Attorney-General for the State of South AUSTRALA v Kowalski

[2011] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALA v KOWALSKI

[2011] SASC 231

Judgment of The Honourable Justice Blue

15 December 2011

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - OTHER MATTERS

The applicant seeks a stay of proceedings instituted against him by the Attorney-General until such time as the Attorney-General provide him with legal representation.

Supreme Court Act 1935 (SA) s 39(1), referred to.
New South Wales v Canellis (1994) 181 CLR 309, applied.
Damjanovic v Maley (2002) 55 NSWLR 149; Dietrich v The Queen (1992) 177 CLR 292; Elliott v Australia Secutities & Investments Commission (2004) 185 FLR 245; Gajic v Harb [2011] VSCA 132; Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32; Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20; Petracca v Fitzgerald [2002] SASC 97; Plenty & Plenty v Pattinson, Hodby and Hodby [1998] SASC 6695; Rivera v United States of America [2004] FCAFC 154; Tran v Department for Correctional Services [2006] SADC 42, considered.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALA v KOWALSKI
[2011] SASC 231

Civil

1. BLUE J: In this action, the Attorney-General seeks orders that Mr Kowalski be declared to have persistently instituted vexatious proceedings and be prohibited from instituting proceedings against legal practitioners pursuant to s 39(1) of the Supreme Court Act 1935 (SA).[1]

   [1]    The Attorney-General also seeks ancillary orders, including a stay of current proceedings in the Legal Practitioners Disciplinary Tribunal.

2. Mr Kowalski is self represented in this action and has been self represented in the proceedings which the Attorney-General alleges were instituted vexatiously.

3. Mr Kowalski applies for an order that this action be stayed until the Attorney-General provides to Mr Kowalski legal aid or legal representation on the grounds that he is not a lawyer and does not have formal legal training and is currently suffering from and being treated for a psychiatric illness in the form of major depression with co-morbid anxiety. 

4. In support of his application, Mr Kowalski swore an affidavit on 30 November 2011.  The affidavit exhibited a statement of income, expenses, assets and liabilities which shows that Mr Kowalski has no valuable assets and very limited income.  Mr Kowalski’s affidavit also exhibited a medical report and a number of reasons for earlier judgments (of other courts and tribunals unrelated to this application) which refer to medical reports and evidence in which psychiatrists diagnosed Mr Kowalski as suffering from depression (chronic mild depression - or dysthymia – with major depressive disorder on occasions).  The Attorney-General did not object to this evidence and did not contest this diagnosis for the purposes of this application.

5. Mr Kowalski submits that he will be substantially disadvantaged and will not receive a fair trial in the action unless he has legal representation.  Mr Kowalski refers to a number of authorities dealing with the grant of permission to a party to be represented by a lay advocate.  In Damjanovic v Maley,[2] Stein JA (Mason P and Sheller JA agreeing) said:

   [83]What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.

   [84]The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000.  The Chief Justice said that: “The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system”.

   [85]Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.

   [2] [2002] NSWCA 230; (2002) 55 NSWLR 149.

6. Portions of the above passage were cited with approval and applied by the Full Court in Giancaspro v SHRM (Australia) Pty Ltd.[3]  See also Petracca v Fitzgerald[4] and Tran v Department for Correctional Services.[5]

   [3] [2005] SASC 340; (2005) 93 SASR 32 at [18] per Bleby J (Doyle CJ agreeing).

   [4] [2002] SASC 97 at [21] per Wicks J.

   [5] [2006] SADC 42 at [8]-[11] per Chief Judge Worthington.

7. Mr Kowalski also refers to observations by Lander J in Plenty & Plenty v Pattinson, Hodby and Hodby[6] concerning difficulties experienced by unrepresented parties in the conduct of litigation.

   [6] [1998] SASC 6695.

8. Mr Kowalski puts his application on the basis of its being in the public interest that he be represented and says that he does not rely upon “the Dietrich principle”.  However, it is necessary to have regard to High Court authority and principles laid down by the High Court in considering Mr Kowalski’s application.

