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Wood v Lee-Joe (No.3) [2015] FCCA 354 (20 February 2015)

Last Updated: 23 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOOD v LEE-JOE (No.3)


Catchwords:
PRACTICE AND PROCEDURE – Appointment of litigation guardian – whether person who purportedly on behalf of another person commenced proceedings under s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act) should be appointed litigation guardian in relation to that other person – whether a person who has experienced intermittent and unpredictable periods of incapacity to adequately instruct the conduct of proceedings is a person in need of a litigation guardian – litigation guardian not appointed.

HUMAN RIGHTS – Person (Carer) as carer for another (Complainant) lodges a complaint of unlawful discrimination with the Australian Human Rights Commission (Commission) – complaint before the Commission terminates on 18 November 2013 – Carer commences proceedings, purportedly as carer for the Complainant, pursuant to s.46PO(1) of the Act within the 60 day period provided for by s.46PO(2) – whether Complainant should be substituted for the Carer as applicant in the proceedings commenced by the Carer – whether the Complainant should be allowed to bring her application to be substituted as the applicant in the proceedings even though 60 days have passed after the termination of the complaint for unlawful discrimination before the Commission.

PRACTICE AND PROCEDURE – Whether proceedings for contempt should be dismissed on the ground the applicant has no reasonable prospects of successfully prosecuting those proceedings.


Disability Discrimination Act 1992 (Cth) s.42
Federal Circuit Court Rules 2001 (Cth), rr.1.05(2), 11.08(1), 11.09(1), 11.11(1), 13.10(a)
Federal Court Rules 2011 (Cth), r.8.22


Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432
Low v Commonwealth of Australia [2001] FCA 702
Masterman-Lister v Brutton & Co; Masterman-Lister v Jewell & Anor [2002] EWCA Civ 1889
Wood v Lee-Joe [2014] FCCA 309


Applicant:
HARRY WOOD, CARER FOR ELSIE LYNNE NEILSON

Respondent:
ANDREW MARK LEE-JOE

File Numbers:
SYG 3226 of 2013 & SYG 225 of 2014

Judgment of:
Judge Manousaridis

Hearing date:
7 July 2014

Delivered at:
Sydney

Delivered on:
20 February 2015


REPRESENTATION

Solicitor for the Applicant:
Dr R Spence of Integrity Criminal Legal

Counsel for the Respondent:
Mr T Brennan

Solicitors for the Respondent:
P A Keith, Solicitor

ORDERS

SYG 3226 of 2013

(1) Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the proceedings are dismissed.

(2) The applicant pay the respondent’s costs as agreed or taxed.
SYG 225 of 2014
(1) The application in a case to file an amended application showing that the application is brought by Elsie Lynne Neilson by her litigation guardian Harry Wood is dismissed.
(2) Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the proceedings are dismissed.
(3) The applicant pay the respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3226 of 2013 & SYG 225 of 2014

HARRY WOOD, CARER FOR ELSIE LYNNE NEILSON

Applicant

And

ANDREW MARK LEE-JOE

Respondent


REASONS FOR JUDGMENT

Introduction

  1. In these reasons for judgment I consider a number of applications made in two related proceedings. Before I describe the applications, it will be necessary to describe the procedural history out of which they arise.
Procedural history
  1. On 22 October 2013 I granted the applicant, Mr Harry Wood, as carer for Ms Elsie Lynne Neilson, an injunction restraining the respondent, Mr Lee-Joe, from taking steps to evict Mr Wood from premises he and Ms Neilson occupied at Unit 9, 11-13 Pittwater Road, Manly (Unit).[1] Mr Lee-Joe is the registered proprietor of the Unit. I granted the injunction under s.46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act) in aid of a complaint Mr Wood, as carer for Ms Neilson, made to the Australian Human Rights Commission (Commission), and for a period ending on the day Mr Wood’s complaint to the Commission was to be terminated under s.46PH of the Act.
  2. After the complaint to the Commission was terminated on 18 November 2013, Mr Lee-Joe took steps to evict Mr Wood and Ms Neilson from the Unit. That led Mr Wood to apply for an interlocutory injunction to restrain Mr Lee-Joe from evicting Mr Wood and Ms Neilson. Mr Wood made that application in aid of an application Mr Wood filed, purportedly as carer for Ms Neilson, for relief under s.46PO of the Act (46PO proceedings).[2] On 24 February 2014 I dismissed Mr Wood’s application for the injunction.[3] I refused to grant the injunction because, among other things, I found Mr Wood has no standing to commence the 46PO proceedings as carer for Ms Neilson.
  3. In addition to commencing the 46PO proceedings, Mr Wood filed an application in which he claimed Mr Lee-Joe breached the orders I made on 22 October 2013 (contempt proceedings). Mr Wood claimed Mr Lee-Joe breached my orders by communicating with the Consumer, Trader and Tenancy Tribunal (CTTT) before the complaint to the Commission was terminated on 18 November 2013. On 3 February 2014 Mr Lee-Joe filed an application to dismiss the contempt proceedings.
  4. All matters came before me on 14 March 2014. Counsel appeared for Mr Lee-Joe, and Mr Wood represented himself in Court. Mr Lee-Joe, through his counsel, applied for an order that the 46PO proceedings be summarily dismissed with costs. Mr Lee-Joe also moved on his application that the contempt proceedings be summarily dismissed.
  5. After counsel outlined the grounds on which Mr Lee-Joe relied for orders dismissing both proceedings, I granted Mr Wood leave to appear. Mr Wood informed me that he did not have the authority of Ms Neilson to represent her. Mr Wood did say, however, that the “Legal Services Commissioner of New South Wales” had all but formally approved granting legal aid to Ms Neilson. Mr Wood also informed me the name of the lawyers whom he anticipated would be acting for Ms Neilson.
  6. At the conclusion of the hearing, I made the following orders in the 46PO proceedings:

