Collins v Department of Finance and Deregulation - [2011] FMCA 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLLINS v DEPARTMENT OF FINANCE AND DEREGULATION

[2011] FMCA 240

ADMINISTRATIVE LAW – Administrative decision – judicial review – applicant seeking act of grace payment – preliminary issue – representation of the applicant by a non-lawyer.

PRACTICE AND PROCEDURE – Representation of the applicant by a non-lawyer – administrative decision – judicial review.

Aboriginal Councils and Associations Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 6
Australian Human Rights Commission Act 1986 (Cth), s.46PQ(1)
Fair Work (Registered Organisations) Act 2009 (Cth), s.353A
Federal Magistrates Act 1999 (Cth), s.44
Financial Management and Accountability Act 1997 (Cth), s.33
Freedom of Information Act1982 (Cth)

Collins v Indigenous Business Australia [2008] AATA 505
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Jarraman Arts Aboriginal Corporation v Tourism Australia [2004] FCA 1536
Jarraman Arts Aboriginal Corporation v Tourism Australia (No. 2) [2005] FCA 30
Jarraman Arts Aboriginal Corporation & Anor v Tourism Australia & Others (2005) 144 FCR 233; [2005] FCA 983
Lee and Others v Minister for Immigration and Multicultural Affairs and Another (2006) 205 FLR 117; [2006] FMCA 480
McKenzie v McKenzie [1970] 3 All ER 1024
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41
P v R [2002] FMCAfam 65
Parsons v Martin (1984) 5 FCR 235
Portuguese Cultural and Welfare Centre v Australian Media and Communications Authority [2011] FMCA 144
Pugliese v Paull [2011] FMCA 95
Re Read (2007) 164 FCR 237; [2007] FCA 1985
Schueler & Anor v Smith & Ors [2010] FMCA 777
Skipworth v State of Western Australia (No. 2) (2008) 218 FLR 16; [2008] FMCA 544
SZEGN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1410
Temby & Anor v Chambers Investment Planners Pty Ltd & Anor [2010] FMCA 783
Verge & Anor v Devere Holdings Pty Ltd & Ors (No. 2) [2008] FMCA 743
VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291; [2005] FCAFC 91

Applicant:

SHIRLEY ANNE COLLINS

Respondent:

DEPARTMENT OF FINANCE AND DEREGULATION

File Number:

DNG 10 of 2010

Judgment of:

Lucev FM

Hearing date:

5 April 2011

Date of Last Submission:

5 April 2011

Delivered at:

Darwin

Delivered on:

5 April 2011

REPRESENTATION

For the Applicant:

Mr B A R Percival (by leave)

Counsel for the Respondent:

Mr P Vane-Tempest

Solicitors for the Respondent:

Blake Dawson

ORDERS

That the applicant’s application in a case for her to be represented in these proceedings by Mr Barry A R Percival be dismissed.
The applicant pay the respondent’s costs in the sum of $2,365 on or before 31 December 2011.
That the applicant be taken to have made an application to extend time in which to file the application (“extension of time application”).
In respect of the extension of time application:
(a)the applicant file and serve:
(i)any further affidavits;
(ii)an outline of submissions,
by 19 April 2011;
(b)the respondent file and serve:
(i)any further affidavits;
(ii)an outline of submissions,
by 3 May 2011;
(c)the matter be listed for hearing in Darwin at 10.15am on 5 May 2011 with leave to the respondent to appear by video-link.
Otherwise:
(a)the application be adjourned pending hearing and judgment of the extension of time application;
(b)the respondent not be required to take any steps in the proceedings save for those outlined in these orders until judgment on the extension of time application has been delivered.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 10 of 2010

SHIRLEY ANNE COLLINS

Applicant

And

DEPARTMENT OF FINANCE AND DEREGULATION

Respondent

REASONS FOR JUDGMENT

(Ex tempore – edited from transcript)

Application – interlocutory

There is before the Court an interlocutory application which seeks to allow Mr Percival to appear for the applicant, Ms Collins, at further hearings of this matter.