9. In Dietrich v The Queen,[7] the High Court held that:

   1.Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense;[8]

   2.a Court may stay the trial of an indigent accused for a serious criminal offence where the accused cannot obtain legal representation due to no fault of his or her own and an absence of legal representation will entail an unfair trial;[9]

   3.the doctrinal basis for the grant of a stay in such circumstances is the right of an accused charged with an offence to a fair trial or, more precisely, not to be tried unfairly.[10]

   [7] (1992) 177 CLR 292.

   [8] (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J, 323–325 per Brennan J, 330 per Deane J, 349-350 per Dawson J, 360 per Toohey J and 364-365 per Gaudron J.

   [9] (1992) 177 CLR 292 at 315 per Mason CJ and McHugh J; 357 per Toohey J and 374-375 per Gaudron J.

   [10] 177 CLR 292 at 299 per Mason CJ and McHugh J, 326 per Deane J, 353 per Toohey J and 362 per Gaudron J.

10. In New South Wales v Canellis,[11] the High Court held that “the Dietrich principle” is confined to serious criminal proceedings and does not extend to non-serious criminal proceedings, committal proceedings or civil proceedings. 

    [11] (1994) 181 CLR 309.

11. Mason CJ, Dawson, Toohey and McHugh JJ said:

    There is no suggestion in the majority judgments [in Dietrich] that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious…

    And, so far, the Dietrich principle excepted, there is no authority for the proposition that the rules of procedural fairness extend to a requirement that legal representation be provided to a party at a trial, let alone a witness at an inquiry…

    The question is not whether it is unfair, in some colloquial sense, for the inquiry to proceed with the respondents unrepresented. The question is whether procedural fairness dictates that the inquiry may not proceed unless the respondents are represented by counsel.[12]

    [12] (1994) 181 CLR 309 at 328, 329 and 330.

12. The decision of the High Court in Canellis has been interpreted by intermediate appellate courts in Australia to deny power to a court in civil proceedings to stay the proceedings on the basis that the defendant cannot afford legal representation.  It has been applied by a Full Court of the Federal Court to migration reviews[13] and extradition hearings[14] and by the Court of Appeal of the Supreme Court of Victoria to civil penalty proceedings[15] and to a civil action.[16]  The decision in Canellis has also been applied in several decisions at first instance. 

    [13]   Nguyen v Minster of Immigration and Multicultural Affairs [2000] FCA 1265 at [22]-[24] and [33]-[36] per Sackville, Marshall and Leane JJ.

    [14]   Rivera v United States of America [2004] FCAFC 154 at [27]-[29] per Heerey, Sundurg and Crennan JJ.

    [15]   Elliott v Australian Securities and Investments Commission [2004] VSCA 54; (2004) 10 VR 369 at [160]-[162] per Warren CJ, Charles JA and O’Bryan AJA.

    [16]   Gajic v Harb [2011] VSCA 132 at [17]-[21] per Macaulay AJA (Tate JA agreeing).

13. Paragraph 85 of the Judgment of Stein JA in Damjanovic quoted at [6] above shows that the principles concerning the grant of permission to be represented by a lay advocate are consistent with the principle established by Canellis.  Both principles recognise the desirability of representation by legal practitioners in civil proceedings, but do not lead to a grant of a stay of civil proceedings for want of legal representation.  I am bound by the decision of the High Court in Canellis that a stay is not available in civil proceedings based on a lack of legal representation of the defendant and a complaint that the defendant cannot adequately represent himself.

14. Accordingly, I dismiss Mr Kowalski’s application for a stay pending the provision of legal representation for him.

15. I mention for completeness that one or both parties in their submissions made some reference to the ultimate merits of this action and to interlocutory issues in this action which have yet to be decided.  These reasons for judgment are confined strictly to Mr Kowalski’s application for a stay based on lack of legal representation, and I say nothing concerning the ultimate merits of the action or interlocutory issues in the action