Laurie and Child Support Registrar and Filho
[2008] FMCAfam 1286
•28 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAURIE & CHILD SUPPORT REGISTRAR & FILHO | [2008] FMCAfam 1286 |
| PRACTICE & PROCEDURE – CHILD SUPPORT – Appeal from decision of SSAT – whether lay person can appear as advocate for appellant. |
| Family Law Act 1975 Federal Magistrates Act 1999 Legal Profession Act 2004 |
| Damjanovic v Maley [2002] NSWCA 230 In the Marriage of MG [2000] FamCA 893 Potkonyak v Powell [2007] NSWDC 282 P & R (No.1) [2002] FMCAfam 65 R v E J Smith (1982) 2 NSWLR 608 Tritonia, Hubbard and Re Education Pty Ltd and the Companies Act (1963) NSWR 1340 |
| Applicant: | MR LAURIE |
| First Respondent | CHILD SUPPORT REGISTRAR |
| Second Respondent | MS FILHO |
| File number: | SYC 2252 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 25 November 2008 |
| Date of last submission: | 25 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2008 |
REPRESENTATION
| Applicant: | Self represented |
| Solicitors for the First Respondent: | Australian Government Solicitors |
| Counsel for the Second Respondent: | Mr R. Maurice |
THE COURT ORDERS THAT:
The Application in a Case filed 11 November 2008 by Mr George Potkonyak be dismissed.
The Applicant’s oral application for the appointment of Mr George Potkonyak as his advocate in the appeal proceedings, be dismissed.
The costs of the First and Second Respondents be reserved to the hearing of the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Laurie & Child Support Registrar & Filho is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2252 of 2008
| MR LAURIE |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS FILHO |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 21 April 2008, Mr Laurie filed a Notice of Appeal in relation to a decision of the Social Security Appeals Tribunal (“SSAT”) of 3 March 2008. The SSAT affirmed a decision of the Child Support Agency to refuse Mr Laurie’s application to extend time to lodge an objection against a change of assessment decision of 18 December 2000.
The matter has been before this court a number of times since the Notice of Appeal was filed, and has been before other Federal Magistrates on those occasions. The matter was therefore listed with priority for the hearing of the appeal before me on 25 November 2008.
On 11 November 2008, Mr George Potkonyak filed an Application in a Case seeking these orders:
1. That leave be granted to Mr George Potkonyak to appear as the legal representative for the appellant Mr Laurie at the hearing of his appeal from the decision of the SSAT of 3 March 2008 and at any other subsequent proceedings in the same matter and in this Court, if such arise.
2. That the above order is made ex parte in chambers and the parties are duly notified of the decision not less than 7 days before the appeal hearing set for 25 November 2008.
Mr Potkonyak orally advised the court on 25 November 2008 that he sought a declaration from the court, “that he be declared the solicitor on the record for the purpose of the appeal hearing.” He relies on the decision of Damjanovic v Maley [2002] NSWCA No 230 to which I will refer shortly.
Given Mr Potkonyak is not a party to these proceedings, and does not claim to have any interest in the proceedings, in my view, the application for him to appear as advocate for Mr Laurie should have been brought by Mr Laurie, not by Mr Potkonyak. However, neither legal representative for the two Respondents objected to the application on this ground. For abundant caution, with the consent of both Respondents’ legal representatives, I gave leave to Mr Laurie to bring an oral application for Mr Potkonyak to appear on his behalf, and gave leave to Mr Potkonyak to make submissions on Mr Laurie’s behalf on that application.
I clarified with Mr Potkonyak that he does not seek to assist the applicant as a McKenzie friend, but to appear as an advocate and speak on behalf of the applicant. Mr Potkonyak filed one affidavit in support of his application sworn by himself on 11 November 2008. He did not seek to rely on any other material. In his affidavit, Mr Potkonyak states his occupation as “applicant for the admission to the legal profession in NSW”. He deposes to having been asked by Mr Laurie to represent him in the appeal proceedings on 25 November 2008 and says he has agreed to act on a pro bono basis. He does not adduce evidence as to his relationship with Mr Laurie, how long he has known him, or in what context this request arose.
Mr Gouliaditis for the Child Support Registrar, and Mr Maurice, Counsel for the Respondent mother, opposed the application.
Mr Potkonyak said he needs the court’s leave because he has not been admitted to the legal profession of NSW even though he believes he has met all the requirements for admission as prescribed by the relevant rules, including completing an LLB at the University of Western Sydney, and completing 9 weeks of practical legal training.
He annexed a letter from the Head of the LLB program in the school of law at the University of Western Sydney, dated 22 October 2008, confirming he has completed course requirements for an LLB.
Mr Potkonyak said that his application for admission to the legal profession is before the Legal Profession Admission Board and is due to be decided on 25 November 2008. He said the admission ceremony is scheduled for 5 December 2008 in the Supreme Court of NSW.
He did not adduce any evidence from the Legal Profession Admission Board.
