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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Elia

Details

AGLC: Cooper v Elia [2020] SADC 147
Case: [2020] SADC 147
Decision Date: 26 October 2020

CaseChat Overview and Summary

The applicant, Cooper, sought leave for his non-lawyer friend to assist in his presentation and to address the court in a civil proceeding. The respondents opposed the application to allow the friend to address the court but did consent to the friend assisting Cooper in court. The court had to determine whether the non-lawyer could assist in the presentation of the case and whether the non-lawyer could address the court on behalf of Cooper. The central issue before the court was whether it was appropriate to permit a non-lawyer to address the court on behalf of a self-represented litigant.

The court considered the relevant rules and precedents concerning the role of non-lawyers in court proceedings. It noted that the primary function of a McKenzie friend is to assist a self-represented litigant, but the court is not bound to accept any input from a McKenzie friend. The court observed that while non-lawyers can assist in the presentation of a case, they are not permitted to address the court. The court examined the potential risks and benefits of allowing a non-lawyer to address the court and concluded that doing so could compromise the integrity of the proceedings and the impartiality of the court. The court held that the application to permit the non-lawyer to address the court should be denied. The court granted the application to allow the non-lawyer to assist in the presentation of the case, subject to certain conditions.

Orders