Damjanovic v Maley

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.