Khalifeh v Wenberg
[2006] NSWSC 320
•7 April 2006
CITATION: Khalifeh v Wenberg [2006] NSWSC 320 HEARING DATE(S): 22 March, 6 & 7 April 2006
JUDGMENT DATE :
7 April 2006JURISDICTION: Equity JUDGMENT OF: Hamilton J DECISION: Application for first plaintiff to represent third plaintiff at trial refused. Judgment for possession given on cross claim despite lack of affidavit under Uniform Civil Procedure Rules r 38.6. CATCHWORDS: PROCEDURE [18] – Courts and Judges generally – Judges – Power to control proceedings – Miscellaneous powers – Representation of party to proceedings by layman - REAL PROPERTY [23] – General principles – Ejectment – Other matters – Circumstances in which judgment for possession will be given although affidavit as to occupiers not furnished. LEGISLATION CITED: Civil Procedure Act 2005 s 91
Uniform Civil Procedure Rules 2005 rr 7.1, 29.7(4), 36.8CASES CITED: O’Toole v Scott (1965) 65 SR(NSW) 493
Teese v State Bank of New South Wales [2002] NSWCA 219PARTIES: Christian Khalifeh (P1)
John Andrews (P2)
Margaret Andrews (P3 & XD)
Georgina Black Milne Dutch Mercer Brewster Wenberg (D & XC)FILE NUMBER(S): SC 1677/05 COUNSEL: In person (P1 & representing estate of P2)
No appearance (P3 & XD)
L Ellison SC (D & XC)SOLICITORS: In person (P1 & representing estate of P2)
No appearance (P3 & XD)
Reimer Winter Williamson (D & XC)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 7 APRIL 2006
- ESTATE OF WAYNE MICHAEL WENBERG
JUDGMENT
1 HIS HONOUR: Yesterday these proceedings were settled as between the first and second plaintiffs on the one hand and the defendant on the other hand and orders were made disposing of them. At that stage, there remained some hope that the third plaintiff might join in a settlement along similar lines, in so far as those terms of settlement were relevant to the third plaintiff.
2 Mr Khalifeh, the first plaintiff, has on previous occasions indicated that he would apply to the Court at the trial for leave to appear for the third plaintiff. The third plaintiff is his mother in law and is in poor health. However, whilst on those earlier occasions I did not finally deal with any application for leave for Mr Khalifeh to appear for Mrs Andrews at the trial, I warned that the grant of such leave was very rarely made and for good reasons of public policy. Without foreclosing my decision on any application that might subsequently be made, I indicated that that application was unlikely to be granted. I indicated that, if the third plaintiff wished to be represented at the trial, she should make some appropriate arrangement for her representation.
3 When the matter was called on for trial yesterday, the third plaintiff did not appear. The matter was dealt with yesterday in the fashion that I have already indicated and the balance of the proceedings was stood over till today. That balance consists of certain claims made on the third plaintiff's part and also a cross claim by the defendant against the third plaintiff as cross defendant for possession of the subject premises. I should be more inclined, and it is not so rare, to grant leave to a non lawyer to appear for an unrepresented party to make an application for an adjournment, than to grant leave for a non lawyer to represent such a person at a trial of proceedings.
4 However, it is obvious that there is communication between the first plaintiff and the third plaintiff, of whose interests the first plaintiff has been solicitous whenever the matter was before me. I have made it plain over a long period that leave was unlikely to be granted for the third plaintiff to be represented by the first plaintiff. No arrangement has been made up to yesterday and today for any appropriate representation of the third plaintiff. In those circumstances, if application were made on the third plaintiff's behalf for an adjournment from today by reason of her lack of representation, I should refuse that application. In those circumstances there is no point in my granting Mr Khalifeh leave to appear to make an application for an adjournment on the third plaintiff’s behalf and that application is refused.
5 As it has now become apparent that I intend to proceed with the trial of these proceedings, so far as they concern the third plaintiff, in her absence, Mr Khalifeh now applies for leave to represent her for the purpose of leading evidence and giving evidence which is to be taken into account on her behalf on the trial as it proceeds. Whilst framed slightly differently, this amounts to an application for leave for the third plaintiff to be represented at the trial by the first plaintiff.
