Damjanovic v Maley

[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

MASON P
SHELLER JA
STEIN JA

Friday, 19 July 2002

DAMJANOVIC v MALEY

Facts

Pursuant to leave to appeal, the appellant, Mr Damjanovic, appeals against a decision of Judge Dent given in the District Court on 10 April 2001. His Honour refused leave to a lay advocate to appear on behalf of the appellant.

In the hearing before the District Court Ms Vukic sought leave to appear on behalf of the appellant pursuant to s 43(1)(b) of the District Court Act 1973. Ms Vukic is not a lawyer and is not legally qualified. Before his Honour she argued that she did not need to be a legal practitioner to obtain leave to appear. This was obviously correct. In support of her application she emphasised that the appellant’s command of English was not good enough to follow or to be able to conduct the proceedings.

However, she was not offering to be an interpreter. Ms Vukic indicated that although the appellant was able to afford legal representation, he did not trust lawyers because of bad experience he had had in the past.

On appeal

The appellant submits that his Honour should not have refused Ms Vukic leave to appear on his behalf. Rather, his Honour should have exercised his discretion under s 43(1)(b) of the District Court Act to grant leave to Ms Vukic to appear to represent him.

The appellant further argues that s 43(1)(b) is unconstitutional and invalid because it is not a law for the ‘peace, welfare and good government’ of New South Wales as required by s 5 of the Constitution Act 1902 (NSW). The appellant also contends that the provision is contrary to the Commonwealth Constitution as it imposes a discriminatory procedural treatment by courts on parties with a poor command of English who do not want to be represented by a legal practitioner.

Held (per Stein JA, Mason P and Sheller JA agreeing):

1. The concluding words of sub-clause (b) in s 43(1) of the District Court Act confer a discretion on the trial judge to refuse or grant leave to a lay advocate to appear on behalf of the appellant. Dent DCJ did not fail to properly exercise the discretion. His Honour did not act upon any wrong principle, nor did he take into account any irrelevant matter or fail to take into account any relevant matter. His ruling on Ms Vukic’s application for leave to appear on behalf of the appellant was not unreasonable or plainly unjust.

2. The complexity of the litigation was a discretionary factor open to be considered by Dent DCJ in refusing Ms Vukic leave to appear.

- 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
- Hubbard Association of Scientologists v Anderson [1972] VR 340

- 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), (considered)


3. The appellant’s poor command of the English language is no reason to grant Ms Vukic leave to appear as his advocate. This case does not fall into the category of an emergency situation, nor one where the appellant experienced unexpected language difficulties in conducting his own case.

- R v Schagen (1993) 65 A Crim R 500 (considered)

4. The overall duty of a barrister or solicitor to the court is an important consideration. The court is entitled to place reliance on that duty and expect it to be met. The absence of a disciplinary code and duty to the court underlies the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.

- Abse v Smith [1986] 1 QB 536

- Bay Marine Pty Limited v Clayton Country Properties Pty Limited (1986) 8 NSWLR 104
- Hubbard Association of Scientologists v Anderson [1972] VR 340


- Paragon Finance plc v Noueiri [2001] 1 WLR 2357

- R v E J Smith (1982) 2 NSWLR 608

- 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)
- Tritonia Ltd v Equity and Law Life Assurance Society [1943] AC 584 (considered)

5. The protection of the client and the opponent is an important discretionary factor to consider. For example, an unqualified advocate may cause loss to a party. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer.

- Scotts Head Developments Pty Ltd (Unreported, Court of Appeal, 6 September 1994) (considered)


6. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers. The circumstances of this case are not exceptional or special so as to make it appropriate for the court to have granted leave to Ms Vukic to appear on the appeal, other than to receive her written submissions.

7. Section 43(1)(b) of the District Court Act is not unconstitutional. The phrase ‘peace, welfare and good government’ should not be interpreted as words of limitation on the power of the State Parliament to enact legislation.

- Union Steamship Co v King (1988) 166 CLR 1 (applied)

8. Section 43(1)(b) does not transgress an implied constitutional right to procedural equality.

- Kruger v The Commonwealth (1997) 190 CLR 1 (considered)

- Leeth v The Commonwealth (1992) 174 CLR 455 (applied)

Orders

1. Appeal dismissed

2. Appellant pay the costs of the respondent.

CA 40228/01
DC 1303/00

MASON P
SHELLER JA
STEIN JA

Friday, 19 July 2002

DAMJANOVIC v MALEY

Judgment

1 MASON P: I agree with Stein JA.

2 SHELLER JA: I agree with Stein JA.

3 STEIN JA:

Introduction

4 Pursuant to leave to appeal granted on 23 November 2001 Mr Mojmir Damjanovic appeals against a decision of Judge Dent given in the District Court on 10 April 2001. His Honour refused leave to a lay advocate to appear on behalf of the appellant. The appeal, which concerns that decision, arises in the following circumstances.

