Bele and Vaughan
[2012] FamCAFC 113
•19 July 2012
FAMILY COURT OF AUSTRALIA
| BELE & VAUGHAN | [2012] FamCAFC 113 |
| FAMILY LAW – APPEAL – ORAL APPLICATION FOR REPRESENTATION BY A PERSON OTHER THAN A LAWYER – where the applicant does not make an application in the alternative for a McKenzie Friend – where the application is opposed – where at the hearing of the substantive application the applicant had legal representation – where at the end of that hearing the applicant’s legal representative informed the court that his instructions had been “withdrawn” – where that information was relayed to the legal representative by Mr A who the applicant now seeks represent her – where the hearing of the application was adjourned – where to be successful such an application must demonstrate “exceptional circumstances” – where the applicant says she has had no time to obtain alternative legal representation and she relies on the experience and knowledge of Mr A – where there is no suggestion that the applicant cannot run the case herself – where there is no evidence before the court to support the submission that because of time constraints the applicant has not had time to obtain alternative legal representation – where no explanation has been provided as to why the services of the applicant’s previous solicitor were dispensed with given his long involvement in this matter – where a s 118 order remains in place against Mr A – where no exceptional circumstances have been demonstrated and the principles that militate against a non-lawyer being able to represent a party apply here – application refused. |
| Family Law Act 1975 (Cth) Judiciary Act 1903 (Cth) |
| Batey-Elton & Elton [2010] FamCAFC 79; (2010) 43 Fam LR 62 Damjanovic v Maley (2002) 55 NSWLR 149 MG & MG [2000] FamCA 893; (2000) FLC 93-034 |
| APPLICANT: | MS BELE |
| RESPONDENT: | MR VAUGHAN |
| FILE NUMBER: | MLC | 9056 | of | 2009 |
| APPEAL NUMBER: | SOA | 45 | of | 2011 |
| APPEAL NUMBER: | SOA | 46 | of | 2012 |
| DATE DELIVERED: | 19 July 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 19 July 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 June 2011 |
| LOWER COURT MNC: | [2011] FamCA 436 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT CONSENT ORDER DATE: | 13 December 2012 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Harriss, solicitor |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
The oral application made by the applicant today seeking that Mr A represent her be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bele & Vaughan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 45 of 2011 and SOA 46 of 2012
File Number:
| MS BELE |
Applicant
And
| MR VAUGHAN |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The first thing to record is that the court keeps an ongoing record of persons who are subject to s 118 orders and I am advised that on 14 December 1992, an order was made in respect of Mr A pursuant to s 118(1)(c) of the Family Law Act1975 (Cth) (“the Act”). The particular order was that he be restrained from instituting certain proceedings in the Family Court of Australia unless and until he had first obtained the leave of a judge to institute such proceedings, and had first complied with all the conditions, including the giving of security for costs, which the judge may impose. The proceedings included any proceedings against the mother in that action, or any person associated with the mother, including legal practitioners acting for the mother, and including proceedings under the Act with respect to a named child, or any other child in the mother’s household.
I note that that order is current as at the latest court reconciliation of these orders, namely as at 1 July 2012.
The application before me is an oral application made by Ms Bele who is the applicant in the proceedings that are currently before me. The application that she makes is for Mr A to represent her in those proceedings today and I take that to mean the obvious, namely to appear as her advocate and to make submissions, if necessary, and to respond to questions and to submissions and run her case today in the way that a barrister, for example, who would be appearing for her as counsel would run the proceedings. I mention all this because the application does not include an application in the alternative, or otherwise, that Mr A be allowed to assist Ms Bele as a McKenzie friend.
The substantive application that is before me today is an application filed by Ms Bele on 13 June 2012 wherein, as I have said on a number of occasions during these proceedings, the effect of the orders sought is to seek a review of an exercise of power by the Regional Appeal Registrar to refuse to accept a Notice of Appeal presented to the court in May 2012. In the alternative an order is sought that an appeal which has been deemed abandoned be reinstated, and that was an appeal against orders made by Cronin J in June 2011. The third order, again in the alternative, is that there be an extension of time to enable Ms Bele to file a Notice of Appeal against consent orders made by
Le Poer Trench J in December 2011.
Mr Vaughan has filed a response to that application and that response is also before me. In that response the primary order sought is that Ms Bele not be able to proceed with the application that is before me until, in summary, she complies with orders made by Cronin J on 25 June 2012 which require the production of a duplicate certificate of title to enable settlement of the sale of a house property to take place. That sale was the subject of one of the consent orders made by Le Poer Trench J in December 2011.
