Cooper v Elia - [2020] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
COOPER v ELIA & ANOR
[2020] SADC 147
Decision of Her Honour Judge Thomas
26 October 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION
By interlocutory application made pursuant to Rule 25.6(4) of the Uniform Civil Rules 2020, the applicant, a self-represented litigant, sought leave for assistance by his non-lawyer friend in the presentation of his case at hearings and permission for his friend to address the Court.
The respondents consented to the application for the non-lawyer to assist in Court as a McKenzie friend but opposed leave being granted for the non-lawyer to address the Court.
The applicant claimed to have difficulties reading and writing English and to be less educated and capable of addressing the Court than his friend.
Held: There were no circumstances so special or exceptional or reasons demonstrated as to why the interests of justice required permission to be given for the McKenzie friend to address the Court.
Uniform Civil Rules 2020 (SA) r 25.6, referred to.
F & Anor v Minister for Education and Child Development & Anor [2017] SASCFC 71; Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340; Damjanovik v Maley (2002) 55 NSWLR 149, considered.

COOPER v ELIA & ANOR
[2020] SADC 147
Nature of the Application

The First Respondent, Mr Louie Elia (Mr Elia), a self-represented litigant, made an application[1] pursuant to Rule 25.6(4) of the Uniform Civil Rules 2020 (UCR 25.6(4)) for leave for assistance in the presentation of his case at hearings by his friend Mr Simon Gerblich and for permission for Mr Gerblich to address the Court.
[1] FDN 22 at [2].
Ultimately, neither the Applicant, Mr Nicholas David Cooper as the Liquidator of Dermont Pty Ltd (in Liquidation) (Mr Cooper), or the Second Respondent, Ms Carol Walker (Ms Walker), opposed leave being granted for Mr Gerblich to assist Mr Elia as a McKenzie friend and sit with him at the bar table during hearings. However, both oppose leave for Mr Gerblich as the person assisting Mr Elia to address the Court, particularly at trial.
Given the other parties’ consent, I gave leave to Mr Gerblich to assist Mr Elia as a McKenzie friend and sit with him at the bar table during the hearing of this application, but not to appear and speak on Mr Elia’s behalf.
In support of his application for leave for Mr Gerblich to address the Court, Mr Elia relies on the grounds set out in his second affidavit sworn on 31 August 2020[2] and his fourth affidavit sworn on 16 October 2020.[3] The fourth affidavit was sworn and filed after the hearing of his application earlier that morning.
[2] FDN 20 at [3]-[10].
[3] FDN 35.
By his fourth affidavit, Mr Elia has now limited his application for leave for Mr Gerblich to address the Court to interlocutory hearings and not at trial.[4]
[4] FDN 35 at [24]-[25].
Determination
For the reasons set out below, I refuse leave Mr Elia’s application for Mr Gerblich to address the Court as a lay advocate at any further stage of these proceedings.
Mr Elia’s evidence
In his second affidavit, Mr Elia deposes that since he cannot afford a lawyer and has not found a pro-bono lawyer yet, he needs assistance from his friend Mr Gerblich because his “limited English reading and writing skills”[5] mean he will suffer disadvantage if Mr Gerblich can sit at the bar table but not address the Court. Mr Elia says, “it is exceedingly difficult” for them to communicate in writing[6] and Mr Gerblich is considered by Mr Elia to be “much better at systematically clinically recalling and stepping through the facts” because Mr Elia says he is too emotionally attached to what has happened to him.[7]
[5] FDN 20 at [5].
[6] FDN 20 at [9].
[7] FDN 20 at [10].
Mr Elia relies on Mr Gerblich’s experience in representing other persons in other proceedings as a lay advocate and McKenzie friend, “logically laying out the cases and facts to assist the court...”.[8]
[8] FDN 20 at [8].
The other parties’ opposition
The other parties filed short outlines of argument and their counsel addressed me orally at the hearing of this application.
