Federal Court of Australia SADF v National Disability Insurance Agency [2023] FCA 557 Appeal from: Application for leave to appeal: Suppressed judgment 2 November 2022 File number: SAD 181 of 2022 Judgment of: RANGIAH J Date of judgment: 2 June 2023 Catchwords: ADMINISTRATIVE LAW – application for leave to appeal – where primary judge ordered that applicant be removed as litigation representative for daughter – whether decision is attended with sufficient doubt – whether substantial injustice would result if leave were refused – application dismissed Legislation: Federal Court Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) rr 9.61 and 9.66(3) Cases cited: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144 Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of last submissions: 19 April 2023 (Amicus Curiae) 2 May 2023 (Applicant) Date of hearing: 19 April 2023 Heard on the Papers Counsel for the Applicant: The Applicant is self-represented Amicus Curiae: Simon Ower KC First to Third Respondents: The First to Third Respondents did not appear Interested Party: Wearing & Blairs Pty Ltd (Trading As Wearing & Blairs) A Firm did not appear ORDERS SAD 181 of 2022 BETWEEN: SADF Applicant AND: NATIONAL DISABILITY INSURANCE AGENCY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent SAGR BY HER LITIGATION GUARDIAN PUBLIC TRUSTEE OF SOUTH AUSTRALIA Third Respondent WEARING & BLAIRS PTY LTD (TRADING AS WEARING & BLAIRS) A FIRM Interested Party order made by: RANGIAH J DATE OF ORDER: 2 June 2023 THE COURT ORDERS THAT: 1. Pursuant to ss 23 and 37AG of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice: (a) the applicant and the third respondent be assigned the pseudonyms SADF and SAGR respectively; (b) disclosure of their names is prohibited without further order of the Court. 2. The application for leave to appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RANGIAH J: 1 On 2 November 2022, a single judge of this Court (the primary judge) made orders to the effect that the applicant be replaced as litigation representative for her daughter. The applicant, who is self-represented, applies for leave to appeal from that judgment. 2 The principal proceeding is an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal). The proceeding was commenced in the name of the applicant's daughter. However, it emerged that she is a "person under a legal incapacity" within r 9.61 of the Federal Court Rules 2011 (Cth) because of her conditions of intellectual disability and autism. On 11 November 2021, Charlesworth J made orders to the effect that the applicant be appointed as litigation representative for her daughter. Her Honour also issued a referral certificate for pro bono assistance. 3 The referral for pro bono assistance was subsequently taken up by Ms Eaton of Counsel and Wearing & Blairs. 4 A conflict arose between the applicant and her pro bono legal representatives. The applicant insisted that allegations of actual and apprehended bias on the part of the Tribunal member be pursued, but the legal representatives formed the view that the material did not allow such grounds to properly be taken. It may be noted that r 17.1 of Part A of the South Australian Legal Practitioners Conduct Rules provides that a legal practitioner representing a client in a matter before a court must not act as the mere mouthpiece of the client and must exercise the forensic judgment called for independently. Rule 42 of Part B applies to barristers in similar terms. 5 On 28 July 2022, the applicant's lawyers were granted permission to file an interlocutory application seeking an order that the applicant be removed as litigation representative or, alternatively, that the lawyers have permission to cease acting for the applicant. 6 After a hearing on 2 November 2022, the primary judge ordered, pursuant to r 9.65(1) of the Federal Court Rules, that the applicant be removed as litigation representative and replaced by the Public Trustee of South Australia. 7 In the course of determining the interlocutory application, the primary judge held: 10 The dilemma is that if I make an order under FCR 4.16 granting permission for the pro bono solicitors and counsel to cease acting, the consequence is that there will be no legal representation, which is to [SAGR]'s detriment. Alternatively, if I refer [SADF] and [SAGR] to further (different) pro bono legal representation, there is a clear and substantial prospect that the problem will simply arise once again. 11 This is an unusual situation. It is not merely a case of advice being given and not accepted by the litigation representative, it is a positive instruction to the pro bono solicitors and counsel appointed by the Court to act in circumstances where they are of the view that professional obligations do not allow them to do so, particularly where the grounds allege actual and apprehended bias. 12 As I noted during argument, there is perhaps no more serious allegation that can be made against a judicial or quasi-judicial officer of actual bias. In all the circumstances, it is in the best interests of [SAGR] that she be represented on this appeal. That can only occur if [SADF] either withdraws her instructions to pursue the ground of actual or apprehended bias or, failing that, removal of her as litigation representative. [SADF] has refused to withdraw her instructions. 13 In my view, it is in [SAGR]'s best interests to be legally represented. In the circumstances that is only possible if [SADF] is no longer [SAGR]'s litigation representative. 14 Accordingly, pursuant to FCR 9.65, [SADF] is removed as the appellant's litigation representative. 15 Pursuant to FCR 9.62, the Public Trustee of South Australia is appointed as [SAGR]'s litigation representative. 8 The applicant now seeks leave to appeal from the judgment of the primary judge. Leave is required because s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal from an interlocutory judgment may not be brought unless leave is granted. 9 Before considering the application for leave to appeal, it should be mentioned that the primary judge ordered that the transcript of the hearing and his Honour's reasons for judgment be suppressed. The applicant also sought a suppression order in respect of the present application. 10 I consider that the name of the applicant's daughter (who is the third respondent in this application) should not be published since her personal medical information is disclosed in the material in circumstances where she has been unable to make her own decision about whether to commence the application. I also consider that the applicant's name should not be published since publication of her name would allow identification of her daughter. I will order, pursuant to ss 23 and 37AG of the Federal Court of Australia Act 1976 (Cth), that the applicant and her daughter be assigned the pseudonyms SADF and SAGR respectively, and that the disclosure of their names is prohibited without further order of the Court. The orders are made on the ground that they are necessary to prevent prejudice to the proper administration of justice. It is not, however, appropriate to supress publication of these reasons for judgment. 