The litigation

5 The appellant filed a Statement of Claim on 26 August 1998 against the respondent, Mr Maley, his former solicitor. Pursuant to orders made by Judge Robison, an Amended Statement of Claim was filed on 30 June 1999. By the pleading the appellant sought damages of $750,000 from the respondent for negligence and for fraudulent misrepresentation and deceit.

6 The pleaded basis for the fraud was an allegation that the respondent placed his signature on a deed of assignment dated 22 July 1996 as witness to the appellant’s signature on the deed when he knew that the appellant had neither signed the deed, nor was aware of the document. In other words, the solicitor was a party to a forgery of his client’s signature. As a result of the respondent’s wrong-doing, the appellant claimed that he suffered financial loss and damage.

7 From the chronology provided to the court, it appears that there were many interlocutory hearings. For example, the respondent sought to have the appellant’s statement of claim struck out. At these interlocutory hearings Ms Ena Vukic, who has no legal qualifications, sought leave to appear on behalf of the appellant. On many occasions leave was granted. On others it was refused. The hearing was eventually set for 9 and 10 April 2001. Prior to the commencement of the hearing the respondent gave notice to the appellant that he would object to Ms Vukic being granted leave to appear on behalf of Mr Damjanovic.

The hearing before the District Court

8 The case was called on before Judge Dent on 9 April 2001 and the appellant appeared unrepresented. Mr Russell of Counsel appeared for the respondent (as he has in the Court of Appeal).

9 Ms Vukic sought leave to appear on behalf of the appellant pursuant to s 43(1)(b) of the District Court Act 1973. She informed his Honour that she was not a lawyer. She said that she was a family friend of the appellant and he had ‘entrusted’ the litigation to her. She told the court that ‘no costs’ were involved. By this I assume that she meant that she was not charging the appellant for her services as his advocate.

10 Ms Vukic argued before his Honour that she did not need to be a legal practitioner to obtain leave to appear. In support of her application she added that the appellant’s command of English was not good enough to follow or to be able to conduct the proceedings. Whereas she was fluent in English and Croatian. She made it plain however that she was not offering to act as an interpreter.

11 In answer to a question from his Honour Ms Vukic said that she was a published author, journalist and a former public sector psychologist but was presently a consultant clinical psychologist and management consultant.

12 His Honour asked if the appellant was unable to afford legal representation. Ms Vukic indicated in the negative but added that he did not trust lawyers because of bad experiences he had had in the past. She said to his Honour:

… he doesn’t feel capable to follow the flow, to follow the Court rules, to understand everything that’s being said in English and to be able to respond promptly in a Court situation to what’s said.

13 With respect to Ms Vukic’s application for leave to appear on behalf of Mr Damjanovic, his Honour ruled as follows:

With the greatest respect to you Ms Vukic, if the plaintiff or defendant can’t afford a lawyer as far as I’m concerned they can appear in person, but I’m not going to exercise a grant of leave for an unqualified advocate to appear as an advocate before me in what from what I’ve read of the limited pleadings appears to be a complex bit of litigation, so I do not grant you leave to appear as an advocate in the proceedings.

14 The appellant then indicated that he wanted to appeal the ruling. Counsel for the respondent, who had not been heard at that stage, informed his Honour that he had been instructed to oppose Ms Vukic’s application. He stressed the seriousness for his client’s professional standing of the allegation in the pleading that he was a witness to a forgery of the appellant’s signature.

15 His Honour asked the appellant if he wanted to approach the Court of Appeal urgently to review his decision. Ms Vukic then asked if she could translate to the appellant what his Honour had said. She also asked if she could be a ‘McKenzie friend’.

16 His Honour responded:

No, no, I won’t permit it. I won’t permit it, I’m sorry I don’t wish to disadvantage your client, but I will not have this Court taken over by people who are not qualified advocates. I’m afraid that’s the way it has to be, otherwise the process of a judge arriving at a resolution of a matter will become a sheer impossibility.

17 His Honour then indicated that he proposed to adjourn the proceedings to 11.30 am the next day. Before the court adjourned Mr Russell submitted that there were further reasons why Ms Vukic should have been refused leave to appear for the appellant. The matters were put by way of submission and not by evidence. They included an allegation that the appellant proposed paying Ms Vukic a fee for acting for him and that Ms Vukic had been the appellant’s treating psychologist. Further, that she had served an expert’s report in the proceedings and was required for cross-examination. This would make her a witness.

