FEDERAL COURT OF AUSTRALIA Klewer v National Disability Insurance Agency [2020] FCA 161 Appeal from: Klewer and National Disability Insurance Agency [2019] AATA 4974 File number: NSD 2077 of 2019 Judge: PERRAM J Date of judgment: 21 February 2020 Catchwords: ADMINISTRATIVE LAW – appeal from order of Administrative Appeals Tribunal that matter be held in abeyance pending appointment of litigation representative – where Respondent filed notice of objection to competency of appeal – whether order of Tribunal a 'decision' within meaning of Administrative Appeals Tribunal Act 1975 (Cth) s 44 – consideration of principle in Director-General of Social Services v Chaney [1980] FCA 108; 47 ALR 80 PRACTICE AND PROCEDURE – where Tribunal found it has implied power to appoint litigation representative under its general legislative power to determine procedure – where no specific legislative power exists – where real question of correctness of Tribunal's conclusion – consideration of alternative avenues of challenge to Tribunal's conclusion Legislation: Constitution s 109 Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 44 Judiciary Act 1903 (Cth) s 39B Federal Court Rules 2011 (Cth) r 9.61 Guardianship Act 1987 (NSW) Cases cited: Attorney-General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535 Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 Grassby v The Queen [1989] HCA 45; 168 CLR 1 Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267 Kiefel v State of Victoria [2014] FCA 604 Klewer v Attorney-General (NSW) [2010] NSWCA 219 Palmer v Clarke (1989) 19 NSWLR 158 Parsons v Martin (1984) 5 FCR 235 Date of hearing: 7 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared via telephone with the assistance of his mother Counsel for the Respondent: Ms M Fisher Solicitor for the Respondent: Mills Oakley Lawyers ORDERS NSD 2077 of 2019 BETWEEN: ROBERT KLEWER Appellant AND: NATIONAL DISABILITY INSURANCE AGENCY Respondent JUDGE: PERRAM J DATE OF ORDER: 21 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The Respondent's objection to competency filed on 13 January 2020 be upheld. 2. The notice of appeal filed on 13 December 2019 be dismissed. 3. Any application in these proceedings or any fresh application by the Appellant in the NSW Registry be made returnable in the first instance before Perram J. 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 PERRAM J: 1 The Appellant is Mr Robert Klewer and the Respondent is the National Disability Insurance Agency, which is the Commonwealth agency administering the National Disability Insurance Scheme ('the NDIS'). Mr Klewer is 32 years old and has a range of impairments including an acquired brain injury. The Respondent decided to affirm an earlier decision relating to Mr Klewer's NDIS plan. That decision was reviewable by the Administrative Appeals Tribunal ('the Tribunal') and in due course Mr Klewer made such an application for review. 2 For reasons concerning both Mr Klewer's capacity and his mother's history in assisting him before the Tribunal and elsewhere, the Tribunal was concerned about the capacity of Mr Klewer to conduct such a proceeding or to proceed with his mother's assistance. There is no express power in the Administrative Appeals Tribunal Act 1975 (Cth) ('the Act') which authorises the Tribunal to appoint a litigation representative to conduct litigation on behalf of a person who is under a disability. Nonetheless the Tribunal found that it had such a power as a matter of implication arising from the power in s 33(1)(a) of the Act to determine its own procedure and in light of the objective in s 2A to pursue mechanisms of review that are, inter alia, accessible, fair and just, and promote public trust and confidence in the decision-making of the Tribunal. The Tribunal concluded that it should put Mr Klewer's review proceeding in abeyance until such time as a litigation representative was appointed (although the Tribunal referred to this as a 'guardian ad litem', which is effectively the same concept). It made some other orders too which are not presently material. The Tribunal's formal order was this: Until further order of the Tribunal, this matter be held in abeyance pending the appointment of a Guardian ad Litem for the Applicant, Robert Klewer. 3 In the conduct of the review proceeding, and in this Court too, Mr Klewer has been assisted by his mother, Ms Klewer. Like the Tribunal, the Respondent and those appearing for it have concerns about whether Ms Klewer's role in her son's review application is in his best interests. In that regard, it is to be noted that Ms Klewer was declared by the Supreme Court of New South Wales to be a vexatious litigant on 5 February 2010 in Attorney-General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535. That decision was affirmed by the New South Wales Court of Appeal: Klewer v Attorney-General (NSW) [2010] NSWCA 219. 4 The Tribunal's determination that it has the power to appoint a litigation representative in a review proceeding before it may be contestable. An inferior court or statutory tribunal has such jurisdiction as is expressly given to it or which it must have for the effective exercise of its jurisdiction as a matter of necessary implication: Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 16-17; Palmer v Clarke (1989) 19 NSWLR 158 at 167; Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447. Thus, for example, inferior courts and statutory tribunals have been held not to possess a number of powers which would fall within the inherent jurisdiction of a superior court: see, eg, Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267 (in which a panel of the Medical Practitioners Board of Victoria was held not to have the power to make a suppression order or pseudonym order); Parsons v Martin (1984) 5 FCR 235 (in which it was found to have been beyond power for the Western Australian Court of Petty Sessions to issue a letter of request to foreign judicial authorities). 