Federal Court of Australia

Ockerby by his Proposed Litigation Representative Theriault v Ron Farris Real Estate Pty Ltd [2026] FCA 1113

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application for the appointment of Mrs JoAnn Theriault as the litigation representative of the applicant is dismissed.

2.    Mrs Theriault pay 50% of the first respondents' costs of and incidental to the interlocutory application.

3.    The conduct of these proceedings by the applicant is stayed save as to any further steps concerning the applicant's capacity.

4.    No document lodged by Mrs Theriault in respect of these proceedings shall be accepted for filing.

5.    The name of the applicant be amended to Douglas John Ockerby.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Douglas Ockerby brought an application in the Fair Work Commission against Ron Farris Real Estate Pty Ltd. It appears that the dispute between the parties was resolved at a conciliation conference. Subsequently, Mr Ockerby sought to reopen the proceedings. He was assisted in doing so by his wife, Mrs JoAnn Theriault. The application to reopen was dismissed. Mr Ockerby lodged an appeal. Permission to bring the appeal was refused by the Full Bench of the Commission.

2    In February 2026, Mr Ockerby brought proceedings in this Court seeking judicial review. The application named two respondents, namely the Fair Work Commission and the Deputy President of the Commission who had dismissed the application to reopen the proceedings in the Commission. The application indicated that Mrs Theriault proposed that she be appointed as litigation guardian for Mr Ockerby.

3    Subsequently, orders were made for the joinder of Ron Farris Real Estate as a necessary party to the judicial review proceedings and for the removal of the Deputy President of the Commission as a separately named respondent.

4    Mrs Theriault now applies to be appointed as litigation guardian to conduct the proceedings on behalf of Mr Ockerby. The application is opposed by Ron Farris Real Estate.

5    Mr Ockerby is a litigant is person and Mrs Theriault proposes to conduct the proceedings on his behalf without appointing lawyers. Leave was given for Mrs Theriault to make submissions on behalf of Mr Ockerby for the purposes of the application that she be appointed as Mr Ockerby's litigation guardian for the conduct of the review application in this Court.

6    The interlocutory application is brought pursuant to r 9.63 of the Federal Court Rules 2011 (Cth). Rule 9.63(1) provides that a person may apply to be appointed as a litigation representative. Rule 9.63(2) provides for a copy of the application to be served 'on the person under a legal incapacity'. Also of relevance for present purposes is r 9.61 which provides that a person under a legal incapacity may start a proceeding only by a person's litigation representative. Finally, the Rules define 'legal representative' to mean 'a person who has been appointed for a proceeding, as a litigation representative for a person under a legal incapacity'.

7    Considered in that context, on an application for an order under r 9.63 it must be demonstrated that the relevant party is under a legal incapacity. The rule does not confer power to appoint a legal representative in cases where that requirement is not met.

8    The term 'person under a legal incapacity' is defined to mean:

(a)    a minor; or

(b)    a mentally disabled person.

9    The term 'mentally disabled person' is defined to mean:

a person who, because of mental disability or illness, is not capable of managing the person's own affairs in a proceeding.

10    The following principles are to be applied:

(1)    there is a presumption that every adult has the competence to conduct litigation: BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; (2024) 282 CLR 253 at [37] (Gordon ACJ, Edelman and Stewart JJ) and L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [26]-[27] (Black CJ, Moore and Finkelstein JJ);

(2)    'the level of mental capacity required to be a "capable" litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation': Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169; (2022) 294 FCR 346 at 371 at [107], (Rangiah, Charlesworth and Banks-Smith JJ); applying Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 at [35] (Meagher JA);

(3)    the Court can act upon its own observations as to the capacity of a litigant to conduct the proceedings: Drummond at [105], Dauguet v Centrelink [2015] FCA 1212 at [23]-[25] (Murphy J), Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592 at [45]-[56] (Rangiah J);