THE COURT NOTES:

  1. On 14 March 2013 [sic] the respondent, through his counsel, applied for an order summarily dismissing the application filed by Mr Wood purportedly on behalf of Elsie Lynne Neilson.
  2. The grounds on which the respondent contends the application should be dismissed were articulated by counsel at the hearing referred to in paragraph 1.
  3. The respondent, through his counsel, also applied for an order for costs of the hearing on 19 February 2014 which resulted in the orders made on 24 February 2014.
  4. The associate to Judge Manousaridis will endeavour to provide to Mr Harry Wood and to Stevens Cottee Lawyers a copy of the transcript of the hearing by no later than 21 March 2014.

THE COURT ORDERS THAT:

  1. By 11 April 2014 Elsie Lynne Neilson must file and serve on the solicitor for the respondent such documents and evidence as she is advised containing the grounds on which she opposes the application for dismissal referred to in paragraph 1 of the notes above and the application for costs referred to in paragraph 3 of the notes above.
  2. Mr Wood must do all that he reasonably can do to provide to Elsie Lynne Neilson a copy of these orders and the transcript as soon as is reasonably practicable.
  3. If Elsie Lynne Neilson files and serves any document under order 1 within the time specified in that order, the matter will be relisted for further directions on 24 April 2014 at 9.30 am.
  4. If Elsie Lynne Neilson does not file and serve any document under order 1 within the time specified in that order, judgment on the application for dismissal and for costs will be reserved, and the Court will be at liberty to make orders on those applications including with respect to costs of the balance of the proceedings without further notice to Elsie Lynne Neilson or Mr Wood.
  5. The costs of today are reserved.
  6. I made similar orders in the contempt proceedings.
  7. The matters came before me again on 24 April 2014. Dr Spence appeared for Mr Wood. On that day I made no order other than ordering that costs of the directions hearing be costs in the cause. In effect, both proceedings were adjourned until the day I was to deliver my decision on the applications Mr Lee-Joe made on 14 March 2014.
  8. On 28 April 2014 Mr Wood, purportedly as carer for Ms Neilson, filed an application in a case in the 46PO proceedings in which he sought the following orders:
    1. That this honourable Court, in respect of the orders made on 14 March 2014, in the proceedings herein, grant an extension of time for the filing and service of documents and evidence in support of opposition by the Applicant in the proceedings herein, to the application of the Respondent in the proceedings herein, that the proceedings herein be dismissed.
    2. That this Honourable Court permit the Applicant in the proceedings herein to file an amended application in the proceedings herein such that the application, as amended, is brought by Elsie Lyn Nielson by her Litigation Guardian, Harry Wood.
  9. Also on 28 April 2014 Mr Wood, again purportedly as carer for Ms Neilson, filed an application in a case in the contempt proceedings seeking an order extending the time provided by the orders I made on 14 March 2014 to file and serve documents in opposition to Mr Lee-Joe’s application to dismiss the contempt proceedings.
  10. From the application in a case filed in the 46PO proceedings, it appeared that Mr Wood intended to apply for an order that he be appointed litigation guardian of Ms Neilson. Accordingly, on 4 June 2014 I set down for hearing on 7 July 2014 the application that Mr Wood be appointed litigation guardian. I also set down for hearing Mr Lee-Joe’s applications that the 46PO and contempt proceedings be dismissed.
Questions for determination
  1. The first application that I should consider is that filed by Mr Wood in the 46PO proceedings and, in particular, his claim for an order that Mr Wood “file an amended application in the proceedings herein such that the application, as amended, is brought by Elsie Lyn Nielson by her Litigation Guardian, Harry Wood”. This claim, in effect, seeks two orders. The first is that Mr Wood be appointed litigation guardian; and the second is that the application be amended to show that Ms Neilson is bringing the proceedings through Mr Wood as her litigation guardian.
  2. At the hearing on 7 July 2014 counsel for Mr Lee-Joe submitted that Mr Wood’s application does not per se seek an order that Ms Neilson be added as an applicant; he submitted that the application only seeks an order, in effect, that the application in the 46PO proceedings be amended to show that Ms Neilson brings the application through a litigation guardian. Counsel submitted, therefore, that if I am not satisfied Ms Neilson is a person who needs a litigation guardian, I must dismiss, not only the application in a case to amend the application, but also the 46PO proceedings because, as I had already found,[4] Mr Wood does not have standing to bring those proceedings.
  3. I did not understand Dr Spence, who appeared for Mr Wood, to disagree with what counsel for Mr Lee-Joe said. That is to say, I did not understand Dr Spence to have submitted that Ms Neilson should be joined as a party even if she is not a person who needs a litigation guardian. Nor do I understand Dr Spence to have submitted that Ms Neilson in fact commenced the proceedings. Nevertheless, I will assume that Ms Neilson does intend to be joined as an applicant without a litigation guardian, and that she, therefore, applies for an order that I allow her to commence proceedings under s.46PO(1) of the Act after the 60 days prescribed by s.46PO(2). I will, therefore, consider whether I would allow Ms Neilson to commence proceedings outside the 60 day period.
  4. The final question I must consider is whether I should dismiss the contempt proceedings.
Litigation guardian
  1. Before I consider the grounds and evidence on which Mr Wood relies for being appointed litigation guardian of Ms Neilson, I must identify the source of the Court’s power to make such an order, and the principles I should apply when considering whether to make such an order.
Legal principles
  1. The starting point is r.11.09(1) of the Federal Circuit Court Rules 2001 (Cth) (Rules) which provides that a “person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian”. Under r.11.08(1) of the Rules, a person “needs a litigation guardian” in relation to a proceeding “if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”.
  2. A person can become a litigation guardian of a person who needs a litigation guardian only if the Court makes an order to that effect. The power to make such order is conferred by r.11.11(1) of the Rules, which provides:
The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.