The hearing of that application and response commenced before me effectively last Friday, 13 July 2012. Mr Y, solicitor, appeared for Ms Bele at that hearing. Mr Y has been Ms Bele’s solicitor on the record for some time in this matter. I cannot immediately pinpoint how long ago but as I say for some time and at least as far back as the attempted filing of the Notice of Appeal that I have referred to, which filing was refused by the Regional Appeal Registrar.
I note that Mr A, who is the subject of the oral application now before me, was present in the courtroom during most of that hearing, and he is described as an agent of Y Lawyers, namely, the wife’s solicitors. He is also described as a consultant to those lawyers, and it is quite apparent that almost all of the material that has been presented to the court on behalf of Ms Bele in relation to the issues that have been ongoing now for some time, has been prepared by
Mr A, but then presented, as is appropriate, under the hand of Mr Y as the wife’s solicitor.
Towards the end of the hearing last Friday Mr Y informed me that he was waiting for a response from Ms Bele to a telephone message that he had left for her and an email that he had sent to her during the course of the day seeking instructions about a matter that I raised during the hearing. As I recall Mr Y announced “I have just been handed a note by Mr A who says, and I read exactly three words ‘email instructions withdrawn’.”
Mr Y could not tell me whether that was an email from his client. He clearly had not spoken directly to her, and it was apparent that this information, as
Mr Y said, came from Mr A. That left Mr Y in an awkward position not knowing apparently on what basis his instructions had purported to be terminated. He had not had the opportunity to speak directly to Ms Bele. All that had happened is, as I say, Mr A handed him a note. In the circumstances, Mr Y correctly and appropriately in my view, remained at the bar table and continued in the matter, although as I say, this was right at the end of the day when the question of adjournment and the further hearing of the matter was being determined.
Mr Y, again, correctly in my view, given that he needed to at least speak to his client to ascertain what the position was and confirm whether or not his instructions had been withdrawn, did not formally seek leave to withdraw in the interests of his client, and he remained at the bar table until the conclusion of the hearing.
Unfortunately there was insufficient time to conclude the matter on 13 July 2012 and thus I adjourned the further hearing of the proceedings to today, namely, 19 July 2012.
Since then the court has received a Notice of Ceasing to Act by Mr Y, dated
18 July 2012, and a Notice of Address for Service dated the same day, filed by Ms Bele in which she provides Mr A’s address as her address for service in Australia. Ms Bele, as I understand it, resides in a European country and it is necessary under the Rules of Court to provide a Notice of Address for Service in Australia.
That then leads me back to the oral application that is before me.
In terms of the application made by Ms Bele, it is an application that is well known in the law and, in short, to be successful such an application needs to demonstrate exceptional circumstances. There are other principles that apply to whether or not such an application will be granted, and I will come to those principles in a moment.
In support of the application Ms Bele, who has been involved in proceedings in this court now for some time, but as I understand it unless anyone corrects me, she has always been represented by solicitor or counsel, put to me that she requires Mr A to represent her because she needs his assistance. He has, she says, knowledge of constitutional issues. He has been involved, as she described it, in pro bono work, whatever that may mean, and that comment relates to the fact that pro bono work is generally a description of where legal practitioners give up their time freely and without charge to represent deserving litigants. She further puts that Mr A is experienced and knowledgeable in matters in the Family Court, and that may be so because of course he has been a litigant in this court and there is the s 118 order still in place to which I have referred already.
Ms Bele also says that she has had no time to obtain alternative legal representation and she does not want to hold up the proceedings. Now, I stress these are not Ms Bele’s precise words but my summary of her submissions to me. She also relies on Article 14 of the International Covenant on Civil and Political Rights which provides that all parties are equal before the law. Now, I do not need an Article from a Covenant to tell me that. That is a well entrenched principle in the common law.
I note that there is no suggestion that Ms Bele cannot run the case herself. In her submissions she proved to be quite articulate and knowledgeable about what she was addressing me on. There is no suggestion, as there is in some cases, that there is a medical reason why Ms Bele cannot represent herself. The application is made on two bases. First, that Mr A has experience and knowledge and is able to represent her as a result, and secondly, that she has not been able to find alternative representation.
Perhaps I can put the second basis, to use a vernacular, to bed at this point. For my part it cannot be a reason for permitting a person who is not a lawyer to represent a party because that party has not, because of time constraints, allegedly been able to find other representation. Apart from the fact there is absolutely no evidence presented to me by Ms Bele, and I canvassed this earlier, where she sets out the attempts that she has made to obtain alternative legal representation. I make the point that there has been absolutely nothing put to me by Ms Bele as to why Mr Y’s services were dispensed with given his long involvement in this matter and the strange circumstances surrounding what happened towards the end of the hearing last Friday. Accordingly that cannot be a reason to allow Mr A to represent Ms Bele.
