Background
Douglas Ockerby commenced judicial-review proceedings after the Fair Work Commission refused permission to appeal from the dismissal of his application to reopen an employment dispute with Ron Farris Real Estate. His wife, JoAnn Theriault, sought appointment under r 9.63 of the Federal Court Rules 2011 (Cth) to conduct the case for him without lawyers.
Mr Ockerby and Mrs Theriault relied on his evidence and a brief letter from his general practitioner, which said his mental-health difficulties impaired his ability to participate in complex legal matters. Ron Farris Real Estate opposed the appointment, challenging both the evidence of incapacity and Mrs Theriault’s suitability.
The Court’s Holding
Justice Colvin found that Mr Ockerby could only commence and conduct the proceeding through a litigation representative. Although adults are presumed competent to litigate, the evidence established that he could not manage the stresses and responsibilities of this proceeding on his own. The Court rejected the argument that the medical material was necessarily insufficient in the circumstances.
But the Court refused to appoint Mrs Theriault. Her prior communications and threats in connection with the Commission proceedings showed poor judgment; her role in drafting wide-ranging grounds directed substantially to her own treatment in those proceedings raised concerns about independence; and her conduct, animosity toward the employer’s solicitor, and conviction for dishonestly dealing with a document made her unsuitable. The proceeding was stayed except for further steps concerning Mr Ockerby’s capacity, and Mrs Theriault was barred from filing documents in it.
Key Takeaways
- A litigant seeking a representative must establish legal incapacity: an inability, due to mental disability or illness, to manage the proceeding.
- Establishing incapacity does not entitle a proposed representative to appointment; the Court must also be satisfied that the person is independent and suitable.
- The proposed representative was ordered to pay 50% of Ron Farris Real Estate’s interlocutory costs because the suitability application failed, despite establishing Mr Ockerby’s need for a representative.
Why It Matters
The decision distinguishes the question whether a litigant needs protection from the separate question whether a particular family member may control the litigation. A representative appointment protects the litigant, other parties and the Court’s process, and it requires sound judgment and genuine independence.
It also illustrates that a court may stay a proceeding where a litigant lacks capacity but no suitable representative is available, rather than permit an unsuitable person to continue the case.