18 Mr Russell also alleged that Ms Vukic had an interest in the litigation because the particulars of the claim included $14,000 for psychological treatment provided by her to the appellant.

19 The case was called back on the next day (10 April 2001) and the appellant appeared unrepresented. It seems that the appellant produced a copy of a holding summons for leave to appeal to the Court of Appeal. Mr Russell indicated that his client wanted the case to proceed and any application for an adjournment would be opposed.

20 His Honour indicated to the appellant that his ruling to refuse Ms Vukic’s leave to appear on the previous day was reinforced by what Mr Russell had said after his decision.

21 His Honour said:

Having heard those submissions I am absolutely positive that it would not be in the interests of justice to have Ms Vukic appearing as your advocate in these proceedings. From my point of view, I asked a simple question of Ms Vukic yesterday and she gave me an answer to the question, what was her relationship to you. She told me everything, that she chose to tell me that she was a family friend and so on but did not mention to me that she was a practicing psychologist who has been treating you.
Now, had Ms Vukic been a member of the bar and given that answer to a judge of this court, Ms Vukic would be on her way towards disbarment for contempt of court, deceptive conduct to a judge.

22 There then followed exchanges between his Honour and the appellant wherein his Honour was endeavouring to ascertain the basis upon which the appellant was seeking a stay of the proceedings pending any appeal. From the transcript it is difficult to understand what the appellant was attempting to say. Much of it appears to be incomprehensible. However, what can be understood is that he said he was 82 years old and in poor health and wanted Ms Vukic to translate for him.

23 Part of the exchanges between his Honour and the appellant made it plain that the appellant did not want an adjournment to obtain legal representation. His Honour, it seems, had suggested that it might be a proper basis for an adjournment to obtain legal representation. His Honour then explained to the appellant that he must conduct his own case against the respondent.

24 The appellant said, according to the transcript:

Yes today your Honour was assigned to make application for appeal. Now you want make a court reading on my own. Sorry I wasting my time your Honour. I’m sorry and I stand on this position, if you want me finish with these people court I’m sorry even for you.

25 His Honour responded:

I am not involved in these [sic] case one way or another Mr Damjanovic and don’t you dare suggest that I am.

You have chosen to come to this court to present a case. You have chosen to come without legal representation although it appears you could afford it if you wanted it, because you don’t trust any lawyers. Now I have refused leave to your representative to conduct the case on your behalf and I am reinforced in the decision that I made without hearing from Mr Russell, having been told what has been happening on prior occasions and the true relationship between yourself and Ms Vukic, a treating psychologist whose report you have served in these proceedings, so you can forget that.

Now you must conduct your case here an [sic] now on your own. That’s the position that you’re in.

26 The appellant said that he had nothing further to say, left the bar table and took a seat in the public area of the court.

27 Mr Russell applied to his Honour to enter a verdict for the respondent. His Honour declined. Counsel then made an application for the appellant’s Amended Statement of Claim to be struck out and for an order for costs. His Honour gave the appellant the opportunity to speak. The appellant appears to have responded in a somewhat hysterical manner but much of what he said is noted in the transcript as ‘not transcribable’.

28 His Honour struck out the Amended Statement of Claim for want of prosecution and ordered the appellant to pay the respondent’s costs.

The Grounds of Appeal

29 The Amended Notice of Grounds of Appeal contain numerous paragraphs. However, central to many grounds is the appellant’s claim that his Honour should not have refused Ms Vukic leave to appear on his behalf. Rather, his Honour should have exercised his discretion under s 43(1)(b) of the District Court Act to grant leave to Ms Vukic to appear to represent him. Some of the grounds of appeal contend that his Honour failed to recognise the appellant’s limitations in his ability to conduct his own case and his distrust of lawyers.

30 The grounds also purport to raise a constitutional issue regarding the validity of s 43(1)(b). This caused the NSW Attorney-General to intervene in the appeal. I will return to this aspect later.

31 The Notice of Appeal also challenges his Honour’s decision not to stay the District Court proceedings pending the appellant’s appeal to the Court of Appeal from his Honour’s ruling regarding Ms Vukic. Consequently, the appellant claims that his Honour should not have found that the appellant had refused to prosecute his case and should not have struck out the appellant’s Amended Statement of Claim with costs.

Ms Vukic is refused leave to appear on the appeal

32 At the hearing of the appeal, Ms Vukic applied for leave to appear on behalf of the appellant and to represent him. The application was opposed by counsel for the respondent. After hearing Ms Vukic in support of her application, the court refused her leave to represent the appellant as his advocate, indicating that its reasons would be given in the final judgment. The court, however, received the written submissions of the appellant and additional written submissions which were handed up in court.