It does not create any exceptional circumstance, and as will be seen in a moment, it does not fit within any of the principles that apply to these matters.
As to the first basis, having read a good deal of the material prepared by Mr A, I would challenge the submission that he has sufficient knowledge of the matters in issue, and experience in relation to those issues to adequately represent Ms Bele. In any event there are any number of other reasons why I would not allow him to appear for Ms Bele, and I now turn to that.
The respondent opposes the application. Mr Harriss’ submissions in short compass are that there are no exceptional circumstances demonstrated as is required, and that in any event it is entirely inappropriate for Mr A to represent Ms Bele. Mr Harriss refers to the obvious facts with which I agree, that apart from Mr A not being qualified, Ms Bele appears able to present her case adequately.
Mr Harriss has referred me to a decision of the Full Court in MG & MG [2000] FamCA 893; (2000) FLC 93-034 which is a decision of Kay, Holden and Mullane JJ. That decision is both informative and helpful because it involved Mr A. The application that was before the trial judge was an application that Mr A either represent the husband in that case or assist him as a McKenzie Friend, and the judge at first instance, Morgan J, refused that application and she did so primarily because Mr A was a vexatious litigant. Her Honour was referring there of course to the order that I mentioned earlier today of 14 December 1992.
The husband appealed submitting that her Honour made an error in refusing to grant either of the applications. The Full Court said this in dismissing the appeal (at 23):
… save for the leave of the Court to be granted usually only in exceptional circumstances, no person may appear as an advocate before the Court on behalf of another person unless they are admitted to practice, and in this court have signed the High Court roll of practitioners.
Kay J who gave the lead judgment in that decision also said this (at 26):
In this case, what was sought both before her Honour and before us was for Mr [A] to appear as an advocate and to speak to the Court on behalf of the litigant. It is common knowledge to the Court by reason of its own records that Mr [A] is a person who is the subject of a current order under s 118 of the Family Law Act, prohibiting him from commencing any proceedings under the Act without the leave of the Court. It would seem a most unusual and anomalous situation if a person who is prohibited from bringing his or her own proceedings without the leave of the Court could act as the advocate of other persons in the Court, when such a person is not a qualified practitioner.
His Honour went on and said (at 27), thus he saw “no reason to interfere with the exercise of discretion by the trial judge in the circumstances in refusing to allow Mr [A] to appear on behalf of the applicant in (the) case, or to partake in the proceedings …”
That is precisely the situation that I am confronted with here. As I have said the s 118 order is still current, and for my part, on the authority of MG & MG, it would be appropriate for the reasons of the Full Court, which I adopt, that this application be refused.
However, I wish to say more about that.
Apart from the requirement for there to be exceptional circumstances, there are a number of principles that apply to such an application, and those principles are not in doubt. I can do no better in setting out those principles than refer to the Full Court decision of May, Boland and Strickland JJ in Batey-Elton & Elton [2010] FamCAFC 79; (2010) 43 Fam LR 62. The Full Court said this:
20.We commence our discussion of the wife’s application that Mr [B] be permitted to appear on her behalf by setting out s 55A and s 55B of the Judiciary Act 1903 (Cth) which provide as follows:
SECT 55ARight of barristers and solicitors admitted in federal courts to practise in those courts
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
SECT 55B Right to practise as barrister or solicitor in federal courts and courts exercising federal jurisdiction
(1) Subject to this section, a person who:
(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or
(b) is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory;
has the like entitlement to practise in any federal court.
(2) A person is not entitled to practise in a federal court as a solicitor by reason of paragraph (b) of the last preceding subsection unless:
(a) he or she has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or
(b) he or she practises as a solicitor in the Territory and his or her sole or principal place of business as a solicitor is in the Territory.
(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.
(4) A person who is, under subsection (1), entitled to practise as a barrister or solicitor, or both, in any federal court has a right of audience:
(a) in any court of a State in relation to the exercise by the court of federal jurisdiction; and
(b) in any court of an internal Territory in relation to the exercise by the court of federal‑type jurisdiction.
(5) The Chief Justice of the Supreme Court of a State or an internal Territory may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of subsection (4) and, where such a Register is kept in a State or Territory, a person is not entitled, in a court of that State or Territory, to the right of audience referred to in subsection (4) unless he or she is registered in that Register.
(6) Where a Register is kept in a State or Territory in accordance with subsection (5), a person who satisfies the Registrar or other officer keeping the Register that he or she is a person referred to in subsection (4) is entitled to be registered in that Register.
(7) Where it is proved to the satisfaction of the Supreme Court of a State or Territory constituted by 2 or more Judges that a person who is registered in the Register kept in that State or Territory in accordance with subsection (5) has been guilty of conduct that justifies it in so doing, the Supreme Court may order that person's registration be cancelled or be suspended for a specified period, but the Supreme Court may, at any time, order that the registration of the person be restored or that the suspension be terminated.
