The second Full Court held that:
Mr Fernando could be ordered to pay the Commonwealth’s costs notwithstanding his disability.
Mr Fernando had been heard on the issue, notwithstanding counsel for the litigation representative’s claim to the contrary.
B. The costs order against Mr Fernando
The Federal Court Rules 2011 (Cth) [the Rules] draw no distinction between a mentally disabled person or minor:
person under a legal incapacity means:
(a) a minor; or
(b) a mentally disabled person.
mentally disabled person means a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding.
The authorities relied upon by the Court
The Court relied upon three authorities that “suggest that a costs order may be made against Mr Fernando”: Fernando v Commonwealth of Australia  FCAFC 181 at .
Rhodes v Swithenbank. In that case the Master of the Rolls gave two reasons why costs orders could not be made against the infant: she was impecunious, and apparently disabled for life. The latter could be seen as the more persuasive as the Court had been referred by counsel to earlier cases in which it had been held that costs could not be awarded against an infant. In Grave v Grave Cro. Eliz. 33 in 1653 it was held: “If an infant brings trespass by guardian, and afterwards he was nonsuit, he shall render no costs.” The same case was referred to with approval in Turner v Turner 2 P. Wms. 297; Str. 708 where in 1726 the Chief Justice said:
I do not find any case has been cited where an infant plaintiff has been obliged to pay costs either at law or in equity: and in Cro. Eliz. 33, Grave v Grave, an infant brought trespass...
... middle of paper ...
...Mr Ley as next friend: Rhodes v Swithenbank. He or she was not, however, a party to the action: Pink v J A Sharwood & Co Limited, per Eve J. He derived his authority from the Court, not Mr Fernando, and could have been removed if, for example, he had acted improperly, or was found to have had an interest adverse to that of Mr Fernando: Stephenson v Geiss; Simpson on the Law of Infants. Not only was he obliged by his appointment to act in the best interests of Mr Fernando, but also in a manner that might be unpalatable to him if he deemed that to be appropriate.
Dr Cameron, as he submitted to the Full Court, acted solely for Mr Ley, and did not, and could not have acted for Mr Fernando. In that capacity, he raised none of the issues, and referred to none of the authorities set out above. Mr Fernando was not heard prior to the costs order being made against him.
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