The statutory provision contains a discretion

33 According to Halsbury’s Laws of Australia a court has an inherent right, in regulating its own proceedings, to allow a person (not being a lawyer) to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice.

34 Section 43(1) of the District Court Act, which appears to enact the common law, is in the following terms:

A party to any proceedings may appear —
(a) by a barrister or solicitor retained by or on behalf of that party, or by a solicitor employed (as an agent or otherwise) by a solicitor so retained; or
(b) if no barrister or solicitor is so retained and —
(i) if that party is a natural person—by himself or herself;
(ii) an officer of the corporation authorised in that behalf by the corporation in accordance with the rules,
or by another person allowed by leave of the Court granted in the particular proceedings to appear on that party’s behalf.

35 The concluding words of sub-clause (b) confer a discretion. The words of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 – 505 hardly need repeating but I will. Their Honours said:

… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …

36 I cannot see how it can be said that Dent DCJ acted upon any wrong principle, nor that he took into account any irrelevant matter or failed to take into account any relevant matter. His ruling on Ms Vukic’s application for leave to appear on behalf of the appellant was not unreasonable or plainly unjust so that it may be said that there was a failure to properly exercise the discretion. Mr Damjanovic’s difficulty with the English language did not require Ms Vukic to be given leave to appear. She was not seeking to be his interpreter. The appellant’s mistrust of lawyers is no reason to exercise the discretion to grant leave to an unqualified person to appear for him. Mr Damjanovic is not impecunious and does not deny that he can afford legal representation. Doubtless there are many suitable legal practitioners, many who would speak the appellant’s language and share his cultural background, as well as possess the requisite skill and competence, to undertake Mr Damjanovic’s case on his behalf.

What do the authorities say?

37 It is useful to survey some of the authorities for guidance in the exercise of the discretion. The Full Court of Victoria discussed the issue of the court permitting audience to non-lawyers in Hubbard Association of Scientologists v Anderson [1972] VR 340. The judgment noted that the court could, as an incident of controlling its own proceedings, allow itself to be addressed ‘in a proper case’ by any person it considers appropriate, McGrath v Dobie (1890) 16 VLR 646 and O’Toole v Scott [1965] AC 939 at 952.

38 In O’Toole the Privy Council said that the discretion could be exercised on general grounds common to many cases or on special grounds confined to the particular case. It should not be confined to cases of strict necessity.

39 The Full Court of Victoria held in Hubbard that although too rigid a limitation should not be imposed on the discretion, ‘it has long been regarded in the higher courts as proper to refuse to exercise the discretion in favour of allowing the appearance of non-qualified persons … when the assistance of qualified persons is available to give the courts help in the administration of justice’.

40 As to the contention that the court should abrogate its practice of allowing a corporation to appear through an unqualified agent, the court said (at 343):

These contentions raise matters of policy as to the appropriate procedure for the administration of justice. If the contentions were accepted, they could produce far-reaching consequences. They would open the way to a vast field of litigation, associated with companies, being conducted through untrained and unqualified advocates. They would not merely encroach on the established practice, but they would destroy that practice, and perhaps, if extended further to include agents for litigants who are natural persons, destroy the whole system of the administration of justice in these courts.

41 The court also referred to considerations adverted to by the House of Lords in Tritonia Ltd v Equity and Law Life Assurance Society [1943] AC 584, which drew attention to the importance of lawyers obeying the rules of their profession and being subject to a disciplinary code.

42 In R v E J Smith (1982) 2 NSWLR 608 the Court of Criminal Appeal commented on the dangers in permitting a McKenzie friend in a criminal trial. Street CJ drew attention to the difficulties for a court which had no direct access ‘in a disciplinary and controlling sense’ to a lay person. At 614 the Chief Justice said that:

— a person who may well, for one reason or another, be concerned to promote the case of the person whom he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge — is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State.

43 The New Zealand Court of Appeal in Re G J Mannix Ltd [1984] 1 NZLR 309 examined the ‘right’ of a layman to represent a company in litigation.

44 Cooke J, as he then was, said that the rule that a company cannot appear to conduct a case, except by counsel or a solicitor, was as strongly demanded today [1984] as it ever was, ‘if not more strongly, having regard to the increasing complexity of litigation’. His Honour also mentioned the possibility of media publicity as tending to increase the importance of responsibility in advocacy. His Honour reinforced the importance of advocates observing the rules of their profession and being subject to disciplinary codes (Tritonia, Hubbard and Re Education Pty Ltd and the Companies Act (1963) NSWR 1340).

