Australian Competition and Consumer Commission v Jutsen

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FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Jutsen

[2010] FCA 961

Citation: Australian Competition & Consumer Commission v Jutsen [2010] FCA 961
Parties: AUSTRALIAN COMPETITION & CONSUMER COMMISSION v LUALHATI JUTSEN, TINA AROHA BROWNLEE and DAVID GRAEME SCANLON
File number: NSD 529 of 2010
Judge: NICHOLAS J
Date of judgment: 31 August 2010
Catchwords: PRACTICE AND PROCEDURE – Application for leave to permit an unqualified advocate to appear on behalf of respondents – principles relevant to the exercise of discretion to grant such leave – application refused
Legislation: Trade Practices Act 1974 (Cth) Part V Div 1AAA, ss 6, 65AAC
Cases cited: Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604 cited
Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 cited
Damjanovic v Maley (2002) 55 NSWLR 149 applied
Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Court of Appeal, 6 September 1994, unreported) cited
Date of hearing: 30 August 2010
Date of last submissions: 30 August 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 17
Counsel for the Applicant: Mr S White SC and Mr T Brennan
Solicitor for the Applicant: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 529 of 2010
BETWEEN:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant
AND:

LUALHATI JUTSEN
First Respondent

TINA AROHA BROWNLEE
Second Respondent

DAVID GRAEME SCANLON
Third Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

30 AUGUST 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application by Mr Howard seeking leave to appear for the respondents is refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 529 of 2010
BETWEEN:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant
AND:

LUALHATI JUTSEN
First Respondent

TINA AROHA BROWNLEE
Second Respondent

DAVID GRAEME SCANLON
Third Respondent

JUDGE:

NICHOLAS J

DATE:

31 AUGUST 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

BACKGROUND

  1. The hearing of this proceeding commenced yesterday.  Until late last week the three respondents were represented by solicitors and counsel.  It was only on Friday of last week (with the hearing due to commence the following Monday) that the respondents’ solicitors contacted the Court and advised that their instructions had been withdrawn and that they had ceased to act.  Counsel appeared at the commencement of the hearing yesterday for the purpose of seeking leave to file a Notice of Ceasing to Act.  I granted that leave. 

  2. The matter was then called outside the Court.  None of the respondents appeared.  Mr Howard then made an application for leave to appear at the hearing on behalf of the three respondents.  None of the respondents was present in Court at the time that application was made.  It appears that they stayed away from Court on Mr Howard’s advice.  I refused…

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Details
Case
[2010] FCA 961
Decision Date

CaseChat Overview and Summary

In the matter of Australian Competition and Consumer Commission v Jutsen, the respondents sought leave for a non-lawyer, Mr Howard, to represent them in the proceedings. The dispute revolves around allegations of misleading or deceptive conduct under the Australian Consumer Law, with the respondents facing potential fines and penalties. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether Mr Howard, who lacked formal legal qualifications, should be granted leave to represent the respondents. The court had to weigh the discretionary power to allow non-qualified persons to appear before it against the general rule prohibiting such appearances. This decision required consideration of the potential risks of allowing an unqualified advocate to conduct the defence and the implications for the administration of justice.

The court exercised its discretion to deny Mr Howard leave to represent the respondents. The decision was based on several factors: the complexity of the case, the risk of inadequate representation, the respondents' ability to afford proper legal representation, and the lack of a clear explanation regarding Mr Howard's prior involvement with the respondents and their alleged enterprise. The court also noted that the respondents did not appear to face language barriers or disabilities that would prevent them from conducting their own defence.

