Federal Court of Australia AFF20 v Minister for Home Affairs [2020] FCA 1696 File number: NSD 726 of 2020 Judgment of: GRIFFITHS J Date of judgment: 24 November 2020 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for appointment of litigation representative under r 9.63 of the Federal Court Rules 2011 (Cth) – interlocutory application granted on the condition that it is served on the applicant Legislation: Federal Court Rules 2011 (Cth), r 9.63 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of hearing: 24 November 2020 Solicitor for the Applicant: Ms C Ford of Carina Ford Immigration Lawyers Counsel for the Respondent: Ms K Pham Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 726 of 2020 BETWEEN: AFF20 Applicant AND: MINISTER FOR HOME AFFAIRS Respondent order made by: GRIFFITHS J DATE OF ORDER: 24 NOVEMBER 2020 THE COURT ORDERS THAT: 1. In this proceeding, the proposed litigation representative identified in the interlocutory application filed on 20 November 2020 only be referred to by the pseudonym EWV20. 2. Subject to order 3, EWV20 be appointed litigation representative on behalf of the applicant in these proceedings as sought by an interlocutory application made on 20 November 2020 under r 9.63 of the Federal Court Rules 2011 (Cth), on the basis that the applicant is currently under a legal incapacity. 3. A copy of the interlocutory application and these orders must be served on the applicant within 48 hours from the date of these orders by email to Sharan Brown, Superintendent of Detention Operations WA, with personal service to then be effected by hand delivery to the applicant by Australian Border Force personnel at Yongah Hill Detention Centre. 4. Liberty to apply on the giving of 48 hours' notice. 5. The case management hearing otherwise be stood over to 9.15am on 8 December 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) GRIFFITHS J: 1 By an interlocutory application dated 20 November 2020, an order is sought that the Court appoint a litigation representative on behalf of the applicant under r 9.63 of the Federal Court Rules 2011 (Cth). The basis of the application is that the applicant is currently under a legal incapacity. Ms Pham, who appeared for the respondent, confirmed that the application was unopposed. 2 Rule 9.63 provides as follows: 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. 3 The interlocutory application is supported by an affidavit dated 20 November 2020 affirmed by the applicant's solicitor, Ms Carina Ford. Ms Ford's affidavit annexed a copy of a report by a forensic psychologist, Dr Emily Kwok. Dr Kwok conducted a psychological assessment of the applicant on 14 November 2020 and subsequently provided a report. After providing background information and describing her consultation with the applicant, Dr Kwok's report sets out at some length her assessment of the applicant's psychological condition. Dr Kwok described the applicant as currently being psychotic. She stated that his symptoms meet the criteria for schizophrenia as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and that it is likely that posttraumatic stress disorder still affected the applicant. Dr Kwok described the applicant's psychological condition as being vulnerable and that the applicant is quite impaired in his cognitive ability. Dr Kwok stated that the applicant is unable to understand what is happening around him when he is experiencing psychotic symptoms and described his condition as moderate to severe. Dr Kwok described the applicant as "severely irrational and delusional". She stated the applicant's speech was incoherent, fragmented and did not follow logical reasoning. She stated the applicant does not currently have an ability to retain and process information. Dr Kwok concluded that in her expert opinion the applicant is unable to provide instructions due to his cognitive incompetence and inability to understand the matter that is currently before the Court. Dr Kwok ultimately concluded that the applicant was unable to give clear instructions for the purposes of legal matters as he does not understand the matters. 4 I accept Dr Kwok's assessment. I am satisfied for the purposes of r 9.63 that the applicant is a person who is currently suffering a legal incapacity and that it is appropriate that a litigation representative be appointed. 5 The applicant's sister has provided written consent to her being appointed as the applicant's litigation representative. In order to preserve the anonymity of the applicant it is necessary to give the sister a pseudonym. That pseudonym is EWV20. 6 Ms Ford confirmed that to date a copy of the interlocutory application had not been served on the applicant. The applicant is currently detained in immigration detention in Western Australia. Ms Ford, quite responsibly if I may say so, raised her concerns about the possible effect upon the applicant when he becomes aware of the move to have a litigation representative appointed. Ms Ford said that she is currently making enquiries of the relevant authorities at the detention centre regarding appropriate steps that can be taken to protect the applicant's welfare when he is informed of this development. 7 I note that sub-rule 9.63(2) provides that a copy of the application to appoint a person as a litigation representative must be served on the person under the legal incapacity. The text of the provision does not stipulate when that is to occur. In the unusual circumstances of the current matter, I am content to make an order as sought but on the condition that a copy of the interlocutory application, together with a copy of these orders, be served upon the applicant within 48 hours, with the details of such service to be provided to my Associate by Ms Ford as soon as possible after Ms Ford has discussed the matter with the authorities at the relevant detention centre. 8 For these reasons I gave leave to Ms Ford to provide to my Associate a copy of draft orders which give effect to these reasons and in circumstances where I have indicated I will then make those orders in Chambers. This will then facilitate a copy of the orders being served on the applicant as contemplated above. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths. Associate: Dated: 24 November 2020