  1. The Full Federal Court in L v Human Rights and Equal Opportunity Commission[5] identified some principles the Court should bear in mind when considering whether to appoint a litigation guardian under r.11.11(1) of the Rules. The Full Court said there was a “presumption of competence unless and until the contrary is proved” so that, “[w]hen it is alleged that a person is incompetent, the onus of proof is on those so asserting”;[6] that the “means by which the court will determine whether a guardian should be appointed can vary from case to case”, and that “the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it”.[7]
  2. The words “capacity” and “competence” used in this passage signify an ability to do something. Sub-rule 11.08(1) of the Rules is engaged where the Court is satisfied a party does not have the capacity to do at least one of the two matters referred to in that sub-rule. These are to “understand the nature and possible consequences of the proceeding”, or adequately conduct, or give adequate instruction for the conduct of the proceeding.
  3. There are a number of expressions in r.11.08(1) of the Rules whose meanings must be explored. One is the expression “does not understand the nature and possible consequences of the proceeding”. What must be shown a person does not have the capacity to understand before it can be concluded that the person does not understand the nature of the proceeding or the possible consequences of the proceeding? This requires identifying those elements of the proceeding that define its nature.
  4. Where, as in the case of Ms Neilson, the person is seeking to commence proceedings, the Court must be satisfied the person at the very least cannot understand any one of the following matters: that he or she is making a claim for an order from a Court; the order the person is seeking and the grounds on which the person is seeking the order; that before the Court can make an order, it must be satisfied of the existence of certain facts, and that the Court can only be so satisfied if there is placed before the Court admissible evidence the Court is satisfied proves such facts; where the claim is likely to be defended, the grounds on which the claim is to be defended; if it is proposed that the person will be legally represented, the person will incur expenses in retaining legal representation in the amount that it is likely the applicant will be charged; whether or not the claim is likely to be contested, the person may not succeed in obtaining the order the person seeks; and where the claim is likely to be contested there is a risk the Court will not grant the person the orders he or she claims and may be ordered to pay the opponent’s costs. I do not suggest this is necessarily an exhaustive list.
  5. What does “understanding” mean? To “understand” means to perceive the meaning of something, or to comprehend something.[8] Thus, for a person who proposes to commence proceedings not to understand the nature of the proceedings or its consequences means that the person does not have the ability to perceive or comprehend one or more of the features I have identified as defining the nature of the proceeding, or does not have the ability to perceive or comprehend the proceeding’s consequences.
  6. The next expression to consider is “capable of adequately conducting . . . the proceeding”. This requires the identification of three things: the activities a person must ordinarily undertake to conduct the proceeding; the standard at which the person must be capable of conducting those activities; and the capabilities the person must possess to conduct the activities at the required standard.
  7. Where the person proposes to commence proceedings, the activities he or she must ordinarily undertake include the articulation, at least in general terms, of the relief the person seeks from the Court, and of the facts on which the person relies for seeking that relief; undertaking the steps that are required by the rules of Court or by orders made by the Court, including preparing and submitting documents such as pleadings or equivalent documents, producing documents if requested or ordered to do so, and preparing written statements of evidence; and asking questions of witnesses. Again, I do not intend to say this is an exhaustive list.
  8. The standard of the activities the person must be capable of adequately undertaking is not that which a legally qualified person or a reasonably competent practitioner is capable of undertaking. Nor is the standard that which a reasonably educated person, or even a person of average intelligence, is capable of undertaking. The standard of activities is one that a person, with appropriate explanation from the Court where necessary, is capable of undertaking in order to effectively participate in the proceedings.
  9. What capacities must a person have, therefore, to be in the position to undertake the relevant activities, and thus effectively participate in the proceeding? At the very least, the person must have the capacity to understand the nature of the proceeding in general, and of the steps that the person must undertake in order to render effective that person’s participation in the proceeding. The person must have “insight and understanding” of the fact that he or she must make a number of decisions in relation to the proceedings, and, in relation to each decision the person is required to make, the person must be able:[9]
both (i) to understand and retain the information relevant to the decision which has to be made (including information about the reasonably foreseeable consequences of deciding one way or another or of failing to make any decision), and (ii) to use that information in the decision-making process.
  1. Finally, I consider the meaning of the expression “is not capable of . . . giving adequate instruction for the conduct of, the proceeding”. A person will lack this ability in the following circumstances. First, the person lacks insight and understanding that he or she is in a situation in respect of which he or she needs advice. Second, the person is unable to provide instructions to the legal representative with sufficient clarity to enable the legal representative to understand and decide the appropriate course to take in the proceeding. Third, the person is unable to understand and make decisions based on, or otherwise give effect to, such advice as the legal representative may give to the person in relation to the proceeding, before or after it is commenced.[10]
The evidence
  1. Mr Wood relies on a number of items of evidence. The first is an appointment of enduring guardian signed by Ms Neilson on 13 February 2013 appointing Mr Wood to be her enduring guardian.[11] Under that instrument Ms Neilson has authorised Mr Wood to decide where Ms Neilson lives, what health care she should receive, what kinds of personal services she may receive, and to consent to the carrying out of such medical or dental treatment as Ms Neilson may require. The instrument bears the certificate of a solicitor which states that Ms Neilson appeared to understand the effect of the instrument, and executed it voluntarily.