Ms Walker opposes Mr Elia’s application for leave for Mr Gerblich to address the Court, relying specifically on Mr Elia’s own affidavit evidence including “more than a hundred paragraphs and 400 pages of exhibits” said to demonstrate Mr Elia’s competence in reading, writing and comprehending English. Notably, the exhibits deal with a range of business, financial and legal matters and include correspondence with accountants, the ATO, statutory demands, refinancing proposal and the like concerning Mr Elia’s business affairs over many years.
Ms Walker submits that in particular, Mr Elia has not demonstrated any “emergency situation” or “unexpected language difficulties” in conducting his case as referred to in the case authorities discussing the factors in favour of the exercise of the discretion for lay representation.
In oral submissions, Ms Walker’s counsel addressed me at length as to the policy considerations that inform the proper administration of justice in considering whether dispensation should be given to Mr Elia.
Mr Cooper by his counsel joined in Ms Walker’s opposition and endorsed her counsel’s submissions, emphasising two points. First, that any prejudice from any difficulty with reading and writing has been alleviated by permitting Mr Gerblich to act as a McKenzie friend. Secondly, that there is nothing to suggest Mr Gerblich would do a better job than Mr Elia, and there is a risk that Mr Gerblich may make matters worse. Therefore, the Court must act very cautiously in exposing the parties, the Court and even Mr Elia himself, to the prejudice of being improperly represented in Court.
No general right to representation by a non-lawyer
UCR 25.6 relevantly provides:
25.6—No right of representation by non-lawyer
General position
(1)Subject to the following subrules and any applicable statute, a person may not appear or be represented in a proceeding or appellate proceeding by a person other than a lawyer legally entitled to practice in South Australia.
(2)To avoid doubt, this rule does not prevent an individual from acting or appearing as a self-represented litigant without any representation.
…
(4)The Court may if it thinks fit give leave to a self-represented litigant to be assisted in the presentation of their case at a hearing by a person approved by the Court. Unless the Court otherwise orders, such leave does not permit the person assisting to address the Court.
UCR 25.6(4) is an exception to the general position provided for in UCR 25.6(1) that only a lawyer “legally entitled to practice in South Australia” can appear or represent a party in a proceeding or appellate proceeding.
Its predecessor is Rule 22 of District Court Civil Rules 2006 (SA). Whilst couched in different words of “representation before the Court by a lawyer” and “assistance in court in the presentation of his or her case”[9] (rather than that of appearance or representation “in a proceeding” or assistance in the presentation of their case “at a hearing”), both rules reflect in general terms that whilst the Court has a discretion to permit lay representation of a party, it remains well-established practice that only qualified legal practitioners are permitted to appear.[10]
[9] My emphasis.
[10] F & Anor v Minister for Education and Child Development & Anor [2017] SASCFC 71 at [74].
Further, since a lay advocate is not subject to the same responsibilities and duties to the Court as a legal practitioner, the discretion to permit lay representation should only be exercised in exceptional circumstances where the administration of justice requires dispensation to be given.[11]
[11] Ibid at [76].
The factors relevant to the Court’s power to exercise its discretion to permit lay representation are discussed in Giancaspro v SHRM (Australia) Pty Ltd[12] where the Full Court applied the principles summarised in Damjanovik v Maley.[13]In my view, none of these factors favour the granting of leave in the present case.
Consideration of the relevant factors
[12] [2005] SASC 340 at [12]-[18].
[13] (2002) 55 NSWLR 149 at [69]-[88].
Complexity of the case
First, these proceedings involve the recovery of amounts for debts allegedly incurred by Mr Elia as a director, and Ms Walker as a shadow director, at the time the company Dermont Pty Ltd (in Liquidation) was insolvent and are by their nature of some legal and factual complexity, militating against the grant of leave.
