Jeisman v Australian Executor Trustees Limited - [2012] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JEISMAN v AUSTRALIAN EXECUTOR TRUSTEES LIMITED & ANOR
[2012] SASC 142
Reasons of Judge Withers a Master of the Supreme Court
22 August 2012
PROFESSIONS AND TRADES - LAWYERS - RIGHTS AND PRIVILEGES - RIGHTS OF AUDIENCE - SOLICITORS
Representation by struck off lawyer.
Inheritance (Family Provision) Act 1972 (SA) s 6, referred to.
Galladin Pty Ltd v Aimnorth Pty Ltd & Ors (1992) 60 SASR 145; Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230; Abse v Smith [1986] 1 QB 536; Step v Collins & Ors [2007] NTSC 35; Ethics in Law: Lawyers' Responsibility and Accountability in Australia Ysaiah Ross, 5th ed, considered.

JEISMAN v AUSTRALIAN EXECUTOR TRUSTEES LIMITED & ANOR
[2012] SASC 142

JUDGE WITHERS. The plaintiff has applied to be represented in this action by Mr Roger Nunn. Mr Nunn is a legal practitioner who has been struck off the Roll. In order to determine the plaintiff’s application it is necessary to briefly consider the background to this action.
Background
This is a claim by the plaintiff under the Inheritance (Family Provision) Act 1972 (SA) for further provision arising out of the death of his father on 8 June 2009. Probate of his father’s will was granted to the first defendant on 18 October 2010. The will leaves the residuary estate in equal shares to the plaintiff and his sister, who is the second defendant. The net estate for probate purposes was $1,366,488.76.
In his original supporting affidavit – FDN 2 – the plaintiff attested that he was then 54 years of age and suffered dyslexia. He had for a very long period of time worked on the farm which is the major asset of the estate. He had lived there since 1973. He had, at his parents’ request, purchased some land adjacent to it which they had been forced to sell by their parents pursuant to a guarantee arrangement. He attested that he had constantly worked and contributed to the property. The plaintiff’s mother died in 2008. He attested that she had told him that she thought he should get more than 50 per cent of the estate to reward his contribution to the property. He attests that he became the sole carer for his father, who died in 2009. He has continued to work the land.
As to his own assets the plaintiff asserts that he has an equity of about $140,000.00 in his 20 acre property and that he owns two school buses which he uses as part of a business. The plaintiff’s health is poor. He suffered a spinal injury which required surgery in about February 2012.
These proceedings were issued with the assistance of a solicitor who initially represented the plaintiff in the action.
In her defence the second defendant asserted that both she and the plaintiff had helped on the farm. She said that she had been told by her mother that she would get a half share of the farm. She asserted that the plaintiff bullied his parents. She denied the plaintiff’s assertion that he was the sole carer for his father and she denied that he had been left with inadequate provision in the will.
The second defendant by interlocutory application applied for an order for the sale of the property. She attested in a supporting affidavit – FDN 8 – that the major assets of the estate were the land and water licences, that the plaintiff had occupied the estate properties since the date of death of the deceased and that he had refused to vacate. She complained that the value of the property was diminishing and sought an order that it be sold.
A Notice of Change of Solicitor was filed for the plaintiff on 22 September 2011. However, on 24 February 2012 the plaintiff filed a Notice of Change of Solicitor to the effect that he would act for himself.
An affidavit was filed by the plaintiff on 27 February 2012 – FDN 11. In that affidavit to a large degree the plaintiff seems to repeat the content of the affidavit FDN 2. He did attest that he had been due for a spinal fusion on 24 January 2012. He attested that his only source of income was the vineyard. He asserted that the second defendant was in a much better financial position than he. He then attested in paragraph 26 of that affidavit to his contribution to the farm, and to its maintenance and improvement. He asserted that it would be unjust if the second defendant were to receive a half share of the estate in all the circumstances and that he had a beneficial entitlement in the ownership of the farm as a result of either a resulting trust, constructive trust or an implied trust. He sought a declaration that the second defendant be entitled to a 15 per cent share of the disclosed net assets of the estate and that he be entitled to the balance.
An application was subsequently filed by the plaintiff on 5 June 2012 – FDN 13 – for an order extending the time for removal of caveats that the plaintiff had placed on the property. This was supported by two affidavits of the plaintiff – FDN 14 and FDN 15. He complained that a “for sale” sign had been erected on the property on 29 March 2012 without consultation with him. He repeated that he had a substantial entitlement to the property. The plaintiff’s application did not result in any orders as it was not determined prior to the expiration of the 21 day period allowed and the caveats were removed by the Registrar.