Application – interlocutory

It is necessary to say something about the substantive application, which is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth);[1] under either s.5 and/or s.6 of the ADJRAct, with respect to a decision by Dr Verney, an Assistant Secretary in the respondent Department, on 26 October 2010, concerning an application by Ms Collins for an act of grace claimant under s.33 of the Financial Management and Accountability Act 1997 (Cth).[2]
[1] “ADJR Act”.
[2] “FM&A Act”.
The grounds of the application are not particularly well articulated in the application. It is said that they are set out in correspondence contained in attached schedules A, B and C, which correspondence runs to several hundred folios of unindexed material in a lever arch file, and which contain many documents which are annotated and underlined by hand, and contain comments on the merits, or otherwise of the various material therein.
There are, however, some discernible grounds for the application, including that:
a)there was deceptive and derogatory conduct in the course of the determination of the issue;
b)Dr Verney ought not have been the decision-maker and case manager, which is alleged in the materials; and
c)there was not a relevant meeting held face to face with the applicant prior to the making of the decision.
The claims include a claim for compensation under the Scheme for Compensation for Detriment Caused by Defective Administration[3] provisions, for well in excess of three quarters of a million dollars. The statement of reasons[4] by Dr Verney, dated 26 October 2010, is long, running to some 37 pages, with a further 26 pages of annexed material.
[3] “CDDA”.
[4] “Statement of Reasons”.