  2. A second item of evidence on which Mr Wood relies is the transcript of a hearing in relation to Ms Neilson that took place on 7 March 2000 at Manly Hospital.[12] The hearing took place under the Mental Health Act 1990 (NSW). At the time of the hearing, Ms Neilson was a temporary patient at Manly Hospital. The purpose of the hearing was to determine whether Ms Neilson (who is identified in the transcript as Ms Cousens) should be released into the care of Mr Wood (who is identified in the transcript as Mr Thurgood). The transcript records observations from medical practitioners about Ms Neilson’s mental state, and evidence from non-medical practitioners. The evidence before the Magistrate indicated that Ms Neilson experienced episodes of mental distress leading to admission into hospital, but these episodes were separated by periods where Ms Neilson did not suffer from mental distress.
  3. The Magistrate decided Ms Neilson should be released into the care of Mr Wood. In the course of his Honour’s so deciding, the Magistrate said:[13]
Principally that there is some psychosis, there is some mental illness that is evident, and it is evident in that the certificates and the evidence of Dr Quickett. And there has been admissions which would indicate that there is some history of it, that there is a disturbance of mood and severe or serious disorder of thought form.
  1. The Magistrate noted there was also evidence of Ms Neilson previously manifesting catatonic states, although his Honour also noted that one doctor, and a cousin of Ms Neilson who had been involved with Ms Neilson, “suggest that catatonic state comes from fear upon admission to a hospital”.[14]
  2. A third item of evidence on which Mr Wood relies is a report relating to Ms Neilson’s discharge from Manly Hospital on 29 April 1999 which refers to catatonia as a possible principal diagnosis that accounted for Ms Neilson’s admission on 13 April 1999.[15]
  3. A fourth item of evidence is two opinions expressed by Dr Michael Bishop.[16] The first is an opinion expressed in a letter dated 18 April 2013 in which Dr Bishop says that Dr Bishop has been the general practitioner for Ms Neilson since 2003, and Ms Neilson has been a patient of his clinic since 1993. Dr Bishop then states:
In January 2012 she [Ms Neilson] had a serious setback in her health due to a lift being out of service in the building she resides in. The lift was not functioning for a prolonged period of time putting a lot of physical and mental stress on Lynne in her everyday activities. She was making a steady recovery until late last year when eviction proceedings arose and the associated stress caused her severe anxiety.
Lynne has an expert carer and needs to be in expert care at all times as she can have sudden mood swings.
  1. The second opinion is contained in a certificate prepared by Dr Bishop on 16 May 2014 in which he states as follows:[17]
In my opinion she [Ms Neilson] is suffering from severe anxiety and depression. She has stated that her increased stress levels in particular, having to attend court, are causing her mood to deteriorate to the point of her dispairing [sic] of life. She will require the constant companionship of a medical carer.
  1. Finally, Mr Wood relies on evidence he gave at the hearing on 7 July 2014. He said that Ms Neilson’s inability “to answer simple questions” referred to by Dr Quickett at the hearing in March 2000 has not improved, but “has only got worse”.[18] He was taken to particular passages from the transcript of the hearing of March 2000, and in particular to references by Dr Miller that Ms Neilson suffered from a dissociative personality problem, and that Dr Miller had seen Ms Neilson in catatonic states. Mr Wood was then asked about his observations of Ms Neilson’s behaviour, in response to which he gave the following evidence:[19]
At the moment she is excellent. She is no problem, pleasant, she talks to me about her thoughts and everything. She is no problem at all. Helps me with her daily care and all this, no trouble at all. However, I could go home tonight and find that Janice has had problems with her. It changes that quick.
  1. Mr Wood was then asked the last time Mr Wood made observations of Ms Neilson which were different to the state Mr Wood had just described. Mr Wood said:[20]
Well, the day – on the night that we were evicted, 3 March, that was the night she went downhill and I really had to fill her up with Diazepam and everything to bring her out. And she was that way until about the 21st of – I think it was 21 June. And since 21 June she has been on the up and up.
  1. Mr Wood gave further evidence that on 28 November 2003 Ms Neilson was diagnosed with schizophrenia,[21] on 18 April 2013 Ms Neilson was diagnosed with suffering from hypertension,[22] that Dr Bishop had sometimes seen Ms Neilson to be in a catatonic state,[23] and that Ms Neilson was suffering from anxiety.[24]
  2. Towards the end of his examination in chief, Mr Wood gave the following evidence in answer to questions I asked:[25]
HIS HONOUR: Mr Wood, does Ms Neilson understand that this application is being made on her behalf today? --- Today?
Yes? --- You used the right word, yes. Whether she will tomorrow, I haven’t got a clue, your Honour.
And she’s entirely happy with being involved in the litigation, is she? --- I don’t think she’s entirely happy, your Honour. But she knows a number of other disabled people that this has happened to and she’s under a little bit of pressure and she likes to be with her friends. So, yes, I do believe she’s happy to be involved in it. Not totally on her own feelings, but because she also thinks she’s helping other people like herself.
So she understands she’s making some claim in a court of law? --- Yes, she understands.
And she wants to take that course? --- That course – as a matter of fact, since she got better after the 21st I ---
That’s all right . . . That’s all I wanted - - - ? --- I’ve taken her to three firms of lawyers to help her with her advice.
All right? --- And she has been quite comprehensive [sic]. You could put her in this box today – when I left her at lunchtime, your Honour, and she could talk to you just as well as I could.
  1. In cross-examination Mr Wood said that a firm of lawyers, Stevens Cottee, did not act for Ms Neilson in relation to her complaint to the Commission, but “they have talked to her about it”;[26] and three law firms of lawyers had spoken to Ms Neilson about her disability discrimination complaints.[27] Mr Wood said that in the morning of the hearing of 7 July 2014, when he left to attend Court, Ms Neilson “was telling me what to do and what not to do”.[28] Ms Neilson had read the appeal that had been lodged on her behalf in the Federal Court “and she even read an authority on it called L v Equal Opportunity Commission”.[29] Ms Neilson is “either manic or she isn’t”, and accepted he has observed Ms Neilson giving “lucid instructions to solicitors”, but has also observed Ms Neilson “sit with solicitors and not have a clue about what they’re talking about”.[30]
  2. Mr Wood also gave evidence in cross-examination about Ms Neilson’s decision to seek exemplary damages after she was unable to obtain an order restraining Mr Lee-Joe from evicting her from the Unit. That included the following:[31]