No genuine difficulties
Secondly, Mr Elia has not demonstrated any genuine difficulties as a self-represented party. Whilst Mr Elia relevantly deposes he has “limited English reading and writing skills”,[14] his affidavit evidence demonstrates that he not only has a good comprehension of English but he is competent and capable of expressing himself adequately in written English. In this regard, I note the letters written by Mr Elia in his capacity as a director of Dermont Pty Ltd regarding ATO notices received for unpaid PAYG Withholding Amounts,[15] one of which was drawn to my attention by Ms Walker’s written submissions.
[14] Second Affidavit at [5].
[15] Comprising part of Exhibit "LE-2" at pages 49-50 and 53-56.
Mr Elia in his second ‘lot’ of submissions responded by saying that he did not write the affidavits and Mr Gerblich wrote and read them to Mr Elia.[16] With regard to the exhibits that Ms Walker relied on as demonstrating a proficiency in English, Mr Elia submitted that one letter was written with his ex-wife’s help and he can only read slowly.[17]
[16] FDN 32 at [28].
[17] FDN 32 at [29]-[30].
Opposing counsel rightly pointed out that Mr Elia’s submissions were not evidence. Putting that objection to one side, even if true, these matters do not demonstrate any relevant genuine difficulty on the part of Mr Elia in addressing the Court directly. It is not Mr Elia’s ability to read quickly and write that are in issue. Rather, it is his ability to listen and participate in an oral hearing at trial that is relevant. Assistance outside Court is not in issue and I consider the concessions made by the other parties for Mr Elia to be assisted by Mr Gerblich as a McKenzie friend in Court alleviate any prejudice claimed.
In further support of his claim of disadvantage if Mr Gerblich was not permitted to address the Court, Mr Elia deposes in his fourth affidavit to difficulties he had communicating with Mr Gerblich during the hearing of this application. Mr Elia gave three examples where he said he had trouble reading Mr Gerblich’s notes or hearing what was whispered to him by Mr Gerblich. Mr Elia says he did not say anything further to the Court. I infer that Mr Elia considers he may have been disadvantaged because he did not say what Mr Gerblich wanted him to say and such disadvantage would be avoided in future if Mr Gerblich could address the Court for him.
I accept that there may have been some difficulties between Mr Elia and Mr Gerblich in communicating between themselves during Court. However, these difficulties were all their own making. There is no reason why Mr Gerblich could not write notes more legibly or Mr Elia take the necessary time to read and consider such notes and whether to pursue what was being proposed by Mr Gerblich or not. There is no basis for Mr Elia to feel “intimidated” or “stupid” as he claims and he showed no genuine indication of that before me.
Mr Elia’s contentions in this regard further assume that Mr Gerblich’s suggestions would have advantaged him. In this case, none of the matters suggested by Mr Gerblich would have advanced Mr Elia’s case any higher than his written submissions. It was clear from the outset that Mr Elia relied on both ‘lots’ of his written submissions and the presentation of his case on this application has not been prejudiced.
In his fourth affidavit, Mr Elia further deposes to being given other notes in Court by Mr Gerblich, including one proposing to file the two ‘lots’ of written submissions in an affidavit “so that everything I have said there can be taken as evidence”.[18] Mr Elia deposes that Mr Gerblich later advised him to file his fourth affidavit after the hearing to ensure the written submissions were taken as evidence, to limit the application for help to the interlocutory stage (and not trial) and to exhibit redacted transcript from another proceeding as an example of Mr Gerblich being permitted to represent a friend.
[18] FDN 35 at [14].
Again, there is no reason why Mr Elia and Mr Gerblich could not have made a better effort between themselves to communicate more clearly about these matters or ask for a few minutes to quietly discuss them and raise them at the hearing. In the circumstances, I consider there has been no disadvantage caused to Mr Elia in the presentation of his case in the circumstances.
Importantly, I had also the opportunity of observing Mr Elia in Court during the hearing of his application. Mr Elia spoke and communicated in English well and appeared to understand the proceedings before him and the questions I put to him directly throughout. Mr Elia confirmed that he had made his second ‘lot’ of submissions in writing in response to the other parties’ outlines of arguments to minimise the amount of talking he needed to do.[19] Mr Elia was confident in his demeanour when he said in answer to my question as to whether he wished to supplement his written submissions that “If need be, I’m here to answer anything…”. He then went on to say that “I haven’t got the education and experience which Simon Gerblich has to help me”[20] which in essence is the foundation of his application for leave for Mr Gerblich’s assistance in addressing the Court.