Factual background

It is necessary to say something about the factual background of the matter, in order to set the base for what follows.
Ms Collins is a prominent Aboriginal elder. Jarraman was incorporated as an aboriginal association on 11 November 1994, under the provisions of the former Aboriginal Councils and Associations Act 1976 (Cth).[5] Jarraman was ultimately deregistered in October 2009. Ms Collins, during the relevant times was Jarraman’s chairperson.
[5] “ACA Act”.
In April 1999 there was a proposed Bank of America Down Under tour,[6] to be conducted in the United States. Jarraman agreed to participate in the Tour. Certain grants were provided in relation to Jarraman’s presentation and promotion of aboriginal arts in the course of it agreeing to participate in the Tour.
[6] “the Tour”.
Jarraman approached the then Aboriginal and Torres Strait Islander Commission,[7] for financial assistance to further Jarraman’s participation in the Tour. Following reports prepared by Auslink and Deloitte, ATSIC provided a loan,[8] with security, to Jarraman, in the sum of $160,000. Security documents were executed. They included a third mortgage on residential property, owned by Ms Collins, and a bill of sale over stock, assets and the business of Jarraman. The ATSIC Loan was apparently one over 12 months, with interest, and the first payment was scheduled for the end of October 1999.
[7] “ATSIC”.
[8] “ATSIC Loan”.
The involvement of Jarraman in the Tour was limited. It evidently became clear to Jarraman that the Tour was not going to be financially viable for it, and for reasons that the Court does not presently need to go into, but certainly so as to mitigate its costs, Jarraman withdrew from the Tour early in October 1999 and returned to Australia.
There were no repayments made by Jarraman under the ATSIC Loan, and ultimately, in May 2000, ATSIC served on Jarraman notices demanding repayment of the principal and accrued interest under the ATSIC Loan, which at that time was a sum in excess of $168,000. There was, by ATSIC, the exercise in August 2000 of rights of seizure under the bill of sale over Jarraman’s assets. There were also, at or about that time, settlement negotiations involving Tourism Australia, which had been involved in the arrangements with Jarraman for the Tour, and others, but not Jarraman or Ms Colllins. Those negotiations, it would appear, included consideration of a compensation package to Jarraman, of up to $100,000. Ultimately, it appears that ATSIC, in or about July 2001, made a decision to release Ms Collins from the bill of sale over the Jarraman property, to pursue the ATSIC Loan debt, and to retain the registered third mortgage over Ms Collins’ residential property, until such time as she sold that property. Mr Percival seemingly became involved at or about this point in time and he completed a report in January 2002, which he submitted to ATSIC, on behalf of Ms Collins. There were then statutory changes to the arrangements with respect to ATSIC, resulting in its functions being taken over by other agencies.
There have been a number of proceedings in relation to this issue. ATSIC, in October 2003, initiated proceedings against Jarraman and Ms Collins, in the Northern Territory Supreme Court, for payment of moneys due and payable under the ATSIC Loan. Ultimately, it would appear that that resulted in Ms Collins making a decision to sell her house. Ms Collins’ house was sold in February 2004, and a sum of some $30,000 was paid to ATSIC, and the remainder of the proceeds of the sale were deposited in a term deposit account in Ms Collins’ name.
There have been prior proceedings in the Federal Court. In Jarraman Arts Aboriginal Corporation v Tourism Australia[9] the statement of claim in trade practices proceedings brought by Jarraman and Ms Collins was struck out. Leave was granted to file an amended statement of claim. There was also an order that the matter be referred for mediation, and certain directions made with respect to security for costs.[10]
[9] [2004] FCA 1536 (“Jarraman (No. 1)”).
[10] Jarraman (No. 1) at paras.40-41 per Mansfield J.
In the second case, Jarraman Arts Aboriginal Corporation v Tourism Australia (No.2),[11] the Federal Court ordered that Jarraman provide ATSIC with security for costs.[12]
[11] [2005] FCA 30 (“Jarraman (No. 2)”).
[12] Jarraman (No. 2) at para.36 per Mansfield J. In this case the Federal Court observed that Jarraman’s and Ms Collins’ “impecuniosity preceded any dealings relating to the [T]our”: Jarraman (No. 2) at para.24 per Mansfield J.
In the third case Jarraman Arts Aboriginal Corporation & Anor v Tourism Australia & Others,[13] the enforceability of agreements reached at a mediation in April 2005 was in issue. The Federal Court:
a)declared that two agreements reached at mediation were binding and enforceable;[14] and
b)stated that there was no evidence that the actions of Indigenous Business Australia,[15] which was some kind of successor to ATSIC, were unconscionable.[16]
The Federal Court ordered costs against Ms Collins and Jarraman payable to other parties in the action including IBA, Tourism Australia and Deloittes.[17] It would appear that the sum of money which Ms Collins set aside in a term deposit in her account was disbursed to pay, amongst other things, legal costs and other costs arising from the above litigation.
[13] (2005) 144 FCR 233; [2005] FCA 983 (“Jarraman (No. 3)”).
[14] Jarraman (No. 3) FCR at 248 per Mansfield J; FCA at para.51 per Mansfield J.
[15] “IBA”.
[16] Jarraman (No. 3) FCR at 246 per Mansfield J; FCA at para.44 per Mansfield J: “the evidence simply does not support the contention that IBA’s conduct leading up to the mediation was unconscionable.”
[17] Jarraman (No. 3) FCR at 248-249 per Mansfield J; FCA at paras.53-54 per Mansfield J.
There were then proceedings in Collins v Indigenous Business Australia[18] in the Administrative Appeals Tribunal to which some reference has been made this morning. It would appear that Ms Collins was successful in obtaining access to documents under the Freedom of Information Act1982 (Cth) by reason of that action, but that there was no order for costs made in respect of certain parts of that application.
[18] [2008] AATA 505.
The issues have also been the subject of consideration by the Commonwealth Ombudsman’s office.
The Court sets out the above background, not to make any comment upon the merits of the matter, but to indicate that the matter has already had a long and complex legal and factual history.
