Federal Court of Australia

Neave v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1030

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application for an order appointing Valerie Jane Neave as the applicant’s litigation representative in the proceeding filed 3 April 2024 be dismissed with no order as to costs.

2.    The applicant’s name in the proceeding be amended to ‘Jason Neave’.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    This proceeding is an originating application for judicial review of a decision not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth). The applicant identified in the originating application is Jason Neave (By His Litigation Representative, Valerie Jane Neave). At the time the proceeding was commenced, the Court had not appointed Valerie Neave as the litigation representative of Jason Neave. However, an interlocutory application was filed at the same time as the originating application seeking an order appointing Valerie Neave as litigation representative. These reasons concern that interlocutory application.

2    Rule 9.61 of the Federal Court Rules 2011 (Cth) provides that a person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative. Rule 9.62 provides that a person, other than certain persons who are not relevant to this application, may consent to being appointed a litigation representative. A document styled ‘Consent (litigation representative)’ signed by Valerie Neave has been filed in the proceeding.

3    Rule 9.63(1) provides that a party or an interested person may apply to the Court for an order appointing a person as a litigation representative. Rule 9.63(2) provides that a copy of the application must be served on the person under a legal incapacity. Rule 9.63(3) provides that the application must be accompanied by an affidavit stating:

(a)    that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

(b)    that the proposed litigation representative: (i) has consented, in writing, to the appointment; and (ii) is a person who, under r 9.62, may be appointed as a litigation representative.

4    The interlocutory application was accompanied by an affidavit of Ehsan Jahanandish affirmed 28 March 2024. It was also supported by an affidavit of William Lam affirmed 4 July 2024.

5    Valerie Neave is Jason Neave’s mother. She contends that Jason Neave is a person who, because of a mental disability or illness, is not capable of managing his own affairs in a proceeding. As such, he is a person under a disability and a litigation representative should be appointed for him in the proceeding.

6    There are a number of difficulties with her application. As a consequence, for the reasons which follow, it will be dismissed.

Is Valerie Neave an ‘interested person’?

7    The expression ‘interested person’ is defined in the Dictionary of the Rules to mean, relevantly, for a mentally disabled person under a legal incapacity – the person’s guardian. The Dictionary provides that ‘“guardian”, of a mentally disabled person or the estate of a mentally disabled person, includes a person entrusted under a law of the Commonwealth, or of a State or Territory, with the care or management of the person or the estate’ (emphasis in original): Sch 1 to the Rules. Otherwise, the natural and ordinary meaning of ‘guardian’ is ‘someone who is entrusted by law with the care of the person or property, or both, of another, as of a minor or of some other person legally incapable of managing their own affairs’: The Macquarie Dictionary, 4th edition.

8    The evidence before the Court indicates that Jason Neave is held by, or on behalf of, an officer of the Commonwealth in a detention centre established under the Act. Jason Neave appointed Valerie Neave as his attorney pursuant to a general (enduring) power of attorney, made on 18 November 2010 and accepted on 24 November 2010, in accordance with the provisions of the Powers of Attorney Act 2003 (NSW). Under the terms of the power of attorney and the provisions of the Powers of Attorney Act, the power continues to be effective if Jason Neave lacks capacity through loss of mental capacity after its execution. However, Valerie Neave does not have legal custody of Jason Neave and has not been entrusted under the law of the Commonwealth, or of a State or Territory, with the care or management of him.

9    No authority was cited in support of the application that a person, in the circumstances of Valerie Neave, could be regarded as the guardian of Jason Neave. I am not satisfied that Valerie Neave is an ‘interested person’ and has standing to make an application for the appointment of a litigation representative.

Was the application served on the applicant?

10    As Valerie Neave had not been appointed litigation representative at the time the originating application was filed, she could not have had authority to represent Jason Neave in the proceedings as his litigation representative. The same applies for the lawyers representing the applicant: Geilinger v Gibbs [1897] 1 Ch 479 at 482. Rule 9.63(2) requires the application to be served on the person under a legal incapacity. Personal service is not specified, but it is difficult to see how any method of ordinary service referred to in r 10.31 would be effective other than personal service on the person under a legal incapacity. Personal service is dealt with in Div 10.1 of the Rules.

11    Assuming that Jason Neave is a person under a legal incapacity, because he does not have a litigation representative, personal service of the application for the appointment of a litigation representative on him must be by service on his guardian, or if he has no guardian: (i) on a person with whom he (the mentally disabled person) lives; or (ii) on a person who is responsible for the care of him (the mentally disabled person): r 10.09(3) of the Rules. If the person under a legal incapacity cannot be served in that way, a party may apply to the Court for an order that the document be served in some other way or on some other person: r 10.09(4). The application may be made before or after the document has been given to some other person: r 10.09(5). Otherwise, the Court may dispense with compliance with the Rules, make an order inconsistent with the Rules or exercise a power mentioned in the Rules on its own initiative: rr 1.34, 1.35, 1.40.