5 Whilst one may readily understand the position adopted by the Respondent and thereafter embraced by the Tribunal, particularly in light of Ms Klewer's litigious history, this does not mean that the Tribunal's conclusion is, as a matter of law, correct. 6 On 13 December 2019 Mr Klewer filed a notice of appeal in this Court under s 44(1) of the Act. That section grants to this Court jurisdiction to hear an appeal from a 'decision' involving a question of law. Mr Klewer, assisted by Ms Klewer, wishes to challenge the Tribunal's conclusion that it has the power to appoint a litigation representative. However, the operative order made by the Tribunal was that the review proceeding be held in abeyance until such time as one was appointed by it. The Tribunal also put in place a regime the evident end of which was to secure the agreement of the parties on how the review application was to proceed and, in particular, who might perform the role of litigation representative. To whet Mr Klewer's, and maybe also Ms Klewer's, appetite for the process the Tribunal put the review application on hold until such time as this was worked out. It was the order I have set out above at [2] which gave effect to this last step. 7 Mr Klewer's challenge therefore takes the form of an appeal seeking to set that order aside. The Respondent submits that the Full Court's decision in Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 ('Chaney') holds that 'decision' in s 44 does not include an interlocutory decision and that the order now challenged is interlocutory. It therefore submits that this Court has no jurisdiction to entertain the appeal. Ms Klewer submitted to me that the order was final because there was never going to be any agreement about the appointment of a litigation representative and therefore that the effect of the order was in the nature of a permanent stay (that being my expression, and not hers). Mr Klewer agreed with his mother's submission at the conclusion of the hearing. 8 I do not agree that the order is final. The word it uses is 'abeyance' and it is plainly the intent of the Tribunal that the review proceeding should only be temporarily suspended pending the appointment of a litigation representative. Consequently, the order is interlocutory and not one which is a 'decision' within the meaning of s 44(1): Chaney at 104, 106-107. 9 I must therefore uphold the Respondent's submission and accede to its notice of objection to competency. I will order that the notice of appeal be dismissed for want of competency. At this stage, I will forestall making any costs order. It is not self-evident to me that Mr Klewer was able to file a notice of appeal without a litigation representative under r 9.61 of the Federal Court Rules 2011 (Cth): 'A person under a legal incapacity may start, or defend, a proceeding only the person's litigation representative'. If the Respondent wishes to pursue Mr Klewer, or perhaps Ms Klewer, for the costs, it may apply separately. 10 As I have foreshadowed, there is a real question as to whether the Tribunal has the power to appoint a litigation representative. It may be in New South Wales that the only course would be to seek the appointment of a limited guardian under the provisions of the Guardianship Act 1987 (NSW) ('Guardianship Act'). There is correspondence from the NSW Department of Justice suggesting that it could or would not seek to appoint a litigation representative in proceedings in the Tribunal. This is interesting, no doubt, but the real question is the constitutional intersection between the Guardianship Act and the Tribunal. This is an issue under s 109 of the Constitution. The answer is not obvious. It may also be that this Court has some form of jurisdiction to appoint a litigation representative before a federal tribunal (noting that is has often exercised a protective function comparable to the parens patriae jurisdiction in State courts: see, eg, Kiefel v State of Victoria [2014] FCA 604 at [18]). 11 I make that observation because, dyspeptic though it is, Mr Klewer's underlying contention that the Tribunal has no power to go down the path it has chosen is not devoid of legal merit, even if it is unattractive and ultimately probably contrary to his own interests. But the question of whether the Tribunal has the power to act as it has is a significant one from the public perspective and its resolution is of much broader importance than in the individual case of Mr Klewer. Because of the procedure adopted by the Tribunal and the limitations in s 44 of the Act flowing from Chaney, that procedure is effectively not able to be challenged in the current proceeding. 12 However, it could be challenged in a suit brought under s 39B of the Judiciary Act 1903 (Cth) seeking a writ of mandamus against the Tribunal. In such a suit, the question of whether the Tribunal had the power to appoint a litigation representative could be directly raised as could the question of whether this Court has some role in the matter. 13 For the present, given the history of Ms Klewer, I will make a direction that any fresh proceedings by Mr Klewer or by Ms Klewer relating to Mr Klewer be returnable in the first instance before me. This will also include any further applications in this proceeding. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 21 February 2020