Background
Ms Aishwarya Meshram commenced proceedings in May 2020 against her former employer Bing Lee Electrics Pty Ltd and a number of individual respondents. The matter was transferred to the Federal Circuit and Family Court of Australia (Division 2), which summarily dismissed several claims in 2022, dismissed the remaining claims in 2023, and made costs orders in 2024. Ms Meshram then brought three separate appeals to the Federal Court challenging those decisions, and has been represented on a pro bono basis since at least April 2024.
In mid-2025, Ms Meshram’s pro bono counsel and solicitors raised with the Court serious concerns about her mental capacity to participate in the appeals and provide instructions. Stellios J vacated scheduled hearing dates and, in orders of 11 July 2025 and 3 November 2025, directed Ms Meshram to either attend an appointment with a consultant psychiatrist or psychologist for a formal capacity assessment, or appoint a litigation representative. Ms Meshram failed to attend the arranged psychiatric appointment, did not comply with the November 2025 orders, and effectively ceased communicating with her legal representatives, though she did submit letters from her general practitioner asserting she had capacity and opposing compelled psychiatric assessment.
The respondents filed interlocutory applications in February 2026 to dismiss all three appeals, either for failure to comply with a court direction (s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) and r 36.74(1)(a) of the Federal Court Rules 2011) or for failure to prosecute (s 25(2B)(ba) and r 36.74(1)(d)). The applications were determined on the papers.
The Court’s Holding
Stellios J declined to immediately dismiss the appeals, instead making self-executing conditional orders. By 4:00 pm on 27 July 2026, Ms Meshram must either provide a report from a registered psychiatrist or psychologist formally assessing her legal capacity to participate in and give instructions for the appeals, or file an application to appoint a litigation representative of her own choice. The required psychiatric or psychological report must specifically address her capacity to participate in the proceedings, give clear instructions to her lawyers, and understand and act on legal advice, and must set out the basis for the opinions expressed including any assessments or tests undertaken.
The Court held that if Ms Meshram does not comply with those orders, the three appeals will automatically be dismissed pursuant to r 5.21(a) of the Rules and ss 25(2B)(ba) and (bb)(i) of the Act. The Court rejected the general practitioner letters as insufficient to resolve the legal capacity question, observing that the fundamental difficulty is that until capacity is established, Ms Meshram cannot competently act for herself and her pro bono representatives must act as officers of the Court rather than on her instructions. The Court also rejected the submission that the orders of 11 July 2025 should be set aside for want of procedural fairness, noting Ms Meshram was present and given the opportunity to address the Court at both relevant case management hearings.
On the question of proportionality, the Court balanced the respondents’ real and serious prejudice from prolonged delay—mirroring delays in the first instance proceedings—against the consequence to Ms Meshram of losing her right to prosecute the appeals and challenge significant adverse costs orders. It concluded that a self-executing order, giving Ms Meshram a final and clear opportunity to resolve the capacity question, was preferable to immediate dismissal and adequately served the overarching purpose of just, quick and efficient resolution of disputes under ss 37M and 37N of the Act.
Key Takeaways
- Where a party’s legal capacity to participate in proceedings is genuinely in doubt, a general practitioner’s letter asserting capacity is insufficient; a specialist report from a registered psychiatrist or psychologist addressing capacity to participate, instruct, and act on advice is required.
- Self-executing dismissal orders—automatically operative on non-compliance with a specified step by a specified date—are an available and proportionate response when a party has persistently failed to resolve a legal capacity question, rather than immediate dismissal.
- Until legal capacity is determined, a party cannot competently act for themselves; pro bono legal representatives in that situation act as officers of the court, not on client instructions, and their submissions in that capacity may constitute a legitimate contradictor to dismissal applications.
- Prolonged non-compliance with court orders and failure to engage with legal representatives—even where health issues are raised—can cumulatively establish both failure to prosecute and failure to comply with directions, supporting dismissal under both limbs of r 36.74(1) of the Federal Court Rules.
Why It Matters
This decision provides a practical framework for managing appellate proceedings where a party’s legal capacity is in doubt. It confirms that courts have both the power and the responsibility to take active steps to resolve capacity questions before allowing proceedings to continue indefinitely, while also acknowledging that immediate dismissal may be disproportionate where the party has not consciously chosen to obstruct the process. The self-executing order mechanism threads the needle: it preserves the appellant’s opportunity to access justice while protecting respondents from open-ended delay and giving the court a defined endpoint.
The case is also a useful reminder to practitioners that medical evidence of capacity must come from a specialist with the appropriate qualifications and must address the specific legal capacity questions at issue—not merely confirm a patient’s general wellbeing or oppose a particular form of assessment. It also illustrates the unusual but important role that legal representatives can play as officers of the court when instructing-client capacity is genuinely unresolved.