45 Cooke J touched upon the argument that the rule achieves no useful purpose other than to protect the monopoly of lawyers. He quoted Hardie Boys J in Mihaka v Police [1981] 1 NZLR 54 at 58:

The denial of recognition to other than suitably qualified persons should not be regarded as protection of any privilege or monopoly. It surely gives effect to the fact that an unqualified and inexperienced person may do more harm than good to the person he assists: if only because of his ignorance of the law which may support that person’s cause. In this age of complexity in the law and specialisation in its practice, this reason is perhaps more cogent that it has ever been.

46 His Honour noted what the Privy Council had stated in O’Toole v Scott and accepted that the discretion applied to superior courts, as well as inferior courts, although noting that Lord Pearson considered that the discretion would be exercised with ‘rather more reserve’ in the former.

47 In examining what factors might be relevant to the exercise of the discretion, Cooke J said (at 314):

In general, and without attempting to work out hard-and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel. Especially in minor matters, cost-saving could also be a relevant factor. A “one-man” company might be allowed to be represented by its owner if the Judge saw fit in a particular case. But it could not be right, for instance, to issue some sort of tacit continuing or general licence to an unqualified agent to appear in winding up or any other class of proceedings.

48 McMullin J considered as factors relevant to the discretion, the nature of the litigation, the complexities of the case, the extent of the dispute and the points upon which audience is sought. But he added that the grant of lay representation is likely to be the exception rather than the rule.

49 The third judge of appeal, Somers J emphasised the overriding duty to the court of barristers, and their duty also to the public and to the standards of the profession. Overall, while the discretion existed, its exercise to grant leave would likely be rare and the ‘circumstances exceptional or at least unusual, and their content modest’.

50 In Abse v Smith [1986] 1 QB 536 the English Court of Appeal considered the rights of audience of solicitors in the High Court. In considering the public interest Sir John Donaldson MR referred to the requirement of absolute probity. His Lordship said (at 545 – 546):

The public interest requires that the courts shall be able to have absolute trust in the advocates who appear before them. The only interest and duty of the judge is to seek to do justice in accordance with the law. The interest of the parties is to seek a favourable decision and their duty is limited to complying with the rules of the court, giving truthful testimony and refraining from taking positive steps to deceive the court. The interest and duty of the advocate is much more complex, because it involves divided loyalties. He wishes to promote his client’s interests and it is his duty to do so by all legitimate means. But he also has an interest in the proper administration of justice, to which his profession is dedicated, and he owes a duty to the court to assist in ensuring that this is achieved. The potential for conflict between these interests and duties is very considerable, yet the public interest in the administration of justice requires that they be resolved in accordance with established professional rules and conventions and that the judges shall be in a position to assume that they are being so resolved. There is thus an overriding public interest in the maintenance amongst advocates not only of a general standard of probity, but of a high professional standard, involving a skilled appreciation of how conflicts of duty are to be resolved.

51 In examining the authorities the Master of the Rolls referred to the recognition of emergency situations in which a court would have to permit others to plead and practice before it in order to prevent a failure in the administration of justice.

52 May LJ stressed in his opinion that it was essential that those who acted as advocates in the courts should be members of a profession subject to a strict code of discipline, thoroughly trained and practised in the skills of advocacy and in the proper and expeditious conduct of litigation [555 G].

53 With regard to what was said by May LJ, Part 1 rule 3 of the Supreme Court Rules may be noted. Subrule 1 provides that the overriding purpose of the rules is to facilitate the just, quick and cheap resolution of litigation. Subrule 3 provides that a party is under a duty to assist the court in furthering the overriding purpose and to participate in the processes of the court and compliance with directions and orders of the court.

54 Later in 1986 the NSW Court of Appeal had occasion to consider permitting the appearance of a legally unqualified agent on behalf of a corporation (Bay Marine Pty Limited v Clayton Country Properties Pty Limited (1986) 8 NSWLR 104). Samuels JA referred to Part 4 rule 4(2) of the Supreme Court Rules. He said (at 110):

Although from time to time, in matters of procedure or practice or not of great complexity, the Court has permitted a corporation to appear by an unqualified agent, the rule has in other respects been consistently and strictly applied. The reasons for the rule are many, amongst them that otherwise it might be open to an unqualified person to appear for a corporation without any authority, and as my brother Mahoney pointed out during the argument, to render it liable to large impositions for costs, again without authority.

