Damjanovic v Maley
[2003] HCATrans 694
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S262 of 2002
B e t w e e n -
MOJMIR DAMJANOVIC
Applicant
and
CHRISTOPHER PAUL MALEY
Respondent
Application for special leave to appeal
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 9 MAY 2003, AT 2.01 PM
Copyright in the High Court of Australia
MS I. VUKIC: I would like to seek leave to appear for the applicant. I am a non‑legally qualified person.
HAYNE J: Yes, Ms Vukic. It is your application to appear on behalf of Mr Damjanovic which was the subject matter of the application for special leave, is it not?
MS VUKIC: That is correct, your Honour, yes.
MR D.J. RUSSELL, SC: May it please the Court, I appear for the respondent. (Instructed by Acuiti Legal)
HAYNE J: Ms Vukic, you may have leave for the time being. We will see what we will do about that leave as the matter progresses.
MS VUKIC: Thank you, your Honour. Your Honours, as the Court may be aware, Mr Damjanovic, although he indicated originally when I prepared in English his submissions that he may make an oral submission today, he had indicated that he did not wish to make one today. However, the book is before you, the application book, which has covered everything that Mr Damjanovic wanted to say. The two main grounds of appeal, one is that the Supreme Court did not deliver or give judgment in all the main or central grounds for appeal and that that was wrong and it was wrong of it to dismiss an appeal without considering all central main grounds of the appeal.
The other one, of course, has to do with my application – or if we can put it, the applicant’s ongoing applications in the courts since these proceedings started – for me to appear, of course, without costs, when the matters were before the court. Section 43(1)(b) of the District Court Act provides for such an occurrence to occur, that the Court may give leave.
The discretionary grounds upon which such decisions are made, and the appellant submits are not adequate, was in the Supreme Court where a person who is not legally qualified may be granted leave to appear. There are so‑called special circumstances of a case and it has been said in our case that inability to use, speak, write or read English language or mistrust in the legal profession, which the applicant has maintained, were not special circumstances to grant leave for me or any other non‑legally qualified person to appear.
HAYNE J: The only application before the District Court was for leave for you to appear on behalf of Mr Damjanovic, was it not?
MS VUKIC: That is correct. Your Honour, most of the times that the matters did come before the Court, as it is in the application book, the leave was granted. The issue stands that every time, which includes the directions before judges, every time the matter came every time before the court, a fresh application was expected to be made. The applicant submits that that is wrong. The applicant submitted that if the initial judge who hears a matter, your Honour, let us say at a directions hearing initially, if the initial judge grants leave for a person to appear and if that person appears again with that party, then that leave which was granted on prior occasions should be honoured, otherwise that party has no guarantee of consistency in conducting his – he does not know what to expect and how to proceed.
So what I am saying is that section 43 would need interpretation by this Court, or giving guidance to the lower courts, as to how to interpret it rather than leaving a party who was in a position like the applicant ‑ leave the party unfairly hanging about, if I may express myself like that – not knowing whether he can proceed as planned on the next occasion or not if the leave was granted. We would say, and I will just read this paragraph your Honour, that the laws provide – the paragraph I am reading was of course written by me, so I am not quoting anybody but what the applicant had discussed – the laws providing for appearances in courts, and indeed the grounds upon which the court in our experiences decide whether or not to grant leave to a non‑legally qualified person to appear on behalf of a party, do not give just and adequate weight to the issue of the party’s inability to adequately use English language or the party’s mistrust in lawyers when it comes to the conduct of his or her court proceedings. In our submission, that is fundamentally wrong. In the last 30 to 40 years ‑ ‑ ‑
CALLINAN J: Ms Vukic, you are a clinical psychologist, are you not?
MS VUKIC: I am a manager of disability services. I do have psychology degrees both from Croatia and from Sydney, yes, your Honour.
CALLINAN J: You would not want people who were not qualified to practise psychology, would you?
MS VUKIC: I do not think ‑ ‑ ‑
CALLINAN J: They are not qualified to practise it, are they?
MS VUKIC: Your Honour, it is not the same issue here. The law provides for a person to represent themselves in court, albeit represented by a legally qualified person. The District Court Act in addition provides that somebody else other than a legally qualified person may appear for a party, so we submit that it is not the same as someone who is not a psychologist practising psychology. If the laws of the country permit a person to represent himself or herself, therefore giving him a licence to do what a lawyer may do representing somebody else, it is not the same issue. I would not be practising law. First of all, I am not paid.
Secondly, anything that I do or have done or anyone in my situation may do for someone who wishes not to retain for whatever reason legal representation, basically do what that person would do himself. If Mr Damjanovic could speak English like I do, he could stand before you and speak fluently, he could do the research, he could read Court rules, he could inquire in the Court Registry as to what is necessary and what is needed. That is what I did for Mr Damjanovic and his ‑ ‑ ‑
HAYNE J: Where do you say the Court of Appeal went wrong? You seek special leave to appeal against the orders of the Court of Appeal. Where did they go wrong?