[19] T 8, lines 2-6.
[20] T 8, lines 10-12.
Protection of the client and opponent
With respect, I am not persuaded by Mr Elia’s submissions that Mr Gerblich’s education and experience as a lay advocate favour his application.
Instead, I am concerned by the affidavit evidence before me as to Mr Gerblich’s suggestion that it was to Mr Elia’s advantage to file his fourth affidavit after the hearing so that everything said could then be taken as evidence.[21] By this suggestion, Mr Gerblich misconceives the fundamental difference between evidence and submission and has demonstrated the very risk highlighted by the opposing parties’ counsel that allowing him to act as lay advocate may make matters worse for Mr Elia and the opposing parties, let alone not provide any proper assistance to the Court.
[21] FDN 35 at [14]-[20].
Mr Gerblich’s further suggestion that Mr Elia exhibit redacted transcript from other proceedings to his affidavit as an example in favour of Mr Gerblich acting as a lay advocate is similarly misconceived.[22] The material was inappropriate to exhibit and irrelevant.
[22] FDN 35 at [22]-[23] and Exhibit “LE-38”.
Mr Elia’s second ‘lot’ of submissions disclosed that Mr Gerblich had written Mr Elia’s affidavits and submissions for him and then read them to him. Mr Gerblich’s demonstrated lack of understanding as to what is relevant and what is properly evidence as opposed to submission, again highlights the concerns expressed by the opposing parties’ counsel about the risks arising from Mr Gerblich acting as lay advocate in this case.
These are clear examples of Mr Gerblich, as an unqualified and unskilled lay advocate, interfering in the course of the proceedings by suggesting Mr Elia take inappropriate and unmeritorious steps that cause loss to the other parties by making the proceedings take longer and cost more. [23] Nor did they in my view advance Mr Elia’s case and put Mr Elia at risk of the Court revoking Mr Gerblich’s permission to be present as a McKenzie friend.
[23] Damjanovik per Stein JA at [61] considering Mahoney A-P in Scotts Head Developments Pty Ltd v Palliser Pty Ltd (Court of Appeal, 6 September 1994, unreported).
Unavailability of disciplinary measures and a duty to the Court
I accept the submissions of the opposing parties’ counsel regarding the important public policy principles underpinning the Court’s reluctance to permit lay advocates to address the Court other than in exceptional cases. The unavailability of disciplinary measures for unqualified and uninsured lay advocates is an important matter to which I have had regard.
There is no dispute that Mr Gerblich is not a qualified lawyer “entitled to practice in South Australia”. It is not to the point, as claimed by Mr Elia, that Mr Gerblich is an experienced lay advocate having had leave to appear as a lay advocate in other matters. The unavailability of disciplinary measures and the absence of duties to the Court by lay advocates is a matter of some significance and central to the proper administration of justice and the protection of the parties in the litigation. If permission is given to a lay advocate to appear, the Court loses the significant benefit of the overriding duty of a legal practitioner to the Court in terms of candour and misleading the Court, backed up by the disciplinary codes of the legal profession.
The interests of justice
The Court must not only consider Mr Elia’s interests in determining whether Mr Gerblich should appear and that of the other parties, but the public interest in the effective, efficient and timely disposal of litigation. The administration of justice requires that the Court be provided with proper assistance in identifying relevant issues and considerations in the presentation of oral argument which support one answer rather than another. I am not satisfied that Mr Gerblich’s assistance will achieve this end if he is permitted to address the Court on Mr Elia’s behalf.
In conclusion, there are no circumstances so special or exceptional or reasons demonstrated as to why the interests of justice require permission to be given to Mr Gerblich to address the Court at interlocutory hearings in these proceedings.