55 His Honour approved of what Sir Robin Cooke had said in Mannix and added that, on the assumption that a discretion existed, it should only be exercised ‘with the most meticulous care’ in circumstances sufficiently exceptional as to justify the dispensation. Samuels JA also made reference to the case as being of ‘some complexity’.

56 An example of the exercise of discretion to permit lay representation is to be found in Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145. Counsel appearing for a number of defendants at the trial was granted leave to withdraw since his instructions had been terminated. One defendant, who was content to appear for himself, sought leave to represent two other defendants. Perry J, referring to O’Toole v Scott, found that he had the discretion to permit non-legal representation if it was in the interests of justice that it appeared to be necessary or convenient. He said (at 147):

The situation is unusual, however, and I am not aware of any precedent in this Court. Certainly the exercise of the discretion must be carefully controlled, as the Court must be jealous to ensure that the safeguards which follow from proper legal representation are not eroded by allowing for representation by unqualified persons who do not have the responsibilities and duties of counsel. If a stranger to an action sought leave to represent a litigant, in ordinary circumstances it would be difficult to see how that could be entertained. It is true that occasionally somebody is allowed to give assistance to another lay person in the conduct of litigation by taking a role which has come to be described as that of a McKenzie’s friend: see McKenzie v McKenzie [1970] 3 All ER 1034. But the McKenzie’s friend has not, as I understand it, a right of audience, but only a right to advise and assist.

57 However, his Honour was swayed by the common interest of the parties in the litigation and the relationships of brothers and sister. Also, the legal representation had ceased in mid-stream in the trial due to lack of funds. Leave was granted. See also Stergiou v Citibank Savings Ltd (1988) 148 FLR 244 at 247.

58 In R v Schagen (1993) 65 A Crim R 500 the Court of Criminal Appeal in Western Australia gave two law students leave to address the court on the appellant’s behalf after legal aid had been refused. The court made it plain that it would be ‘a rare and exceptional case’ in which a person other than a qualified lawyer would be so permitted. Malcolm CJ also noted that the court reporting service had found the appellant to be virtually incomprehensible and that this was compounded by a severe hearing problem.

59 In Molnar Engineering Pty Ltd v Herald & Weekly Times Ltd (1984) 1 FCR 455 at 458 Northrop J referred to the importance of the obligations of a legal practitioner to the court, quite apart from the acquired skills. His Honour also stressed that a lawyer is bound by ethical principles in the conduct of the case. These were absent when the company’s agent was not a legal practitioner. See also Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1 at 3 (reported in 122 ALR) per Miles CJ.

60 The most directly relevant case in this court is Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Court of Appeal, 6 September 1994). The court refused leave to an unqualified person to appear for the appellant corporation although it received his written submissions filed on behalf of the company as the submissions of the appellant. Mahoney AP saw the circumstances when the court would permit a person not admitted to practice to represent a party in a proceeding before the court as ‘limited’. His Honour remarked that Part 4 rule 4 (of the Supreme Court Rules), which states that, subject to certain exceptions, any person may proceed in the court by a solicitor or in person, represented the established law. Further, while the court had a discretion ‘it has long adopted the general rule that it will not allow an appearance by a person who has not been admitted to practice before it’.

61 Mahoney AP noted that the rule of practice is not grounded in technicalities. He explained at (pp 3 – 4):

It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation. First, the Court has emphasised the importance, for the administration of justice, of the fact, that those permitted to appear before it owe a responsibility to the Court to ensure that the Court is properly informed and not misled: see Meek v Fleming (1961) 2 QB 366. In Ex parte Browne : at 597; Pring J referred to the importance of having, as the party before the Court, a person ‘who was responsible to the Court, responsible to his client and responsible to the other party to the litigation’. See also Ex parte WA Grubb Pty Ltd ; Re Johnstone and Anor at 226, Tritonia Ltd v Equity and Law Life Assurance Society .
Second, the Court has regard to the possibility of unqualified or untrained advocates interfering with the course of a proceeding before the Court and causing loss to the parties involved. Reference was made to considerations of this kind in Hubbard Association of Scientologists International v Anderson and Anor and in Abse and Ors v Smith and Ors . Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the Court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.
Third, there remains the public interest in the effective, efficient and timeous disposal of litigation. The administration of justice requires that full assistance be available to the Court in determining the issues of fact and law which come before it. The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters.

62 His Honour added:

I am conscious of the high cost of legal services and of the difficulties which confront parties to litigation in the superior courts. Legal aid and pro bono legal services do not entirely remove these difficulties. Where parties represent themselves in superior courts, the cost, in terms of personal loss and public resources, is apt to be great. For reasons such as this, the power to allow representation by a person not admitted to practice has conventionally been seen as ‘a reserve or occasional expedient, produced primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the court or where it would be unduly technical or burdensome to insist upon counsel’: Re GJ Mannix Ltd .