The final orders of the court denied Mr Howard leave to appear as an advocate for the respondents, reinforcing the importance of maintaining professional and ethical standards in legal proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On the basis of my review of the pleadings and the relevant statutory provisions it seems to me that this is likely to be a relatively complex piece of litigation. There are a number of points of statutory construction likely to arise. EVIDENCE IN SUPPORT OF THE APPLICATION There was no sworn evidence from any of the respondents in support of Mr Howard’s application for leave to represent them. Mr Howard handed to me three documents which appear to be statements made by the respondents which do not, in my view, advance matters very much. Mr Howard told me from the Bar table that he is an engineer by training and that he has no legal qualifications. When he was asked about his relationship with the respondents he initially told me that he had been a “support worker” for the three respondents. Quite what he meant by this I am not sure. It emerged from what he said in response to a number of questions that I then posed that he has had some prior involvement in the enterprise in which the respondents are alleged to have been involved. It also emerged that he may well have provided legal advice concerning the legality of that enterprise. That is a matter that I consider relevant to the present application. It was not a matter that was volunteered by Mr Howard but was something that emerged following some questioning of him by me. THE RELEVANT PRINCIPLES In considering the application to allow Mr Howard to appear for the respondents, I have had regard to the decisions of Drummond J in Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604 and Bennett J in Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481. I have also had regard to the decision of the New South Wales Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 149 in which Stein JA (with whom Mason P and Sheller JA agreed) undertook an extensive review of the authorities which consider the circumstances in which an unqualified advocate might be given leave to appear on behalf of a party. It is well established that the Court has a discretion to grant a non-qualified person leave to appear on behalf of a party. However, the general rule is that the Court will not allow an appearance by a person who has not been admitted to practice before it: see, for example, Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Court of Appeal, 6 September 1994, unreported) per Mahoney AP cited by Stein JA in Damjanovic at 159. As the authorities referred to by Stein JA make clear, the question whether an unqualified person should be given leave to appear is usually addressed by reference to the general rule and the important policy considerations underlying it. Central to these are the responsibilities owed by qualified persons who have a right of appearance. Such persons owe professional and ethical duties to both the Court and their client that are of fundamental importance to the administration of justice. Unqualified advocates are not bound by these professional and ethical duties. CONSIDERATION

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is well established that the Court has a discretion to grant a non-qualified person leave to appear on behalf of a party. However, the general rule is that the Court will not allow an appearance by a person who has not been admitted to practice before it: see, for example, Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Court of Appeal, 6 September 1994, unreported) per Mahoney AP cited by Stein JA in Damjanovic at 159. As the authorities referred to by Stein JA make clear, the question whether an unqualified person should be given leave to appear is usually addressed by reference to the general rule and the important policy considerations underlying it. Central to these are the responsibilities owed by qualified persons who have a right of appearance. Such persons owe professional and ethical duties to both the Court and their client that are of fundamental importance to the administration of justice. Unqualified advocates are not bound by these professional and ethical duties. CONSIDERATION There are a number of matters which have guided the exercise of my discretion in this matter. First, as I have already indicated, I consider the present case is likely to be relatively complex. Allowing an unqualified advocate to conduct the respondents’ defence carries with it a substantial risk that it will be conducted inappropriately and in a manner that might cause the respondents irreparable prejudice. As I have mentioned, Mr Howard has no legal qualifications. He told me that he was an engineer by training. My review of the pleadings and the outline of opening filed on behalf of the applicant (the respondents have not filed any outline of opening) leads me to think that this professional qualification has little, if any, relevance to any issue that is likely to arise in this case. Secondly, I have considered the difficulties which Mr Howard says the respondents will suffer if they are not represented by him. I am not satisfied that the respondents are unable to afford legal representation. It appears that there may be other reasons behind their decision to withdraw the instructions which they had been providing to their solicitors and counsel in the weeks leading up to the trial. Thirdly, there is no suggestion that the respondents will experience any language difficulty or that they suffer from any disability or impairment which would prevent them from conducting their own defence. Fourthly, I am left with an uneasy concern that Mr Howard has not given me a sufficient explanation of his previous involvement with the respondents or the enterprise in which they are alleged to have participated. Fifthly, I have also had regard to how Mr Howard proposes to conduct the respondents’ defence in the event that he is given leave to do so. So far as cross-examination is concerned, Mr Howard told me that the respondents would prepare questions that he would then ask the witnesses. As to submissions, he envisaged that he would address on the respondents behalf and that each of them would follow, in his words, “in a similar way as where there is a junior and senior counsel.” I think this is unlikely to assist in the efficient and just disposition of the case.