Right. And so you understood when she told you she wanted relief from the situation you were in, that she was telling you she didn’t want money or damages as a result of the proceedings? --- What I’m saying to you is, Mr Brennan, she was more interested in relief than money. Now, because she can’t get relief – we’ve been evicted, she now wants exemplary damages.
Right. And so is it the case that she had told you she didn’t want money or damages, but she has changed her mind, is that your evidence to that? --- That – that is – the circumstances have changed and she has changed her mind with the circumstances through talking to lawyers.
And does she – through talking to lawyers? --- Yes.
. . . And so having talked to lawyers, she has made the decision that she has changed her mind and she now wants damages? Yes, she – the proceedings are underway and that’s it.
And exemplary damages? --- Yes.
  1. Mr Wood gave evidence about the reasons Ms Neilson wishes to commence proceedings. Mr Wood accepted that Ms Neilson wanted to bring these proceedings because “she feels like it would be doing good for others with disabilities”, although Mr Wood said that she wished to commence proceedings because it would be doing good for her.[32] The good for others that Mr Wood understood Ms Neilson wished to achieve was to establish a “judicial authority”.[33]
  2. Mr Wood also gave the following evidence:[34]
And have you spoken to her about the risk that she runs of a costs order? --- Yes.
And what have you told her about that risk? --- That she could be up for cost.
All right. Is that all you’ve told her? --- Mr Brennan, I – lot of this sort of thing has been in quiet conversations with other lawyers – with lawyers not me – not me. That she understands that if she’s unsuccessful, she has to pay cost.
So she has taken legal advice on the costs exposure that she run? --- Yes, she understands.
And she – as you observed it, she understood that advice, and she made the decision that she wanted to commence the proceedings? --- In my humble opinion, she was of sound mind every time she’s had sound discussions with lawyers.
Should a litigation guardian be appointed?
  1. The evidence, particularly the evidence revealed in the transcript of the hearing of 7 March 2000 at Manly Hospital, reveals that Ms Neilson periodically suffers from severe mood swings. The evidence does not reveal, at least with any precision, the medical condition or conditions that may account for these mood swings. The evidence does reveal, however, that the mood swings are induced by external events. The transcript of the hearing at Manly Hospital reveals one class of events that has a severe impact on Ms Neilson’s mental well-being, and that is her being admitted into hospitals. Other events were her eviction from the Unit, and attending court.
  2. One class of events that does not appear to have caused Ms Neilson alarm is meeting with lawyers. The evidence shows that Ms Neilson at the very least had discussions with lawyers about her bringing an anti-discrimination case against Mr Lee-Joe. Those discussions included potential costs consequences of Ms Neilson mounting but losing a claim based on discrimination. Further, Ms Neilson articulated reasons to Mr Wood for her desiring to bring anti-discrimination proceedings against Mr Lee-Joe. These included her obtaining a remedy for herself, and her commencing proceedings leading to a precedent in the field of anti-discrimination law that might be of assistance to others who suffer from discrimination. The evidence shows that Ms Neilson understood that she initially sought relief in the form of an injunction to restrain Mr Lee-Joe from evicting her and that, after that remedy was refused, she was only entitled to claim compensation.
  3. The evidence does not satisfy me that Ms Neilson does not understand the nature of the proceedings she would be bringing, or its consequences, if she were permitted to be joined as an applicant in the proceedings Mr Wood commenced purportedly on her behalf as her carer. The evidence also does not satisfy me, at least at this point in time, that she would be unable to give adequate instruction for the conduct of the proceedings. I am not so satisfied even though, as the evidence shows, Ms Neilson from time to time undergoes violent mood swings.
  4. It may be that while she experiences periods of low mood Ms Neilson is unable to give adequate instruction for the conduct of the proceeding. But that by itself does not warrant the appointment of a litigation guardian. To do so would be to subject Ms Neilson to the control of a litigation guardian, not only while she is in a low mood, but also when she is in a happier mood during which, the evidence shows, Ms Neilson is able to comprehend her anti-discrimination claim and speak to lawyers about it. Further, if, during the life of the proceeding, Ms Neilson comes to suffer a low mood, and for that reason becomes unable to give adequate instruction for the conduct of the proceeding, steps could be taken at that time to deal with that eventuality. The required steps may be nothing more than granting a short extension of the time for the completion of a procedural step, or the granting of a short adjournment. On the other hand, the situation may call for the taking of more drastic steps, including the appointment of a litigation guardian. What steps would need to be taken, however, could only be assessed by reference to the severity of the mood swing, and the stage of the proceedings in which the mood swing occurs.
  5. The application to appoint Mr Wood litigation guardian was made through Dr Spence acting for Mr Wood. It has not been suggested to me that if a litigation guardian is not appointed Ms Neilson intends to conduct the proceedings herself, rather than through a legal practitioner. In those circumstances, I do not propose to consider whether Ms Neilson has the capacity to adequately conduct the proceeding without the assistance of a legal practitioner.
Extension of time
  1. As I note earlier in these reasons, I do not understand Dr Spence to have submitted that Ms Neilson wishes to be joined as an applicant even if a litigation guardian is not appointed and that, therefore, Ms Neilson applies for an order to extend the 60 day period for commencing proceedings prescribed by s.46PO(2) of the Act. It therefore follows from my not being satisfied that Ms Neilson is a person who needs a litigation guardian that the 46PO proceedings must be dismissed, because Mr Wood has no standing to bring the 46PO proceedings.[35]