The Application
By application FDN 17 filed on 30 July 2012, the plaintiff sought an order as follows:
1.…
2.That, until further order, Roger Bradford Nunn be granted leave to attend any Directions Hearing and Trial as the Plaintiff’s representative;
…
In support of the application an affidavit of Dr Graham Lovell was filed on 30 July 2012 – FDN 18. Dr Lovell attested that he was the plaintiff’s general practitioner and had been since February 2007. He exhibited an earlier report by him dated 13 February 2012 addressed to the Registrar of the Supreme Court. In this report he noted that the plaintiff had undergone decompressive and fusion surgery to his lumbar spine in February 2012. Prior to that Dr Lovell had seen him in mid-2011 with a major adjustment disorder, with disabling anxiety and depression subsequent to the loss of his father and the property conflict with his sister.
Dr Lovell opined that it would be helpful to the plaintiff to postpone the processing of the family estate issues as he was not fit to deal with those issues at that time. He also opined that by August 2012 he should have improved. Dr Lovell’s affidavit (FDN 18) described the treatment that he had provided to the plaintiff for his depression and anxiety. He attested that the plaintiff was not fit to attend any Court proceedings and that Dr Lovell intended to review him in three months.
An affidavit of Roger Bradford Nunn was also filed in support of the application. He described himself as a former legal practitioner. He attested that he had been removed from the Roll of Legal Practitioners in May 1995, having been convicted of two counts of fraudulent conversion. I note that the Supreme Court file, Action No 665 of 1996, indicates that Mr Nunn was struck off the Roll on 5 August 1996, having been convicted in the Adelaide Magistrates Court of eight counts of fraud and one count of false pretences. He had been sentenced to twelve months imprisonment with a non-parole period of four months. An application to suspend the sentence had been refused.
Mr Nunn attested that upon release from gaol he had initially worked in a factory with homeless people. In 1999 the Supreme Court granted him permission to work as a clerk for a legal firm and he had continued that work for two legal firms for a period of approximately eight years until 2007. He then commenced his current business, Roger Nunn Clerical Services. He describes his business as a mediator and business consultant. He initially obtained some funding from the Commonwealth Government and over time developed his own clients in lease negotiations and small business matters.
Mr Nunn attested that the plaintiff had approached him when he received a letter of demand from solicitors acting for a bank holding a mortgage over the estate properties on which he resided. Mr Nunn had responded to those solicitors on the plaintiff’s behalf. He sought a meeting with the bank. He had received no response other than an acknowledgement.
The plaintiff had engaged new solicitors after terminating instructions to his original lawyers. However, on 24 May 2012 those solicitors had issued proceedings against him seeking to recover unpaid legal fees.
Mr Nunn attested that he did not charge for his work for the plaintiff in relation to this action but did charge for business matters personal to him. He attested that he understood the plaintiff to be depressed, fearful of lawyers and the Court. Accordingly, the plaintiff had sought his assistance to represent him in the action.
By an affidavit filed on 8 August 2012 – FDN 20 – the second defendant opposed the application by the plaintiff. She attested that she had been assisted by Mr Nunn in a legal dispute in 2008. She had been told by him that he was a struck off legal practitioner. She attested that he had attended a Court ordered mediation with her in respect of the dispute and given her advice in relation to an offer made. She had understood that he would appear for her at a contested hearing but he did not appear and this had led to her resolving the dispute on terms less favourable than had been available at the mediation. She attested that she had provided a statement to the Crown Solicitor’s Office about those events when contacted by it in August 2009. She attested that she had received a telephone call from Mr Nunn in late 2009, or early 2010, that if she gave evidence against him “there would be consequences” – see paragraph 9 of her affidavit. She had therefore refrained from providing further information. She opposed the application on the basis that Mr Nunn was aware of her personal affairs, had been found to be unfit to act as a legal practitioner, had caused delays in these proceedings, and had demonstrated that in the past his approach to litigation lacked strategy and was uncommercial.
At the argument on this matter on 13 August 2012, Mr Nunn handed up a further affidavit of his noting that the Crown record of interview correctly recorded his involvement with the second defendant. He asserted that the second defendant’s affidavit did not accurately reflect the correct position. He tendered a copy of the interview record. In that interview record the second defendant significantly downplays the role undertaken by Mr Nunn in his assistance to her in relation to a dispute about an accounting fee.