Section 25 of the Legal Profession Act 2004 provides that the Legal Profession Admission Board must consider the suitability matters under section 9 of the Act and any other matters it thinks are relevant before deciding whether an applicant for admission should be admitted. Those matters include whether the applicant is of good fame and character, and a wide range of other matters. The Supreme Court admits lawyers on the advice of the Legal Profession Board by way of a compliance certificate. The question of whether Mr Potkonyak is a fit and proper person to be admitted arises when the Legal Profession Admission Board considers an application for admission, and again when the Law Society considers the issuing of a practising certificate. Section 48 of the Act provides that the Council can refuse to grant a practising certificate. The Applicant must satisfy these requirements before being able to sign the Supreme Court or the High Court roll. It follows therefore, that Mr Potkonyak must pass a number of steps before he will be entitled to represent a litigant in this court as a qualified legal practitioner.
Mr Potkonyak deposed to having considerable experience in the courts, and in the Family Court in particular, either as a self-represented litigant or in assisting other self-represented litigants. Mr Gouliaditis said from the Bar Table that Mr Potkonyak had been twice declared a “vexatious litigant” in the Family Court. Mr Potkonyak took objection to this assertion and said it was only on one occasion that he was declared a “vexatious litigant.” He then made serious allegations about a former Judge of that Court. I was not provided with a specific reference to those matters. However, in the NSW District Court decision of Potkonyak and Powell[1], his Honour DCJ Neilson refers to an application made by Mr Potkonyak in the Family Court, without reference to a citation but from a reading of the decision some time after January 2001, which resulted in the application being summarily dismissed and an order being made declaring Mr Potkonyak a vexatious litigant. According to his Honour in that case, Mr Potkonyak appealed that decision which was dismissed by the Full Court of the Family Court. In his reasons for judgment in Potkonyak v Powell, DCJ Neilson[2] said Mr Potkonyak has brought a number of unsuccessful applications on his own behalf in the Family Court. However, as already stated, I don’t have those references.
[1] [2007] NSWDC 282
[2] At paragraph 29
Mr Gouliaditis relied on section 44 of the Federal Magistrates Act 1999 and on a number of authorities. He gave notice of his submissions to the Court, to the Applicant and to Mr Potkonyak by letter dated
19 November 2008. These submissions were helpful. Mr Maurice did not add to those submissions.
The relevant law
Section 44 of the Federal Magistrates Act 1999 provides:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Although Mr Potkonyak has completed his law degree and anticipates being admitted as a solicitor very soon, he is not yet a solicitor with an entitlement to practice in this or any other court. He therefore does not qualify to represent a litigant in this court under section 44.
However, as referred to in the 2002 Court of Appeal decision of Damjanovic v Maley[3], Halsbury’s Laws of Australia state that a court has an inherent right, in regulating its own proceedings, to allow a person (not being a lawyer entitled to practice), to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice. It has been held in the case of P & R[4] that the Federal Magistrates Court has inherent power to permit persons not referred to in section 44 to appear. However, his Honour Federal Magistrate Driver says that leave to give such permission is used sparingly with the right of appearance generally being restricted to parties and qualified persons. Leave is subject to the discretion of the individual judicial officer. As set out in the submissions of
Mr Gouliaditis, his Honour FM Driver said this in P & R:
The power to grant leave to an unqualified advocate is used sparingly. There are good reasons why that is so. First, the general restriction of the right of appearance to parties and qualified persons seeks to ensure that the court has the assistance of either parties who know their case or qualified legal practitioners who can make informed submissions or assist the court. In addition… legal practitioners have ethical duties both to their clients and to the court, while unqualified persons are not in the same position. Further, a legal practitioner can be expected to understand the difference between acting on instructions and acting without instructions. There is a real risk that an unqualified advocate will stray across the line and take over the running of the case. Clearly the discretionary power should not be exercised as a matter of course.
[3] [2002] NSWCA 230
[4] P & R (No.1) [2002] FMCAfam 65
In Damjanovic v Maley [5], Mr Damjanovic appealed a decision of
Judge Dent of the District Court of 10 April 2001 when his Honour refused leave to a lay advocate to appear on his behalf. The person seeking to appear as lay advocate in that case told the Court she was a family friend of the Appellant. As it transpired, though not disclosed by the lay advocate, she also had a financial interest in the outcome of the proceedings. The case did not address the issue as to whether a court has the power to declare a person the solicitor on the record for the purpose of conducting proceedings on behalf of a party when the person had not yet been admitted to practice. So I do not take that case to be authority for the proposition put by Mr Potkonyak. That appeal addressed the question of whether, on the particular facts of the case before his Honour Judge Dent, his Honour failed to properly exercise his discretion when he refused leave to the lay person to appear. The Court of Appeal dismissed that appeal. The Court held Judge Dent had properly exercised his discretion in that he did not act on any wrong principle, he considered relevant considerations and did not take into account irrelevant considerations. The Court of Appeal set out a number of principles relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. The Court of Appeal held that:
a)The Appellant’s poor command of the English language is no reason to grant a lay person leave to appear as his advocate;
b)The overall duty of a barrister or solicitor to the court is an important consideration. The court is entitled to place reliance on that duty and expect it to be met. The absence of a disciplinary code and duty to the court underlies the inappropriateness of permitting unqualified persons to appear apart from an exceptional case. Almost every case on the question of granting leave to lay advocates refers to this issue;
c)The protection of the client and opponent is an important discretionary factor to consider. For example, an unqualified advocate may cause loss to a party; and
d)An emergency situation may justify a court in granting leave.