  2. In this section of my reasons, however, I will assume that Ms Neilson does wish to apply in her own right for the relief claimed in the originating application. This could be done by her applying for an order that she be substituted for Mr Wood as the applicant. The effect of substituting Ms Neilson as an applicant is that Ms Neilson will have commenced the proceedings under s.46PO(1) on the day on which she will be substituted as the applicant.[36] The difficulty that Ms Neilson would face, however, is that the 60 day period for commencing proceedings prescribed by s.46PO(1) of the Act had elapsed before 28 April 2014 when Mr Wood filed his application in a case seeking the amendment to the application. That means that before I can make an order substituting Ms Neilson as the applicant, I would need to make an order under s.46PO(2) of the Act allowing Ms Neilson to commence proceedings.
  3. In this section of my reasons, therefore, I consider whether I would allow Ms Neilson to commence proceedings under s.46PO(1) of the Act even though the 60 day period for commencing those proceedings prescribed by s.46PO of the Act has passed.
Principles
  1. Subsection 46PO(2) of the Act provides that an application for relief under s.46PO(1) of the Act must be made within 60 days after the date of issue of a notice under s.46PH(2) of the Act “or within such further time as the court concerned allows”. There is no issue that more than 60 days have elapsed since the Commission issued a notice under s.46PH(2) of the Act in relation to the complaint Mr Wood, as carer for Ms Neilson lodged with the Commission.
  2. The principles that should be applied when considering whether to allow an applicant to commence proceedings outside the 60 day period prescribed by s.46PO(2) were considered by Marshall J in Low v Commonwealth of Australia.[37] His Honour said that further time should be allowed if the applicant gives an acceptable explanation for the delay, the application discloses an arguable case, and if it is in the interests of justice that time is allowed.
  3. I will assume Ms Neilson has an acceptable explanation for her delay. I will consider, however, whether the application discloses an arguable case.
Arguable case?
  1. In the originating application by which he commenced the 46PO proceedings, Mr Wood claimed that Mr Lee-Joe discriminated against Ms Neilson by taking action in the CTTT to evict her from the Unit. Mr Wood claimed that Mr Lee-Joe “has subjected Ms Neilson to detriment in relation to accommodation occupied by her”, and that Mr Lee-Joe “has thereby unlawfully discriminated against Ms Neilson on the basis of her disability”. Under the heading “Remedy Sought”, the following is stated:
The Applicant asks the Court for Compensation in the sum of $50,000 due to the hurt and suffering occasioned to the Applicant and Ms Neilson and to the damage to Ms Neilson’s health and the detriment suffered by her due to the failure of the Respondent to ameliorate the deleterious conditions of the property leased to the Applicant and Ms Neilson.
  1. The originating application also sought an order restraining Mr Lee-Joe from evicting Mr Wood and Ms Neilson from the Unit. It was that application that was the subject of my reasons for judgment of 24 February 2014.[38]
  2. In my reasons for judgment published on 22 October 2013,[39] I held that Mr Wood established that Ms Neilson had a prima facie case that Mr Lee-Joe engaged and was proposing to engage in unlawful discrimination. The alleged act of discrimination I considered in that case, however, related to Mr Lee-Joe’s taking steps to evict Mr Wood and Ms Neilson from the Unit. To the extent that in the originating application Mr Wood sought an injunction to restrain Mr Lee-Joe from evicting him and Ms Neilson from the Unit, the originating application could be regarded as asserting substantially the same claim I identified in my reasons for judgment of 22 October 2013 and that, for the reasons I then gave, Ms Neilson would have a reasonably arguable case.
  3. Now that Mr Wood and Ms Neilson have been evicted from the Unit, the remedy of injunction to restrain their eviction from the Unit is no longer available to Ms Neilson. The only other relief that is claimed in the originating application is compensation. That claim for compensation, however, is not directed to loss or damage Mr Wood claims Ms Neilson has sustained as a result of Mr Lee-Joe having evicted or threatening to evict Ms Neilson. It is directed to something different, namely, the “deleterious conditions of” the Unit and Mr Lee-Joe’s claimed failure to “ameliorate” those conditions.
  4. This raises the question of the application of s.46PO(3) of the Act. That subsection provides that the unlawful discrimination that is alleged in an application brought under s.46PO(1):
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
  1. The question that arises is whether the matters for which Ms Neilson proposes to claim compensation, namely, Mr Lee-Joe’s alleged failure to “to ameliorate the deleterious conditions of the property leased to the Applicant and Ms Neilson” are the same, or the same in substance as the unlawful discrimination that was the subject of the complaint Mr Wood made as carer for Ms Neilson before the Commission, or whether those matters arise out of the same or substantially the same acts, omissions or practices that were the subject of Mr Wood’s complaints before the Commission. That requires me to revisit the complaint Mr Wood lodged with the Commission.
  2. The essence of the complaint was that Mr Lee-Joe desired and attempted to evict Mr Wood and Ms Neilson from the Unit. I cannot see in the complaint any allegations about Mr Lee-Joe having failed, in breach of the Disability Discrimination Act 1992 (Cth), to ameliorate the conditions in the Unit. In my opinion, the unlawful discrimination Ms Neilson would be alleging if she were allowed to be joined as an applicant in the proceedings would not be the same as (or the same in substance as) the unlawful discrimination that was the subject of the complaint before the Commission.[40] Nor would the unlawful discrimination Ms Neilson would be alleging arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the complaint before the Commission.
  3. For these reasons, I am of the opinion that Ms Neilson would not have an arguable case for the alleged unlawful discrimination for which the originating application seeks compensation if she were permitted to be joined as an applicant to the proceedings; and it would not, therefore, be in the interests of justice to allow Ms Neilson to make an application under s.46PO(1) of the Act outside the 60 day period prescribed by s.46PO(2) of the Act.
  4. Counsel for Mr Lee-Joe submitted there is no arguable case that Ms Neilson suffers from the respiratory condition which Mr Wood alleges constitutes a disability, and which Mr Wood alleges is the reason for which Mr Lee-Joe has engaged in unlawful discrimination against her. Counsel relies on the absence from the medical records that Ms Neilson’s general practitioner maintained in relation to Ms Neilson of any reference to Ms Neilson suffering from any respiratory condition.
  5. If I were not satisfied that the claim for compensation made in the originating application did not fall within the scope of the complaint Mr Wood, as carer for Ms Neilson, made to the Commission, I would have required Ms Neilson to adduce medical evidence that shows she does suffer from a respiratory condition before I considered whether it would be in the interests of justice to permit Ms Neilson to commence proceedings under s.46PO(1) more than 60 days after the termination of the complaint to the Commission.