12    Mr Lam deposes that he served the application, supporting affidavit and other documents filed in the proceeding on Jason Neave personally at Villawood Immigration Detention Centre. Thus, if Jason Neave were a person under a legal incapacity, that would not be effective service on him.

13    If Valerie Neave were Jason Neave’s guardian, there would, of course, be little reason to require her to serve her own application to appoint herself as litigation representative on herself. That would be a good reason to dispense with the requirement of service of the application on the person under a legal incapacity by the method described in r 10.09(3). Valerie Neave submits that she is, at least, a person who is responsible for the care of Jason Neave and, as such, service on her should be dispensed with. However, as already mentioned, I am not satisfied that Valerie Neave is Jason Neave’s guardian or an interested person for the purposes of r 9.63(1).

14    Valerie Neave also submits, in substance, that the Court should dispense with the requirement that she be an ‘interested person’ in order to permit her to apply to have herself appointed as Jason Neave’s litigation representative. The reasons to dispense with that requirement are that she is his mother and, although he is held in immigration detention, she is a person responsible for his care, and also that he is a person under legal incapacity.

15    If Jason Neave were a person under legal incapacity, I accept that, in the unusual circumstances of this case, there may be good reason to dispense with the formal requirement that Valerie Neave be an ‘interested person’ and for service of the application on Jason Neave in the manner the Rules require.

Is the applicant a mentally disabled person?

16    The expression ‘person under a legal incapacity’ is defined in the Dictionary of the Rules to mean, relevantly, a mentally disabled person. The expression ‘mentally disabled person’ is, in turn, defined 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’.

17    In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; 233 ALR 432 the Full Court (Black CJ, Moore and Finkelstein JJ) made the following relevant observations concerning the appointment of a litigation guardian under the Federal Magistrates Court Rules 2001 (Cth):

23    The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.

24    The law developed in the context of property disputes. In 1891, Kekewich J observed that it was ‘undoubted’ that the Chancery Division of the High Court had jurisdiction ‘to protect the estates of those who, though not found lunatic, are yet incompetent, by reason of a weakness of intellect, to take proceedings themselves – that is to say, to instruct their solicitors to take proceedings on their behalf’: Howell v Lewis (1891) 61 LJ Ch 89 at 89.

25    There are valuable statements about the court’s power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):

‘In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained’.

Chadwick LJ (at [65]) said:

‘The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend’.

26    There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.

27    The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):

‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.

Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).

18    Insofar as determining whether a person is not capable of managing the person’s own affairs in a proceeding it is important to focus upon the person’s ability to bring or defend a proceeding rather than whether the person is able to manage his or her affairs generally or in relation to some other transaction: Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 at [53]-[61] (Edmonds J). As Edmonds J explained in Cross, that approach is consonant with the common law approach to capacity in that the law does not prescribe any fixed standard of sanity as a requisite for the validity of all transactions. It requires, in relation to each particular matter, that the person have such soundness of mind as to be capable of understanding the general nature of what the person is doing by his or her participation: Gibbons v Wright [1954] HCA 17; 91 CLR 423 at 437 (Dixon CJ, Kitto and Taylor JJ). After referring to Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at [74] (Chadwick LJ), citing Re C (an adult) (Refusal of Medical Treatment) [1994] 1 All ER 819, Edmonds J observed that ‘the exigencies of bringing or defending the proceedings are the focal point of the test of capacity for the purposes of the [Rules], the next question is what are the considerations to which the Court should have regard in applying that test?’ Justice Edmonds then considered Masterman-Lister and other authorities before formulating the relevant consideration to which he had regard for determining capacity in the case before him.

19    Drawing on the discussion in Cross and the authorities to which Edmonds J referred, the following are relevant to determining Jason Neave’s capacity in this case:

(1)    whether he has the ability to understand that he required advice in respect of the Minister’s decision not to revoke the cancellation of his visa;

(2)     whether he had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, that he could arrange an appointment of his own accord;

(3)    whether he had ability to instruct his advisor with sufficient clarity to enable his advisor to understand the situation and to advise him appropriately; and

(4)    whether he had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as he might receive.

20    There is no medical evidence before the Court addressing these considerations. Such evidence as there is includes the following.

(1)    Clinical notes that refer to ‘increased confusion with [memory] loss’ and a referral for a ‘CT scan of brain’.

(2)    A NSW Justice Health New Health Problem Notification Form that refers to ‘Mental Illness – History of harm to self’.

(3)    Jason Neave’s personal circumstances form and other documents that refer to him having a stroke in 2015, a blocked artery from his heart to his brain, mental problems, short term memory loss and brain damage.