Ultimately, as a consequence of Mr Percival’s involvement, an application was made to the then Minister for Finance and Deregulation, Mr Tanner, requesting that Ms Collins’ claim for compensation in relation to the matters surrounding the Tour be considered under the act of grace mechanism under the FM&A Act. That application was not granted and the claims that were made in respect of it were not accepted by the Department or by the reviewer, Dr Verney.
A number of claims were made by Ms Collins in relation to this matter. Again they involve difficult and complex legal issues in relation to:
a)advice given on the ATSIC Loan to Ms Collins,
b)whether it was appropriate for Ms Collins to have a third mortgage of security for the loan to Jarraman;
c)whether ATSIC illegally destroyed security held by Ms Collins;
d)whether there was negligence and breach of statutory obligations by ATSIC officers; and
e)whether or not ATSIC should have advised Ms Collins that Tourism Australia was considering a settlement of up to $100,000.
Various allegations of misleading and deceptive conduct were made by Ms Collins as part of her act of grace claim. Again it is unnecessary to deal with the factual material in relation to that, but it is worthwhile noting claims that:
a)Ms Collins should not have been held personally liable for the ATSIC Loan by reason of her personal security; and
b)Ms Collins’ personal security was ultra vires the ACA Act,
were previously not upheld by the Federal Court.[19] Likewise assertions that were made, and seemingly from submissions this morning, may continue to be made, that Ms Collins entered into the mediated settlement agreements under pressure, to put it neutrally, are clearly inconsistent with findings already made by the Federal Court.[20] These are findings by which this Court, as a court subordinate to the Federal Court, is bound, given that it is a claim in respect of the same factual matters, and which this Court should, in any event, as a matter of comity, follow.[21]
[19] Jarraman (No. 3) FCR at 245-246 per Mansfield J; FCA at paras.41-42 per Mansfield J.
[20] Jarraman (No. 3) FCR at 246 per Mansfield J; FCA at para.44 per Mansfield J: “At the mediation, Jarraman and Ms Collins were represented by senior and junior counsel, as well as by their solicitor. They had the support of their accountant. There is nothing upon which it could be found that their will was imposed upon in any unfair way leading to the IBA Agreement or the All Parties Agreement.”
[21] Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at 592; [2005] FCAFC 41 at paras.35-39 per Weinberg, Jacobson and Lander JJ; Lee and Others v Minister for Immigration and Multicultural Affairs and Another (2006) 205 FLR 117 at 133 per Driver FM; [2006] FMCA 480 at para.28 per Driver FM; Verge & Anor v Devere Holdings Pty Ltd & Ors (No. 2) [2008] FMCA 743 at para.12(c) and (d) per Lucev FM.
The reviewer, Dr Verney, set out all of the above matters, and other matters, in the Statement of Reasons. Dr Verney also considered the documentation in relation to these issues. Something in the order of 231 documents, or sets of documents, were considered by Dr Verney. Dr Verney set out at reasonable length his reasons as follows:
6. Six months prior to the Tour commencement, Mrs Collins was approached to participate. Jarraman agreed that same month and preparations commenced, which included trying to seek funding. Mrs Collins approached ATSIC in relation to a business loan at the end of June 1999, and requested that ATSIC fund professional services from Auslink, who had previously assisted Jarraman, to prepare a business plan for Jarraman. ATSIC agreed. Deloitte received a project plan from Jarraman on 8 August 1999 and a completed application was not provided until 13 August 1999, a month before the commencement of the Tour. ATSIC approved the loan, noting deficiencies in the Jarraman business plan, and it was executed on 30 August 1999, with securities and a Solicitor’s Certificate confirming that Mrs Collins and Jarraman had received legal advice. While Mr Percival claims that neither the solicitor, ATSIC nor AGS remember who prepared the certificate, it was signed by the solicitor and Mrs Collins.
7. It is recognised that the timeframe of six months, in which Mrs Collins and Jarraman had to organise Jarraman’s participation and funding, was extremely tight. However, a decision was made by Mrs Collins and Jarraman to seek a loan from ATSIC in order to participate in the Tour and the claimed inducement for Jarraman to participate cannot be directed at ATSIC. It is noted ATSIC was not aware of the Tour until approached for funding by Mrs Collins in June 1999 and did not approve the business loan until a month before Jarraman’s departure to attend the Tour. ATSIC made every attempt to assist and consider the business loan application within a limited timeframe. Although Mrs Collins is aggrieved by the financial consequences of participating in the Tour, ATSIC was not a party to the arrangements of the Tour. There is also evidence ATSIC attempted to work with Mrs Collins on the loan repayments as much as possible within its legal obligations, by forgiving interest accrued on the loan and not pursuing the residential property or bankruptcy of Mrs Collins.
8. The third registered mortgage on Mrs Collins’ residential property was a private business decision, which enabled Jarraman to secure the funding it needed to participate in the Tour. It was reasonable for ATSIC to seek security from Jarraman and/or other interested parties, to protect and mitigate, at least partially, any financial risk and exposure to ATSIC of the loss of public funds. It is standard commercial practice for a lender to require security in exchange for a loan. It was also appropriate for ATSIC to make a business decision to pursue recovery of the loan via the security.
9. The Court considered Jarraman’s incorporation under the former ACA Act. The Court reviewed the ACA Act’s limited liability provision and Jarraman’s rules and noted that they did limit the liability of Jarraman’s members. However, the Court found that this limit to a member’s liability did not apply when a member had separately undertaken the same liability, such as Mrs Collins had done when she took on the liability and secured the repayment of the ATSIC loan. The Court found that Mrs Collins’ liability existed independently of her membership with Jarraman.
10. Mrs Collins had a choice not to use her residential property to help secure the loan with ATSIC. She also had legal representation at the time. Had Mrs Collins not attached a third registered mortgage in ATSIC’s favour, then the ATSIC loan may have been denied. This probably would have prevented Jarraman from participating in the Tour, and consequently limited the losses incurred by the parties. However, Mrs Collins elected to give ATSIC the third registered mortgage on her residential property as security. It is unreasonable for Mr Percival and Mrs Collins, as business people, to attribute responsibility against ATSIC for the financial losses incurred by Jarraman and Mrs Collins when their business venture failed in the USA. The Loan Agreement was only executed two weeks prior to departure. ATSIC had no involvement in the Tour or its failure to wield the potential profits forecasted for Jarraman.