(4)    medical evidence relied on to support an application must be sufficient to demonstrate the inability to undertake what is required to effectively conduct the proceedings and must be evaluated having regard to the nature and complexity of the proceedings (and whether the litigant proposes to conduct the proceedings in person or by instructing a lawyer): Secretary, Department of Health v Southern Cross Directories Pty Ltd at [35] and Dauguet at [21];

(5)    not every form of mental incapacity or mental impairment will result in legal incapacity to conduct proceedings: BIF23 at [86] (Jagot and Beech-Jones JJ); Burnett v Browne (No 2) [2021] FCA 373 at [43] (O'Callaghan J); Barton v Secretary, Department of Health [2023] FCA 1168 at [26] (Bromwich J); Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592 at [26] and [37] (Rangiah J); Ross v Attorney-General (Cth) [2024] FCA 180 at [43](2)] (Goodman J);

(6)    the appointment of a litigation guardian is protective of the interests of the party concerned, of the other parties and of the process of the Court: State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395 at 400-1; A v City of Swan (No 5) [2010] WASC 204 at [63] (Murphy JA).

11    If a litigation representative is to be appointed, then the person must have the requisite independence and be otherwise demonstrated to be an appropriate representative. By reason of the protective nature of the appointment of a litigation representative for the integrity of the court's process, the Court must be satisfied that the litigation representative will act appropriately in the approach to the litigation. In a case like the present where it is proposed that the requirement for the litigation representative to conduct the proceedings by instructing lawyers be dispensed with, it is necessary to consider whether it would be appropriate to allow the proceedings to be conducted in that way by the proposed litigation representative. Amongst other things, the Court must be satisfied that a proposed litigation representative who intends to conduct the proceedings without appointing a lawyer will conform to the obligations, duties and responsibilities of litigants in the Court (as to which, see the Litigants in Person Practice Note (GPN-LIP)). As the order sought in the present case contemplates that Mrs Theriault conducts the proceedings without legal representation, the Court must be satisfied that Mrs Theriault would be an appropriate representative to conduct those aspects of the proceedings on behalf of her husband.

12    Although a litigation representative will be personally liable for costs, a litigation representative who has acted properly may be expected to be indemnified by the person they represent or out of any fund to which that person is entitled: Challenger Life Company Limited v Estate of the Late Robert John Real (No 2) [2017] FCA 1059 at [52] (Gleeson J) citing Farrell by her next friend Waugh v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173 at [17] (Buss JA). Therefore, there may be costs consequences for both the litigation representative and the party they are appointed to represent. Mr Ockerby indicated to the Court that he had discussed the risks as to costs with his wife and that Mrs Theriault intended to seek a form of protective costs order. Otherwise, Mrs Theriault indicated that she recognised the costs consequences of the nature of her application.

Evidence of incapacity

13    The evidence concerning Mr Ockerby's capacity was as follows:

(1)    Mr Ockerby deposed that he was affected by a mental illness related to events at work and legal matters with Ron Farris Real Estate and that he was receiving medical care. He said that his condition made it difficult for him to gather, process and express his thoughts and wishes when he is in a challenging or stressful situation. He referred to his ability to follow what is happening, to make decisions and speak for himself as being impaired;

(2)    Mr Ockerby expressed his wish that Mrs Theriault be appointed as his litigation representative;

(3)    Mrs Theriault deposed to Mr Ockerby's mental capacity in similar terms to her husband. She produced a report from a general practitioner. Mrs Theriault also deposed in the most general terms to the views of other treating physicians;

(4)    Mrs Theriault purported to depose to Mr Ockerby being a person who was under a legal incapacity for the purposes of the Federal Court Rules. I upheld an objection to that evidence on the basis that it was evidence as to an issue that the Court was required to determine.

14    An issue arose at the hearing of the interlocutory application concerning an additional affidavit that Mrs Theriault had sought to file. There were issues as to whether it had been filed and served on the lawyers acting for Ron Farris Real Estate. Ms Theriault explained that the proposed evidence did not include further medical evidence as to Mr Ockerby's mental health. Rather, it sought to explain concerns on the part of Mrs Theriault (and, it would seem, Mr Ockerby) as to whether further information about Mr Ockerby's health would be kept confidential. Otherwise, the additional affidavit sought to deal with what Mrs Theriault described as 'character assassination'. After a short adjournment, Mrs Theriault indicated that she was willing to proceed without seeking to rely on the additional affidavit.