63 Some recent English cases have considered the rights of audience of unqualified persons. R v Bow County Court, ex parte Pelling [1999] 4 All ER 751 concerned the position of a McKenzie friend. Lord Woolf MR reiterated that a McKenzie friend had no right to be an advocate (757 h). The case concerned a Dr Pelling, who had set himself up as a paid ‘professional’ McKenzie friend. The Master of the Rolls noted that at times Dr Pelling had difficulty in divorcing his campaign role on behalf of pressure groups from that as an assistant to litigants in person. Lord Woolf added another concern (at 758):

The second is that if a person chooses to regularly appear as a McKenzie friend, especially if he is also a clerk, because he is earning his living in this way, he must exercise considerable restraint or he will cease to conduct himself as an assistant and will indirectly run the case, using the litigant in person in the manner in which a puppet master uses a puppet. Such behaviour could provide a firm foundation for a judge not wising him to be present as a ‘McKenzie friend’.

64 Paragon Finance plc v Noueiri [2001] 1 WLR 2357 in the Court of Appeal is an illustration of how abuse can creep into the system. Drawing on the judgments in Mensah v Islington London Borough Council (Unreported, 1 December 2000, Court of Appeal) Brooke LJ confirmed that any person who aspired to be an advocate should obtain the requisite qualifications and the court should be slow to permit those who are allowed to be present in court as a McKenzie friend to act as advocates. His Lordship said that nobody had a right to act as an advocate without leave of the court, which as part of its power to regulate proceedings, had a discretion to control those that addressed it.

65 Quoting from Lord Woolf MR in D v S (Rights of Audience) [1997] 1 FLR 724, Brooke LJ said that the discretion to grant audience to unqualified individuals ‘should only be exercised in exceptional circumstances’. Lord Woolf had said that the courts should pause long before granting rights to individuals who made a practice of seeking to represent unrepresented litigants.

66 Part of what the Master of the Rolls had to say in D v S (at 728) is as follows:

[The 1990] Act does give a court a discretion [to grant advocacy rights]. In my view, it is quite clear from the terms in which the Act as a whole is written that it is given a discretion which is to be exercised only in exceptional circumstances … [The grant of advocacy rights in specific cases] is the responsibility of the courts who have been given that responsibility by Parliament. Those who have rights of audience are subject to very stringent requirements … The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as [X] and that would be monstrously inappropriate having regard to the requirements that are laced upon those who have normal rights of audience.

67 Brooke LJ said that the court was satisfied that Mr Alexander, who had been granted leave to appear on a number of prior occasions, had not only succeeded in practising advocacy as an unqualified person in the courts in a manner never intended by Parliament, but that it was overwhelmingly in the public interest that the practice be stopped. The court regarded him as incompetent in Mensah and in Noueiri, where he repeatedly took hopeless points and advanced completely futile arguments. His Lordship said that the suggestion that Mr Alexander might have made a contingency fee agreement was another indication of the importance of the courts adopting a tough line with unqualified advocates who offer their services in the higher courts without the disciplines entailed by membership of an appropriate professional body.

68 The Access to Justice Report (1994) chaired by Professor Sackville QC, as he then was, discussed arguments for and against the reservation of legal work to lawyers. The Committee concluded that there may be benefits in opening legal services to non-lawyers in some areas. However, it would be necessary to identify the areas of law where it would be appropriate for paralegals to operate and the level of formal training necessary to maintain proper standards. However, the report stressed that the practice of law should not be opened entirely to untrained persons. Emphasis was placed on the need for ethical training concerning a paralegal’s duty to clients and to the court. The report did not attempt to outline what areas of legal work might be suitable for paralegals. No direct reference was made to advocacy services by unqualified persons.

Principles from the cases

69 A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:

(a) The complexity of the case

70 Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor. See for example, Scotts Head per Mahoney AP at 4; Mannix at 311, 314 and 316; Bay Marine per Samuels JA at 110 – 111; Hubbard at 343; Abse at 549 and Miles CJ at 3 in Commonwealth Bank v Individual Homes.

71 In the instant case Judge Dent referred to the case as a complex one having regard to the pleadings. This was a relevant factor well open to be concluded by the judge.

(b) Genuine difficulties of the unrepresented party

72 These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen at 501). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court. See also Mannix at 314, 316, 317; Scotts Head at 4; Abse at 549, Galladin at 147 – 148 and Stergiou at 247.