11. While ATSIC had the option to write off the debt, it elected not to knowing it could recover, at least partially, under the loan agreement via its security. ATSIC had the choice to seek recovery of the loan via bankruptcy proceedings, but elected not to, noting it would continue to have an interest in Mrs Collins’ residential property. Mrs Collins sold her property in order to pay legal costs, and was therefore required to pay ATSIC and Westpac according to its registered mortgages. It was the decision of Mrs Collins to sell her property, which was not as a result of ATSIC’s actions. It would be inappropriate for the act of grace mechanism to compensate Mrs Collins for the loss of her house, which had three registered mortgages, when it was a personal decision of Mrs Collins to sell and not due to the actions of the Australian Government.
12. Mrs Collins and Jarraman pursued the relevant parties through the legal system and via mediation received compensation payments from Deloitte, Auslink and Tourism Australia. However, these payments were insufficient to cover Mrs Collins’ and IBA’s legal costs and the loan. It would not be appropriate for IBA to pay Mrs Collins’ compensation for her losses from the Tour, as Jarraman had already made the decision to participate in the Tour prior to any application with ATSIC. Also, ATSIC and then IBA were entitled and had a legal obligation to recover the public funding provided to Jarraman under the loan agreement. In each of the legal cases filed by Jarraman and Mrs Collins, they made private decisions to pursue each respondent, had legal representation and should have been informed if not already aware of the risks of litigation.
13. ATSIC did not have a duty of care to Mrs Collins in relation to reporting the deliberations concerning another agency’s legal affairs. It would not have been appropriate for ATSIC to inform Mrs Collins that Tourism Australia was considering a compensation package of up to $100,000 in 2000. That information was provided to ATSIC by its legal representatives AGS and ATSIC was not an advocate for Mrs Collins’ legal claims against other parties. ATSIC had a Loan Agreement with Jarraman, not Tourism Australia. It was for Tourism Australia to negotiate and share any proposed offers of compensation directly with Jarraman and Mrs Collins. In 2003, Mr Percival and Mrs Collins received a copy of the file note advising of Tourism Australia’s $100,000 settlement deliberation in documents received from ATSIC under the FOI Act. Despite having this information in 2003, it is noted that Mrs Collins and Jarraman did not settle with Tourism Australia until the mediation conducted in 2005. Also, the final payment agreed by Tourism Australia in the mediation was within the range of its consideration in 2000. Therefore, it is debateable whether an agreement would have been reached earlier, had Mrs Collins been provided this information prior to 2003.
14. Via mediation on 12 April 2005, the total settlement amount was $90,000 less the costs of the strike out action to IBA of $25,000. However, after the set off of costs payable by Mrs Collins and Jarraman to Tourism Australia and Deloitte, Mrs Collins was left approximately $10,000. IBA accepted $10,000 in full satisfaction of its costs of $30,000 for specific performance. The decision to not repay according to the Loan Agreement to ATSIC, the legal pursuit of compensation from ATSIC and the costs incurred by Jarraman and Mrs Collins, were due to the actions of Jarraman and Mrs Collins and not the Australian Government.
15. The claimed destruction of stock has been fully considered and was effectively resolved by the two agreements of the mediation, found by the Court to be binding and enforceable and the Commonwealth Ombudsman decided not to further investigate this issue.
16. I noted that some of the claims made by Mr Percival relate to allegations of breaches of the APS Code of Conduct by individuals employed by the former ATSIC, ATSIS and IBA. IBA is not subject to the PS Act, but is governed by the Workplace Relations Act 1996 and its successors. These claims should be considered by the relevant agency (or its successor) under the PS Act or appropriate avenue; it is not appropriate to consider these claims under the act of grace mechanism.
17. On the basis of the available information and for the reasons above, I considered that I was the appropriate delegate to consider Mrs Collins’ claim and I had also personally spoken with both Mr Percival and Mrs Collins. I acknowledge and am sympathetic with Mrs Collins’ disappointment and distress at arriving on the Tour, only to find that anticipated commercial opportunities and sales did not eventuate and there was no option other than to return to Australia. I also note that Mrs Collins’ general heath and other ailments have worsened during the period of her ongoing legal disputes and the loss of her house and business.
18. However, I consider that it was a private and commercial business decision of Mrs Collins and Jarraman to seek a loan from ATSIC in order to participate in the Tour. ATSIC provided funding assistance for Jarraman to have professional advice to aid the development of the business plan and it has acted appropriately in seeking to recover a business loan which was partially secured. Further, Mrs Collins and Jarraman had legal representation at the time of the execution of the Loan Agreement, with the same legal representative upon their return to Australia from the Tour.
19. While I note that Mrs Collins has lost her residential property and is currently on the age pension, Mrs Collins sold her house, has pursued and exhausted legal avenues, and agreed via mediation to the settlement and compensation of claims subject to the this request. I consider that ATSIC’s actions to attach security and to seek to recover under the loan agreement were reasonable and in accordance with its obligations under relevant legislation. It was not as a result of the actions of ATSIC that the tour was not financially viable for Jarraman and that it failed to make repayments in accordance with the loan agreement. There are no special obligations leading to a moral obligation on the Australian Government to grant an act of grace payment to Mrs Collins in this instance equivalent to compensation and claimed losses.[22]
[22] Statement of Reasons, paras.6-19.