21    Mr Jahanandish deposes that he is the solicitor for the ‘applicant’ in the proceedings. The applicant is ‘Jason Neave (By His Litigation Representative, Valerie Jane Neave)’. Therefore, it is unclear whether Mr Jahanandish is the solicitor of Jason Neave or Valerie Neave or both. If he is the solicitor for Jason Neave, that is somewhat inconsistent with the notion that he is not capable of managing his affairs in the proceeding.

22    Mr Jahanandish also deposes facts relating to telephone conversations he had with Jason Neave on 6 March 2024. Mr Jahanandish deposes to hearsay statements Jason Neave made to him to the effect that Jason Neave had a stroke that has resulted in short-term memory loss. Mr Jahanandish deposes to an initial conversation on 6 March 2024 that was interrupted. He then spoke to Valerie Neave. He later spoke again with Jason Neave and it is evident from Mr Jahanandish’s evidence of that conversation that Jason Neave had no recollection of the earlier telephone conversation that day. Mr Jahanandish then deposes a number of facts on information and belief including that he believes that Jason Neave is under a legal incapacity and is not capable of managing his affairs in the proceeding. Further, he is instructed that Jason Neave made the power of attorney because of that incapacity and needs Valerie Neave to help make important decisions in his life for him.

23    I accept that Jason Neave had a stroke that caused some damage to his brain and brain function and that he has short-term memory loss. I also accept that short-term memory loss will impair his ability to instruct legal representatives and make decisions based on, or otherwise give effect to, such legal advice as he may receive. However, the extent of that impairment is not clear on the evidence. Unassisted by expert medical evidence, I am not persuaded that Jason Neave is not capable of giving instructions and understanding, with the assistance of legal representatives and his mother, the matters upon which his consent, decision or instruction is likely to be necessary in the course of the proceeding.

24    The exhibits to Mr Jahanandish’s affidavit include a statement of the Minister’s reasons and documents referred to in the reasons. The documents include a request for revocation of the mandatory cancellation of the visa and personal circumstances form that is completed in handwriting and signed by Jason Neave on 26 August 2020. It does not nominate any migration agent. In the absence of any evidence to the contrary, I infer the form was completed by Jason Neave. It contains a significant amount of historical information relating to Jason Neave including his offending. There are also two handwritten letters signed by Jason Neave one dated September 2020 and the other undated. I infer that these were prepared by Jason Neave. The documents indicate that Jason Neave obtained the assistance of a migration agent in June 2021 as, on 7 June 2021, he signed a declaration of appointment of that migration agent. All these documents suggest that Jason Neave has the capacity to understand that he required advice, he took steps to obtain advice, he appointed a migration agent to give him that advice and he acted on that advice. Further, before he obtained the assistance of a migration agent, he had capacity to manage his application for the revocation of the cancellation of his visa himself. Further, in 2010, he evidently had capacity to understand the need for and to appoint his mother as his power of attorney.

25    The onus is on Valerie Neave to demonstrate that Jason Neave is under a legal incapacity and, relevantly, that he is person who, because of a mental disability or illness, is not capable of managing his own affairs in the proceeding. She has not discharged that onus on the material filed in support of the application.

26    As already mentioned, the application for the appointment of the litigation representative was served personally on Jason Neave. He has not sought to be heard on the application or to oppose it. It appears, therefore, that Jason Neave, as a person evidently capable of managing his affairs in the proceeding, does not oppose Valerie Neave having authority to instruct his legal representatives and conduct the proceedings on his behalf.

Is the appointment of a litigation representative necessary?

27    As already mentioned, Jason Neave made a general (enduring) power of attorney by which Valerie Neave was appointed his attorney. By the power of attorney, Valerie Neave is authorised to do, on behalf of Jason Neave, anything he may lawfully authorise an attorney to do: cl 1 of the power of attorney; s 9 of the Power of Attorney Act. It is well established that a general power of attorney gives the donee power to instruct a solicitor and to sue as agent for the donor: Re Frampton; Ex parte Frampton (1859) 1 De GF & J 263; 45 ER 359; Gray v Pearson (1870) LR 5 CP 568; Norman v Commissioner of Taxation (Cth) [1963] HCA 21; 109 CLR 9 at 27 (Windeyer J). In such circumstances, the proceeding is brought or defended in the name of the donor of the power (principal), but the attorney (agent) has authority to instruct solicitors as to the prosecution or defence of the proceeding on the principal’s behalf.

28    It follows that if and to the extent that Jason Neave requires the assistance of Valerie Neave to instruct lawyers to conduct the proceeding on his behalf, she has that authority under the power of attorney without the need for the appointment of a litigation representative.

Disposition

29    The interlocutory application for appointment of Valerie Neave as Jason Neave’s litigation representative will be dismissed.

Associate:

Dated:    5 September 2024