts upon Dr Barton’s ability to manage his affairs in the proceeding. The report does not rise to a level that supports a finding that Dr Barton does not have legal capacity.

36    Dr Barton has also provided the Court with a report from Graham Killoran, a psychologist, dated 25 November 2020. Mr Killoran expresses the opinions that:

    Dr Barton’s accident caused him to experience short term memory loss and moderately impaired judgment, decision-making and social competence.

    Dr Barton’s thought processes can be somewhat disorganised.

    Dr Barton “has difficulty” with: giving instructions to conduct proceedings; being able to understand matters in which instructions may need to be given; and being able to appreciate the nature and extent of the proceedings and exercise reasonable judgment on settlement.

    Dr Barton is not capable of managing his own affairs in the proceeding and, therefore, a litigation guardian should be appointed.

37    Mr Killoran provides limited explanation of the basis upon which he has formed his opinions. His report does not expose any detail about how he ascertained Dr Barton’s symptoms, and does not say whether he performed any cognitive testing or assessments. Mr Killoran does not explain how his specialised knowledge has enabled him to form the opinion that a litigation representative should be appointed, nor the facts or foundation upon which that opinion is formed. There is no description of how and to what extent Dr Barton is not capable of managing his own affairs in the proceeding. There is no indication that Mr Killoran was even aware of the nature of the proceedings, or of Dr Barton’s business activities which led to the proceedings. I consider that little weight can be given to Mr Killoran’s report.

38    Dr Barton has provided a report from Dr Leathern, a psychologist, dated 20 January 1999. Dr Letahern expressed the following opinions:

    Dr Barton sustained a number of injuries when he was hit a glancing blow by a passing car, including a sharp blow to the right temple which required suturing. About 10 days after the accident, he noticed difficulties with his memory.

    Dr Barton considered that he did not “have the capacity for remembering what I’ve said, when”. Further, he cannot listen constructively and loses track of ideas.

    A friend considered that he is now more forgetful, stressed, and fails to recognise when something he says upsets someone.

    Dr Barton performed at above average levels on most measures of verbal ability. So long as he was free from distraction and did not have to remember too much at once, he performed at average levels. However, as soon has he had to process several levels of information at once, he forgot some of the elements and in every day life may reach a conclusion that is not based on all of the facts. Further his information processing speed was reduced when he had to involve hand/eye and thinking.

39    There is a report from Dr Shaw, a general practitioner, dated 4 November 1998. Dr Shaw states:

    Dr Barton has a PhD in Philosophy, and is writing a book. He says that prior to the injury he could hold the thread of a 200 page book in his head, but now he is unable to do this and has constantly to refer back to pages he has already read.

    Dr Barton describes substantial memory loss.

40    As a result of a motor vehicle accident in 1997, Dr Barton sustained a head injury. The medical evidence indicates, and I accept, that Dr Barton has experienced significant impairment of his cognitive and executive functioning. This includes short-term memory loss, difficulty in organisation, difficulty with processing information, and impairment in his ability to make decisions. I accept that the effect of the medical evidence is that Dr Barton will have some difficulty in managing his own affairs in the present proceeding. However, the issue to be determined is whether Dr Barton “is not capable of” managing his own affairs in the present proceeding. While the medical evidence indicates that Dr Barton’s capacity to manage his own affairs in the proceeding may be impaired, it does not go so far as to indicate that he is incapable of doing so.

41    In the absence of any medical opinion adequate to satisfy me that Dr Barton is under a legal incapacity, it is necessary to examine whether other material before the Court may affect the issue.

Lay witness evidence

42    There are communications from Dr Barton’s legal representatives to the Secretary and the Court, as well as statements made in the course of case management hearings that may be relevant to Dr Barton’s capacity. On 22 October 2020, Mr Ballard emailed the Registry stating, “Mr Barton has been undergoing cognitive testing so I have been hesitant to proceed given that I may be unable to take instructions and/or he may require a Litigation Guardian”. On 23 October 2020, Mr Ballard appeared for Dr Barton at a case management hearing and indicated that Dr Barton was being referred to a psychiatrist by his general practitioner.

43    On 13 November 2020, Mr Ballard deposed that his concerns regarding Dr Barton’s legal capacity arose from the fact that Dr Barton advised him that he had been in a car accident around 20 years earlier which had led to cognitive difficulties.

44    The statements made by Mr Ballard reveal no more than that he had concerns about Dr Barton’s legal capacity and that Dr Barton’s capacity was being investigated. They do not indicate any specific difficulty with obtaining instructions from Dr Barton, nor suggest any inability to understand the proceedings.

45    Dr Barton has engaged in a number of written and oral communications with the Court. I will only describe enough of them to give an indication of the range of topics they covered. The written communications include:

(1)    On 2 June 2020, Dr Barton emailed the Registry stating, “We expressly Noticed the Plaintiff that we would not accept email service”, and, “we clearly provided an address and yet we were not served timely in the regular practicable way”. He then referred to a request for discovery from the Secretary in order to determine that, “subject matter jurisdiction exists”.