Contempt proceedings
  1. Mr Wood commenced the contempt proceedings by an application filed on 23 December 2013. In that application Mr Wood sought the following orders:
    1. Mr Lee-Joe committed a contempt of court “in respect of the order” I made on 22 October 2013.
    2. The orders made by the CTTT on 18 December 2013 permitting Mr Lee-Joe to evict the applicant and Ms Neilson be stayed until such time as Mr Wood’s application in which he alleges that Mr Lee-Joe engaged in unlawful discrimination is finally determined.
    1. Mr Lee-Joe be restrained from taking action to evict Mr Wood and Ms Neilson from the Unit until such time as Mr Wood’s application in which he alleges that Mr Lee-Joe engaged in unlawful discrimination is finally determined.
    1. Mr Lee-Joe be restrained from committing or attempting to commit any offence of victimisation of Ms Neilson contrary to s.42 of the Disability Discrimination Act 1992 (Cth).
  2. The application identifies three acts of Mr Lee-Joe as constituting the alleged contempt. The first is Mr Lee-Joe on 28 October 2013 sending by email a letter to the CTTT requesting that the 28 day limitation period for the warrant of possession in relation to the Unit be held until proceedings in this Court were resolved. The second act is Mr Lee-Joe telephoning the CTTT on 30 October 2013 in which he proceeded to “discuss the situation relating to the Orders handed down” by this Court and Mr Joe-Lee’s “subsequent request for an extension of the CTTT orders (for possession of the property)”. The third is Mr Lee-Joe’s telephoning the office of the CTTT on 4 November 2013 as a result of which Mr Lee-Joe was advised that his letter of 28 October 2013 had been received.
  3. The email attaching the letter dated 28 October 2013 on which Mr Wood relies is annexed to his affidavit of 23 December 2013 which he filed with the application. The affidavit, however, does not attach the letter referred to in the email. A copy of that letter is to be found in the affidavit of Mr Lee-Joe made on 31 January 2014. The letter was as follows:[41]
On the 10th September 2013, Member Campbell gave orders that the tenancy agreement be terminated and for possession to be given to myself as the landlord on or before 4 October 2013.
On the 22nd October 2013, the Federal Circuit Court of Australia issued orders that an interim injunction be placed on the orders from the CTTT restraining me from pursuing any action to evict the tenant. Attached is a copy of the orders.
I understand that I have 28 days in which to apply for a warrant and enforce the order for possession. With the temporary injunction on the CTTT orders, I am unable to apply for a warrant within the 28 days. Can the orders from the CTTT be held until I can resolve the injunction from the Federal Circuit Court without having to make a new application?
  1. It is not reasonably arguable that Mr Lee-Joe’s sending of this letter constituted the taking of any step, action, or proceeding to evict Mr Wood and Ms Neilson from the Unit, contrary to order 1 of the orders I made on 22 October 2013. The letter is nothing more than an inquiry about whether the 28 day period within which Mr Lee-Joe understood he must apply for a warrant for possession could be extended. It is apparent that Mr Lee-Joe made this enquiry because he understood he could not apply for a writ of possession while the orders I made on 22 October 2013 remained on foot. It is also apparent that Mr Lee-Joe made the inquiry because he expected the injunction to be in place at the expiration of the 28 day period within which he could apply for the writ. The purpose of his inquiry was to find out whether he needed to apply for a further order from the CTTT before he could apply for a writ after the 28 day period expired.
  2. Nor is it reasonably arguable that Mr Lee-Joe’s telephone conversation with the CTTT in which it is claimed he discussed “the situation relating to the Orders handed down” by this Court and Mr Lee-Joe’s “subsequent request for an extension of the CTTT orders (for possession of the property)” constitutes the taking of any step, action, or proceeding to evict Mr Wood and Ms Neilson from the Unit. As with the letter, the conversation reflects discussion about extending the time by which Mr Lee-Joe could apply for the writ of possession.
  3. For these reasons, Mr Wood has no reasonable prospect of successfully prosecuting the contempt proceedings.
Other matters
  1. On 18 February 2015, after I had completed a draft of these reasons for judgment, and after the parties had been informed that I proposed to deliver my decision on 20 February 2015, Dr Spence sent a letter dated 18 February 2014 [sic] to the Court’s Registry informing the Court that there was a serious doubt about whether Mr Wood now has the capacity to act as litigation guardian for Ms Nielson. Dr Spence also informed the Court that Mr Wood’s daughter “had taken out guardianship over Mr Wood”.
  2. Although I am saddened to hear Mr Wood is unwell, and, for that reason, he may not be in a position to become a litigation guardian for Ms Neilson, that should not prevent me from delivering these reasons for judgment.
Conclusions and disposition
  1. I am not satisfied Ms Neilson is a person who needs a litigation guardian. Even if I were so satisfied, or even if I were satisfied Ms Neilson intends to be joined as an applicant without a litigation guardian, I am not satisfied Ms Neilson should be allowed to be joined as an applicant more than 60 days after the date on which the Commission issued a notice under s.46PH of the Act terminating the complaint Mr Wood, as carer for Ms Neilson, made to the Commission.
  2. I propose, therefore, to dismiss the application in a case filed by Mr Wood on 28 April 2014 to the extent it seeks to amend the application to show that the application is brought by Ms Neilson by her litigation guardian, Mr Wood. It follows that I should also dismiss the s.46PO proceedings because Mr Wood does not have standing to bring the proceedings on behalf of Ms Neilson. I propose to make the order to dismiss the s.46PO proceedings under r.13.10(a) of the Rules because I am satisfied that Mr Wood has no reasonable prospect of successfully prosecuting the s.46PO proceedings because he does not have standing.
  3. I am also satisfied that Mr Wood has no reasonable prospect of successfully prosecuting the contempt proceeding. I propose, therefore, to order that those proceedings also be dismissed.
  4. Finally, I propose to order that Mr Wood pay the costs of Mr Lee-Joe. Counsel for Mr Lee-Joe applied that I should set the amount of the costs. I am of the opinion that it is preferable for me to order that Mr Lee-Joe’s costs be taxed unless the parties otherwise agree.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 20 February 2015

