Federal Court of Australia Klewer v National Disability Insurance Agency (Litigation Representative) [2020] FCA 1430 File number: NSD 216 of 2020 Judgment of: PERRAM J Date of judgment: 6 October 2020 Catchwords: PRACTICE AND PROCEDURE – application for stay of proceedings until Applicant appointed litigation representative under r 1.32 of Federal Court Rules 2011 (Cth) ('FCR') – whether Applicant under legal incapacity for purpose of r 9.61 FCR – whether appropriate for Applicant's mother to be appointed litigation representative Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) s 37AO Federal Court Rules 2011 (Cth) rr 1.32, 9.61, Sch 1 definition of 'person under a legal incapacity' and 'mentally disabled person' Cases cited: Application of Klewer [2019] NSWSC 525 Attorney-General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535 Klewer v National Disability Insurance Agency [2020] FCA 161 Klewer and National Disability Insurance Agency [2019] AATA 4974 Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 14 Date of hearing: 4 September 2020 Counsel for the Applicant: The Applicant's mother made submissions on his behalf. Counsel for the First Respondent: Mr Hanks SC with Ms M Fisher Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs. ORDERS NSD 216 of 2020 BETWEEN: ROBERT KLEWER Applicant AND: NATIONAL DISABILITY INSURANCE AGENCY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: PERRAM J DATE OF ORDER: 6 OCTOBER 2020 THE COURT ORDERS THAT: 1. Subject to Order 2, the proceeding be stayed until such time as a litigation representative for Mr Klewer is appointed by the Court. 2. The matter be stood over for a case management hearing on 1 December 2020 to consider, at that time, whether the Court should: (a) Dismiss the proceeding for want of prosecution; (b) Order Ms Klewer to pay the First Respondent's costs of the proceeding; and (c) Direct the Registrar to commence a proceeding against Ms Klewer under s 37AO of the Federal Court of Australia Act 1976 (Cth). 3. The First Respondent is to provide Dr Ashkar with a copy of these reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 The First Respondent has applied for an order pursuant to the Federal Court Rules 2011 (Cth) ('FCR') r 1.32 that Mr Klewer's proceeding should be stayed until a person consents to appointment, and has been appointed by the Court, as his litigation representative. Although ordinarily it might be expected that Ms Klewer, as his mother, would be an appropriate person to be appointed as his litigation representative the First Respondent submits that the special features of the present case make that course inappropriate. 2 FCR r 9.61 provides: 9. 61 Proceeding by or against person under a legal incapacity A person under a legal incapacity may start, or defend, a proceeding only by the person's litigation representative. 3 'Person under a legal incapacity' is defined in the Dictionary in Sch 1 to include 'a mentally disabled person' which in turn is defined to mean 'a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding'. 4 On the application the First Respondent led evidence from Dr Peter Ashkar, a forensic psychologist. Dr Ashkar interviewed Mr Klewer on 10 December 2018 and conducted a range of psychometric tests upon him. He then produced a report dated 14 January 2019 and two subsequent reports dated 7 July 2020 and 14 July 2020. Dr Ashkar was cross-examined by Mr Klewer's mother, Ms Klewer, but not in a way that had any impact on the validity of his opinions. I found Dr Ashkar to be a careful, polite and thoughtful man who was doing his best to give objective evidence in a case where the role of Mr Klewer's mother is a significant complicating factor. To the extent that Ms Klewer imputed that Dr Ashkar had approached his assessment of Mr Klewer in a diagnostically inappropriate fashion I specifically record that the suggestion is without any basis whatsoever. I accept the evidence of Dr Ashkar in its entirety. 5 The present suit by Mr Klewer is a judicial review proceeding brought in relation to a decision by the Administrative Appeals Tribunal ('the Tribunal') to take no further step in a review proceeding brought by Mr Klewer in that Tribunal until such time as a litigation representative is appointed for him not being Ms Klewer: Klewer and National Disability Insurance Agency [2019] AATA 4974. That proceeding relates to Mr Klewer's care plan under the National Disability Insurance Scheme. Mr Klewer initially brought an appeal from that decision of the Tribunal but that appeal was dismissed as incompetent since the Tribunal's decision was not a substantive decision: Klewer v National Disability Insurance Agency [2020] FCA 161. The current proceeding was then filed. The nature of the present case is an application for orders in the nature of certiorari and mandamus directed to the Tribunal on the basis that its decision to hold Mr Klewer's proceeding in abeyance until a litigation representative is appointed is beyond its jurisdiction. That contention, in turn, depends upon the legal proposition that the Tribunal has no power under the Administrative Appeals Tribunal Act 1975 (Cth) to appoint a litigation representative. The case is therefore a public law case involving a mid-level question of statutory construction and is not without some substance. The associated question of whether this Court would have parens patriae jurisdiction to appoint a litigation representative for Mr Klewer in his Tribunal proceeding in the event that it did not have power to do so, is also an interesting question. 