15    Mrs Theriault's own affidavit in support of her appointment as litigation representative exhibited a short letter from Mr Ockerby's treating general practitioner. The letter refers to the fact that Mr Ockerby is receiving specialist psychiatric care. It describes in general terms what is said to be 'impairment' of Mr Ockerby's capacity to participate or manage ongoing complex legal matters. It also recorded Mr Ockerby's belief that he would benefit from having Mrs Theriault assist him given the nature of the difficulties he was experiencing. There was no suggestion that Mr Ockerby lacked the capacity to express his own belief as to these matters. Mr Ockerby confirmed that belief to the Court at the hearing of the interlocutory application. He made a brief submission to that effect before Mrs Theriault made submissions on his behalf, with leave.

Evidence as to suitability

16    Mrs Theriault deposed to her alleged ability to conduct the proceedings on behalf of Mr Ockerby. She described herself as being a 'Senior Program and Project Manager, currently on extended leave from my employer'. She said that she had no financial interest in the proceedings adverse to the interests of Mr Ockerby. As to her capacity to conduct the proceedings, Mrs Theriault deposed as follows (referring to Mr Ockerby by his first name):

(a)     I have professional qualifications and an extensive senior executive background, including in roles requiring complex analytical and decision-making capacity;

(b)     I have substantial experience as an authorised representative in employment, industrial, and workplace-related proceedings, including matters in the Fair Work Commission;

(c)     I am familiar with the underlying subject matter of the Proceeding, having assisted Douglas to date in matter U2024/12930 in the Fair Work Commission and the related judicial review proceedings, along with all interrelated matters affecting Douglas brought by the First Respondent;

(d)     I have communicated regularly with Douglas about the Proceeding and understand his wishes and instructions;

(e)     I will comply with the duties of a litigation representative under the FCR and the overarching obligation to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible (s 37N of the Federal Court of Australia Act 1976 (Cth)); and

(f)     I will seek and act on legal advice as required.

17    As to the final sentence, as I have mentioned, Mrs Theriault informed the Court that she intends to conduct the proceedings in person. In her written submissions, she referred to the inability of Mr Ockerby to meet legal costs and the need for a 'cost-free means of representation'.

Evidence of Ron Farris Real Estate

18    Mr Heath, a solicitor with conduct of the proceedings for Ron Farris Real Estate provided an affidavit. Relevantly for present purposes, it deposed to the following matters:

(1)    Mrs Theriault was convicted of a charge of dishonestly dealing with a document, and of one count of abuse of public office, in the District Court of South Australia, and that she had been sentenced to a term of imprisonment of more than 2 years;

(2)    Mrs Theriault had made an alleged threat on his life that he had reported to the Police. The threat was said to have been made in an email sent to him by Mrs Theriault during the conduct of the proceedings in the Fair Work Commission. The statement in the email said to constitute the threat was as follows:

Don't be lulled into thinking this won't matter to the FWC - because it will or it will matter in the Federal Court where I am Doug's litigation guardian. I won't stop as you must see until I have your life or your license - I'm cashed up and I have nothing to lose.

(Original emphasis).

(3)    Mrs Theriault had not been criminally charged in relation to the alleged threat on the basis of her explanation that the reference in the email was to Mr Heath's professional life and was not a threat to take his actual life;

(4)    Mr Heath remained dissatisfied with the outcome of his complaint to the Police;

(5)    Mrs Theriault had engaged in extensive communication in the course of the proceedings in the Fair Work Commission; and

(6)    Mrs Theriault persisted in sending communications directly to his client, including a letter in which she threated the client with being charged with 'serious criminal conduct'.

19    As to the criminal conviction, Mrs Theriault accepted that had been the case. As to the alleged threat she maintained in submissions to the Court that the statement she made concerned Mr Heath's professional life.

