Cristovao v Butcher Paull and Calder

[2006] WASCA 184

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

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.

2. 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.

3. 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.

4. 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. 

5. It is therefore my opinion that to allow Mr De Alwis to appear would impede the proceedings and disadvantage Mr Cristovao. 

6. 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.

7. 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. 

8. BUSS JA:     I agree with Pullin JA.