Points of submission were also handed up by Mr Nunn. He relied on Galladin’s case – see later. He asserted essentially that there were two reasons why special circumstances existed that the plaintiff should be permitted to be assisted and represented by him – firstly, the plaintiff’s ill health and, secondly, he asserted that the plaintiff could not afford to retain a legal practitioner. There is no evidence before the Court of a satisfactory nature that supports that latter assertion. I note that the plaintiff has given an undertaking as to damages if any are incurred by the estate as a result of his opposition to the sale of the property. I note the plaintiff’s attestation that he owns his own property in which he has a significant equity, and that in any event he has a half interest in the net estate presently before the Court.
The Law
In Galladin Pty Ltd v Aimnorth Pty Ltd & Ors (1992) 60 SASR 145, Perry J found (at 147) as follows:
I hold that I have a discretion to permit non-legal representation if in the interests of justice that appears to be necessary or convenient.
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.
In that particular matter Perry J did allow an existing defendant to represent two other defendants where the representation of all three defendants by counsel had ceased midway through a trial as a result of them running out of funds to meet the costs of counsel. There was a family relationship between the defendants and other reasons which Perry J found justified making the order. It was an unusual circumstance.
In Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230, the New South Wales Court of Appeal had cause to consider whether or not a lay person should be granted leave to appear on behalf of an appellant. In that case it was said that the appellant was able to afford legal representation but did not trust lawyers because of bad experience in the past. The Court found that the Court did have “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” – see reasons of Stein JA. Stein JA identified some principles at [69] to [86]. Those principles or considerations relevant to the exercise of the discretion to grant or refuse leave included:
(a)the complexity of the case;
(b)any genuine difficulties being experienced by an unrepresented party;
(c)the unavailability of disciplinary measures and a duty to the Court by lay advocates;
(d)the protection of the client and the opponent;
(e)lay advocates in inferior courts and tribunals; and
(f)the interests of justice.
In [50] of his decision, Stein JA refers to the words in relation to public interest used by Sir John Donaldson MR in the matter of Abse v Smith [1986] 1 QB 536 (at 545-546), where his Lordship said:
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.
Mildren J in the Supreme Court of The Northern Territory applied Damjanovic v Maley in the matter of Step v Collins & Ors [2007] NTSC 35. He noted in that matter that one of the considerations affecting the exercise of his discretion is that the person who was being asked to be the advocate was very likely to be a witness. He noted the undesirability of such a person also being an advocate of the same cause.
Finally, and in my view importantly, this is an unusual matter where the person who is being asked to represent the plaintiff is not simply a lay person but is a struck off legal practitioner. In my view this raises another consideration and that is the administration of justice and the Court’s protective role in ensuring the confidence of the public in its processes. Ysaiah Ross in his work “Ethics in Law: Lawyers’ Responsibility and Accountability in Australia”, 5th ed, (at [7.3]) says:
7.3 The exercising of the power to suspend or disbar lawyers is supposed to be ‘wholly protective’ and not a punishment to the lawyer. Who is being protected? The court said in the Clyne case [referring to Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 202] that it was protecting the public and making sure that the abuse of the privilege of being a lawyer by lawyers, as in Clyne, would not lead to the profession losing its privileges. The latter element involves maintaining the integrity and standards of the profession, acting as a deterrent to other lawyers and ensuring that the profession does not lose the public’s confidence. … [My italics.]
While it is clear that the plaintiff has experienced some difficulties with his former solicitors he has, nevertheless, been able to instruct solicitors in this action. I am not satisfied that it is established that he is impecunious such that he is unable to afford the costs of representation or that that factor would preclude him from obtaining legal representation. While it is clear that the plaintiff has some health problems, it is the plaintiff who has initiated these proceedings, it is the plaintiff who is putting forward a relatively complex claim in equity as well as under the Inheritance (Family Provision) Act and it is the plaintiff who must advance his claim through the Court. Both the Court and the defendants are entitled to have the claim dealt with as efficiently and effectively as possible.
In my view the interests of the administration of justice will not be served by the Court permitting the plaintiff to be represented by Mr Nunn. The Court has found that Mr Nunn is not suitable to be a legal practitioner and he has been struck from the Roll. This followed convictions for dishonesty and a sentence of imprisonment. While Mr Nunn has been permitted by the Court to return to working as a clerk, he has chosen not to seek to be readmitted to the legal profession. It would be a strange circumstance for the Court having found a qualified lawyer to be unsuitable to continue as a legal practitioner and as an officer of the Court, to then permit that same person to appear to represent a litigant in a Court process. Such a ruling would inappropriately undermine the integrity of the Court’s earlier decision and be inimical to the Court’s commitment to the protection of the public.
For the foregoing reasons, the plaintiff’s application to be represented by Mr Nunn is refused. The plaintiff is to pay the defendants’ costs of and incidental to the application.