Gallagher v Northern NSW Local Health District

[2023] NSWCATAD 164

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164

Hearing dates:

On the papers

Date of orders:

21 June 2023

Decision date:

21 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

(1) A hearing in relation to the application for the applicant to be represented by Rex Patrick is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

(2)    Leave for the applicant to be represented by Rex Patrick is refused.

Catchwords:

PRACTICE AND PROCEDURE - s 45 of the Civil and Administrative Tribunal Act - exercise of the Tribunal's discretion to permit or refuse leave to a lay advocate to appear for a party

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

District Court Act 1973 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Damjanovic v Maley [2002] NSWCA 230

Texts Cited:

Nil Cited

Category:

Procedural rulings

Parties:

Julie Elizabeth Gallagher (applicant)
Northern NSW Local Health District (respondent)

Representation:

Solicitors:

Clayton Utz (respondent)

File Number(s):

2023/00082584

Publication restriction:

Nil

Reasons for Decision

1. On 13 March 2023 the applicant lodged an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. The matter came before the Tribunal for a case conference on 29 May 2023. On that occasion Mr Rex Patrick was granted leave to appear as a representative for the applicant for that day only. The Tribunal noted:

Ms Gallagher is to provide to the Tribunal and the Respondent with sufficient material to allow the Tribunal to determine whether the request should be granted for further conduct of the matter.

3. On 30 May 2023 the applicant lodged a “Notice of representation by legal practitioner or agent” form together with written submissions as to why leave should be granted for Mr Patrick to appear as a representative for the applicant (the application).

4. On 7 June 2023 the Tribunal made directions for the parties to provide submissions and supporting documents in relation to the application and the parties were provided with the opportunity to make submissions in relation to dispensing with the hearing in relation to the application, as is required by s 50 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

5. The respondent provided brief written submission on 8 June 2023 submitting that they did not oppose the application and that a hearing could be dispensed with, and the application was amenable to being heard on the papers.

6. The respondent Mr Patrick provided further written submission on 15 June 2023 and noted that Ms Gallagher was happy for the matter to be determined on the papers.

7. Neither of the parties’ sought an oral hearing of the application and both parties agreed that the application could be dealt with on the papers. I am satisfied in the circumstances, that it is appropriate to deal with the miscellaneous applications on the papers, as a hearing would amount to further unnecessary costs to the parties. I have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing.

Submissions of the applicant

8. The applicant submits that she is currently suffering from a medical condition, which, she submits, arises from her employment and renders her totally unfit for work. The applicant states that her capacity to represent herself in an NCAT hearing related to a work matter with the respondent is limited by her medical condition. The applicant has attached a letter from a medical practitioner, stating:

I have examined Julie Gallagher … and based on my experience and statements made by Julie Gallagher I consider that Julie has a medical condition and will be unfit for participation unsupported, in work related matters, including appeal process, today 29 May 2023.

9. The applicant also submits that not having an agent to represent her will result in her not understanding the arguments being put forward by the respondent and that she would be denied the opportunity for her agent to advise her about her options in relation to the GIPA Act application. She submits that this would place an unfair position as the respondent has a senior, qualified legal counsel and is well resourced. The applicant submits that she is currently unemployed and does not have the financial resources to pay legal fees to a lawyer to represent her.

10. Mr Patrick is not a lawyer and does not purport to be a lawyer. The applicant submits that Mr Patrick has been very careful to spell out that he does not give legal advice. The applicant notes from reports in the media and her searches of that Mr Patrick is experienced and well respected in the information access area. The applicant submits that Mr Patrick will assist the Tribunal as he can focus the applicant on the issues that are important to arriving at the correct and preferable decision.

11. In an email sent on 15 June 2023, Mr Patrick submits the following:

Whilst I do not purport to be a lawyer, nor do I regularly agree to appear for people in Tribunals (I often provide background assistance), I have been involved in numerous FOI proceedings as both an applicant and respondent, including:

•   In the Federal Court (x2)

•   In the AAT (>15) - although many of these matters have been settled by consent and are not recorded.