6 In his third report of 14 July 2020 Dr Ashkar explained the relationship that Mr Klewer had to the present suit. First, he thought that Mr Klewer might not recognise that he required legal advice in relation to the proceeding unless that need was brought to his attention and explained to him. Secondly, Mr Klewer had the intellectual skills to arrange an appointment with a lawyer but he might not know when to do so without external support. Thirdly, Mr Klewer would be unable to instruct a legal adviser with sufficient clarity to enable the adviser to advise him appropriately. Fourthly, although he had sufficient intellectual skills to understand and make decisions and otherwise give effect to legal advice he may receive, he required that such advice be simplified and that he be assisted by a support person. Finally, in the absence of supports to address weaknesses in his cognitive functioning he will face many difficulties in the present proceeding and will not be able to act as a litigant in the case. 7 Each of those matters is relevant in assessing Mr Klewer's capacity in relation to the proceeding: Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 at [61] per Edmonds J. I conclude that Mr Klewer is 'a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding' and therefore a 'mentally disabled person' and a person under a legal incapacity within the meaning of FCR r 9.61. Mr Klewer, through his mother, sought to rely upon the report of Dr Choi dated 23 May 2020. Dr Choi was explicit in not addressing the capacity of Mr Klewer to manage his own affairs in a legal proceeding. Her conclusion was that Mr Klewer did not suffer from any mental illness which is a different question. What she in fact said was this: He does have worsening of dysarthria when he is under pressure and that may impact on his ability to represent himself in the court but I did not think he had any mental illness that would impact on his ability to represent him in the court. However, as I said I [sic] the beginning, providing such opinion was not purpose of this consultation and I would recommended him seeing a forensic psychiatrist if for that purpose. 8 Consequently, I do not think that Dr Choi's evidence is contrary to Dr Ashkar's. 9 It follows that Mr Klewer was therefore not competent to commence the proceeding. Ordinarily, the solution to this problem would be to appoint someone who cares for him as a litigation representative. Ms Klewer is certainly willing to fulfil this role. However, the First Respondent submits the Court should not appoint her as she is not suitable. On 5 February 2010 Harrison J declared Ms Klewer a vexatious litigant and ordered that she not commence any proceedings without the leave of the court: Attorney-General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535. In his reasons for judgment Harrison J detailed Ms Klewer's extensive litigation history. At least whilst Ms Klewer remains a vexatious litigant it would be inappropriate to appoint her to a position of responsibility such as that of litigation representative. 10 On the present application Ms Wong, the solicitor for the First Respondent, gave evidence that her office had approached a number of entities to accept an appointment as Mr Klewer's litigation representative. These were the NSW Public Trustee and Guardian, the law firm Gilbert + Tobin, the Council of Intellectual Disability and the Intellectual Disability Rights Service. None was willing to accept the appointment. 11 FCR r 1.32 provides: 1.32 Court may make any order it considers appropriate in the interests of justice The Court may make any order that the Court considers appropriate in the interests of justice. 12 The difficulties in obtaining a litigation representative for Mr Klewer relate to the difficulties of dealing with Ms Klewer as his carer. It is unlikely that an appropriate litigation representative will be found unless Ms Klewer relaxes her grip upon her son. A number of judges have concluded that Ms Klewer is an unreasonable person. Harrison J was certainly of that view in Attorney-General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535. More recently Fagan J reached a similar conclusion in Application of Klewer [2019] NSWSC 525 at [24]. In that case, Fagan J refused Ms Klewer leave to commence an appeal in the District Court from her conviction in the Local Court on one count of common assault and two counts of stalk and intimidate with intent to cause fear of physical harm. The facts of that case suggest that Ms Klewer is not only unreasonable but also, when the occasion arises, violent. The facts also suggest that Ms Klewer conducts a property management business in which Mr Klewer is the landlord. 13 In that circumstance, it seems most unlikely that Ms Klewer will facilitate the appointment of an independent person to act in the interests of her son. The most likely consequence is that this proceeding will go into a long, potentially permanent, period of suspended animation. I think the matter must be brought to a head and Ms Klewer provided with incentives to facilitate the progress of her son's proceeding. I will stay the proceeding as the First Respondent requests. I will list the matter for a case management hearing on 1 December 2020. Unless the appointment of a litigation representative has by then occurred I will (a) dismiss the proceeding for want of prosecution on that day with an order that Ms Klewer pay the First Respondent's costs and (b) consider whether I should direct the Registrar to commence a proceeding against Ms Klewer seeking an order under s 37AO of the Federal Court of Australia Act 1976 (Cth) declaring her to be a vexatious litigant. 14 On 11 September 2020, one week after the hearing of this application, Ms Klewer emailed my Chambers attaching what appears to be an email dated 15 January 2019 from Ms Klewer to the Health Care Complaints Commission regarding Dr Ashkar's conduct. These documents were provided to Chambers outside of the time period allotted for Mr Klewer to provide submissions and put on evidence. They are, however, relevant to this extent: they show that Ms Klewer is unreasonable. There is not the slightest basis for a complaint about Dr Ashkar's conduct. The complaint to the Health Care Complaints Commission is powerful evidence of her unsuitability for the office of litigation representative. I will direct that the First Respondent provide Dr Ashkar with a copy of these reasons. The appropriate orders are as follows: (1) Subject to Order 2, the proceeding be stayed until such time as a litigation representative for Mr Klewer is appointed by the Court. (2) The matter be stood over for a case management hearing on 1 December 2020 to consider, at that time, whether the Court should: (a) Dismiss the proceeding for want of prosecution; (b) Order Ms Klewer to pay the First Respondent's costs of the proceeding; and (c) Direct the Registrar to commence a proceeding against Ms Klewer under s 37AO of the Federal Court of Australia Act 1976 (Cth). (3) The First Respondent is to provide Dr Ashkar with a copy of these reasons. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate: Dated: 6 October 2020