Contentions advanced by Mrs Theriault

20    Contentions to the following effect were advanced by Mrs Theriault in support of her appointment as Mr Ockerby's litigation representative:

(1)    Mrs Theriault was well placed to conduct the proceedings fairly and competently. In that regard, Mrs Theriault referred to the following matters (adopting the third person perspective):

(a)     she has assisted Douglas in matter U2024/12930 in the Fair Work Commission and in the related judicial review, and is familiar with the subject matter of the proceeding;

(b)     she has, on an unpaid basis as a friend or family member, assisted parties in proceedings in the Family Court of Australia, the Fair Work Commission, the Magistrates Court, and in criminal matters, including in the preparation of documents and material;

(c)     she has a senior professional background in roles requiring complex analytical and decision-making capacity, and prepares clear and orderly written material, as the documents filed by the Applicant in this proceeding demonstrate; and

(d)     she communicates regularly with Douglas, understands his wishes and instructions, and will comply with the duties of a litigation representative and seek and act on legal advice as required.

(2)    it was the wish of Mr Ockerby that Mrs Theriault be appointed as his litigation representative;

(3)    the appointment of Mrs Theriault is, in practical terms, the only means by which Mr Ockerby can pursue the proceeding in this Court;

(4)    aspects of the evidence relied upon by Ron Farris Real Estate were irrelevant, in effect, because the proceedings in this Court were part of the procedural history before the Fair Work Commission about which complaint was sought to be raised in the proceedings in this Court; and

(5)    whatever the outcome, no order for costs should be made.

Contentions advanced by Ron Farris Real Estate

21    Contentions to the following effect were advanced by Ron Farris Real Estate:

(1)    the evidence before the Court failed to establish that Mr Ockeby was a person who was not capable of managing his own affairs by reason of a mental illness or disability;

(2)    on the evidence, Mrs Theriault was not a fit and proper person to be appointed as a litigation representative;

(3)    on the evidence, Mrs Theriault had conducted herself 'dishonourably and vexatiously' in the conduct of the proceedings in the Fair Work Commission; and

(4)    the interlocutory application should be dismissed with costs.

Relevant findings and reasons for refusing application

22    As I explain below, I have considered whether this is an appropriate case for a pro bono referral and have concluded that it is not. Consequently, as matters presently stand, if a litigation representative is not appointed, then Mr Ockerby will have to conduct the proceedings on his own behalf. The Court must take account of his ability to manage the Court proceedings having regard to the stresses and responsibilities involved. On his own evidence, Mr Ockerby is unable to do so. This is supported by the short statement from his general practitioner. As this is not an instance where a litigation representative is sought to be appointed on the basis of mental disability or illness of a kind that means the person is unable to instruct lawyers or is unable to provide their own evidence as to the nature of their mental disability or illness, the Court can act on Mr Ockerby's own evidence as supported by the general practitioner. His evidence in that regard is also supported by Mrs Theriault's evidence.

23    Therefore, I am persuaded that Mr Ockerby can only commence and conduct these proceedings with a litigation representative.

24    However, for the following reasons, I am not persuaded that it is appropriate to appoint Mrs Theriault as Mr Ockerby's litigation representative.

25    First, on the evidence, Mrs Theriault has engaged in inappropriate communications in relation to the conduct of the Fair Work Commission proceedings. The extent of those communications and the threats that have been made demonstrate a lack of judgment of a kind that would be inimical to the role of litigation representative.

26    Second, Mrs Theriault informed the Court in the course of submissions that the subject matter of the proceedings was such that there was a very limited opportunity for recovery by Mr Ockerby of a monetary amount. She referred to an amount of 'perhaps $1200, $2500'. Otherwise, she described the application as being brought on what she alleged to be 'very serious matters of misconduct in judicial settings' that she was advancing in the public interest. Mrs Theriault did not explain why, in those circumstances, it was in the interests of Mr Ockerby to be involved in proceedings in this Court.