MS VUKIC: They went wrong on this issue, on this representation issue, by using the special circumstances grounds for discretion as grounds that his Honour Dent could have relied on, and they are the grounds that a Supreme Court would use when deciding on to whether someone will be granted leave who is not legally represented to represent a party in the Supreme Court. The District Court Act openly states that another person can be granted leave and there is no reason for special grounds, especially not special circumstances using the benefits of having a legal representation, as opposed to the benefits of not having legal representation. What I am saying is if the District Court Act, section 43(1)(b), provides that a non‑legally qualified person can appear for someone, then one cannot - it is discriminatory and fundamentally wrong to decide upon leave based on section 43(1)(b), to decide upon it on grounds that include the benefits of having legal representation. If they do, then in advance the person applying for leave will lose, who has no chance. That is crudely, simply put. What we are also saying, your Honours, is that the demographics of Australian population has changed quite significantly in the last 30 to 40 years.
HAYNE J: I understand that, but the question is whether the primary judge’s discretion miscarried when he said that you could not appear for Mr Damjanovic - not whether a lay person could appear, but whether you could not appear.
MS VUKIC: He simply said that he was not going to allow at the instant that he made that decision, not what happened 20 minutes later or 5 minutes later, that he was not going to allow a non‑legally qualified person to appear for a party and that the proceedings were complex, that was complex, that a non‑qualified person could not be allowed to appear. However, if a person can appear for themselves regardless of the complexity of the proceedings, then that is also wrong to reason that way.
What we are saying is that it has been unfortunate and long experience that one issue of public importance that has emerged through our case is the way that people who, let us say, cannot, due to either language problems or other problems, represent themselves and do not wish to retain a legal representative, they wish to seek a friend or someone they trust to follow the court rules to represent them, it is not dealt adequately by the courts, the decisions are not adequately made and some provision needs to be firmed so that courts below the High Court - we see the High Court as giving guidance as to how this problem – it is a wide problem, there is a lot of unrepresented people appearing, approaching courts. There is a great number, I would say, of non‑English speaking people who must be provided for, at least in the guidance of the grounds of allowing, whether that be that if a person is allowed or given leave to appear for a person, the rules must provide that they must conform and adhere to the court rules and respect the court rules, otherwise that leave could be withdrawn.
In all my times that I have assisted the applicant, at the foremost of my mind had always been to respect and to adhere to the rules and the court and what is required of the applicant as a party as far as the court is concerned. So, it is an issue of public importance that the inability to – the definition of a person when it comes to appearance in court be actually clarified. Now the law says a person can represent themselves but if you have before you a person like the applicant, then it is not the same as a person who can speak English and who has other skills that are required, like being able to follow what is going on and react promptly in court. We believe it is of public importance that there is some guidance given as to this problem that does exist.
Indeed, the laws of the country must reflect the needs of the community and, as I said, the population has changed, the Australian population, the Australian taxpayer…..does now entail quite a significant percentage of those who fall in the category of the applicant and the laws must reflect those needs if they are going to be just. The laws that deal or the rules that deal with appearance in court are really fundamental and basis to any justice system.
In my submission - and it has been before this Court before - I was going to quote it. I thought that my application for leave would be longer so I had prepared a statement by Justice Kirby that was in another case to do - I was going to use it in my application for leave that you so kindly granted me leave before. I do have copies here if you like.
HAYNE J: Given that you have leave to appear, Ms Vukic, there seems no point in going back to reawaken that issue, is there?
MS VUKIC: No, I was just going to quote what Justice Kirby said and it is related to this issue I have just been saying. It was in Sinanovic v The Queen [1998] HCA 40, 2 June 1998. In paragraph 1 - I have the Internet publication - Justice Kirby said:
Courts remain the ultimate protector of everyone in society, including prisoners who have no lawyers to speak for them.
Before that he said, it is admirable of any friend to come to a court and speak in the name of a party.
I am just saying that our issue is that it is of public importance that this issue of a non‑legally qualified person appearing for a party in court be treated - specially for those who do not have the knowledge of the English language or who do not, let us say, have trust in lawyers generally or cannot, for whatever reason ‑ ‑ ‑
HAYNE J: You have made those points.
MS VUKIC: Yes, thank you.
HAYNE J: Yes, thank you. We need not trouble you, Mr Russell.
An appeal against the orders of the Court of Appeal would enjoy insufficient prospects of success to warrant a grant of special leave to appeal in this matter. Accordingly, special leave to appeal is refused with costs.
AT 2.20 PM THE MATTER WAS CONCLUDED