Fidge v McCurdy

[2015] VSC 43

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COURT OF DISPUTED RETURNS

S CI 2015 0337

JULIAN FIDGE	Petitioner
v
TIMOTHY MCCURDY	Respondent

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JUDGE:	J FORREST J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2015 (Short oral reasons)
DATE OF RULING:	20 February 2015 (Written reasons)
CASE MAY BE CITED AS:	Fidge v McCurdy
MEDIUM NEUTRAL CITATION:	[2015] VSC 43

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Court of disputed returns – Petition disputing validity of election of a member of the Legislative Assembly – Alleged production of misleading and deceptive electoral material – Petitioner self-represented – Whether Respondent should be granted leave to be represented by an Australian legal practitioner – Electoral Act 2002 (Vic), ss 126, 127, 128(1) - Civil Procedure Act 2010 (Vic), s 7(1), Part 4.2.

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APPEARANCES:	Counsel	Solicitors
For the Petitioner	In person
For the Respondent	Mr E. Gisonda

HIS HONOUR:

1. Dr Fidge, a candidate in the Victorian State election, disputes the validity of the election of the Victorian Legislative Assembly in the seat of Ovens Valley held on 29 November 2014. He has filed a petition pursuant to s 133 of the Electoral Act 2002 (Vic) (the Act) to the Court of Disputed Returns alleging that the winning candidate in Ovens Valley, Mr McCurdy, produced electoral material that was misleading and deceptive within the meaning of s 84 of the Act.

1. This application by Mr Gisonda, counsel for Mr McCurdy, is that Mr McCurdy be granted leave to be represented by an Australian legal practitioner in the hearing and any pre-trial hearings of the election petition filed by Dr Fidge. 

1. This application, which is opposed by Dr Fidge, is made pursuant to s 128(1) of the Act, which reads:

A party to a petition must not be represented by an Australian legal practitioner unless— 

(a)all the parties consent to the party being represented by an Australian legal practitioner; or

(b)the Court of Disputed Returns grants leave for the party to be represented by an Australian legal practitioner.

I should also refer to ss 126 and 127 of the Act, which Dr Fidge relied upon in his submissions:

126     Court must act fairly

The Court of Disputed Returns must act fairly and according to the substantial merits of the petition in the proceedings.

127     General procedure

(1)     The Court of Disputed Returns—

(a)     is bound by the rules of natural justice; and

(b)   is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures; and 

(c) must conduct each proceeding with as little formality and technicality as the requirements of the Act permit.

(2) Part 3.10 of the Evidence Act 2008 applies to proceedings in the Court of Disputed Returns.

1. I heard and considered succinct and cogent arguments from both Dr Fidge and Mr Gisonda.  I hope I do no disservice to Dr Fidge's arguments to summarise them as follows:

(a)That on a fair construction of the Act and in particular ss 126 to 128, the primary position, particularly having regard to s 128, is that legal representation not be permitted. Moreover, when one looks at those sections, the intention of the Act is that the Court of Disputed Returns conduct itself informally and with a lack of recourse to legal procedural process.

(b)That there is an inherent unfairness in a contest between an unrepresented and represented party. Dr Fidge has no legal training, nor does Mr McCurdy. It would be far better in the scheme of this petition and in light of the legislative intention for the proceeding to take place with as little formality as the Act permits. To put it in robust terms, it is appropriate for Mr McCurdy and Dr Fidge to have it out themselves rather than encumbered by legal representation. Moreover, to permit one party to be represented and the other party not to have representation carries with it an inherent unfairness.

(c)That there is the potential for a significant monetary order for costs if Mr McCurdy is allowed to be represented and successfully defends the claim.  Costs for counsel and solicitors will inevitably result in a greater adverse order for costs if that is what eventuates.  Simply put, there is a potentially significant monetary consequence if there is a grant of representation to Mr McCurdy.

(d)That the facts of the case are relatively simple and do not call for any significant legal analysis.

1. Against that, as succinctly put by Mr Gisonda, are the following propositions:

(a)The question of representation is left to the court's discretion.  Whilst the starting point might be s 128, it is clearly within the court's discretion to grant representation in an appropriate case.

(b)It is of considerable, indeed, utmost importance to Mr McCurdy that this hearing afford him a full opportunity to put his case.  He has no legal training and is entitled, so it is argued, in a case of this significance where the end result would be his disqualification of the electoral result, to be represented.

(c)That there are issues of law and fact of some complexity and that the court would benefit from the assistance of counsel.

1. These, I think, are forceful considerations which, in my opinion, outweigh those put by Dr Fidge.  In addition, there are the following matters which I discussed with counsel in the course of the submissions.

1. It would be, in my opinion, unusual in the extreme to deny a person representation before a court that provided and allowed for representation, particularly where his or her chosen occupation as a legislator is placed in jeopardy. The Act requires procedural fairness, and it would be quite extraordinary to prevent an elected representative to the Parliament from having representation where he or she desires such representation.

1. Further, and consistent with the overarching purpose of the Civil Procedure Act 2010 (Vic) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, [1] the presence of counsel will assist the court to consider the issues. It may be anticipated that any relevant provisions of the Act will be addressed and relevant authorities, adverse or favourable, brought to the court's attention. It is clear, as I discussed in the course of the argument, that the Civil Procedure Act recognises that adversarial litigation is not just a two-way process. As Part 4.2 of the Civil Procedure Act makes clear, the court has an active involvement, both in pre-trial and trial management.  Where it can be assisted to reach a just and fair conclusion it ought to be.  I am persuaded that the involvement of counsel will lead, or at least will assist in leading to that result.

   [1]Section 7(1) Civil Procedure Act 2010.

1. I should add that Dr Fidge, it seems to me, is intelligent and articulate.  He put his submissions in a very able fashion.  I do not for one moment suggest that he has the appropriate legal training to handle, unassisted, a case such as this. I also accept that he may be at a disadvantage in presenting his case.  But, as the authorities demonstrate, in cases involving an unrepresented litigant the court has a duty to assist, within limits, a litigant such as Dr Fidge.[2]  My impression of the doctor is that with a minimal degree of assistance he will be able to cover the issues and the facts with little disadvantage. 

   [2]Tomasevic v Travaglini [2007] VSC 337 in which the following cases are cited by Bell J: Abram v Bank of New Zealand (1996) ATPR 41–507, 42,341, 42,347; Rajski v Scitec Corporation Pty Ltd (New South Wales Court of Appeal, 16 June 1986 unreported (the relevant passages from the judgment are set out below and in Re Morton; Ex parte Mitchell Products Pty Ltd(1996) 21 ACSR 497 at 513–514); Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd[2006] SASC 381, [54]; Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31, [148]–[157] per Beazley JA, Basten JA concurring and Bryson JA dissenting; Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 at 23; Nagy v Ryan[2003] SASC 37 [39]–[46]; Panagopoulos v Southern Healthcare Network (Supreme Court of Victoria, Smith J, 15 September 1997 unreported, BC 9704538, 2); Santamaria v Secretary to Department of Human Services [1998] VSC 107, [28]; Zegarac v Tomasevic[2003] VSC 150, [3]; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445–447; Tobin v Dodd[2004] WASCA 288, [13]–[16]; Murphy v Stevens[2003] SASC 238, [204]–[209] (Full Court).

1. Finally, I note that the informality of the procedure, as set out in s 127 of Act, assists, rather than detracts from the ability of Dr Fidge to conduct his case.

1. Ultimately, it is my conclusion that I should grant leave to Mr McCurdy to be represented at any further hearing, procedural or substantive, by an Australian legal practitioner.