[5] [2002] NSWCA 230
In the case of R v E J Smith[6], a 1982 decision of the Court of Criminal Appeal, quoted in the case of Damjanovic [7], his Honour Chief Justice Street drew attention to the difficulties for a court which had no direct access “in a disciplinary and controlling sense” to a lay person. The Court of Appeal also referred to a New Zealand decision of Tritonia, Hubbard and Re Education Pty Ltd and the Companies Act (1963) NSWR 1340 [8] in which Cooke J, as he then was, reinforced the importance of advocates observing the rules of their profession and being subject to disciplinary codes.
[6] (1982) 2 NSWLR 608
[7] At paragraph 42
[8] At paragraph 44
In the Full Court of the Family Court decision In the Marriage of MG[9] it was held:
Save for the leave of the court to be granted usually only in exceptional circumstances, no person may appear as an advocate before the court on behalf of another person unless they are admitted to practice, and in this court have signed the High Court roll of practitioners.
[9] [2000] FamCA 893
In that case, the husband sought the leave of the court for a layman to appear as an advocate on his behalf or to assist as a McKenzie friend. From its own records, the court in that case was aware that the layman was the subject of an outstanding order under section 118 of the Family Law Act 1975 (which concerns vexatious litigants) prohibiting him from commencing any proceedings under the Act without the leave of the court. The Court held that it would be anomalous to grant leave for such a person to appear as a lay advocate.
At the time of the hearing of this application, Mr Potkonyak does not know whether or not he has been assessed as a fit and proper person to be admitted as a solicitor in accordance with the requirements of the Legal Profession Act 2004. And even if he is granted the right to be admitted, he must also succeed in his application for a practising certificate and inclusion on the roll of solicitors in the Supreme Court of NSW and the High Court.
Mr Potkonyak submits that the applicant in this case is not capable of representing himself because his command of English is simply not good enough. Mr Potkonyak submits, given he expects to be admitted to practice as a solicitor so shortly, that his position is different from other lay persons who may seek to appear. Mr Potkonyak submits there would be a very slim chance of any claim being made against him for negligence, so the court should have no concerns about the lack of protections, including indemnity insurance, afforded a litigant who is represented by a person entitled to practice. Mr Potkonyak submits there is nothing to prevent him appearing for the applicant given his legal qualifications and experience in conducting litigation.
Determination
The applicant’s Notice of Appeal came before this court in June 2008 and has been before the court on 3 further occasions since then. At no time has the Applicant made a request for an interpreter in his first language. Interpreters are routinely appointed by this court when litigants request such assistance. The Applicant did not seek an interpreter in the SSAT proceedings either.
The Applicant adduces no medical or other evidence as to his capacity to represent himself in the proceedings. And as he has not requested an interpreter, I find it likely that he can speak and understand English. The applicant adduces no evidence as to the level of Mr Potkonyak’s capacity to speak and understand the applicant’s first language, nor does Mr Potkonyak offer to act as an interpreter. Apart from these matters, in support of the application, neither the applicant nor
Mr Potkonyak adduces evidence as to the outcome of the applicant’s legal aid review application, nor as to his financial capacity to retain legal representation, nor as to any attempts he may have made to obtain pro bono representation from a legal practitioner qualified to practice either through the Law Society or the Bar Association. It is therefore not clear on the evidence before me whether the assistance of a practitioner entitled to appear may have been available.
I know nothing of Mr Potkonyak’s relationship with the applicant or as to whether he is in a position to offer impartial advice. I am told by
Mr Potkonyak himself that he has been declared a vexatious litigant in family law proceedings, although only on one occasion. It may be, if this is known to the Legal Profession Admission Board or the Law Society, that it would be a matter relevant to Mr Potkonyak’s application for admission. As earlier noted, professional and ethical standards required of the legal profession are fundamental safeguards to the proper administration of justice, from both litigants and from the court’s perspective. I am concerned that Mr Potkonyak does not recognise the distinction between being a fully qualified solicitor with a right to practise in a court and a legally qualified person not yet admitted to practise.
Having regard to the principles I have referred to from the authorities in exercising my discretion, in particular, to the importance to the court and to litigants of a solicitor’s professional duties and obligations I am not satisfied in the circumstances of this case that it is appropriate for leave to be granted to the applicant for Mr Potkonyak to appear as advocate on his behalf. The applications will therefore be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 28 November 2008
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