27    Third, Mrs Theriault informed the Court that she had drafted the application in the proceedings. The application contains a very large number of grounds, the expression of which occupy about 20 pages. What is plain is that much of the matters raised in the application concern actions taken by Mrs Theriault in the conduct of the proceedings in the Fair Work Commission (where she was allowed to conduct the proceedings for Mr Ockerby). It is evident from the terms of the application that Mrs Theriault has taken considerable exception to the way in which her arguments before the Commission were treated and, indeed, aspects of the way she was treated. Mrs Theriault is far from a disinterested party when it comes to the proceedings in this Court.

28    Fourth, in the course of the conduct of the hearing, Mrs Theriault displayed animosity towards Mr Heath, the solicitor with the conduct of the matter for Ron Farris Real Estate. A concern as to Mr Heath's manner of dealing with the alleged threat to his life is also one of the many matters sought to be raised by the proceedings in this Court. This aspect also gives rise to serious concerns as to Mrs Theriault's independence.

29    Fifth, Mrs Theriault has a conviction for dishonestly dealing with a document.

30    Sixth, part of the allegations made in the application concern competing claims of untruthfulness before the Fair Work Commission as to statements made by Mrs Theriault.

31    Seventh, Mrs Theriault's submissions as to the extent of the assistance she has provided to other family members in relation to litigation conducted by them display an enthusiasm for involvement in litigation that counts against her appointment as a litigation representative.

32    Finally, I have considered the likelihood that refusal of the application will mean that the proceedings will not continue. I have read the application in its entirety. It has all the hallmarks of personal disaffection and an inability on the part of Mrs Theriault to accept the outcome. Having regard to what is at stake in the proceedings when it comes to the interests of Mr Ockerby (as distinct from Mrs Theriault's personal grievances as to the way she was treated in the conduct of the Fair Work Commission proceedings), I am not persuaded that it would be appropriate to issue a request for pro bono assistance.

Costs and orders

33    The interlocutory application dealt with a discrete issue. There were major flaws in Mrs Theriault's suitability to be appointed as a litigation representative. They should have been apparent. On the other hand, I have accepted that Mr Ockerby requires a litigation representative to conduct the proceedings so to that extent the application has succeeded.

34    The Court has a general discretion as to costs. It is a discretion that must be exercised judicially. Although the discretion is not narrowed by legal rules, its exercise is appropriately guided by settled matters of principle: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24] Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [65] (McHugh J), [134] (Kirby J). Where an interlocutory application raises a discrete issue, the Court will often order the unsuccessful party to pay the costs of the interlocutory application. Such a course is appropriate where the costs do not relate to an aspect of the proceedings the costs of which should be borne by the party who is ultimately successful (or at least should be determined at a time when the outcome of the proceedings is known). The issue whether Mrs Theriault should be appointed as a litigation guardian was a discrete issue. As I have explained, Mrs Theriault is obviously not suitable for appointment as a litigation representative for Mr Ockerby in these proceedings. However, the application was successful to the extent that it demonstrated the need for a litigation guardian. Accordingly, I am persuaded that it is appropriate to make a costs order in the present case. It should relate to 50% of the costs of the application. The order should be made as against Mrs Theriault as the proposed litigation representative.

35    An issue arises as to whether the costs order should apply to the costs of the Fair Work Commission who appeared through counsel having regard to the nature of the allegations made in the application. No issue arose as to that aspect and no application was made for costs by the Fair Work Commission. In those circumstances, the costs order should be in favour of Ron Farris Real Estate only.

36    Having regard to the conclusion that I have reached concerning the consequence of Mr Ockerby's mental health for his capacity to manage his own affairs in these proceedings, it is appropriate that the conduct of these proceedings by Mr Ockerby is stayed, save as to any further steps concerning Mr Ockerby's capacity. Having regard to the conclusions I have reached concerning Mrs Theriault, I will also order that no documents lodged by Mrs Theriault in respect of these proceedings shall be accepted for filing.

Associate:

Dated:    11 August 2026