Mayger v Community Accommodation and Respite Inc (No.2) - [2017] FCCA 470

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYGER v COMMUNITY ACCOMMODATION & RESPITE INC (No.2)

[2017] FCCA 470

Catchwords:
INDUSTRIAL LAW – PRACTICE & PROCEDURE – McKenzie Friend – Application for person to appear as lay advocate by extension of principle of McKenzie Friend.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Act 1999 (Cth), ss.15 & 44
Federal Circuit Court Rules 2001 (Cth), r.15.07
Federal Court Act 1976 (Cth), s.23
Federal Court Practice Notes, Expert Evidence Practice Notes at paras 2.2, 3.3(a) & 5
Judiciary Act 1903 (Cth)

Cases cited:

Mayger v Community Accommodation & Respite Inc ta CARA [2016] FCCA 2151

Santos v The State of Western Australia (No.2) [2013] WASCA 39
Cristovao v Registrar Caporale [2012] FCA 1329
Collins v The Department of Finance and Deregulation [2011] FMCA 240
Nepal v The Minister for Immigration & Border Protection [2015] FCA 366
Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111
Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481
D v S (Rights of Audience) [1997] 1 FLR 724
Damjanovic v Maley (2002) 55 NSWLR 149
Wollongong City Council v Falamaki [2009] FMCA 1204
ING Bank (Australia) Ltd v Shortland [2012] FMCA 868
Elhamid v Minister for Immigration and Citizenship (No.2) [2012] FMCA 740
Coombe v Bonney [2015] FCCA 916
WZASU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 2109

Applicant:

MERILYN ANN MAYGER

Respondent:

COMMUNITY ACCOMMODATION & RESPITE INC T/A CARA

File Number:

ADG 475 of 2015

Judgment of:

Judge Heffernan

Hearing date:

16 November 2016

Date of Last Submission:

16 November 2016

Delivered at:

Adelaide

Delivered on:

21 March 2017

REPRESENTATION

The Applicant:

In person with the assistance from Mr Mayger

Counsel for the Respondent:

Mr S McGrath

Solicitors for the Respondent:

Cowell Clarke Commercial Lawyers

THE COURT NOTES THAT:

The applicant’s Initiating Application in this matter is to be referred for legal assistance pursuant to r.12.02(1) of the Federal Circuit Court Rules 2001 (Cth).

ORDERS

The application for an order that Mr Mark Mayger be granted a right of audience to represent the applicant in this matter is dismissed.
There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 475 of 2015

MERILYN ANN MAYGER

Applicant

And

COMMUNITY ACCOMMODATION & RESPITE INC T/A CARA

Respondent

REASONS FOR JUDGMENT

This is an application by Mrs Merilyn Mayger for an order that her husband, Mr Mark Mayger, be given a right of audience to appear as a lay advocate in these proceedings by extension of the concept of a McKenzie Friend. The applicant is unrepresented because she is not able to afford legal representation and has not been able to secure Pro Bono assistance from a legal practitioner.
In an earlier ruling, I gave leave for Mr Mayger to act as a McKenzie Friend for his wife.[1] I indicated on that occasion that I would hear the parties as to the extent to which Mr Mayger should be permitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 470
Decision Date: 21 March 2017

CaseChat Overview and Summary

In *Mayger v Community Accommodation and Respite Inc (No.2)*, the applicant, Ms Mayger, sought to have the respondent, Community Accommodation and Respite Inc, declared a vexatious litigant. The application was heard in the Supreme Court of Queensland by Judge Heffernan.

The central legal issue before the Court was whether the respondent had engaged in a pattern of litigation that was so manifestly unjust or unreasonable that it ought to be restrained from commencing or continuing legal proceedings without leave of the Court. This required the Court to consider the nature and history of the respondent's previous applications and the impact of those proceedings.

Judge Heffernan found that the respondent had a history of making applications that were repetitive, lacked any reasonable prospect of success, and were pursued in a manner that caused significant distress and expense to the applicant. The Court applied the principles established in cases concerning vexatious litigants, focusing on the need to balance the right of access to the courts with the protection of individuals from the abuse of that process. The Court determined that the respondent's conduct met the threshold for being declared a vexatious litigant.

Consequently, the Court made orders declaring Community Accommodation and Respite Inc a vexatious litigant and prohibiting it from commencing or continuing any legal proceedings in any Australian court without first obtaining leave from the court.

Orders