[1] Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
[2] The application was initially made to the Federal Court of Australia, but was subsequently transferred to this Court.
[3] Wood v Lee-Joe [2014] FCCA 309
[4] Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
[5] [2006] FCAFC 114; (2006) 233 ALR 432 (Black CJ, Moore and Finklestein JJ)
[6] [2006] FCAFC 114; (2006) 233 ALR 432 at pages 438-439, [26]
[7] [2006] FCAFC 114; (2006) 233 ALR 432 at page 439, [27]
[8] Macquarie Dictionary
[9] Masterman-Lister v Brutton and Co; Masterman-Lister v Jewell & Anor [2002] EWCA Civ 1889 at [79] (Chadwick LJ)
[10] The requirements I have set out I have adapted from Masterman-Lister v Brutton and Co; Masterman-Lister v Jewell & Anor [2002] EWCA Civ 1889 at [77] (Chadwick LJ)
[11] Affidavit of H Wood, 19.05.14, annexure “A”
[12] Affidavit of H Wood, 19.05.14, annexure “B”
[13] Affidavit of H Wood, 19.05.14, annexure “B”, T22.1-5
[14] Affidavit of H Wood, 19.05.14, annexure “B”, T22.20
[15] Exhibit C. Mr Wood also relied on the results of an MRI scan undertaken on 16 April 1999 (exhibit B), but this sheds no light on Ms Neilson’s condition.
[16] Exhibit A
[17] Exhibit A
[18] T15.35
[19] T17.35
[20] T17.40-T17.45
[21] T19.15
[22] T19.25
[23] T19.40
[24] T19.45
[25] T20.10-T20.35
[26] T24.35
[27] T28.30 – T29.5
[28] T30.5-10
[29] T30.45
[30] T31.5-10
[31] T35.5-T35.25
[32] T34.15
[33] T36.15
[34] T36.30-T36.45
[35] Wood v Lee-Joe [2014] FCCA 309
[36] See r.8.22 of the Federal Court Rules 2011 (Cth) which provide: “If an originating application is amended with the effect that another person is substituted as a party to the proceeding, the proceeding is to be taken to have started for that person on the day the originating application is amended.” The Federal Circuit Court Rules 2001 (Cth) (Rules) do not have the equivalent rule, but, would apply under r.1.05(2) of the Rules.
[37] [2001] FCA 702 at [11]
[38] Wood v Lee-Joe [2014] FCCA 309
[39] Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
[40] The complaint before the Commission is summarised in Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665 at [23]
[41] Affidavit of A Lee-Joe, 31.01.14, annexure “E”

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