(2)    On 15 September 2020, Dr Barton emailed my Associate in relation to the withdrawal of his legal representative and his request for an injunction to prevent the Secretary from seeking financial information from his accountant. The communication uses language such as “exceeding the TGA’s powers under the legislation they are quoting and referring to”, and the, “superannuation fund is a separate legal entity from both Respondents”.

(3)    On 25 March 2021, Dr Barton emailed my Associate again, informing the Court that an assessment had been arranged with Dr Milad to assess his legal capacity and that he was seeking further legal representation. Again, Dr Barton stated that he was, “unable to comply in time with the latest set of orders by the Court to submit a formal plea and response to the Secretary’s Summary of Claims”. He stated that, “fundamental principles of justice and fairness are to be preserved through the current process, the Court cannot, and must not, serve as a de facto instrument of inequity, discrimination, impoverishment and oppression”. Further, he again sought specific orders from the Court, including a variation of the Court timetable and removal of the interim injunction in place.

(4)    On 28 March 2021, Dr Barton emailed my Associate again, addressing the question of his legal capacity. He stated, among other things that, “All this was quite clearly communicated to Mr Ballard, my previous legal representative, but for reasons best known to him, he did not communicate this clearly to the Court, as, and when, he should have”, and, “Questions over capacity first arose when I finally acted on my first legal representative’s advice that I should seek medical attention to help me cope with the stress and the crippling depression I fell into”. Among the matters discussed, Dr Barton asked the Court for an order that the State, “provide the respondents with Counsel”, or, alternatively, that, “in light of the poor and deteriorating prospects for securing the necessary conditions for a fair trial, the case should be dismissed”.

(5)    On 13 April 2021, Dr Barton emailed my Associate and referred to the default judgment application made by the Secretary, his email indicating an understanding of the nature of that application and the need for him to respond.

(6)    On 29 April 2021, Dr Barton emailed my Associate and indicated that he had received Dr Milad’s response and sought permission to redact sensitive information from the report.

(7)    On 4 May 2021, Dr Barton emailed my Associate attaching documentation, “in support of my earlier application for variation of orders at tomorrow’s hearing”.

(8)    On 17 June 2021, Dr Barton emailed my Associate to request an adjournment of the upcoming case management hearing and to respond to the failure of Dr Milad to respond to a request for a report from the Court. He indicated his preference to find another psychiatrist to examine him, and sought representation from a lay representative.

(9)    On 6 July 2021, Dr Barton emailed submissions to the Court responding to the Secretary’s suggestion that it locate a suitable specialist to examine Dr Barton to determine the question of his legal capacity. Dr Barton expressed concerns about this course based upon “difficulties from the point of view of procedural fairness”, and, “the likely possibility of bias that could jeopardise my position and interests in the case”. Dr Barton referred to the option raised by the Secretary that the Court determine the question of his capacity based upon observations of Dr Barton and to, “the evident discrepancy between my prepared submissions for hearings, and my actual performance at those hearings”. He further made submissions on the effect of the interim injunctions and their need for revision.

46    Dr Barton has made a number of statements to the Court in the course of oral address at case management hearings which reflect upon his ability to manage his affairs in the current proceeding:

(1)    On 3 June 2020, Dr Barton appeared before Reeves J at the first return date. He referred to the need to seek legal representation and sought an adjournment of 28 days for this purpose. He referred to the need for, “the plaintiff to demonstrate standing”, and referred to his written communications with the Court. When asked whether he wished to make submissions on the issues of urgency, balance of convenience and serious question to be tried, Dr Barton responded in oral submissions by addressing the substance of the questions posed to him. Dr Barton also made further submissions that addressed the substance of the allegations made against him by the Secretary, including referring to the nature of the substances that the first respondent sold via its website and approvals granted by the Secretary for the sale of equivalent products.

(2)    On 17 February 2021, Dr Barton again appeared in person following the withdrawal of his legal representative. He made submissions that demonstrated his knowledge of the orders made by the Court in relation to the filing of an application for a litigation representation and referred to his efforts to obtain a psychiatric assessment. Dr Barton further stated:

Your Honour, I have never been claiming that I am under legal incapacity. I have got certain difficulties with memory, memory issues and keeping things – all relevant things in mind, in thinking on my feet and making decisions. I am otherwise perfectly able to function, but I cannot be bum-rushed to make decisions. I need to – need time to make decisions, etcetera, etcetera. This is – has –this has been an issue that I have – I have raised, but I have never actually instructed Mr Ballard to go ahead and claim that I am under legal incapacity.