The present application for leave for Mr Percival to appear

In relation to the present application for Mr Percival to appear Ms Collins has filed two affidavits: on 21 February 2011 and 4 April 2011. The affidavits put her position with respect to why it is that she says Mr Percival ought to be allowed to represent her. Ms Collins makes the point that her financial position is one of impecuniosity and that she has a minimum deficit (of liabilities over assets) of something in excess of $96,000, and is therefore unable to afford a lawyer.
Submissions were made with respect to the state of her health this morning, and it was asserted that there was evidence before the Court with respect to her state of health, but there is not.
There were also submissions made with respect to her command of English not being sufficient for her to be able to present the case without the support of Mr Percival.
The affidavit materials refer to Mr Percival’s, “assistance,” with the proceedings and, “the right to be heard with Mr Percival's assistance/contribution,” or “Mr Percival’s support,” so that Ms Collins can, “address the court and present my [her] case.”[23]
[23] Ms Collins’ 21 February 2011 Affidavit at para.7.
The Court also notes that Mr Percival asserts that he has apparently acted:
a)previously in proceedings in this Court in bankruptcy;
b)for Ms Collins in the Administrative Appeals Tribunal; and
c)as an official liquidator in the Supreme Court of Queensland, which gave him some appearance rights in that court.
It suffices to say that the evidence with respect to the proposed involvement of Mr Percival in these proceedings is somewhat confused, and confusing, insofar as it does not appear to contemplate that Ms Collins will not be able to address the Court and present her case, but rather seeks to have further assistance and support from Mr Percival in the presentation of this case and, as it was put to the Court this morning, Mr Percival appears to wish to make, in certain circumstances, further oral submissions to the Court on Ms Collins’ behalf at any further proceedings.