•   In SACAT (5)

•   With The Federal Information Commissioner (>30)

•   With The South Australian Ombudsman (>5)

My appearance will likely assist the proceedings in terms of case management and narrowing of the issues before the Tribunal.

Great injustice would occur if the applicant was asked, in the circumstances described, for present her case against professional legal representatives.

12. The email ends with the following signature:

Rex Patrick

Director

Transparency Warrior

…

start="13">

Section 45 of the NCAT Act provides:

(1) A party to proceedings in the Tribunal—

(a) has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b) may be represented by another person only if the Tribunal grants leave—

(i) for that person to represent the party, or

(ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party.

…

14. Clause 9 of sch 3 of the NCAT Act provides:

Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.

Note—

The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.

…

15. Mr Patrick is not an Australian Legal Practitioner and leave is therefore required for him to appear as a representative on the applicant’s behalf.

16. Damjanovic v Maley [2002] NSWCA 230 involved an appeal from a decision made in the District Court, refusing leave for Ms Vukic, a lay representative, to appear before the Court pursuant to s 43(1) of the District Court Act 1973 (NSW). Stein JA, with whom Mason P and Sheller JA agreed, set out principles from a number of cases at [37] – [68] of the judgment and relevantly summarised the principles at [70] – [86] as follows (some citations omitted):

(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.

…

(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.

…

(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…

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.

…

(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…

17. I note the comments made in Damjanovic v Maley regarding lay advocates in Tribunals where the party is under some disability in presenting their own case. However, the applicant in these proceedings has not demonstrated that she is under a disability in presenting her own case. The medical certificate provided by her provides no details of the medical condition or disability and states that the applicant would only be unfit for participation in work related matters, including appeal processes for 29 May 2023. The medical certificate does not indicate that the applicant would be unfit beyond that date.

18. Unlike a Court, the Tribunal is not bound by the rules of evidence in this type of matter. Section 38 of the NCAT Act requires the Tribunal to act with as ‘as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’. Section 38 also requires that:

(5) The Tribunal is to take such measures as are reasonably practicable—

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6) The Tribunal—

(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b) may require evidence or argument to be presented orally or in writing, and

(c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

19. The applicant indicates that she cannot afford legal representation. However, the procedures of the Tribunal make it easier for a party to represent themselves than in a Court. In any case, the applicant has provided no details of efforts made to secure legal representation. There is no evidence that the applicant presently suffers from any disability which would prevent her from representing herself. I also note that refusal to grant representation does not result in Mr Patrick being prevented from assisting the applicant (should she want it) in preparing her case.

20. Moreover, Mr Patrick has not identified the nature of his involvement in “FOI”. I note the proceedings he refers to do not appear to be proceedings under the New South Wales GIPA Act. I also note the signature of Mr Patrick includes the words ‘Transparency Warrior’. While there are no further details provided in that regard, Mr Patrick’s own interests or motives in appearing as a representative in the proceedings are not disclosed. No details of the arrangement between the applicant and Mr Patrick have been provided to the Tribunal. As Mr Patrick concedes, he is not a legal practitioner and cannot provide legal advice to the applicant. Mr Patrick is a lay representative, and, as is explained in Damjanovic v Maley, Mr Patrick is not bound by the duties and obligation that a legal practitioner has to a client or the Tribunal and this could place the client and the respondent at risk.

21. Having considered the submissions of the parties and the principles summarised in Damjanovic v Maley, I am not persuaded that it would be in the interests of justice generally or in the interests of the applicant to grant leave for Mr Patrick to appear in the Tribunal as the representative for the applicant.

Orders

22. I make the following orders:

1. A hearing in relation to the application for the applicant to be represented by Rex Patrick is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. Leave for the applicant to be represented by Rex Patrick is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar