FEDERAL COURT OF AUSTRALIA

Barton v Secretary, Department of Health [2023] FCA 1168

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    These are reasons for orders made on 21 September 2023, dismissing an application for an extension of time and leave to appeal from a decision of a judge of this Court. Before the primary judge, the second respondent in the substantive proceeding, Dr Charles Barton, contended that he was under a legal incapacity and was unable to defend himself in that proceeding. The applicant, the Secretary of the Department of Health, contended that there was no sufficient evidentiary or other basis for that conclusion to be reached. On 20 December 2021, his Honour determined that Dr Barton had not discharged the onus necessary to displace the presumption of legal capacity to defend proceedings brought against him.

2    Dr Barton’s application for an extension of time and leave to appeal was not filed until 13 June 2023, long after the expiry of the 14-day time limit for making such an application, and on the eve of the Secretary moving for default judgment in the substantive proceeding.

3    The substantive proceeding is brought by an originating application filed by the Secretary against Southern Cross Directories Pty Ltd, the first respondent, and Dr Barton. The Secretary alleges that the respondents operated a website through which they advertised therapeutic goods contrary to s 42DLB(1) of the Therapeutic Goods Act 1989 (Cth) (TGA Act), and seeks, inter alia, declarations and civil penalties, with interlocutory injunctions having been obtained to prohibit the impugned conduct continuing.

4    The nature of the proceeding was conveniently summarised by the primary judge as follows:

[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 was then reproduced]

5    Both Dr Barton and a number of lay people assisting him seemed to approach his application to challenge the conclusion reached by the primary judge as providing an opportunity to re-open the question of his legal capacity and argue the merits for a different conclusion being reached, effectively putting to one side the conclusion reached by the primary judge as to the failure to rebut the presumption of legal capacity and his reasons for reaching that conclusion. That entails a misunderstanding of an appeal proceeding such as this, for which leave must be obtained before there is any appeal before the Court.

6    Sometimes the process of leave to appeal and consideration of such an appeal takes place at a single hearing, but that was not an appropriate process in this case, given that there has been substantial and unexplained delay in seeking leave to appeal, and the grounds of appeal sought to be advanced were not on their face compelling. Further, unless and until there is a successful appeal and the primary judge’s decision is set aside, the conclusion reached by his Honour as to legal capacity remains for the purpose of the substantive proceeding. A necessary step is therefore not to identify a different conclusion that might have been reached, but an arguable case for establishing error, so as to warrant an appeal before a bench of three judges taking place.

Before the primary judge

7    The respondents had repeatedly failed to comply with orders requiring them to file and serve a concise statement in response to the Secretary’s concise statement, instead filing numerous interlocutory applications with supporting affidavits. The Secretary applied for default judgment, which was listed for hearing on 5 May 2021. The night before the hearing, Dr Barton filed a report from a psychiatrist, Dr Milad. That report stated Dr Barton had a history of post-concussion syndrome as a result of a head injury and traumatic concussion some 20 years ago, which had left him with executive brain dysfunction and difficulty with memory recall, problem-solving, decision-making and various other high cognitive abilities. The Secretary did not press the application for default judgment that day.

8    The primary judge described the active process that his Honour adopted on and from 5 May 2021, being the date upon which the default judgement application was to have been heard, to address the question that Dr Barton had raised of legal incapacity. This is important given the grounds advanced both for the application for an extension of time and leave to appeal, and as proposed grounds of appeal. His Honour said:

[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.

9    The reasons why Dr Barton was not willing to consent to an independent examination of him, were contained in an email sent by him to the primary judge’s associate on 6 July 2021. The email made allegations of bias because of the proposed involvement of the Secretary in the selection of an appropriate independent, court-appointed, expert. In a departure from that stance, or perhaps as an additional but apparently uncommunicated reason, he now contends the examination of him should have been conducted by a psychologist, rather than a psychiatrist, because he is not claiming any mental illness, but rather cognitive impairment due to traumatic injury. Dr Barton’s email also made reference to other alternatives for obtaining the necessary expert evidence, but it would seem that this was not raised at the 16 July 2021 case management hearing. Whatever the reason, there was no independent expert examination and accordingly the primary judge had to proceed on the available evidence and other information.

10    The primary judge summarised concisely the relevant rules and principles relevant to legal capacity. No suggestion was made that the primary judge misdirected himself on the relevant principles to be applied, as set out above, or otherwise. To the limited extent that his Honour’s approach and reasoning, as opposed to conclusion, was criticised, it concerned the application of those principles. It is therefore convenient to reproduce that part of his Honour’s judgment, noting the emphasis added to [23(2)] as to the rebuttable presumption of competence and at [23(3)] as to the onus:

[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.

11    The primary judge then applied the above principles, including in considering the available medical evidence and the lay witness evidence that was before his Honour, as well as considering Dr Barton’s written and oral communications with the Court. The latter included what he had said at case management hearings, some of which were described to give an indication of the topics they covered. The medical evidence considered by the primary judge comprised:

(a)    two certificates and a report from Dr Barton’s general practitioner, Dr Somander, which did not address Dr Barton’s ability to manage his affairs in the proceeding;

(b)    two reports from a psychiatrist, Dr Milad, which established that Dr Barton’s capacity to manage his affairs in the proceeding was impaired, but did not express any opinion as to the extent to which his condition impacts upon his ability to manage his affairs in the proceeding;

(c)    a report from Mr Killoran, a psychologist, which his Honour found carried little weight because of, in substance, its material deficiencies;

(d)    a report from Dr Leathern, a psychologist, which indicated that 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, but once he had to process several levels of information at once, he forgot some of the elements and in everyday life may reach a conclusion that is not based on all of the facts, and that his information processing speed was reduced when he had to involve hand/eye (coordination) and thinking;

(e)    a report from Dr Shaw, a general practitioner, stating that Dr Barton has a PhD in Philosophy, and is writing a book and prior to his 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, and has substantial memory loss.

12    Based on the foregoing, the primary judge reached the following conclusions about the medical evidence before his Honour:

[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.

13    The primary judge then turned to lay witness evidence, including communications that had taken place between Dr Barton’s legal representatives to the Secretary and the Court, and statements made at case management hearings. His Honour then recorded the following findings and ultimate conclusion:

[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.

[54]    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.

The nature of appellant review

14    The need to establish error on the part of the primary judge in order for an appeal to succeed, and therefore the need to identify arguable error for the purposes of the grant of leave to appeal is generally critical, and particularly indispensable in the circumstances of this case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25] per Allsop J, with whom Drummond and Mansfield JJ agreed; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45]-[46] per Perram J, with whom Allsop CJ and Markovic J agreed. The approach taken by the primary judge, and the reasons given, are on their face thorough and comprehensive. The Secretary correctly submits that his Honour’s decision was evaluative in nature, rather than involving the exercise of judicial discretion, because there can be only one correct outcome: that is, either the presumption of legal capacity has been rebutted, or it has not.

15    In relation to the line to be drawn between discretionary and evaluative decisions, the Secretary relies upon the observations of Gageler J, overtly based upon more than a century of case law on an appeal by way of rehearing, in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [29] and following, concluding at [49]:

The line is not drawn by reference to whether the primary judge’s process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.

16    It will not suffice to point to a different conclusion that might have been reached on the material that was before the primary judge, although error in the conclusions reached may sometimes be established by fresh evidence, which in turn may, relatively rarely, impugn the decision upon the basis of material that was not before the primary judge: see SZVFW at [31].

The application for an extension of time and leave to appeal, and the proposed appeal

17    The application for the extension of time and leave to appeal and the draft notice of appeal each contain the same nine grounds emphasised in bold, accompanied by a narrative. None of them are addressed or supported by written submissions.

18    Those grounds, without the narrative, are as follows:

[1]    The Court failed to ensure procedural fairness and failed to recognise the weight and import of expert medical evidence

[2]    Judicial error in not recognising the Appellant's dilemma and impossible position

[3]    Violation of Court Rules

[4]    Perpetuation of inequity, hardship and distress through a flawed court process

[5]    Unwarranted assumptions

[6]    Unwarranted prejudgement of important elements of the case

[7]    Misconstrued events

[8]    Oversimplification and underestimation of the complexities involved

[9]    Claim of Penalty Privilege

Fresh evidence

19    Dr Barton relies upon his affidavit affirmed 30 May 2023. It goes some way towards explaining the delay in filing the application for an extension of time and leave to appeal. While the explanation given is less than satisfactory, largely due to not having obtained legal representation, the main point is that the delay has been objectively extreme, such that it can only be excused upon the basis of a sufficiently compelling case for asserting error on the part of the primary judge.

20    Dr Barton also annexes additional medical evidence, which is listed in an attachment to the Secretary’s submissions, and may be listed as follows:

(a)    Letter from Dr Paul du Toit (St Stephen’s hospital) to Dr Brian Biggs (undated);

(b)    Letter from Dr Brian Biggs (Scarness Medical Centre) dated 14 July 2022;

(c)    Letter from Graham Killoran to Dr Brian Biggs dated 15 July 2022;

(d)    Affidavit of Dr Barton dated 2 September 2022;

(e)    Letter from Graham Killoran to Dr Brian Biggs dated 1 November 2022;

(f)    Medical report from Dr Brian Biggs dated 9 November 2022;

(g)    Letters from Michael Grounds to Centrelink dated 9 November 2022 and 10 November 2022;

(h)    Letter from Services Australia dated 11 November 2022;

(i)    Report from Mr Killoran to Dr Brian Biggs dated 8 May 2023;

(j)    Letter from Dr Brian Biggs dated 11 May 2023.

21    The Secretary does not object to the fresh evidence sought to be relied upon because it may have some bearing on the question of Dr Barton’s legal incapacity and therefore error in the conclusion reached by the primary judge by reason of what is established by this fresh evidence, but submits that this evidence goes no further than the evidence before the primary judge, as detailed below when considering the Secretary’s submissions.

22    Assisted by submissions for the Secretary, the limited effect of the fresh evidence relied upon by Dr Barton is as follows, and not addressing material that is not on point:

(a)    A letter from Services Australia dated 11 November 2022: this letter refers to Dr Barton having a “severe impairment and a continuing inability to work”, requiring “nursing level home care”, and acknowledging “functional impacts of [his] traumatic brain injury”. However, there is no information as to the standard upon which the letter was assessed or the basis for the decision, even though in evidence there are submissions made to Centrelink on behalf of Dr Barton, some medical evidence that appears to have been submitted by Dr Barton, and the relevant social security assessment tables. This is not material that goes any substantial step further in answering the necessary question of Dr Barton’s capacity to manage this proceeding, let alone going far enough to demonstrate error in the conclusion reached by the primary judge.

(b)    A report from Dr Brian Briggs, general practitioner, dated 9 November 2022, apparently submitted in support of the Centrelink application: Dr Briggs refers to Dr Barton’s “struggle with day to day life and normal activities of daily living”; Dr Barton being unable to do any work; and him having “severe difficulties with memory, reliable information recall, poor concentration and brain fog”. That is not new in substance and does not take the necessary additional step of addressing the question of capacity for the purposes of the substantive proceeding, let alone demonstrate or contribute to demonstrating error in the conclusion reached by the primary judge.

(c)    A further report from Dr Brian Briggs, general practitioner, dated 11 May 2023: Dr Briggs refers to what is already known, namely Dr Barton’s decreased cognition, memory loss, poor concentration, brain fog, inability to maintain focus, and inability to perform higher executive functioning. That is again not new and does not take the necessary additional step of addressing the question of capacity for the purposes of the substantive proceeding, let alone demonstrate or contribute to demonstrating error in the conclusion reached by the primary judge.

(d)    A medical certificate from Dr Biggs dated 14 July 2022 which notes his brain injury, PTSD and anxiety and depression, concluding that he is “unable to work currently and for the foreseeable future”, but does not state the reasons for that conclusion, nor address the question of whether Dr Barton is incapable of managing his affairs in the present proceeding. Further medical certificates now in evidence contain little, if any, information about Dr Barton’s medical condition.

(e)    Letters from Mr Killoran, consultant psychologist, dated 15 July 2022, 1 November 2022 and 8 May 2023: These letters suffer from the same deficiencies identified by the primary judge about prior reports from Mr Killoran, leading to them being given little weight by his Honour, including in particular that they do not expose any detail about how the symptoms described were ascertained, or whether he has performed any cognitive testing or assessments. Mr Killoran’s opinion that a legal guardian should be appointed does not reveal how his specialised knowledge enabled him to form that opinion, nor the facts or foundation upon which the opinion is formed. The same conclusion about little weight to be attached to these letters therefore applies.

(f)    An undated letter from Dr Paul du Toit, Rehabilitation Medicine Physician: the letter expresses the opinion that Dr Barton has poor short term memory, and discusses the need for an MRI, but expresses no opinion on whether he is incapable of managing his affairs in the substantive proceeding or provide any information that would assist the Court in forming a view on this.

23    Dr Barton also relies upon his 13 September 2022 affidavit and again states that his brain injury has affected his memory and his cognitive functions ([6]). He sets out the way in which he contends this impacts his capacity in the present proceeding ([8]-[10]).

24    Overall, the further medical and other evidence goes little further than establishing what is already known, namely that Dr Barton has impairment of his cognitive and executive functioning, which is consistent with the primary judge’s findings at J[40]. However, this still does not address the central question of the capacity of Dr Barton to manage his affairs in the present proceedings, by reference to the principles summarised by the primary judge and reproduced above. Nor does the medical evidence reveal the nature of any cognitive tests that have been carried out so as to provide the Court with visibility over how the medical practitioners have reached their views.

25    I agree with the Secretary’s submission that the fresh evidence does not address the central question of whether Dr Barton has the capacity to manage his affairs in the substantive proceeding in any way that is materially better than the evidence before the primary judge, having regard to the principles summarised by the primary judge reproduced above. To the contrary, the inadequacy of that fresh evidence provides further support for the approach the primary judge took of having regard to other material available to his Honour. Further, as adverted to by the Secretary, the medical evidence does not in any event meet the fundamental threshold for at least weight, if not admissibility, of revealing the factual and assumption substratum for the opinions expressed, such as the results of cognitive testing.

The characterisation of the primary judge’s approach to the non-medical evidence

26    The Secretary submits that, consistent with the primary judge’s findings, Dr Barton’s written communications with the Court was evidence of his ability to manage his affairs in this proceeding: J[45]. Although he apparently had assistance in preparing those documents, he has also affirmed two affidavits in support of his present application which further reveal his understanding of legal processes. An even more difficult aspect of his Honour’s reasoning to impugn is the assessment of the oral statements made by Dr Barton to the Court during case management hearings at J[46], which necessarily reflect upon his ability to manage his affairs in the substantive proceeding. There is no good reason to do other than accept that assessment, extending to his Honour’s observations of Dr Barton at J[56].

27    The Secretary submits, and I accept, that the lay evidence of Dr Barton’s conduct of the present proceeding described by the primary judge was ample to support the conclusion reached by his Honour that Dr Barton understood the proceeding, was capable of following arguments before the Court and putting forward his case, and understood that he may require advice and assistance in relation to some aspects of the proceeding. No proper basis is advanced for concluding that his Honour reached the incorrect conclusion that there was an insufficient basis to displace the presumption of competence. I therefore accept the submission by the Secretary that his Honour’s decision is not, on its face or in substance, attended by sufficient doubt to justify the grant of leave.

The proposed grounds of appeal

28    There remains for consideration the proposed grounds of appeal, which in part seek to impugn the process adopted by the primary judge rather than just the ultimate conclusion reached as to capacity, and the intermediate conclusions leading to that.

[1]    The Court failed to ensure procedural fairness and failed to recognise the weight and import of expert medical evidence

[2]    Judicial error in not recognising the Appellant's dilemma and impossible position

[3]    Violation of Court Rules

[4]    Perpetuation of inequity, hardship and distress through a flawed court process

[5]    Unwarranted assumptions

[6]    Unwarranted prejudgement of important elements of the case

[7]    Misconstrued events

[8]    Oversimplification and underestimation of the complexities involved

[9]    Claim of Penalty Privilege

29    Proposed ground 1 alleges a denial of procedural fairness and a failure to recognise the weight and importance of expert medical evidence. It is abundantly clear that the primary judge thoroughly assessed the available medical evidence, such that this aspect of this ground is plainly unarguable and without merit. The assertion of a denial of procedural fairness is similarly without substance. I am satisfied that Dr Barton was given ample opportunity to adduce medical evidence, which was duly and properly taken into account by the primary judge.

30    Proposed ground 2 alleges judicial error in “not recognizing Dr Barton’s dilemma and impossible position”. Proposed ground 4 is in substance to the same effect, alleging “[p]erpetuation of inequity, hardship and distress through a flawed court process”. These grounds in essence refer to the difficulty Dr Barton has had in making submissions in light of his medical condition and not being legally represented, being part of the issue of his overall capacity. They do not represent any viable ground of appeal cast in terms that do not properly allege or identify error by his Honour.

31    Proposed ground 3 refers to a “violation of the Court’s Rules by reason of Southern Cross not being legally represented”. That cannot go anywhere as the capacity issue before the primary judge concerned only Dr Barton in his capacity as a respondent in the substantive proceeding. It had nothing to do with Southern Cross Directories and cannot be a proper ground of appeal.

32    Proposed grounds 5, 6 and 7 refer to the primary judge making “unwarranted assumptions” about Dr Barton having run a business and about the Secretary’s case and “misconstruing” events. The Secretary identified this as being likely to be a reference to J[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.

There is nothing wrong with the inferences that the primary judge drew, which do not entail assumptions that were unwarranted, nor entail any misconstruing of the Secretary’s case. There is no substance to these proposed grounds.

33    Proposed ground 8 alleges that the Court erred in finding (at J[54]) that the “issues are fairly narrow and confined”:

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.

In my view that characterisation the substantive proceeding is undeniably correct, such that this proposed ground of appeal has no prospect of success.

34    Proposed ground 9 relates to an issue that does not arise, because Dr Barton had not, and still has not, filed any concise response. There is nothing to give substance to this ground of appeal.

35    It follows that no viable ground of appeal has been proposed.

Conclusion

36    The lay evidence of Dr Barton’s conduct of the present proceeding considered by the primary judge was more than sufficient to establish, as the Secretary submits, that Dr Barton “understands the proceedings, is capable of following arguments before the Court and putting forward his case, and understands that he may require advice and assistance in relation to some aspects of the proceeding”. Nothing has been advanced by or on behalf of Dr Barton to demonstrate any arguable case that his Honour reached the incorrect conclusion that there was an insufficient evidentiary or other basis to displace the presumption of competence. His Honour’s decision is not attended by any reasonable doubt, let alone doubt at a level to warrant the grant of leave to appeal. Moreover, as already mentioned, there has been no adequate or satisfactory explanation for the extreme delay in bringing this application, especially as Dr Barton was able to file numerous other interlocutory applications supported by affidavit evidence in the period between the primary judge’s decision and the filing of this application. Neither merit nor the explanation for delay was sufficient to grant the application in either respect. In combination those two features were unanswerable.

37    It follows that leave to appeal must be refused. In those circumstances, there is no proper basis for granting an extension of time, nor any utility in doing so.

38    The application for an extension of time and leave to appeal must be dismissed. The Secretary did not seek costs.

Associate:

Dated:    29 September 2023