Representation in proceedings

The Court however needs to consider the legal position with respect to the right of representation. The legal position with respect to right of representation is that s.44 of the Federal Magistrates Act 1999 (Cth)[24] provides as follows:
[24] “FM Act”.
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903 the other person is entitled to practice as a barrister or solicitor or both in a Federal Court; or
(b) under the regulations the other person is taken to be an authorized representative; or
(c) another law of the Commonwealth authorizes the other person to represent the party.
There is no dispute on the materials before the Court that:
a)Mr Percival is not entitled to practice as a barrister or solicitor in a federal court;
b)Mr Percival is not an authorised representative under the regulations; and
c)that there is no provision in the AD(JR) Act, or any other law of the Commonwealth, which authorises him to appear in AD(JR) Act proceedings.
In Pugliesev Paull[25] this Court observed as follows:
34. Although not raised in argument it is necessary to deal with an issue raised in P v R in which this Court said that the Family Court “has an inherent jurisdiction to govern its practice and procedure”[26] and that “this Court is in the same position as the Family Court. This Court enjoys an inherent power to permit unqualified persons to appear notwithstanding s 44 of the Federal Magistrates Act.”[27] In P v R the Court went on to consider whether or not an unqualified person should be granted leave to appear, using traditional tests where that discretion is exercised, and determined that leave would not be granted to an unqualified person to appear in those proceedings.[28] However, this is not a case where the question of the discretion to appear arises to be determined. That is because this Court does not have inherent jurisdiction. In Skipworth v Western Australia (No. 2)[29] this Court, having reviewed relevant authorities,[30] concluded that:
“The true position is therefore that this Court, like the Federal Court and the Family Court, has no inherent jurisdiction. There is an implied incidental power to make orders necessarily incidental to express powers. As with the Federal Court and the Family Court, this Court has implied incidental power shaped by the relevant statutory provisions.”[31]
35. In DJL, the High Court, speaking of the Family Court said:
“… it would be inaccurate to use the term ‘inherent jurisdiction’ here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.”[32]
[25] [2011] FMCA 95 (“Pugliese”).
[26] P v R at para.6 per Driver FM.
[27] P v R at para.7 per Driver FM.
[28] P v R at paras.8-11 per Driver FM.
[29] (2008) 218 FLR 16; [2008] FMCA 544 (“Skipworth (No.2)”).
[30] In Skipworth (No. 2) FLR at 24-27 per Lucev FM; FMCA at paras.29-33 per Lucev FM the Court cited DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 (“DJL”); Parsons v Martin (1984) 5 FCR 235 (“Parsons”); VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291; [2005] FCAFC 91 and Re Read (2007) 164 FCR 237; [2007] FCA 1985.
[31] Skipworth (No. 2) FLR at 28 per Lucev FM; FMCA at para.34 per Lucev FM.
[32] DJL CLR at 241 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; HCA at para.25 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
36. In Parsons the Full Court of the Federal Court observed that:
“In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.
In view of the way in which the phrase ‘inherent jurisdiction’ is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.”[33]
37. In Jackson v Sterling Industries Ltd[34] a single Justice of the High Court quoted with approval a statement by the Chief Justice of the Federal Court in the judgment of the Full Court of the Federal Court under appeal where it was said:
“In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words ‘inherent jurisdiction’. Nevertheless, a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdictional powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.”[35]
38. The Court’s view expressed in Skipworth (No. 2) was followed in Temby & Anor v Chambers Investment Planners Pty Ltd & Anor,[36] and subsequently relied upon by the Court in Schueler & Anor v Smith & Ors.[37]
39. In the circumstances this Court ought not follow the view expressed in P v R concerning inherent jurisdiction. In any event, accepting that this Court has an implied incidental power to make orders necessarily incidental to express powers, there is no express power in this Court to allow the appearance of a non-lawyer employee of an unregistered organisation in these proceedings, for the reasons set out above.[38] [39]
[33] Parsons at 241 per Bowen CJ, Northrop and Toohey JJ.
[34] (1987) 162 CLR 612 (“Sterling Industries”).
[35] Sterling Industries at 623-624 per Deane J quoting Jackson v Sterling Industries Ltd (1986) 69 ALR 92 at 97 per Bowen CJ. Se also J Tarrant, Amending Final Judgments and Orders (Sydney: Federation Press, 2010) pages 6-7.
[36] [2010] FMCA 783 at para.18 per Lucev FM.
[37] [2010] FMCA 777 at paras.10-11 per Driver FM.
[38] See paras.33-34 above.
[39] Pugliese at paras.34-39 per Lucev FM. Footnotes 26-38 above are the footnotes in the passage quoted from Pugliese.
For the reasons set out in Pugliese this Court has no inherent jurisdiction or power to allow a person other than those specified in s.44 of the FM Act to appear. There is implied incidental power, shaped by the relevant statutory provisions, for this Court to act in the course of its jurisdiction, but in this particular case the relevant statutory provisions limit expressly the persons who can appear and make provision for relevant exceptions. There are, for example, relevant exceptions under the Australian Human Rights Commission Act 1986 (Cth)[40] and also the Fair Work (Registered Organisations) Act 2009 (Cth).[41] Therefore, no occasion arises to use any implied power here to allow Mr Percival to represent Ms Collins because the FM Act expressly contemplates situations in which alternative representation might be granted and they do not include the current circumstances of an individual acting for another individual in AD(JR) Act proceedings. Therefore, Ms Collins’ application for Mr Percival to represent her in these proceedings must be dismissed.
[40] “AHRC Act”. See AHRC Act, s.46PQ(1)
[41] “FW(RO) Act”. See FW (RO) Act, s.353A.
The Court would also add that if the view that it has adopted with respect to those provisions of the FM Act is wrong, and if it has a discretion to allow Mr Percival to appear for Ms Collins it would not exercise that discretion in the circumstances of this case.