11 At a case management hearing on 28 February 2023, the respondents to the application indicated that they did not intend to take any part in the application. I ordered that Mr Ower KC be appointed as amicus curiae. I made orders requiring the applicant and the amicus to file and serve written submissions. I set the matter down for hearing on 21 March 2023. 12 The applicant filed written submissions, but the amicus did not, apparently because of a misunderstanding of what had been ordered. The hearing was subsequently adjourned to allow the amicus to file written submissions and to allow the applicant to respond. In her further written submissions, the applicant indicated that she did not require an oral hearing and agreed that the application could be decided on the basis of the filed material. 13 In Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397, the Full Court held that the factors guiding the court's discretion to grant leave to appeal include: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 14 There are parts of the applicant's grounds of her proposed appeal and her written submissions that are, with respect, difficult to understand. Ultimately, her written submissions summarise her grounds as follows: 38. Orders that have been put in place by Judge Justice O'Sullivan has gone against what is in the best interests of [SAGR]. 39. Judge Justice O'Sullivan and Mr Joseph Wearing have stated that I Mrs [SADF] is the reason for the hold up in the original appeal being held up due to one Issue that was not given proper instructions for. 40. I [SADF] had provided clear and proper instructions to Mr Joseph Wearing with relation to the advice given to me by Mr Wearing however after waying up the issue and advice given found that the advice did not match what was in the best interest of [SAGR]. 41. I [SADF] have and always will act with [SAGR] best interest and in her shoes when it comes to all matters especially legally speaking as this is Incredibly big and can be life changing for anyone. Would never do anything that was not in the interest of [SAGR]. 42. Judge Justice O'Sullivan appears to have not taken into account what is in [SAGR]'s best interests as he has side with Lawyers who have never met or spoken to [SAGR] and do not appear to be acting in [SAGR]'s best interests at all. (Errors in the original.) 15 In addition, the applicant's submissions seem to allege apprehended bias against the primary judge, asserting that his Honour had stated that the applicant was a liar. It is necessary to deal with that allegation first: see Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [2]-[3], [117]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 at [48]. I have read the transcript of the hearing and can find no indication that his Honour stated that the applicant was a liar. His Honour was temperate, considerate and courteous in his exchanges with the applicant. His Honour accepted that the applicant only had her daughter's best interests in mind, but took a different view as to what those best interests entailed. Applying the test stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], a ground of apprehended bias on the part of the primary judge would enjoy no reasonable prospect of success. 16 There is no doubt that the applicant only has her daughter's best interests at heart. The applicant has had the sole care of her daughter and it is obviously distressing for the applicant to have part of her responsibility for her daughter's care removed by an order of the Court. However, since a litigant with a legal incapacity cannot make their own decisions in the litigation, the Court is given the power to remove a litigation guardian where it assesses that the best interests of the litigant would be served by that course. 17 The primary judge properly appreciated and articulated the dilemma faced by the Court. The applicant refused to withdraw her instructions to argue grounds of actual and apprehended bias, but the legal representatives were unwilling to argue such grounds. His Honour considered that the applicant's daughter's best interests would be served by the continued provision of legal representation. It may be noted that r 9.66(3) of the Federal Court Rules requires a litigation representative who is not a lawyer to be represented by a lawyer. There could only continue to be such representation if the applicant was replaced as litigation representative. 18 Ultimately, the applicant seems to challenge the primary judge's evaluative factual finding that her daughter's best interests would be served by removal of the applicant as litigation representative. 19 The applicant argues that her daughter's best interests could not be assessed without the primary judge or the legal representatives having met her. However, it is not disputed that the applicant's daughter has a significant intellectual disability that leaves her "under a legal incapacity" within the meaning of Sch 1 of the Federal Court Rules, in that she is not capable of managing her own affairs in the proceeding, including giving instructions for the conduct of the proceeding. The question of her best interests turned upon the course that would provide her with her best chance of success in the primary proceeding. She does not have the capacity to understand and make decisions about how her best interests would be served, so meeting her could have made no difference to the primary judge's decision. 20 The applicant has failed to adequately address the questions of whether the primary judge's decision is attended with sufficient doubt and whether substantial injustice would result if leave was refused. In her written submissions, the applicant repeatedly describes the primary judge's decision as being not in her daughter's best interests, but has failed to explain why that is so. She has failed to explain why the grounds of bias she wishes to pursue against the Tribunal member have any prospect of success, or why it is not in her daughter's best interests for the pro bono legal representatives to continue to act. There is no arguable error in the primary judge's assessment that her best interests would be served by continuing to have legal representation. 21 I am not satisfied that the proposed appeal has any sufficient prospect of success to warrant a grant of leave to appeal. 22 In addition, it has not been demonstrated that there will be substantial injustice if leave is not granted. The Public Trustee of South Australia has replaced the applicant as litigation representative. The pro bono lawyers will continue to represent the applicant's daughter in the principal proceeding. The applicant argues that that the primary judge's decision abrogates her daughter's freedom of choice and right to control her own litigation. However, there is no suggestion on the evidence that her daughter is capable of making any decision about what grounds should be argued or who should represent her, so there can be no such abrogation. 23 The application for leave to appeal must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate: Dated: 2 June 2023