Damjanovic v Maley

Case [2002] NSWCA 230

Reported Decision:

 (2002) 55 NSWLR 149

New South Wales


Court of Appeal

CITATION: Damjanovic v Maley [2002] NSWCA 230
FILE NUMBER(S): CA 40228/01
HEARING DATE(S): 19 June 2002
JUDGMENT DATE:
19 July 2002

PARTIES :
Mojmir Damjanovic (Appellant)
Christopher Paul Maley (Respondent)
JUDGMENT OF: Mason P at 1; Sheller JA at 2; Stein JA at 3
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 1303/00
LOWER COURT
JUDICIAL OFFICER :		 Dent DCJ
COUNSEL: Litigant in person (Appellant)
D J Russell (Respondent)
S Lloyd (Intervenor for the Attorney-General)
SOLICITORS: n/a (Appellant)
Acuiti Legal (Respondent)
CATCHWORDS: JURISDICTION, PRACTICE AND PROCEDURE - general principles and guidelines - s 43(1)(b) of the District Court Act - exercise of the court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant - rights of audience of unqualified persons - McKenzie friend - power of court to regulate proceedings - CONSTITUTIONAL LAW - whether s 43(1)(b) of the District Court Act is a law for the 'peace, welfare and good government' of New South Wales - whether s 43(1)(b) transgresses an implied constitutional right to procedural equality - D
LEGISLATION CITED: Constitution Act 1902 (NSW), s 5
Commonwealth Constitution
District Court Act 1973, s 43(1), s 43(1)(b)
Supreme Court Rules, Part 1 rule 3, Part 4 rule 4
CASES CITED:
 Abse v Smith [1986] 1 QB 536
Bay Marine Pty Limited v Clayton Country Properties Pty Limited (1986) 8 NSWLR 104
Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1
D v S (Rights of Audience) [1997] 1 FLR 724
Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145
House v The King (1936) 55 CLR 499
Hubbard Association of Scientologists v Anderson [1972] VR 340
Kruger v The Commonwealth (1997) 190 CLR 1
Leeth v The Commonwealth (1992) 174 CLR 455
McGrath v Dobie (1890) 16 VLR 646
McKenzie v McKenzie [1970] 3 All ER 1034
Mensah v Islington London Borough Council ((Unreported, 1 December 2000, Court of Appeal)
Mihaka v Police [1981] 1 NZLR 54
Molnar Engineering Pty Ltd v Herald & Weekly Times Ltd (1984) 1 FCR 455
O'Toole v Scott [1965] AC 939
Pacific Air v Toller (2000) 171 ALR 519
Paragon Finance plc v Noueiri [2001] 1 WLR 2357
R v Bow County Court, ex parte Pelling [1999] 4 All ER 751
R v E J Smith (1982) 2 NSWLR 608
R v Schagen (1993) 65 A Crim R 500
Re Education Pty Ltd and the Companies Act (1963) NSWR 1340
Re G J Mannix Ltd [1984] 1 NZLR 309
Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Court of Appeal, 6 September 1994)
Stergiou v Citibank Savings Ltd (1988) 148 FLR 244
Tritonia Ltd v Equity and Law Life Assurance Society [1943] AC 584
Union Steamship Co v King (1988) 166 CLR 1
DECISION: 1) Appeal dismissed 2) Appellant ordered to pay the costs of the respondent




                          CA 40228/01
                          DC 1303/00

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AGLC
Damjanovic v Maley [2002] NSWCA 230
Case
[2002] NSWCA 230
Decision Date

CaseChat Overview and Summary

The case of *Damjanovic v Maley* concerned an appeal to the New South Wales Court of Appeal regarding the District Court's refusal to grant leave for a lay advocate to appear on behalf of an unrepresented litigant. The central dispute revolved around the interpretation and application of section 43(1)(b) of the *District Court Act 1972* (NSW), which empowers the District Court to permit or refuse leave for an unqualified person to appear for a party.

The primary legal issues before the Court of Appeal were whether section 43(1)(b) of the *District Court Act* was a valid law enacted for the "peace, welfare and good government" of New South Wales, and whether its provisions transgressed an implied constitutional right to procedural equality. The court was also required to consider the broader principles governing the exercise of judicial discretion in allowing or disallowing the appearance of lay advocates, often referred to as McKenzie friends, and the court's inherent power to regulate its own proceedings.

The Court of Appeal reasoned that section 43(1)(b) of the *District Court Act* was a valid exercise of the State's legislative power, falling within the scope of laws for the peace, welfare, and good government of New South Wales. The court found no constitutional impediment to the provision, determining that it did not infringe upon any implied constitutional right to procedural equality. The judges emphasised that the right to a fair hearing does not extend to an unqualified right to be represented by a person of one's choosing, particularly when that person is not a legal practitioner. The court affirmed that the discretion vested in the District Court judge under section 43(1)(b) was to be exercised judiciously, considering factors such as the complexity of the case, the litigant's capacity, and the potential impact on the orderly conduct of the proceedings.

The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.

Orders

Orders of the court

1) Appeal dismissed 2) Appellant ordered to pay the costs of the respondent

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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