As the Court has already noted, there is in fact no medical evidence presently before the Court as to Ms Collins’ medical condition and it would not necessarily, in any event, be evidence which might be relevant to any case which is to be heard at a future point in time. Furthermore, it is inconsistent with the affidavit evidence of Ms Collins herself which simply seeks Mr Percival’s assistance and support so that she can “address” the Court and “present my case.”[42]
[42] Ms Collins 21 February 2011 Affidavit at para.7.
The position with respect to Ms Collins’ English language skills is put on the basis that she would have difficulty in making a presentation to the Court. Again, that is inconsistent with the evidence that the Court has just alluded to with respect to her presentation of matters to the Court, but, in any event, it is not said that English is her second language or that her English skills are such that she does not comprehend or cannot make a presentation to the Court. The true position appears to be that, as with most self-represented litigants who appear before this Court, she would have difficulties in putting together a submission and addressing the Court. But, in that respect she is, in the Court’s view, in no different a position to most other self-represented litigants. Likewise, her financial position is not necessarily unusual.
Pertinently, as is conceded by Mr Percival, these are complex matters involving legal and factual issues. They are matters in respect of which the Court would ordinarily require a lawyer’s assistance. It is said on the basis of two approaches to Community and/or Legal Aid organisations in the Northern Territory that Ms Collins is unable to obtain legal assistance. She may be unable to obtain legal assistance from those two organisations but the Court remains far from satisfied that appropriate avenues of legal assistance have relevantly been exhausted.[43] This matter involves a complex mix of commercial litigation involving loans, mortgages, mediation, settlement deeds, and also probably some difficult questions of statutory interpretation. There is, as Mr Percival has made apparent to the Court this morning, a complex set of facts spread over more than 10 years. In those circumstances, it is inappropriate that a person other than a lawyer or the person involved in those circumstances, being the applicant in this case, make presentations to the Court.
[43] And see Federal Magistrates Court Rules 2001 (Cth), rr.12.03, 12.04 and 12.05. See also Portuguese Cultural and Welfare Centre v Australian Media and Communications Authority [2011] FMCA 144 at para.144 and fn.77 per Lucev FM.
To the extent that Mr Percival has previously acted for or represented Ms Collins in relation to the act of grace payment it is clear that he has been unable to resolve that matter to her satisfaction, hence the application to this Court. In relation to the submissions and papers presented to this Court in relation to his appearance, the Court notes that until alerted by the Department to the relevant cases and law those matters were not addressed by Mr Percival. The Court further notes that in its view, given the nature of the papers which have been filed, which have evidently been prepared by Mr Percival, and the presentation this morning, that it is unlikely to be particularly assisted by his advocacy on the issues if the matter is to proceed to a final determination. Whilst Mr Percival has no doubt acted sincerely, and properly, and endeavoured to do his best to assist Ms Collins, it is fair to say that there has not been a concise and proper articulation or expression of the relevant issues by Mr Percival, and on the basis of the papers before the Court and the submissions this morning, there is not likely to be so in the future. There is, even from the submissions made this morning, a clear impression formed by the Court that the application, which ought to be judicial review, will in fact be put more on the basis of merits review, and that from a case management perspective the Court will, if Mr Percival continues to be the advocate, be involved in a longer and more costly proceeding than would otherwise be the case. It is likely to be bogged down in unnecessary arguments in relation to the merits of the case, rather than arguments concerning judicial review of the Statement of Reasons.
In those circumstances, and for the reasons that the Court has expressed, the Court is of the view that Mr Percival’s appreciation of the legal issues, as opposed to the factual issues, is not such that his advocacy would be of assistance to the Court or, importantly, that he would properly represent Ms Collins’ interests in the matter. It is important in that regard to note, merely by way of example, that the submissions which have been made to the Court on behalf of Ms Collins already appear to seek to re-litigate at least two issues, to which the Court has adverted in its Reasons for Judgment this morning, which have already been decided by the Federal Court of Australia, and by which this Court is bound, even on a CDDA related judicial review application.
Therefore the Court is of the view that even if it has a discretion to exercise in this matter, which in the Court’s view it does not, it would not exercise that discretion in favour of Mr Percival appearing at future hearings for Ms Collins.

McKenzie friend

The Court wishes to make it clear that there is no objection to Mr Percival acting as a McKenzie friend in the future proceedings. A McKenzie friend is a person who may accompany a lay person to take notes, make suggestions and give advice in the course of proceedings.[44] It does not, however, entitle that person to appear and make representations on behalf of the person in open court.
[44] McKenzie v McKenzie [1970] 3 All ER 1024; SZEGN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1410 at paras.7-11 per Lloyd-Jones FM.
In any event, the appearance as a McKenzie friend is broadly consistent with the evidence put by Ms Collins as to the role that she seeks Mr Percival to have in these proceedings, save for the opportunity for Mr Percival to make further oral submissions to the Court, which does not fall within the contemplation of what constitutes a McKenzie friend.

Conclusion

For those reasons the application for Mr Percival to represent Ms Collins in these proceedings will be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 12 April 2011