(3)    On 5 May 2021, Dr Barton appeared at a case management hearing. He made submissions about how the matter should proceed, including by reference to documents that were previously sought by the Secretary and instructions he had given his lawyer about progressing the matter, and further indicated that he understood the course proposed by the Court. Dr Barton stated:

In the course of this sorry saga, I have made – I have been forced to make certain decisions and, indeed, in the beginning I was quite willing to make 20 decisions because, by nature, I tend to be a confident person and I will make decisions. And then later in the – with the benefit of hindsight, it comes to – I come to realise that I had lost sight of certain relevant points, let’s say four or five factors bear on a decision. My great difficulty is that I can focus on one thing at a time and, while I focus on that one thing, I completely lose sight of the other three, four, five factors that are relevant to making the decision. So my decisions turn out to be rather poor and a decision that I would not have made…

47    I have accepted that the medical evidence demonstrates that Dr Barton suffers some psychiatric and cognitive impairment, and that he has some difficulties with memory, organisation and decision-making. However, in Dr Barton’s own words, as long as he is not rushed to make decisions, “I am otherwise perfectly able to function”. His difficulties in dealing with the litigation can be managed and accommodated by providing him with adequate time and opportunity to make and respond to submissions. I consider that Dr Barton’s impairment has only a limited effect upon his capacity to manage his own affairs in the proceeding.

48    Dr Barton’s communications with the Court demonstrate an ability to understand the Court’s processes, including the need to meet deadlines and comply with orders, the concept of being served with documents, the need to respond in writing to the Secretary’s allegations, and the requirement for leave to be granted to appear by video and to appear for Southern Cross. Dr Barton has demonstrated an understanding of legal concepts, including the Court’s jurisdiction, the concept of separate legal personalities, the Secretary’s statutory powers and procedural fairness.

49    Dr Barton has filed written submissions. He has also demonstrated an understanding of submissions filed by the Secretary. Dr Barton has emphasised that the written submissions were prepared with the assistance of others. However, the submissions contain information provided by him and ultimately reflect his decisions as to their contents. His communications with the Court demonstrate an understanding (albeit limited, consistently with his not being a lawyer) of the legal processes and legal issues involved.

50    Dr Barton’s communications demonstrate that he understands the nature of the proceeding, including the nature of the claims made by the Secretary, the issue of the appointment of a litigation representative and the Secretary’s default judgment application. Dr Barton makes reference to communications with his previous legal advisors which are indicative of an ability to communicate instructions.

51    The course of proceedings demonstrates that Dr Barton is capable of putting forward arguments to advance his own interests, including by seeking adjournments and seeking variations of timetables and the interim injunctions currently in place. At the case management hearing of 3 June 2020 before Reeves J, Dr Barton was capable of engaging with the substance of questions posed to him by the Court concerning whether a injunction should be granted.

52    Dr Barton understands that he requires legal advice in respect of the current proceeding. Notably, he has engaged legal representation on three separate occasions, and has sought an adjournment on several occasions for this purpose.

53    Dr Barton, as sole director and shareholder of Southern Cross, administered a website through which products claimed to have therapeutic qualities were offered for sale. During the hearing of the application for an interim injunction before Reeves J, Dr Barton accepted that the respondents provided products through the website, but asserted that the products were harmless. He apparently has the ability to understand matters of business and manage his business affairs, and that provides some indication that he is likely to be capable of managing his own affairs in the proceeding.

54    The Court must have regard to the nature of the litigation in determining whether Dr Barton has legal capacity. The litigation pertains to Dr Barton’s business affairs, matters of which he has intimate knowledge. The nature of the legislative regime is of some complexity. However, the issues are fairly narrow and confined. The issues seem to be primarily whether the products were “therapeutic goods” and whether any of subsections (2)-(9) of s 42DLB of the Act applied.

55    Dr Barton submits that:

…His Honour’s attention is drawn to all my mumbling and fumbling around at hearings, frequently not understanding what is going on, and my many failings to retain and adequately process important information, and failing repeatedly to raise important matters for consideration at hearings that were intended to be raised, as evidence by the submissions that were prepared beforehand with other people’s help. The Applicant appears to ignore and unduly discount all such signs of impaired capacity, so I must rely on His Honour giving these their due weight in deliberations.

56    Dr Barton seeks an order that the proceedings be dismissed by reason of what he asserts is his impaired capacity and has capably advocated for that position. I have not observed any indication that Dr Barton is incapable of managing his own affairs in the proceeding. He has presented intelligible and responsive submissions to submissions made by the applicant. He has appeared to understand my questions during case management hearings and has provided lucid and responsive answers. I can accept that he is somewhat impaired in his ability to prepare and present his submissions, but not that he is incapable of doing so.

Conclusion

57    I am not satisfied that there is a sufficient evidentiary basis to displace the presumption that Dr Barton is not a person who, because of a mental disability or illness, is not capable of managing his own affairs in the proceeding. Accordingly, Dr Barton can defend and otherwise conduct the proceeding without the appointment of a litigation representative.

58    Orders will be made requiring the filing of any response to the Secretary’s concise statement. It may be noted that Dr Barton may have a claim of penalty privilege: see s 187 of the Evidence Act 1995 (Cth); Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 at [31]-[33]; Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [66].

Associate:    

Dated:    20 December 2021