Lewis v The State of Victoria Department of Education and Training [2018] FCA 1405

FEDERAL COURT OF AUSTRALIA

Lewis v The State of Victoria Department of Education and Training [2018] FCA 1405 File number: VID 435 of 2018

Judge: KENNY J

Date of judgment: 4 September 2018

Catchwords: PRACTICE AND PROCEDURE – application under r 9.63 of the Federal Court Rules 2011 for appointment of litigation representative

Legislation: Federal Court Rules 2011 (Cth), rr 9.61, 9.63

Date of hearing: Determined on the papers

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 7

Solicitor for the Applicant: Arnold Thomas & Becker

Solicitor for the Respondent: Minter Ellison

ORDERS VID 435 of 2018

BETWEEN: BRYCE LEWIS (BY HIS LITIGATION REPRESENTATIVE JACINTA LEWIS) Applicant

AND: THE STATE OF VICTORIA DEPARTMENT OF EDUCATION AND TRAINING Respondent

JUDGE: KENNY J DATE OF ORDER: 4 September 2018

THE COURT ORDERS THAT:

1. Jacinta Lewis be appointed as litigation representative for the applicant, Bryce Lewis. 2. Compliance with r 9.63(2) of the Federal Court Rules 2011 (Cth) be dispensed with. 3. Henceforth, the applicant be described in the title heading to documents filed in this proceeding as "Bryce Lewis (by his litigation representative Jacinta Lewis)". 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J: 1 On 19 April 2018, Ms Jacinta Lewis filed an interlocutory application seeking an order under r 9.63 of the Federal Court Rules 2011 (Cth) (the Rules) that she be appointed as litigation representative for her son, Bryce Lewis, who is the applicant in this matter. The respondent does not oppose the application. The application is dealt with on the papers pursuant to an order of the Court made on 11 May 2018. 2 The Rules provide that a person under a legal incapacity may start a proceeding only by the person's litigation representative: see r 9.61. 3 Rule 9.63 of the Rules provides: r 9.63 Appointment of litigation representative by the Court (1) A party or an interested person may apply to the Court for an order appointing a person as a litigation representative. Note: Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary. (2) A copy of the application must be served on the person under a legal incapacity. (3) 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 rule 9.62, may be appointed as a litigation representative. Note: For service on a person under a legal incapacity, see rule 10.09. 4 Ms Jacinta Lewis' application is supported by an affidavit of Ms Claire Pirie, who is a solicitor with the care and conduct of the matter on the applicant's behalf. The affidavit is filed in conformity with r 9.63(3). 5 In her affidavit, Ms Pirie deposes that the applicant is a person under a legal incapacity because he is a minor, having been born on 1 September 2004. It further appears from Ms Pirie's affidavit, and the form of consent dated 28 March 2018 annexed to Ms Pirie's affidavit, that his mother has consented to the appointment as her son's litigation representative and that she has no interest in the proceeding adverse to her son's interest. The requirements of r 9.63(3) are satisfied. 6 Although a copy of the current application has not been served on the applicant (Bryce Lewis) in accordance with r 9.63(2) of the Rules, I am satisfied that it is appropriate in the circumstances to dispense with compliance with this rule: r 1.34. 7 Having regard to the above, I am satisfied that an order should be made that Jacinta Lewis be appointed as litigation representative for Bryce Lewis. Henceforth, the applicant will be described in documents filed in this proceeding as "Bryce Lewis (by his litigation representative Jacinta Lewis)". There will be no order as to costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.