(8) The Registrar or other proper officer of the Supreme Court shall make such alterations and notations in a Register kept by him or her as are required by reason of orders of the Supreme Court under subsection (7).
(9) Notwithstanding subsection (6), where the registration of a person has been cancelled in accordance with subsection (7) and has not been restored, or is for the time being suspended, that person is not entitled again to be registered in the Register except pursuant to an order under subsection (7).
(10) In this section:
federal-type jurisdiction, in relation to a court of an internal Territory, means jurisdiction conferred on the court by or under a law of the Commonwealth, but does not include jurisdiction conferred on the court under an Act providing for the acceptance, administration or government of that Territory.
…
22.The cases dealing with the issue of a non-practitioner appearing on behalf of a party in other superior courts are comprehensively reviewed by Stein JA (with whom Mason P and Sheller JA agreed) in Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256 and the applicable principles are summarised at paragraphs 69 to 86 of his Honour’s reasons. We adopt the principles espoused therein which we now set out:
Principles from the cases
69.A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:
(a) The complexity of the case
70.Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor: see for example, Scotts Head, per Mahoney A-P (at 4); Re G J Mannix (at 311, 314 and 316); Bay Marine, per Samuels JA (at 110–11); Hubbard (at 343); Abse (at 549); and Miles CJ (at 3) in Commonwealth Bank v Individual Homes.
71.In the instant case Judge Dent referred to the case as a complex one having regard to the pleadings. This was a relevant factor well open to be concluded by the judge.
(b) Genuine difficulties of the unrepresented party
72.
These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen (at 411-412)). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court: see also
Re G J Mannix(at 314, 316, 317); Scotts Head (at 4);
Abse(at 549); Galladin (at 147–8); and Stergiou (at 247).
73.The case before the court does not fall into an emergency situation nor one where the appellant experienced unexpected language difficulties in conducting his own case. Mr Damjanovic was probably always going to need an interpreter. If he gave evidence, as he would need to in order to establish his case, Ms Vukic could not interpret for him. Doing so would obviously conflict with her position as his advocate: see, for example, Pacific Air Freighters (Qld) Pty Ltd v Toller (2000) 171 ALR 519 at 521. That the appellant had previously been dissatisfied with interpreting services is beside the point. To be able to present his own case, the appellant would need an accredited interpreter of the Croatian language. That the appellant has poor command of the English language is no reason to grant Ms Vukic leave to appear as his advocate.
(c) The unavailability of disciplinary measures and a duty to the court by lay advocates
74.
Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears: see Re G J Mannix (at 311, 316); Scotts Head (at 3); Hubbard (at 343); Abse (at 546, 555); Bay Marine (at 110–11); R v Smith (at 614); Tritonia (at 587); and Paragon (at 2371) referring to Woolf MR in
D v S. Abse also emphasised the duty of a legal practitioner of absolute probity.
75.In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non-party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.
76.In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 Law Quarterly Review 63).
77.Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practise advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.
78.All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court’s experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.
(d) Protection of the client and the opponent
79.Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse (at 546) highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S.
80.One should also not lose sight of a lawyer’s duty to his/her opponent, Scotts Head (at 3). None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer.
(e) Lay advocates in inferior courts and tribunals
81.There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.
82.The authorities however suggest that higher courts should be very chary at giving leave. See Re G J Mannix (at 314); Hubbard (at 343), Bay Marine (at 111); Scotts Head
(at 3–4); and D v S (see Paragon (at 2369)).(f) The interests of justice
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 (Current Issues for the Australian Judiciary). 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.
86.Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier.
We think in this case the matters espoused in paragraphs 74-77 are of particular importance, as are those set out in the following two paragraphs 79 and 80. We would also emphasise the importance of the matters referred to in paragraphs 83-86. (See also Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 per Bennett J where her Honour discussed both the right of audience before a Federal Court and the role of a McKenzie Friend).
23.While we note it was proposed that Mr [B] would offer an undertaking to this Court to behave in a professional manner, we perceive inherent difficulties if he breached this undertaking to the Court. Of greater relevance however are the principles espoused in the cases to which we have referred, and in particular the emphasis on the duties imposed on members of the legal profession in their capacity as officers of the Court, the fact such persons are required to conform with professional obligations governing their admission and right to practice, the need for such persons to be insured, and that they may be subject of disciplinary procedures under the relevant legislation.
Now the principles set out in Damjanovic v Maley were adopted by the Full Court in Batey-Elton & Batey and I in turn adopt them. They are of particular importance in this case, and they militate against granting the application.
For those reasons I refuse the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 July 2012.
Associate:
Date: 31 July 2012
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