Maksacheff v Commonwealth Bank of Australia

[2016] NSWSC 1108

Supreme Court

New South Wales

Medium Neutral Citation:	Maksacheff v Commonwealth Bank of Australia [2016] NSWSC 1108
Hearing dates:	10 August 2016
Date of orders:	10 August 2016
Decision date:	10 August 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I grant leave to Mr Andrews to appear but i decline leave to Mr Evans.
Catchwords:	PRACTICE AND PROCEDURE– application for non-lawyer to represent plaintiffs– where first plaintiff has an ailment which prevents him from talking– application granted
Texts Cited:	P Taylor et al, Ritchie's Uniform Civil Procedure in New South Wales, (2005, Lexis Nexis)
Category:	Procedural and other rulings
Parties:	Daniel James Maksacheff (First Plaintiff) Agnieszka Iwona Maksacheff (Second Plaintiff) Commonwealth Bank (First to Fifth Defendants)
Representation:	Counsel: M Andrews (Amicus) J Hynes (First to Fifth Defendants) Solicitors: Gadens Lawyers (First to Fifth Defendants)
File Number(s):	2016/00115260

Ex Tempore Judgment (revised)

1. HIS HONOUR: This is an action by former customers against the Bank, some of its officers and its solicitor. The plaintiffs, Mr and Mrs Maksacheff, are not legally represented.

2. The claim, from what I can deduce by reference to the statement of claim and proposed amended statement of claim, purports to be brought in contract. The plaintiffs are claiming somewhat in excess of $2.8 million in damages from the Bank based upon an alleged default by the Bank on a contract made, according to the plaintiffs’ case, on or about the 30 November 2015.

3. The background to the case is that the plaintiffs' mortgaged their property with the Bank. Alleging default, the Bank ultimately obtained possession and exercised its power of sale.

4. In the course of the somewhat protracted proceedings necessary to enforce the judgment, the plaintiffs purported to discharge the mortgage by tendering a document described by them as a promissory note, coupled with what was termed a non-negotiable contract. The plaintiffs assert that the Bank accepted that tender and that their indebtedness was thereby discharged.

5. Although the Bank has yet to file a defence, from the material served in relation to this application for summary dismissal, I can deduce that the Bank asserts there is no evidence of acceptance of that tender or, to put it another way, of the entry into any binding contract by reference to the ordinary principles of contract law recognised in Australia.

6. The Bank's application for summary dismissal is listed for hearing before me today. When the case was called, Mr Maksacheff, who I infer has the authority of his wife for the conduct of these proceedings, sought leave to appear by Mr Mark Andrews and Mr Anthony Evans, both of whom are said to have his power of attorney. Neither is a legally qualified lawyer. Neither has been admitted to practise and neither has signed the roll of practitioners in this court. It follows from these circumstances that neither has a right of audience in this court and the question of whether they may appear on behalf of the plaintiffs depends upon the court granting leave.

7. Essentially what is sought is for Mr Andrews and Mr Evans to appear amicus curiae. Mr Maksacheff, in a hesitant and a faltering voice, made the application saying he didn't have the voice to put forward the arguments he wished to advance today and requested I permit his friends, who apparently have his power of attorney, to appear for him.

8. The application is opposed by Mr Hynes of counsel who appears for the defendants, the applicants on the motion. There are, of course, many difficulties in allowing persons who have not acquired the skill and learning of lawyers to appear as advocates in court. It is obvious that such persons do not have the privileges that professional advocates have in terms of immunity from suit. Nor can it be assumed that such persons will fully appreciate the duty of absolute candour that professional advocates are subject to. It cannot be assumed that such persons will fully understand that their first duty is to assist the court in arriving at the decision which the interests of justice require.

9. However, the court's power to grant leave is broad. It has been said that the matter is entirely in the discretion of the court. Relevant factors, not exhaustively, according to the learned authors of Ritchie's Uniform Civil Procedure in New South Wales, include whether allowing another to appear is apt to assist the court in the resolution of the proceedings; whether the appearance is in the interests of the parties (or either of them); whether the appearance is likely to unduly extend the time necessary for the determination of the case; and whether the appearance will add inappropriately to the cost of the proceedings.

10. I am informed by Mr Andrews and Mr Evans that neither is charging a fee. I record that were it otherwise doubtless a breach of the legislation governing the conduct of legal practitioners would have occurred.

11. It should not be assumed that the court will readily grant leave to friends or associates of litigants in person to appear as advocates, especially where, as here, a serious matter is required to be determined. One can well appreciate the difficulty that persons sometimes have, especially those of ordinary means, in obtaining the services of qualified lawyers to advance cases they wish to advance. Many persons find themselves in that position in the lists of this Division.

12. However, lack of means to retain a lawyer is not an advantage or a privilege and that circumstance ought not be seen as one which will confer additional rights upon the litigant over and above those of other litigants in the court who are forced to represent themselves without the advantage of people of good intentions who wish to help.

13. Mr Andrews tells me he has some experience and I gather from what he has said Mr Evans assisted the plaintiffs putting together the documentation which is the foundation of this claim.

14. Notwithstanding the factors which tell against the grant of leave, I am persuaded that it may be in the interests of justice to allow Mr Maksacheff to be represented. It seems to me that it may assist in identifying the issues and, given the seriousness of the relief sought by the Bank and the other defendants, it would be undesirable if it could be said that Mr & Mrs Maksacheff were not given a fair go to defend their ordinary right to advance the case filed in court to a final hearing on the merits.

15. However, as Mr Evans is potentially a witness in the case at some stage, if it proceeds to a hearing, I think it entirely inappropriate that he should adopt the role of an advocate. Advocates need to be completely independent from the circumstances of the case and a person who might in due course give evidence about the documents drawn and the other circumstances relating to the case that the plaintiffs wish to make cannot have that independence.   

16. So I will grant leave to Mr Andrews to appear but I decline leave to Mr Evans.

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Decision last updated: 15 August 2016