6 There is naturally some sympathy for such applications where people have not been able to obtain other representation. This is a case in which Mr Khalifeh appearing for himself has behaved to my observation in a responsible fashion and attempted, not totally ineffectively, to assist the Court in dealing with the proceedings. Whilst the Uniform Civil Procedure Rules 2005 (“the UCPR“) by r 7.1 provide only for a litigant to appear in person or by lawyer, there is an undoubted discretion in the Court to permit representation by another lay person and that discretion is unrestricted in its ambit: O’Toole v Scott (1965) 65 SR(NSW) 493. Despite the matters set out above, there is the very important public principle that persons are allowed to appear only in person or by lawyers, who are bound in their actions toward the Court by a code of conduct which is supported by sanctions that can be imposed on them if the code is not obeyed: Teese v State Bank of New South Wales [2002] NSWCA 219. Sometimes leave is granted for a litigant who appears in person to appear for other litigants who have the same interest. But here, the third plaintiff’s claims are quite different from the first plaintiff’s claims. And, in any event, the first plaintiff’s claims are now settled.
7 I also take into account the fact that there are very considerable difficulties in any event with Mrs Andrews’ claims made in the proceedings. One of them, for instance, is a claim that could be made only in a probate suit and not in proceedings constituted as the present proceedings are. There are difficulties into which I need not go in detail with the other claims made by her, in so far as she seeks to proceed with them. It seems to me that the best course from her point of view, as well as from the point of view of the defendant having finality in these proceedings, is for the matter to proceed, which will lead to the dismissal of her claims under UCPR r 29.7(4), which will at least give her the benefit of the provisions of s 91 of the Civil Procedure Act 2005. So far as the cross claim against her for possession is concerned, I am unable to perceive any valid defence that she may have to that cross claim. In all of those circumstances, I refuse Mr Khalifeh’s application to appear for the third plaintiff on the hearing of the proceedings.
8 In this matter, proceedings for possession have been brought, by direction of the Court, by cross summons, albeit a statement of cross claim would ordinarily be required. That means that the cross claimant has not the benefit of admissions on the pleadings to found a judgment for possession in the absence of the cross defendant. However, the cross claimant has proved her title to the property by tender of a copy certificate of title (the original certificate of title having at the same time been produced to the Court but returned to the cross claimant’s lawyers).
9 Rule 36.8 of the UCPR provides that, unless the Court orders otherwise, judgment for possession of land may not be given unless the plaintiff files an affidavit concerning the occupation of the land. That has not been done. However, Mr Ellison, of Senior Counsel for the cross claimant, has called as a witness the first plaintiff, Mr Khalifeh, who unsuccessfully sought leave to appear for the third plaintiff.
10 Mr Khalifeh is the cross defendant’s son in law. He has not been a frequent visitor to the premises of recent times, although he was in them last Christmas and has been to, but not in the premises, once since then. However, he, and even more so his wife, the cross defendant’s daughter, speak to her frequently on the telephone and the wife goes to the premises more often than Mr Khalifeh does. The only person other than the cross defendant whom Mr Khalifeh has observed about the premises is a grandson, Darryl. The facts about Darryl, as deposed to by Mr Khalifeh, are that he does spend quite protracted periods staying with his grandmother, who is fond of him. However, he does have parents who have a home at Austral, some distance away. He lives and has his home with his parents and stays there except during the periods that he spends with his grandmother. He is at the present time about 16 years old and still at school. Whilst r 36.8 has not been complied with, the degree of Mr Khalifeh’s knowledge as to the occupation of the premises is greater than that of the claimant herself or anyone else who could swear the r 36.8 affidavit on her behalf.
11 On the evidence, I find that Darryl is not an occupier of the premises and there is no occupier of the premises other than the cross defendant herself. I should add that the claimant has also proved the service on the cross defendant herself of the cross summons and has proved that there was left with the cross defendant a notice to occupier, which, one imagines, would have been handed to the occupier by the cross defendant, were there any occupier other than herself.
12 In all the circumstances, despite the provisions of r 36.8, I propose to give judgment for the cross claimant for possession.
13 The cross claimant also asks that I grant leave to the cross claimant to issue a writ of possession. I propose to grant leave to the cross claimant to issue a writ of possession on or after 8 May 2006. This will give the cross defendant time, if she has grounds for a postponement of the issue of the writ, to make application accordingly.
14 The cross claimant applied to me for costs of the claim and of the cross claim against the third plaintiff. Upon my indicating that I proposed to order the costs of the cross claim against the third plaintiff, Mr Ellison indicated that he did not press any other claim for costs. I order that the cross defendant pay the cross claimant’s costs of the cross claim.
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