Cristovao v Butcher Paull and Calder

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CRISTOVAO -v- BUTCHER PAULL & CALDER & ORS [2006] WASCA 184

CORAM: PULLIN JA
BUSS JA

HEARD: 25 AUGUST 2006

DELIVERED : 25 AUGUST 2006

FILE NO/S: CACV 56 of 2006

BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
BUTCHER PAULL & CALDER
First Respondent
ROBERT BUTCHER
Second Respondent
SUSAN MACKAY
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McLURE JA
File No  :CACV 56 of 2006

Catchwords:

Appeal - Review of decision of single Judge of Appeal - Whether suspended legal practitioner should be granted leave to appear as "McKenzie friend" - Turns on own facts

Legislation:

Legal Practice Act 2003 (WA), s 203
Supreme Court Act 1935 (WA), s 61(3)

Supreme Court (Court of Appeal Rules) 2005 (WA), r 8

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr A T Macknay
Second Respondent      :     Mr A T Macknay
Third Respondent          :     Mr A T Macknay

Solicitors:

Appellant:     In person
First Respondent           :     McCallum Donovan Sweeney
Second Respondent      :     McCallum Donovan Sweeney
Third Respondent          :     McCallum Donovan Sweeney

Case(s) referred to in judgment(s):

Schagen v The Queen (1993) 8 WAR 410
Smith v The Queen (1985) 159 CLR 532

Case(s) also cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Duff v Blinco [2006] QCA 259
Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990
Samuels v Western Australia (2005) 30 WAR 473
Yule v Junek (1978) 139 CLR 1

PULLIN JA: The Court is at present dealing with the application by Mr Cristovao seeking a review of McLure JA's decision refusing to allow Mr De Alwis to make submissions on Mr Cristovao's behalf on the application before her. We will also treat this as a fresh application by Mr Cristovao to allow Mr De Alwis to appear on the application for leave to appeal.
The application to review McLure JA's decision may be heard and determined pursuant to s 61(3) of the Supreme Court Act 1935 (WA) and r 8 of the Supreme Court (Court of Appeal) Rules 2005 (WA). If Mr De Alwis was to be given leave to appear either before McLure JA or before this Court on the present application for leave to appeal, it would be as a McKenzie friend. A McKenzie friend of course has a limited role to play in usual cases and if leave is granted.
Whether a person should be permitted to appear as a McKenzie friend is within the discretion of the Court. See Schagen v The Queen (1993) 8 WAR 410 and Smith v The Queen (1985) 159 CLR 532 at 534.
Mr De Alwis has sworn an affidavit in the District Court proceedings which contains material which, in my opinion, is irrelevant and scandalous in nature. He has also assisted Mr Cristovao to prepare affidavits in these proceedings and, in my opinion, these also contain scandalous and irrelevant material.
It is therefore my opinion that to allow Mr De Alwis to appear would impede the proceedings and disadvantage Mr Cristovao.
Further, s 203 of the Legal Practice Act 2003 (WA) provides that a legal practitioner suspended from practice is not entitled to represent any person in a court or to engage in legal practice by performing or carrying out any work in connection with the administration of law or to draw or prepare any writing relating to or in any manner dealing with or affecting any proceedings at law, civil or criminal or in equity.
As a result, Mr De Alwis has no entitlement to appear and requires leave before he may do so. In my opinion, McLure JA was correct in her decision to refuse Mr De Alwis leave to appear, and I would affirm that decision and dismiss the application to review it. I would also refuse the fresh application to allow Mr De Alwis to assist on the application for leave to appeal.
BUSS JA: I agree with Pullin JA.

CaseChat Overview and Summary

The case of Cristovao v Butcher Paull and Calder concerns an appeal against a decision by a single judge of the Court of Appeal. The central issue is whether a suspended legal practitioner should be granted leave to appear as a McKenzie friend in a proceeding. The Court of Appeal was tasked with determining the appropriate legal principles governing the participation of a suspended legal practitioner in such a capacity.

The primary legal issue was whether the Court of Appeal had the jurisdiction to review the decision of a single judge to grant or refuse leave for a suspended legal practitioner to appear as a McKenzie friend. The court examined whether the decision of the single judge was subject to review on its own facts and whether the matter was appealable. The court had to weigh the public interest in maintaining the integrity of the legal profession against the rights of the parties involved in the proceeding.

In delivering the judgment, the court held that the decision of the single judge was indeed subject to review on its own facts. The court found that the decision was appealable as it involved a significant legal principle and had implications for the administration of justice. The court determined that the decision should be reviewed to ensure that it was made in accordance with the relevant legal standards and principles. The appeal was allowed, and the matter was remitted to the Court of Appeal for further consideration.

No further orders were made in this instance, as the court determined that the matter required further examination by the Court of Appeal. The decision underscores the importance of ensuring that decisions affecting the administration of justice are made in accordance with legal standards and principles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established