73 The case before the court does not fall into an emergency situation nor one where the appellant experienced unexpected language difficulties in conducting his own case. Mr Damjanovic was probably always going to need an interpreter. If he gave evidence, as he would need to in order to establish his case, Ms Vukic could not interpret for him. Doing so would obviously conflict with her position as his advocate. See, for example, Pacific Air v Toller (2000) 171 ALR 519 at 521. That the appellant had previously been dissatisfied with interpreting services is beside the point. To be able to present his own case, the appellant would need an accredited interpreter of the Croatian language. That the appellant has poor command of the English language is no reason to grant Ms Vukic leave to appear as his advocate.

(c) The unavailability of disciplinary measures and a duty to the court by lay advocates

74 Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears. See Mannix at 311, 316; Scotts Head at 3; Hubbard at 343; Abse at 546, 555; Bay Marine at 110 – 111; R v Smith at 614; Tritonia at 587 and Paragon at 2371 referring to Woolf MR in D v S. Abse also emphasised the duty of a legal practitioner of absolute probity.

75 In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.

76 In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See Ipp, The Hon D. A., Lawyers’ duties to the court, (1998) 114 LQR 63).

77 Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.

78 All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court’s experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.

(d) Protection of the client and the opponent

79 Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse at 546 highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S.

80 One should also not lose sight of a lawyer’s duty to his/her opponent, Scotts Head at 3. None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer.

(e) Lay advocates in inferior courts and tribunals

81 There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.

82 The authorities however suggest that higher courts should be very chary at giving leave. See Mannix at 314; Hubbard at 343, Bay Marine at 111, Scotts Head at 3 – 4 and D v S (see Paragon at 2369).

(f) The interests of justice

83 What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.

84 The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that:

The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.

85 Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.

86 Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer’s privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier.

87 As I have already indicated, so far as the ruling of Dent DCJ to refuse Ms Vukic leave to appear for the appellant, it is impossible to conclude that his discretion miscarried. Similarly, the circumstances, as explained to this court by Ms Vukic are not exceptional or special so as make it appropriate for the court to have granted leave to Ms Vukic to appear on the appeal, other than to receive her written submissions.

88 I turn therefore to consider the so-called constitutional issue raised in the notice of appeal.

Section 43(1)(b) of the District Court Act is not unconstitutional

89 The appellant argues that s 43(1)(b) of the District Court Act is invalid because it is not a law for the ‘peace, welfare and good government’ of New South Wales as required by s 5 of the Constitution Act 1902 (NSW). The appellant further submits that the provision is contrary to the Commonwealth Constitution as it imposes a discriminatory procedural treatment by courts on parties with a poor command of English who do not want to be represented by a legal practitioner.

90 The first submission has no substance. In Union Steamship Co v King (1988) 166 CLR 1 the High Court held that the phrase should not be interpreted as words of limitation on the power of the State Parliament to enact legislation. The words simply express the fact that in ‘a general and remote sense the purpose and design of every law is to promote the welfare of the community’ (at 12).

91 The second submission is difficult to comprehend both in its factual basis and the supposed constitutional implication. The argument seems to be that there is an implied constitutional right to procedural equality which s 43(1)(b) transgresses. Apart from the fact that the provision does allow for a discretion to be exercised to permit an unqualified person to appear, there is no implied right to equality in the Constitution.

92 In Leeth v The Commonwealth (1992) 174 CLR 455 an underlying value of ‘equality’, or at least ‘equal treatment’, was invoked in the narrow context of the terms upon which Commonwealth prisoners are confined in State gaols. However, the High Court did not indicate that there is a general implication of equality under the Constitution nor that ‘equality’ is guaranteed. Indeed, Deane and Toohey JJ said (at 488 – 489):

The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalize or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those they punish or penalize or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences … Provided that the differentiation of and between those to whom they are addressed does not involve discrimination of the kind that infringes their inherent equality as people of the Commonwealth, such laws will not infringe the doctrine of equality under the law and before the courts.

93 Gaudron J rejected the conclusion reached by Deane and Toohey JJ in Leeth that there is a doctrine of equality to be found by implication in the Constitution. Her Honour affirmed her conclusion in Kruger v The Commonwealth (1997) 190 CLR 1 at 112 where she held that there is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth.

94 It is impossible to see how one can imply the limitation suggested by the appellant on the power of the NSW Parliament to enact legislation such as s 43(1)(b) of the District Court Act with reference to ‘implied rights’ contained in the Constitution.

Conclusion

95 Accordingly, the appeal should be dismissed and the appellant ordered to pay the costs of the respondent. No order is made as to the costs of the New South Wales Attorney-General.

**********